When a young person is found guilty of an offence he or she does not receive a criminal record. Rather, a youth record is created. Youth records are subject to access periods which range in duration from a few months to 5 years, depending on several factors. If a young person does not re-offend, eventually his or her entire youth record will no longer be accessible to the police, Crown, or the courts. It is a chance at a fresh start for the young person and creates an incentive for good behaviour.
(A youth record may be accessed with a youth court order under certain circumstances even if the access period has expired, but that is an exception to the general rule.)
However, if a young person keeps offending it is possible to accumulate a significant youth record. What happens if that person then turns 18 and is convicted in adult court of a crime?
Pursuant to YCJA s. 119(9), if a young person’s youth record remains within the retention period, and he or she is convicted as an adult of a crime, the entire youth record loses the protections of the YCJA. It becomes a “permanent” criminal record just like an adult criminal record. This is a serious consequence for an offender.
In some cases, accordingly, defence counsel may advocate for their client (now a young adult) to receive an adult conditional discharge for a first offence in adult court. Conditional discharges may be imposed pursuant to Criminal Code s. 730 where the court “considers it to be in the best interests of the accused and not contrary to the public interest”.
The existence of a prior youth record will often be seen an aggravating factor by the Crown. To grant a discharge in the face of a youth record could be seen as counterproductive. What lesson would this teach the (now) young adult offender?
But defence counsel may argue that notwithstanding the prior youth record, the consequences of an adult conviction would be so significant that a discharge should be imposed. If the Courts are concerned about the offender’s long-term rehabilitation, a permanent youth record would be a huge impediment to the offender breaking the cycle of criminality.
In R v BS, 2018 ONCJ 904, Wheeler J. of the Ontario Court of Justice was faced with this challenging sentencing decision. B.S. had a lengthy youth record. He pleaded guilty to mischief for sending a (fake) bomb threat to a family that lived next to him. B.S. suffered from a number of developmental and mental health conditions. He acted out in this way as he was frustrated but did not really intend to harm anyone.
Wheeler J. imposed a conditional discharge despite the lengthy prior youth record. Her Honour noted that a conviction would have a “significant collateral consequence for B.S., of causing his youth record to “be dealt with as a result of any adult” pursuant to s. 119(9)(b) of the Youth Criminal Justice Act.” Such an outcome would be “counterproductive to his efforts at rehabilitation.”
Counsel should consider the very serious consequences of an adult conviction when dealing with young clients. In some cases, a prior youth record may not necessarily be a bar to the imposition of a conditional discharge. Crown counsel should always consider the consequences of YCJA s. 119(9) and ask in each case if the public interest is truly served better by the offender’s youth record effectively becoming a permanent record by virtue of this subsection.