Custody and Supervision Orders
| This page was last substantively updated or reviewed January 2020. (Rev. # 99586) |
General Principles
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.
Purpose
A primary purpose of a community supervision order is to "promote rehabilitation and reintergration."[1]
- PART 5
- Custody and Supervision
- Purpose
83 (1) The purpose of the youth custody and supervision system is to contribute to the protection of society by
- (a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and
- (b) assisting young persons to be rehabilitated and reintegrated into the community as law-abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community.
- Principles to be used
(2) In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose:
- (a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used;
- (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as a consequence of a sentence under this Act or another Act of Parliament;
- (c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public;
- (d) that custody and supervision decisions be made in a forthright, fair and timely manner, and that young persons have access to an effective review procedure; and
- (e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release.
- ↑ 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-Conditions to a Custody and Supervision Order
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), (7), (8) and (9)]
2002, c. 1, s. 39; 2012, c. 1, s. 173; 2019, c. 25, s. 372.
Duration of Custody Order
39 [omitted (1), (2), (3), (4), (5), (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 [purpose, principles and factors in sentencing], 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 [annual review].
[omitted (9)]
2002, c. 1, s. 39; 2012, c. 1, s. 173; 2019, c. 25, s. 372.
The length should also be considered in light of s. 42(14), which requires that most sentences have a combined duration of no more than 2 years.[1]
Conditions
- Conditions to be included in custody and supervision order
97 (1) Every youth sentence imposed under paragraph 42(2)(n) [youth sentences – custody and supervision order (general)] 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.
- Director Sets Terms and Conditions
Under s. 97(2), only the provicinal director may set terms and conditions of a community supervision order.[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]
- ↑ R v HTN, 2006 BCCA 218 (CanLII), 209 CCC (3d) 318, per Levine JA
- ↑ R v BWP, 2004 MBCA 110 (CanLII), 187 CCC (3d) 20, per Hamilton JA aff'd at 2006 SCR 941, per Charron J
Treatment Program Conditions
42
[omitted (1) and (2)]
- Agreement of provincial director
(3) A youth justice court may make an order under paragraph (2)(l) or (m) [intensive support and supervision program or non-residential program] only if the provincial director has determined that a program to enforce the order is available. [omitted (4), (5), (6) and (7)]
- Safeguard of rights
(8) Nothing in this section abrogates or derogates from the rights of a young person regarding consent to physical or mental health treatment or care.
(9) and (10) [Repealed, 2012, c. 1, s. 174] 2002, c. 1, s. 42; 2012, c. 1, s. 174.
Levels of Custody
- Young person to be held apart from adults
84 Subject to subsection 30(3) (pre-trial detention), paragraphs 76(1)(b) and (c) (placement in adult facilities with adult sentence) and sections 89 to 93(placement in adult facilities with youth sentence), a young person who is committed to custody shall be held separate and apart from any adult who is detained or held in custody.
- Levels of custody
85 (1) In the youth custody and supervision system in each province there must be at least two levels of custody for young persons distinguished by the degree of restraint of the young persons in them.
- Designation of youth custody facilities
(2) Every youth custody facility in a province that contains one or more levels of custody shall be designated by
- (a) in the case of a youth custody facility with only one level of custody, being the level of custody with the least degree of restraint of the young persons in it, the lieutenant governor in council or his or her delegate; and
- (b) in any other case, the lieutenant governor in council.
- Provincial director to specify custody level — committal to custody
(3) The provincial director shall, when a young person is committed to custody under paragraph 42(2)(n), (o), (q) or (r) [youth sentences – certain custody and supervision orders and IRCS's] or an order is made under subsection 98(3) , paragraph 103(2)(b) , subsection 104(1) [continuation of custody] or paragraph 109(2)(b) [conditional supervision — deferred custody order — order to remain in custody], determine the level of custody appropriate for the young person, after having taken into account the factors set out in subsection (5) .
- Provincial director to specify custody level — transfer
(4) The provincial director may determine a different level of custody for the young person when the provincial director is satisfied that the needs of the young person and the interests of society would be better served by doing so, after having taken into account the factors set out in subsection (5) .
- Factors
(5) The factors referred to in subsections (3) and (4) are
- (a) that the appropriate level of custody for the young person is the one that is the least restrictive to the young person, having regard to
- (i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,
- (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,
- (iii) the safety of other young persons in custody, and
- (iv) the interests of society;
- (b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person; and
- (c) the likelihood of escape.
- Placement and transfer at appropriate level
(6) After the provincial director has determined the appropriate level of custody for the young person under subsection (3) or (4), the young person shall be placed in the youth custody facility that contains that level of custody specified by the provincial director.
- Notice
(7) The provincial director shall cause a notice in writing of a determination under subsection (3) or (4) to be given to the young person and a parent of the young person and set out in that notice the reasons for it.
- Procedural safeguards
86 (1) The lieutenant governor in council of a province shall ensure that procedures are in place to ensure that the due process rights of the young person are protected with respect to a determination made under subsection 85(3) or (4), including that the young person be
- (a) provided with any relevant information to which the provincial director has access in making the determination, subject to subsection (2) ;
- (b) given the opportunity to be heard; and
- (c) informed of any right to a review under section 87 .
