What is a crime?

A crime is something that the laws say you can't do. In Canada, the Criminal Code is the major law that sets out what are considered crimes. The Criminal Code also sets out the penalties for committing different crimes. Examples of crimes include theft and assault. Penalites for crimes committed by youth are set out by the Youth Criminal Justice Act.

There are also offences that are created in the laws each province passes. Speeding, as defined under Manitoba's Highway Traffic Act, is an example of a provincial offence.

The Youth Criminal Justice Act

What is the Youth Criminal Justice Act?

The Youth Criminal Justice Act (YCJA) is the act that replaces the old Young Offenders Act. The purpose of the new act is to prevent youth crime, to rehabilitate youth who commit offences and help them reintegrate into society, and to ensure meaningful consequences for offences. The focus is on the young person taking responsibility for the crime.

The YCJA allows the courts to treat young people differently than adults. So even if you commit the same crime as an adult, you won't be treated the same as an adult by the courts. If you commit a crime you will either be dealt with through programs outside of the court system or you will be tried in a youth justice court. You cannot be tried in adult court.

How old do I have to be to be treated as a young person under the Youth Criminal Justice Act?

The YCJA applies to you if you are charged with a crime you committed when you were 12 years old or older, but younger than 18. The act may still apply to you if you are over 18 now, but you committed the crime while you were still under 18.

All persons 12 years old or older, but younger than 18, are tried in a youth justice court. However, if you are over 14 and found guilty of a very serious offence, the judge can give you an adult sentence only if he or she doesn't think a youth sentence is serious enough for what you have done.

You and the Police

What if I am stopped by the police?

If you are stopped by the police and are asked for your name, address and age, you must answer these questions.

You do not have to and should not answer any other questions.

What if I am stopped by the police while I am driving?

If you are stopped by the police while you are driving, you must show your driver's licence and car registration if they ask for it.

If you are stopped by the police and they ask you to take a test to see if you've been drinking alcohol you must cooperate. If you fail the roadside test, you will be asked to take a breathalyser test.

If you refuse to take the test you may have your driver's licence taken away for 2 years, the minimum in Manitoba. However, you do have a right to have a lawyer present when you take a breathalyser test. Lawyers called duty counsel are available 24 hours a day and the police officer has a duty to tell you about this.

Can I be searched by police?

You can be searched if you are under arrest. But just because the police have stopped you, it does not mean that you are under arrest. A police officer must tell you that you are under arrest and say why he or she has arrested you.

You or your belongings can be searched if the police have a search warrant for that purpose, or if there are reasonable or probable grounds for a search.

You can also be searched if you are placed under investigative detention, which may happen if you resemble the description of a suspect police are looking for.

If you believe that you are being searched illegally or without a good reason, tell the police that you do not agree to the search, and talk to a lawyer as soon as possible. Do not try to stop the police from searching you.

You can be searched without a warrant by customs officers if you are crossing the border.

What if I am arrested by the police?

If you are arrested, you do not have to answer any questions. The police cannot release you, however, without knowing your name, address and age. It is also important to tell them your age if you are under 18 because you will then have different rights.

If you are arrested, the police must tell you why you have been arrested. The police must also tell you that you have the right to call a lawyer and your parents, must give you the opportunity to call them.

What if I don't want to be arrested?

You have no choice if the police want to arrest you. If you resist arrest, you can be charged with another criminal offence.

Who can I call if I am arrested?

If you are under 18 and you wish to speak to your parents, guardian or appropriate adult and a lawyer before being questioned, the police must allow you to do this.

If the police cannot find your parents, or your parents are unavailable, they will call an adult relative or another adult who you know and who is available to help you.

You should always speak to a lawyer before you talk to the police or sign anything.

You will also be given a chance to call and get free advice from Legal Aid duty counsel.

You have the right to have your parents and a lawyer present when being questioned by the police. You can insist that the police allow you to do this.

Can the police call my parents if I am arrested?

Yes. If you are under 18, the police must call your parents if you are arrested, whether you want them to or not.

