Jump to content

Discharges and Probation Orders for Young Offenders

From Criminal Law Notebook

General Principles

See also: Dispositions for Young Offenders

Discharges

See also: Discharges

Section 42 permits two types of discharge, an absolute discharge and a conditional discharge:

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, 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) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest;
(c) by order direct that the young person be discharged on any conditions imposed by the court in accordance with paragraph 38(2)‍(e.‍1) and may require the young person to report to and be supervised by the provincial director;
[omitted (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (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)

The standard applied for discharges of youths is different from that applied to adults. Section 3 and 38 of the YCJA are to be applied.

Conditional Discharge

It is an error of law to apply the two part test for a discharge that is applied to adult offenders under s. 730 of the Code.[1]

Under the YCJA there is no mechanism under which a "conviction" is entered.[2]

There is some suggestions that both best interests of the young person and the public interest are not statutory requirements for conditional discharges.[3]

The primary difference between a youth discharge and youth probation is the effect that it has on the youth's record.[4] A probation record will be accessible for longer than a discharge record under s. 119 of the YCJA.[5] The difference does not necessarily equate to being more lenient.[6]

A youth discharge is different from an adult discharge. The main feature of an adult discharge being an absence of a criminal record is of less importance to a youth.[7]

The difference between youth discharge and youth probation is "minuscule" and is hardly any more "lenient". It is the duration that determines the "strictness/leniency of the sanction and not the vehicle" that is used.[8]

A probationary term is more suitable where the judge wishes that the youth be required to "keep the peace and be of good behaviour" or where future reporting is required.[9]

All offenders receive a youth record whether it is a discharge or a probation order.[10]

Under the test for a discharge, the test will "almost always be met."[11] This is largely due to the fact that there is little public interest in the "record access period."[12]

Leniency of the sentence is determined by the length of the terms and conditions, rather than the difference between probation and discharges.[13]

Effect on Youth Employment

A youth conditional discharge does not protect a young person's career aspirations any more effectively than a probation order.[14]

Terms

There are no mandatory conditions to a conditional discharge unlike a probation order.[15]

  1. ↑ R v CSW, 2004 ABCA 352 (CanLII), 357 AR 232, per Brooker JA (3:0)
  2. ↑ Bloomfield, Youth Criminal Justice Act Manual
  3. ↑ R v MSS, 2008 SKPC 5 (CanLII), 312 Sask R 203, per Whelan J, at para 13(item ii)
    R v SMR, 2004 SKPC 131 (CanLII), 191 CCC (3d) 524, per Whelan J, at para 36
    R v CSW, 2004 ABCA 352 (CanLII), 357 AR 232, per Brooker JA, at paras 4 to 5
    R v RP, 2004 ONCJ 190 (CanLII), per Duncan J, at para 11 and footnote #3
    cf. LSJPA, 2006 QCCQ 6900 (CanLII), QJ 5217, per Lefebvre J, at paras 41 to 42 and 65
  4. ↑ R v BWP, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J (7:0)
    R v PJS, 2008 NSCA 111 (CanLII), 240 CCC (3d) 204, per Roscoe JA (3:0)
  5. ↑ PJS, ibid., at para 15
  6. ↑ PJS, ibid., at para 16
  7. ↑ PJS, ibid., at para 16
  8. ↑ R v RP, 2004 ONCJ 190 (CanLII), 190 CCC (3d) 244, per Duncan J
  9. ↑ R v MSS, 2008 SKPC 5 (CanLII), 312 Sask R 203, per Whelan J
    cf. R v PJM, 2009 ABPC 207 (CanLII), per Fradsham J
  10. ↑ R v P(R), 2004 ONCJ 190 (CanLII), 190 CCC (3d) 244, per Duncan J
  11. ↑ P(R), ibid.
  12. ↑ P(R), ibid.
  13. ↑ P(R), ibid.
  14. ↑ PJS, supra
  15. ↑ R v MSS, 2008 SKPC 5 (CanLII), 312 Sask R 203, per Whelan J

Probation

See also: Probation Orders

A sentence of probation and conditional discharge are inconsistent with each other and cannot both be applied.[1]

42
[omitted (1)]
(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, 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) and (j)]
(k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;
[omitted (l), (m), (n), (o), (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)

  1. ↑ R v RCM, 2009 ABPC 130 (CanLII), 472 AR 317, per Redman J, at para 26
Retrieved from "https://criminalnotebook.ca/index.php?title=Discharges_and_Probation_Orders_for_Young_Offenders&oldid=98828"