SJPA, r. 2 - Extrajudicial sanctions program authorized by the Minister of Justice and the Minister of Health and Social Services

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chapter SJPA, r. 2
Extrajudicial sanctions program authorized by the Minister of Justice and the Minister of Health and Social Services
Youth Criminal Justice Act
(S.C. 2002, c. 1).
Preamble and Declaration of Principle
The extrajudicial sanctions program originates from a desire to develop alternatives to the judicial process for certain offences committed by young persons by calling on resources in the community so as to meet the specific needs of those young persons in a more suitable way, ensure that they take responsibility for their delinquent behaviour, and avoid having them appear before a court when social intervention is sufficient to prevent re-offending. Québec has been a pioneer in the application of alternative measures for young offenders in Canada. Beginning in the late 1970s, alternative measures were established for young offenders in Québec, and in 1984 Québec’s Minister of Social Affairs and Minister of Justice jointly authorized the first alternative measures program. This sharing of responsibility reflects Québec’s objective of promoting cooperation between the judicial and social systems in order to intervene swiftly and effectively while taking the needs of young persons into account.
The intervention philosophy promoted in Québec in the field of juvenile delinquency emphasizes that young persons have diminished moral culpability compared to adults; it also supports the rehabilitation of offenders as a way to provide ongoing protection for the general public, and encourages consideration for the cultural realities of young persons in decisions made in their regard. The decision on whether or not to use extrajudicial sanctions requires a clinical review of the young person’s situation, taking the following principles into account:
(a) the use of extrajudicial sanctions must be consistent with the rights and freedoms of young persons and take into perspective their needs, the seriousness of the offence, and the interest of victims and society;
(b) extrajudicial sanctions must be designed to provide an effective and timely response;
(c) most offences committed by young persons can be described as common delinquency1, which can best be dealt with through extrajudicial sanctions;
(d) extrajudicial sanctions are presumed to be adequate to hold young persons accountable for their offending behaviour if they have committed a non-violent offence and have not previously been found guilty of an offence;
(e) in all other cases, extrajudicial sanctions should be used if they are adequate to hold young persons accountable for their offending behaviour;
(f) victims must be treated with courtesy, compassion and respect for their rights; the use of extrajudicial sanctions must allow them to obtain all legally available information, promote their involvement and seek reparation for the harm they have suffered;
(g) the use of extrajudicial sanctions must promote the involvement of the community and repair of harm done to the community; and
(h) the use of extrajudicial sanctions must allow parents to remain informed and must promote their involvement, given the importance of parental support for young persons.
1Common delinquency: Common or routine behaviour for almost all young people, characterized by the following elements: it is apparent in almost all boys in their mid-teen years, manifests itself in a limited number of benign or intermediate offences, is connected with developmental variations that are part of the process of assimilating standards, and leads to a genuine understanding of normative prescriptions. It is a transient failing connected with young people’s need to test social limits, and this type of delinquency disappears of its own accord (adapted from: M. Fréchette and M. Le Blanc, Délinquance et délinquants, Chicoutimi, G. Morin, 1987).
CHAPTER I
INTERPRETATION AND APPLICATION
M.O. 4366, c. I.
1. This text constitutes the extrajudicial sanctions program authorized in Québec pursuant to section 10 of the Youth Criminal Justice Act (S.C. 2002, c. 1) (or “YCJA”), and the program must be interpreted in accordance with that Act.
M.O. 4366, s. 1.
2. In this program,
(a)  provincial director means a director of youth protection appointed in accordance with the Youth Protection Act (chapter P-34.1), acting as a provincial director within the meaning of the Youth Criminal Justice Act;
(b)  Director of Criminal and Penal Prosecutions or DCPP means the Director of Criminal and Penal Prosecutions within the meaning of the Act respecting the Director of Criminal and Penal Prosecutions (chapter D-9.1.1);
(c)  organization means any organization established under a law of Québec or Canada and that works, in particular, to administer the YCJA with young persons;
(d)  court means a youth court within the meaning of section 13 of the Youth Criminal Justice Act.
Institution has the meaning given by the Act respecting health services and social services (chapter S-4.2) or the Act respecting health services and social services for Cree Native persons (chapter S-5), as the case may be.
Young person, parent, extrajudicial sanction and victim have the meaning given by the Youth Criminal Justice Act.