What happens to me after I am arrested?

If you are arrested, the police may process your arrest where you are stopped or they may take you to a police station.

If they take you to a police station, the police may or may not take your fingerprints and photograph. You must let them do this or you may be charged with an offence.

If you are under 18, the police will phone your parents to let them know where you are and give them the chance to come and talk to you.

You will be given a chance to call and get free legal advice from Legal Aid duty counsel.

Police will want to ask you questions because they have a duty to investigate. However, other than giving your name, address and age, you do not have to and should not answer any questions before speaking to a lawyer.

What happens to me once my arrest is processed?

There is a presumption that you will be released to your parents, but depending on what crime you have been charged with and your background, the police may decide that you should be kept in police custody. If you are allowed to go home, you will have to agree to certain conditions, such as agreeing to show up in court.

If the police will not release you, you must remain in police custody.

If this happens, you will be placed separate from any adult in the Manitoba Youth Centre

In most cases, you will be able to apply for release at a bail hearing within 24 hours.

What if I can't afford a lawyer?

If you want a lawyer and you or your parents cannot afford one, or if your parents refuse to pay for a lawyer, the judge will appoint one for you at your court appearance.

Will a police officer always arrest me and charge me if I am caught doing something against the law?

Not necessarily. A police officer can arrest and charge you if you've done something criminal, but they do not have to. Police officers can choose extrajudicial measures to deal with the matter without arresting you.

What are "extrajudicial measures"?

Extrajudicial measures are measures that can be used for a youth (12 years old or older but under 18) who has allegedly committed a crime. They refer to consequences other than going to court and having a judge decide what happens to you.

There are several different types of extrajudicial measures. Police officers can choose to take no action against you, warn you, give you a formal caution, or refer you to a community program that can help you to not commit these crimes again. Your case could also be referred to a Crown prosecutor, who could choose to give you a caution without taking your case to court.

Police officers must consider these options first before they charge any young person for a criminal act. These options are an alternative to a formal charge and are meant to give the young person a chance to change their behaviour without going through the normal justice system.

What is an "extrajudicial sanction"?

An extrajudicial sanction is a more formal extrajudicial measure.

An extrajudicial sanction is used when a youth alleged to have committed an offence cannot be dealt with by a warning, caution or referral because the offence is more serious, or for other reasons.

An extrajudicial sanction can only be used if the youth admits responsibility for the offence and agrees to the sanction.

Charges against you will be withdrawn or dismissed if you have followed the terms of the extrajudicial sanction. The fact that you accepted responsibility for the offence as a condition of the extrajudicial sanction cannot be used against you later as evidence that you are guilty if your matter is referred to court.

Are there special options available to Aboriginal youths?

Yes. Programs designed for Aboriginal youth emphasize healing through cultural and spiritual teachings.

See Chapter 10: Aborigianla Peoples for more information regarding Aboriginal People.

You and the Courts

What is a bail hearing?

A bail hearing takes place in court, in front of a judge. Your lawyer will speak on your behalf and will present evidence to convince the judge to release you from custody. If the judge feels that you will follow certain bail conditions, he or she will release you.

If you are let out on bail you must follow the conditions agreed to at the hearing until the court has finished with your case. If you do not follow the conditions, you can be arrested and charged with another offence and you may have to remain in custody until the court has finished with your case.

Should my parents come to court?

Yes. Your parents should attend your bail hearing for support and to act as the "responsible person" into whose care you would be placed upon release. You will also have a better chance of being released if an adult is there to act as the responsible person.

What is a conference?

Sometimes the judge will order that a conference be held to assist in arranging a plan for your release before your trial. A conference can also be called by a police officer, the Crown, a provincial director or a youth worker to assist and provide helpful input to the person making decisions about your case at various steps in the process.

What if the judge refuses to let me out on bail?

If the judge refuses to let you out on bail, you will remain living at the youth centre until your trial or until the court has finished with your case. The judge's decision can be reviewed by a higher court.

