The “Gateways to Custody” in Youth Cases

If your child is charged with a criminal offence, you may be wondering what the likelihood is that he or she will receive a jail sentence if convicted (otherwise known as a custodial sentence). That question, which can keep a terrified parent up at night, can really only be answered on a case by case basis. As such, it is very important to get legal advice to assist you in understanding potential sentencing outcomes. While these conversations can be hard to have, a meeting with a lawyer who can guide you through realistic outcomes and worst-case scenarios may well ease your worries.

As a starting point though, it is helpful to have some knowledge of how the Youth Criminal Justice Act (which is the law that governs kids charged with criminal offences) treats custodial sentences.

The Youth Criminal Justice Act provides a comprehensive sentencing scheme that not only allows for, but in fact supports and encourages the use community based sentencing rather than custodial sentences as an appropriate response to offences of all kinds (even violence).

Time and time again courts have recognized the diminished moral blame worthiness of children, their impulsivity, their inability to engage in appropriate decisions making, and their limited maturity as justifications for a sentencing scheme that is designed to treat them with leniency, to focus on meaningful consequences, rehabilitation and reintegration and most importantly, to avoid jail sentences wherever possible.

In fact, there are a number of specific references to this policy throughout Youth Criminal Justice Act from the Declaration of Principle (Section 3) to the Principles of Sentencing (Section 38). This is meant to encourage judges to avoid imposing custodial sentences for young people.

In addition to referencing this general policy at a number of points in the Act, the legislation then goes on to detail the limited circumstances in which a young person can be sentenced to a custodial sentence, colloquially known as the “4 Gateways to Custody.” In other words, it is ONLY in one of these 4 situations that a judge can even consider sentencing a youth to a jail sentence.

The “Four Gateways to Custody” are:

(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;

(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.

What is crucial to keep in mind though, is that even after finding that a young person is potentially eligible for a custodial sentence because they fit into one of the above categories, the Youth Criminal Justice Act then DEMANDS that a court not impose a custodial sentence if there is a reasonable alternative.

The Act goes on to detail the factors to be considered in determining whether in fact the available alternative is “reasonable”.

Those factors are:

a) The alternatives to custody that are available;

b) The likelihood that the young person will comply with a non-custodial sentence;

c) The alternatives to custody that have been used in respect of young persons for similar offences committed in similar situations.

This is the law in Canada. The intention of the legislation is clear: we do not put kids in jail in the presence of reasonable alternatives.

While there will be circumstances in which a custodial sentence cannot be avoided (examples include: extremely violent offences, or kids with a significant criminal history), it is important that your Defence lawyer use and highlight the goals/principles/policies of the Youth Criminal Justice Act in order to best avoid a jail sentence for your child.


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