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Custody and Supervision Orders

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 99191)

General Principles

See also: Dispositions for Young Offenders and Youth Serving Custody Sentences

Custody and Supervision Orders are available under s. 42(2)(n):

42
[omitted (1)]

Youth sentence

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code [classification of murder], the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:

[omitted (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m)]
(n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order;
(o) in the case of an offence set out in section 239 (attempt to commit murder), 232 [murder reduced to manslaughter], 234 [manslaughter definition] or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1)(continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105 [conditional supervision];
[omitted (p), (q), (r) and (s)]

[omitted (3), (4), (5), (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.

– YCJA (CanLII), (DOJ)

Note up: 42(2)

Purpose

A primary purpose of a community superivision order is to "promote rehabilitation and reintergration."[1]

  1. ↑ R v KPA, 2005 SKCA 149 (CanLII), 204 CCC.(3d) 161, per Richard J, at para 34 ("One of the central purposes of community supervision is to promote rehabilitation and reintegration. ")

Pre-Condition to Custody

Section 39(1) prohibits a Youth Justice from imposing a term of custody unless one or more of four preconditions exist. Specifically, that:

  • the offence is a violent offence;
  • the young person failed to comply with a non-custodial sentence;
  • the offence is indictable offence with maximum penalty of two years or more and the existence of a " pattern of either extrajudicial sanctions or of findings of guilt" for Criminal Code offences; or
  • any indictable offence where the circumstances are so aggravating that non-custodial would be "inconsistent with the purpose and principles" of the YCJA.
Committal to custody

39 (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;
(b) the young person has failed to comply with non-custodial sentences;
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or
(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[omitted (2), (3), (4), (5), (6), (7) and (8)]
2002, c. 1, s. 39; 2012, c. 1, s. 173; 2019, c. 25, s. 372.

– YCJA (CanLII), (DOJ)

Note up: 39(1)

Section 39 (1) sets out the four "gateways to custody". The first three "gateways" section 39 (1)(a), (b), and (c) are further limited by sections 39 (2) and (3).[1]

Section 39(1)(a): Violent Offences

Section 2 defines "violent offence" as:

2 (1) The definitions in this subsection apply in this Act.
...
 "violent offence" means

(a) an offence committed by a young person that includes as an element the causing of bodily harm;
(b) an attempt or a threat to commit an offence referred to in paragraph (a); or
(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

...
 [omitted (2) and (3)]
2002, c. 1, s. 2, c. 7, s. 274; 2012, c. 1, s. 167; 2014, c. 2, s. 52.

– YCJA (CanLII), (DOJ)

Note up: 2

The term "substantial likelihood" is found in several sections of the Code including the bail provisions and the NCR provisions.

This definition was added in 2012.[2] Prior to the amendment, violent offence was interpreted to have a "harm-based" approach, such that all "serious violent offences" are also considered "violent offences", it can include psychological harm, and will include harm that is "threatened", as well as "caused or attempted."[3] It will not include where bodily harm is merely intended or where there was a reasonable foreseeability of harm.[4]

  1. ↑ R v ST, 2009 BCCA 274 (CanLII), 273 BCAC 90, per Kirkpatrick JA, at para 16
  2. ↑ see Safe Streets and Communities Act, S.C. 2012, s. 1
  3. ↑ D(C); R v K(CD), 2005 SCC 78 (CanLII), [2005] 3 SCR 668, 203 CCC (3d) 449, per Bastarache J
  4. ↑ D(C), ibid.

Section 39(1)(b): Failure to Comply

Section 39(1)(b) requires that there be a breach of at least two separate court orders before the court has jurisdiction to impose a custodial sentence.[1]

No Finding of Guilt

There is no need to have a finding of guilt before invoking 39(1)(b). It is sufficient that the accused simply failed to comply with any part of the sentence.[2]

  1. ↑ R v CL, 2010 CanLII 46144 (NL PC), per Gorman J, at para 60
    R v GMS, 2004 NLSCTD 141 (CanLII), 242 Nfld. & P.E.I.R. 220, per Handrigan JA
    R v ST, 2009 BCCA 274 (CanLII), 273 BCAC 90, per Kirkpatrick JA
  2. ↑ R v DLC, 2003 CanLII 32877 (NL PC), [2003] N.J. No. 94, per Gorman J
    R v RPB, 2003 ABPC 134 (CanLII), [2003] A.J. No. 925, per Franklin ACJ
    R v EA, 2003 CanLII 72334 (ON SC), 178 CCC (3d) 568 per Kukurin YCJ

Section 39(1)(c): History

Section 39(1)(d): Exceptional Cases

Section 39 (1)(d) is said to be reserved for "exceptional cases" which must be "the clearest of cases where… Custody is obviously the only justifiable disposition". This will include where the circumstances are "so shocking us to threaten widely shared societal views."[1]

Cases that have been held to be exceptional under section 39 (1) include:[2]

  • trafficking in cocaine possession for the purpose of trafficking in cocaine
  • Perjury in a first-degree murder inquiry
  • Breaking entering to steal two Long guns and sawing off their barrels.
  • Possession of a prohibited firearm or unauthorized possession of a firearm in a motor vehicle
  • Possession of a semi automatic handgun
  • Pointing a firearm in circumstances where a youth was accidentally shot
  • A series of residential break ins
  • Stealing a truck and setting it on fire
  1. ↑ R v JK, 2011 NWTTC 11 (CanLII), [2011] AWLD 3217, per Gorin J, at para 26
    R v REW, 2006 CanLII 1761 (ON CA), 205 CCC (3d) 183, per Rosenberg JA
  2. ↑ JK, supra, at para 30

No Reasonable Alternative

Section 39(2) requires that the judge consider and dismiss all reasonable alternatives to custody raised by counsel before custody can be imposed.