- Withholding of information
(2) Where the provincial director has reasonable grounds to believe that providing the information referred to in paragraph (1)(a) would jeopardize the safety of any person or the security of a facility, he or she may authorize the withholding from the young person of as much information as is strictly necessary in order to protect such safety or security.
- Review
87 (1) A young person may apply for a review under this section of a determination
- (a) under subsection 85(3) that would place the young person in a facility at a level of custody that has more than a minimal degree of restraint; or
- (b) under subsection 85(4) that would transfer a young person to a facility at a level of custody with a higher degree of restraint or increase the degree of restraint of the young person in the facility.
- Procedural safeguards
(2) The lieutenant governor in council of a province shall ensure that procedures are in place for the review under subsection (1), including that
- (a) the review board that conducts the review be independent;
- (b) the young person be provided with any relevant information to which the review board has access, subject to subsection (3); and
- (c) the young person be given the opportunity to be heard.
- Withholding of information
(3) Where the review board has reasonable grounds to believe that providing the information referred to in paragraph (2)(b) would jeopardize the safety of any person or the security of a facility, it may authorize the withholding from the young person of as much information as is strictly necessary in order to protect such safety or security.
- Factors
(4) The review board shall take into account the factors referred to in subsection 85(5) in reviewing a determination.
- Decision is final
(5) A decision of the review board under this section in respect of a particular determination is final.
- Functions to be exercised by youth justice court
88 The lieutenant governor in council of a province may order that the power to make determinations of the level of custody for young persons and to review those determinations be exercised in accordance with the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985. The following provisions of that Act apply, with any modifications that the circumstances require, to the exercise of those powers:
- (a) the definitions review board and progress report in subsection 2(1);
- (b) section 11;
- (c) sections 24.1 to 24.3; and
- (d) sections 28 to 31.
Reintegration Leave
- Reintegration leave
91 (1) The provincial director of a province may, subject to any terms or conditions that he or she considers desirable, authorize, for a young person committed to a youth custody facility in the province further to an order under paragraph 76(1)(a) (placement when subject to adult sentence) or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) [youth sentences – certain custody and supervision orders and IRCS's],
- (a) a reintegration leave from the youth custody facility for a period not exceeding thirty days if, in the opinion of the provincial director, it is necessary or desirable that the young person be absent, with or without escort, for medical, compassionate or humanitarian reasons or for the purpose of rehabilitating the young person or reintegrating the young person into the community; or
- (b) that the young person be released from the youth custody facility on the days and during the hours that the provincial director specifies in order that the young person may
- (i) attend school or any other educational or training institution,
- (ii) obtain or continue employment or perform domestic or other duties required by the young person’s family,
- (iii) participate in a program specified by the provincial director that, in the provincial director’s opinion, will enable the young person to better carry out employment or improve his or her education or training, or
- (iv) attend an out-patient treatment program or other program that provides services that are suitable to addressing the young person’s needs.
- Renewal of reintegration leave
(2) A reintegration leave authorized under paragraph (1)(a) may be renewed by the provincial director for one or more thirty-day periods on reassessment of the case.
- Revocation of authorization
(3) The provincial director of a province may, at any time, revoke an authorization made under subsection (1).
- Arrest and return to custody
(4) If the provincial director revokes an authorization under subsection (3) or if a young person fails to comply with any term or condition of a reintegration leave or a release from custody under this section, the young person may be arrested without warrant and returned to custody.
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.
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]
- ↑ R v JEO, 2013 SKCA 82 (CanLII), 417 Sask R 244, per Richards JA
- ↑
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
- ↑
R v TB, 2006 CanLII 4487 (ON CA), 206 CCC (3d) 405, per Lang JA, at paras 19, 25
DS, supra
Procedure
42
[omitted (1), (2) and (3)]
- Youth justice court statement
(4) When the youth justice court makes a custody and supervision order with respect to a young person under paragraph (2)(n) [youth sentences – custody and supervision order (general)], the court shall state the following with respect to that order:
- You are ordered to serve (state the number of days or months to be served) in custody, to be followed by (state one-half of the number of days or months stated above) to be served under supervision in the community subject to conditions.
- If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well.
You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.
[omitted (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174.
- Youth Worker
- Youth worker
90 (1) When a youth sentence is imposed committing a young person to custody, the provincial director of the province in which the young person received the youth sentence and was placed in custody shall, without delay, designate a youth worker to work with the young person to plan for his or her reintegration into the community, including the preparation and implementation of a reintegration plan that sets out the most effective programs for the young person in order to maximize his or her chances for reintegration into the community.
- Role of youth worker when young person in the community
(2) When a portion of a young person’s youth sentence is served in the community in accordance with section 97 or 105, the youth worker shall supervise the young person, continue to provide support to the young person and assist the young person to respect the conditions to which he or she is subject, and help the young person in the implementation of the reintegration plan.