Do I automatically have to go to trial if I am charged with an offence?

No. If you plead guilty to the offence by admitting you did the crime, you will be given a punishment and you will not have to go to trial. If you plead not guilty by saying you didn't do it, you will go to trial.

Police officers and Crown prosecutors can decide to use what the law calls extrajudicial measures. This means that instead of going to jail for an offence, you may be referred to a special program designed to help you, or you may be required to participate in an extrajudicial sanction program. A conference can be held to decide what you can do to repair the damage to the victim.

Not everyone is given the chance to enter this special program. It depends on the seriousness of your offence and your criminal history.

If the matter is not diverted to an extrajudicial sanctions program and you plead guilty in court, you will be given a sentence and you will not have to go to trial. If you plead not guilty, your case will go to trial.

It is not a good idea to plead guilty just to "get it over with". You should speak to a lawyer before pleading guilty.

What happens at trial?

At trial, the lawyer for the Crown will present the Crown's case against you. Then, your lawyer will have a chance to speak, call witnesses and present evidence in your defence. Finally a judge will decide whether you are guilty or not guilty.

If you are found not guilty, you will be free to go. If you are found guilty, you will be given a sentence for your crime.

What kind of sentence can I get if I plead guilty or I am found guilty after a trial?

The type of sentence will depend on the seriousness of the crime. The judge, or conference members, will also consider a number of things including:

- what role you played in committing the crime (were you the leader or did you just follow along?);

- whether or not your crime was violent;

- the harm done to the victim and whether or not you meant to cause that harm or should have known that your actions would cause that harm;

- whether you have been found guilty of an offence before;

- any reparation you have made to the victim or the community;

- the time you have already spent in detention for the offence; and

- any other relevant circumstances about you or the offence.

Custody is reserved for violent offences, for failing to comply with non-custodial sentences, for serious offences combined with a history of previous offences, or for exceptional cases.

The judge, or conference, may also take into consideration whether or not you have tried to repair the harm you caused before sentencing, and the amount of time you have already spent in jail or under adult supervision. Your sentence will never be longer than a sentence that an adult would receive for the same offence committed in similar circumstances.

A judge can order:

- a reprimand by the judge in court;

- a fine up to $1000;

- restitution to repair damage or compensation to pay money to the crime victim;

- up to 240 hours of community service, or personal service to the victim to compensate him or her for the damage you caused;

- a prohibition order that forbids you from possesing a weapon;

- probationary supervision by the court for up to 2 years;

- an Intensive Support and Supervision Program Order, which includes supervision and support from the community to help you change your behaviour;

- custody and supervision for up to 3 years, a portion of which will be served in a youth centre, and another portion to be served under community supervision;

- in exceptional cases, an adult sentence if the court thinks that a youth sentence is not long enough to hold you accountable for the crime committed.

If you are given a custody sentence, you'll carry out your sentence in a youth facility separate from any adults. Depending on your age, if the judge thinks that you will be a danger to the rest of the young people in the facility, you may be transferred.

Will I have a record for life?

If you are found guilty of an offence committed when you are under 18 you will have a criminal record for up to 5 years depending on the seriousness of the crime and the type of sentence imposed. After this time period your record will be destroyed if you don't get into anymore trouble before the 5 years are up.

If you are convicted of a crime as an adult during the time in which your youth record is still open, then the youth record will become part of your adult criminal record and will not be destroyed.

What happens if I have a youth record?

Having a youth record can affect your life in many ways. If you have a youth record:

- you may not be allowed to go to the United States or other foreign countries, even for a visit;

- you may not be able to get certain jobs that require bonding; and

- if you are found guilty or are convicted of another offence at any time, your penalty may be harsher if you have a previous record.

Who will see my youth record?

Police, Crown attorneys, probation officers, and your lawyer can see your record of crimes committed while you were under 18 as long as the record exists.

There are other people listed in the Youth Criminal Justice Act who have access to your record, and yet others who may obtain access for specific purpose but who will need to get a court order to do so.