39 [omitted (1)]

Alternatives to custody

(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

Factors to be considered

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;
(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and
(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.
Imposition of same sentence

[omitted (4), (5), (6), (7), (8) and (9)]
2002, c. 1, s. 39; 2012, c. 1, s. 173; 2019, c. 25, s. 372.

– YCJA (CanLII), (DOJ)

Note up: 39(2) and (3)

Other Requirements

39 [omitted (1), (2) and (3)]

Imposition of same sentence

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

Custody as social measure prohibited

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.
[omitted (6) and (7)]

Length of custody

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.
[omitted (9)]
2002, c. 1, s. 39; 2012, c. 1, s. 173; 2019, c. 25, s. 372.

– YCJA (CanLII), (DOJ)

Note up: 39(4), (5) and (8)


PSR Requirements for Custody Orders

A youth justice must order a pre-sentence report before a custodial sentence can be made.[1]

The pre-sentence report can be omitted on consent of both parties where "the report is not necessary."[2]

Reasons must be given anytime a custodial order is made explaining why non-custodial sentence was not ordered.[3]

  1. ↑ Section 39 (6) states "(6) Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel."
  2. ↑ Section 39(7) states "(7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary."
  3. ↑ Section 39 (9) states "(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d)."

Conditions

Conditions to be included in custody and supervision order

97 (1) Every youth sentence imposed under paragraph 42(2)(n) shall contain the following conditions, namely, that the young person, while serving the portion of the youth sentence under supervision in the community,

(a) keep the peace and be of good behaviour;
(b) report to the provincial director and then be under the supervision of the provincial director;
(c) inform the provincial director immediately on being arrested or questioned by the police;
(d) report to the police, or any named individual, as instructed by the provincial director;
(e) advise the provincial director of the young person’s address of residence and report immediately to the provincial director any change
(i) in that address,
(ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work,
(iii) in the young person’s family or financial situation, and
(iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the sentence; and
(f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of the young person participating in a program specified in the authorization.
Other conditions

(2) The provincial director may set additional conditions that support and address the needs of the young person, promote the reintegration of the young person into the community and offer adequate protection to the public from the risk that the young person might otherwise present. The provincial director shall, in setting the conditions, take into account the needs of the young person, the most effective programs for the young person in order to maximize his or her chances for reintegration into the community, the nature of the offence and the ability of the young person to comply with the conditions.

Communication of conditions

(3) The provincial director shall

(a) cause the conditions to be read by or to the young person bound by them;
(b) explain or cause to be explained to the young person the purpose and effect of the conditions, and confirm that the young person understands them; and
(c) cause a copy of the conditions to be given to the young person, and to a parent of the young person.
Provisions to apply

(4) Subsections 56(3) (endorsement of order by young person) and (4) (validity of order) apply, with any modifications that the circumstances require, in respect of conditions under this section.

– YCJA (CanLII), (DOJ)

Note up: 97(1), (2), (3), and (4)

Director Sets Terms and Conditions

Under s. 97(2), only the provicinal director may set terms and conditions of a community supervision order.[1]

  1. ↑ R v HTN, 2006 BCCA 218 (CanLII), 209 CCC (3d) 318, per Levine JA

Conditions Under s. 42(2)(o)

A youth court judges cannot set conditions that are imposed under the community supervision portion of the sentence under 42(2)(o)[1]

There is no maximum time permitted for the supervisory portion of an order under s. 42(2)(o).[2]

  1. ↑ R v HTN, 2006 BCCA 218 (CanLII), 209 CCC (3d) 318, per Levine JA
  2. ↑ R v BWP, 2004 MBCA 110 (CanLII), 187 CCC (3d) 20, per Hamilton JA aff'd at 2006 SCR 941, per Charron J

Continuous vs Intermittent Custody

Committal to custody deemed continuous

47 (1) Subject to subsections (2) and (3), a young person who is sentenced under paragraph 42(2)(n) is deemed to be committed to continuous custody for the custodial portion of the sentence.

Intermittent custody

(2) If the sentence does not exceed ninety days, the youth justice court may order that the custodial portion of the sentence be served intermittently if it is consistent with the purpose and principles set out in section 38.

Availability of place of intermittent custody

(3) Before making an order of committal to intermittent custody, the youth justice court shall require the prosecutor to make available to the court for its consideration a report of the provincial director as to the availability of a youth custody facility in which an order of intermittent custody can be enforced and, if the report discloses that no such youth custody facility is available, the court shall not make the order.

– YCJA (CanLII), (DOJ)

Note up: 47(1), (2) and (3)

Remand Credit

A young offender should be given 1.5:1 credit for remand time.[1] However, the ultimate decision on treating pre-sentence custody is discretionary, and can give no credit if appropriate in the circumstances.[2]

Section 38(3)(d) of the YCJA states that "In determining a youth sentence, the youth justice court shall take into account ... the time spent in detention as a result of the offence”. This requires that the judge reduce the potential maximum sentence by at least the number of actual days spent on remand.[3]

  1. ↑ R v JEO, 2013 SKCA 82 (CanLII), 417 Sask R 244, per Richards JA
  2. ↑ R v DS, 2008 ONCA 740 (CanLII), [2008] OJ No 4231, per Gillese JA, at para 26
    R v DW, 2008 ONCA 268 (CanLII), 79 WCB (2d) 80, per curiam, at para 3
    R v MW, 2017 ONCA 22 (CanLII), 346 CCC (3d) 319, per Epstein JA, at para 78
  3. ↑ R v TB, 2006 CanLII 4487 (ON CA), 206 CCC (3d) 405, per Lang JA, at paras 19, 25
    DS, supra

Breach of Custody and Supervision Orders

See Also

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