M.O. 4366, s. 2.
3. The provincial director may authorize a person or organization, in writing, to perform, generally or in a specific case, any of the duties under this program. In such a case, the duties performed by the person or organization so authorized are deemed to have been performed by the provincial director.
M.O. 4366, s. 3.
CHAPTER II
PROCEDURE TO DETERMINE IF EXTRAJUDICIAL SANCTIONS ARE APPROPRIATE
M.O. 4366, c. II.
4. [Referral to the Director of Criminal and Penal Prosecutions] Under the authority of the Director of Criminal and Penal Prosecutions, a criminal and penal prosecuting attorney examines the proceedings and documents relating to an offence committed by a young person under an Act of the Parliament of Canada or any regulatory instrument under such an Act and, wherever possible within two weeks after receiving them, makes a decision pursuant to section 5 or 6.
M.O. 4366, s. 4.
5. [Criminal and penal prosecuting attorney] A criminal and penal prosecuting attorney who considers that there is sufficient evidence to proceed with the prosecution of the offence, subject to sections 6 and 7,
(a)  must refer the case to the provincial director if the offence or situation is listed in Chapter IV; and
(b)  may authorize the prosecution of the young person or refer the case to the provincial director if the offence or situation is not listed in Chapter IV.
When referring a case to the provincial director, the criminal and penal prosecuting attorney must indicate the date on which the offence will become prescribed, and the recall date for the case.
The recall date is the date already set for another case concerning the same young person, or the earlier of
— 2 months from the decision of the criminal and penal prosecuting attorney, and
— 2 weeks before the date on which the offence becomes prescribed.
M.O. 4366, s. 5.
6. [Idem] When, having regard to the protection of society, it is appropriate to consider not authorizing the prosecution and not referring the case to the provincial director, the criminal and penal prosecuting attorney may close the record.
M.O. 4366, s. 6.
7. [Young person aged 12 or 13] When a young person is aged 12 or 13 at the time of committing an offence not listed in Chapter IV, the criminal and penal prosecuting attorney must consult the provincial director before making a decision under subparagraph b of the first paragraph of section 5.
M.O. 4366, s. 7.
8. [Provincial director] The provincial director, on receiving the case of a young person under section 5 of this program, must assess the advisability of using extrajudicial sanctions to deal with the young person; the assessment is conducted in accordance with the Preamble and the Declaration of Principle in this extrajudicial sanctions program and with the terms and conditions set out in Chapter III.
After completing the assessment, the provincial director must decide
(a)  to use one or more of the sanctions listed in section 13 with respect to the young person;
(b)  to refer the young person’s case to the criminal and penal prosecuting attorney to have prosecution of the offence authorized, if applicable; or
(c)  to terminate the intervention.
M.O. 4366, s. 8.
9. [Notice] The provincial director must send to the criminal and penal prosecuting attorney, within a reasonable time, a notice stating the nature of the decision made under the second paragraph of section 8, and the notice must take into account the recall date referred to in section 5.
If the decision of the provincial director is to use an extrajudicial sanction to deal with the young person, the notice must state the nature of the extrajudicial sanction and its duration.
A notice must also be sent for any subsequent change made to an agreement on extrajudicial sanctions when the change concerns the nature of an extrajudicial sanction or leads to an extension of its application beyond the date on which the right of prosecution is prescribed.
When an extrajudicial sanction has been completed by the young person, the provincial director must inform the criminal and penal prosecuting attorney of that fact to allow the file to be closed.
When a young person fails to complete an extrajudicial sanction, the provincial director must inform the criminal and penal prosecuting attorney of that fact, specifying the nature of the failure, within sufficient time to allow, if applicable, for prosecution of the offence.
M.O. 4366, s. 9.
10. [Idem] The criminal and penal prosecuting attorney must inform the provincial director and the police force that conducted the investigation, without delay, of the decision made under section 5.
M.O. 4366, s. 10.
11. [Idem] The provincial director must inform the young person, the parents and the police force that conducted the investigation, without delay, of the nature of the decision made under subparagraph a or c of the second paragraph of section 8 and, where applicable, of the nature and duration of the extrajudicial sanction.
M.O. 4366, s. 11.
