A. Definition of violent offence
The CBA Sections understand that the proposed definition of “violent offence”, in subsection 2(1) of the YCJA30 will affect the types of sentences available for young persons, including reducing non-custodial options for certain offences.31 By specifying that the offence must result in bodily harm, the proposed amendment expands access to non-custodial and deferred sentences for offences such as uttering threats, or other offences that did not cause bodily harm but had the potential or intent to do so. Conversely, it also captures offences such as s. 271, home invasions or driving offences where bodily harm is not specified as an element of the offence, but where bodily harm occurs during the commission of the offence.
The CBA Sections support provisions that preserve judicial discretion to impose appropriate and proportionate sentences. While acknowledging that this clarification may expand sentencing options in some cases and limit them in others, it ultimately restricts courts’ ability to craft meaningful, individualized sentences for youth, including the use of deferred sentences for violent offences. As a result, it should be expected that the limitations prescribed by the proposed definition will increase the rate of custodial sentences for youth, particularly marginalized, racialized and Indigenous youth and increasingly, female youth, who are disproportionately sentenced to incarceration at a higher rate than their nonracialized and marginalized cohort.
The CBA Sections endorse changes that increase the availability of deferred sentences for youth – even for violent offences causing bodily harm – where such sentences can provide meaningful consequences, protect the public, and offer rehabilitative opportunities within a structured framework.
B. Provisions concerning bail
The CBA Sections support expanding s. 9 to ensure that prior offences evidence is inadmissible to prove prior offending behaviour in all courts of justice, rather than being limited to youth courts. 32 This proposed amendment reinforces the foundational objectives of the YCJA, particularly rehabilitation, reintegration, proportionality, and privacy.
The addition of proposed ss. 108.1(1-4) is appropriate, as it establishes a clear statutory foundation to a young person’s right to apply for judicial interim release (bail) when their deferred sentences or community supervision sentences are being reviewed. This subsection appears to codify what youth courts have previously interpreted from common law principles and incorporated in Criminal Code provisions regarding youth-specific procedural availability33.
The CBA Sections are concerned about the expanded circumstances proposed in s. 29(1)34 that allow a youth justice court or a justice to impose more conditions on a release order.
This measure risks allowing conditions to be imposed too readily, potentially leading to
net-widening and unnecessary criminalization of young persons for breaches of technical or low-risk conditions.
C. Sentencing Considerations
The CBA Sections appreciate the intent behind proposed ss. 49.1(1) and (2)35 to enhance transparency by requiring the youth justice court to provide reasons for any credit granted for time spent in detention. However, requiring the court to state on the record the term of custody that would otherwise have been imposed if the youth’s time in custody were added to the sentence could be misused to justify the imposition of an adult sentence, even where the court has already determined that a youth sentence is appropriate, taking into account the time served.
The CBA Sections recommend a provision that explicitly states that the above section is not intended to undermine the objectives of the YCJA and must not be used to justify elevating a youthful offender to an adult sentence. The YCJA principles – that the least onerous sentence appropriate in the circumstances should be imposed, including youth sentences, and that youthful offenders should be separated from adult offenders wherever possible – should be referenced. Doing so would provide greater protection for young persons while clearly prescribing the limits on the intended use of this provision.
- The CBA Sections recommend that s. 109.136 be further clarified to add due process into the calculation of when the youth is deemed to be unlawfully at large. For greater certainty, the crystallizing event should be when the warrant for arrest on suspension is issued by a justice or judge. This clarification would allow for procedural fairness and oversight given the heightened vulnerability of youth and would accord with the practice taking place in most jurisdictions. Further, it would be analogous to the process being used when CSOs for adults have been suspended.
- At a broader level, the CBA Sections remain concerned that the YCJA and the proposed amendments increasingly rely on custodial measures, with custody being used in place of vital social supports such as mental health services and housing. These issues arise not only at sentencing but also during bail hearings. There appears to be a growing trend toward incarcerating vulnerable youth, often influenced by their environments and surrounding people, without adequate funding for the community-based supports that would enable them to remain safely in their communities.
D. Transfer of youth sentences
The CBA Sections support the proposed provisions under s. 57(1) and 58(1), which expand the ability to transfer youth sentences and make interprovincial arrangements.
E. Access to records provisions
The CBA Sections are concerned that proposed amendments to the YCJA below would prohibit the disclosure or production of police investigative records, in which no charges are laid or extrajudicial measures taken, to defence counsel. Further, the Crown would be prohibited from disclosing that such records exist to defence counsel. This has significant implications for an accused’s constitutional right to make full answer and defence and can impede the Crown’s duty to disclose all relevant information, whether inculpatory or exculpatory.
71 Section 115 of the Act is amended by adding the following after subsection (1.1):
F. For greater certainty
(1.2) For greater certainty, the police force may keep a record of an investigation in respect of an offence alleged to have been committed by a young person even if the investigation did not result in a charge or extrajudicial measures were not used to deal with that young person.
72 (1) Subsection 119(2) of the Act is amended by adding the following after paragraph (a):
(a.1) if an extrajudicial measure, other than an extrajudicial sanction, is used to deal with the young person, the period ending two years from the day on which the decision to use the extrajudicial measure is made;
(a.2) if the young person is the subject of an investigation referred to in subsection 115(1.2), two years from the day on which the young person ceases to be the subject of the investigation;
(2) Section 119 of the Act is amended by adding the following after subsection (4):
Records — certain investigations
(4.1) Access to a record kept in respect of an investigation referred to in subsection 115(1.2) is to be given only to the following persons for the following purposes:
(a) a peace officer or the Attorney General, in order to make a decision under this Act in respect of the young person to whom the investigation relates; and
(b) a peace officer, for the purpose of investigating an offence.
Evidence of investigation — inadmissible
(4.2) Evidence that forms a part of a police investigation referred to in subsection 115(1.2) in respect of a young person is inadmissible for the purpose of proving prior offending behaviour in any proceedings before a court in respect of the young person.
More broadly, the framework requires additional scrutiny in both criminal and civil contexts. In criminal proceedings, undisclosed investigative records may contain exculpatory information, alternative-suspect evidence, context relevant to voluntariness or reliability, or material bearing on credibility – none of which would be accessible to the defence under the new restrictions.37 In civil matters, youths may be investigated for alleged dangerous driving, impaired driving, arson, mischief, or sexual assault without charges being laid, and these investigations often intersect with subsequent litigation. Under the proposed regime, records of such investigations may be inaccessible even with a court order, limiting the availability of relevant evidence.
The CBA Sections recognize that the amendments include safeguards intended to preserve youth privacy: a limited two-year access period (s. 119(2) (a.2)); access restricted solely to peace officers and the Attorney General for defined purposes (s. 119(4.1)); and an evidentiary bar preventing these materials from being used to prove prior offending behaviour (s. 119(4.2)). These protections are consistent with core YCJA principles. However, they must be balanced against the need for meaningful judicial oversight and the constitutional imperatives associated with disclosure.
Given the heightened vulnerability and privacy interests of young persons, and the foundational importance of the right to make full answer and defence, the CBA Sections believe that any restriction on access to youth investigative records should include a mechanism for judicial review and, where appropriate, court-ordered disclosure. A statutory pathway for judicial oversight would better align the proposed amendments with both the objectives of the YCJA and the constitutional requirements governing criminal procedure.
G. Privacy considerations
Regarding s. 115(1.2), the CBA Sections submit that the retention of investigative records may assist future identification of an actual offender, which appears to be the provision’s intended purpose. At the same time, it risks preserving information that could prompt renewed scrutiny of youth who were not charged or were otherwise innocent. The provision should explicitly account for this risk and incorporate safeguards to prevent such unintended consequences. The wording should indicate that this provision be used solely for the narrow purpose of identifying an actual perpetrator in a future investigation, and not to reopen or reconsider past interactions with youth who were not charged. This could be reinforced through mandatory review periods, and with a clear provision on destruction of the record following the two-year record-keeping period.
Other specific changes recommended
- In s. 110 (4.1): change "police officer" to "peace officer", to provide consistency across provisions.
- In s. 110(4.1)(a): change "or" to "and" and add “further”, i.e., modify "the young person has committed or is likely to commit an indictable offence" to: "the young person has committed and is likely to further commit an indictable offence". This change would provide greater certainty that the young person is, and continues to be, a danger. We would also recommend adding a judicial oversight provision, like those found in other sections where peace officers act without prior judicial authorization in emergency situations – an extraordinary measure that should be rare and scrutinized post facto. If such a provision is added, the peace officer should be required to report to a judicial officer within a prescribed period, ideally within 24 hours after the dangerous behaviour, and should be required to provide details justifying the extraordinary action. The 24-hour time frame aligns with other YCJA provisions that require prior judicial authorization after 24 hours.