12. [Following an information] After an information has been laid against a young person, the criminal and penal prosecuting attorney may, if considered appropriate, refer the case to the provincial director for an assessment under section 8 if an assessment could not be completed previously, or when new considerations are such that the assessment by the provincial director could lead to a different conclusion. In such a case, the criminal and penal prosecuting attorney must indicate to the provincial director the date of the next stage in the judicial process.
M.O. 4366, s. 12.
CHAPTER III
TERMS AND CONDITIONS FOR THE USE OF EXTRAJUDICIAL SANCTIONS
M.O. 4366, c. III.
13. [Nature of sanction] The provincial director may propose one or more of the following as extrajudicial sanctions for a young person:
(a)  reparation of the harm caused to the victim, as decided through mediation, in particular in the form of financial compensation, work performed for the victim, restitution of property, or a verbal or written apology;
(b)  reparation to the community, in particular in the form of financial compensation or community service; or
(c)  the development of social skills, in particular through training activities, social reintegration activities and support activities.
M.O. 4366, s. 13.
14. [Conditions] An extrajudicial sanction for a young person must respect the following:
(a)  the young person cannot, as an extrajudicial sanction, be lodged in an institution operating a rehabilitation centre;
(b)  the extrajudicial sanction cannot include more than 120 hours of community service or services performed for a person, an organization or the community;
(c)  the time allowed for the completion of the extrajudicial sanction used with respect to the young person may not exceed 6 months beginning on the date on which the young person consents to be subject to the sanction, except if the time allowed may not be complied with owing to a public health emergency declared by the Government or a situation that makes it impossible, following the recommendations of the public health authorities, to have access to the program or its application in which case the time period is extended by that much from the end of the public health emergency or the impossibility, whichever occurs first;
(d)  an extrajudicial sanction must take into account the financial resources and the degree of development and maturity of the young person, and the compensation or reparation measures must not exceed the fair value of the harm caused; and
(e)  when proposing an extrajudicial sanction, the provincial director must as far as possible involve the young person’s parents and the persons and organizations working in the young person’s living environment.
Before extending the time period provided for in paragraph c, the provincial director must assess the possibility of applying measures other than those initially provided for the completion of extrajudicial sanctions and, where applicable, take the necessary means to allow the young person to complete them.
M.O. 4366, s. 14; M.O. 4367, s. 1.
15. [The provincial director informs the young person and the young person’s parents] If satisfied that an extrajudicial sanction is appropriate, the provincial director must inform the young person of the sanctions that may be considered.
The provincial director must set out in a draft agreement with the young person the most appropriate sanction and, if applicable, the terms and conditions for its use, and give a copy of the agreement to the young person and to the young person’s parents.
Before consenting to an extrajudicial sanction, the young person must be informed by the provincial director of his or her right to consult counsel, and be given a reasonable opportunity to do so.
M.O. 4366, s. 15.
16. [Agreement recording the young person’s undertaking] The young person’s consent to comply with the terms and conditions of the extrajudicial sanction must be recorded in writing in an agreement signed by the young person and the provincial director. A copy of the agreement must be given to the young person and the young person’s parents.
M.O. 4366, s. 16.
17. [Content of agreement] Any agreement on extrajudicial sanctions must contain, in particular,
(a)  an indication of the offences alleged to have been committed by the young person, including their nature and the place and date of commission;
(b)  the nature of the extrajudicial sanction and, where applicable, the terms and conditions for its use;
(c)  the duration of the agreement, with an indication of the day on which it begins and ends; and
(d)  a statement by the young person that he or she
i.  accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed;
ii.  has not expressed a wish to see the charge or charges against him or her dealt with by a court;
iii.  has been advised of his or her right to retain and instruct counsel and has been given a reasonable opportunity to consult with counsel; and
iv.  has undertaken, after being informed of the extrajudicial sanction proposed, to be subject to the sanction.
M.O. 4366, s. 17.
18. [Idem] In addition to the requirements of section 17, an agreement must contain a statement to the effect that
(a)  a failure by the young person to comply with the terms and conditions of the extrajudicial sanction may lead to prosecution for the alleged offence;
(b)  the use of the extrajudicial sanction will not prevent a person from filing a complaint concerning the alleged offence or from starting civil proceedings for the harm caused;
(c)  any admission, confession or statement accepting responsibility for a given act or omission that is made by the young person as a condition of being dealt with by extrajudicial sanctions is inadmissible in evidence against any young person in civil or criminal proceedings;
(d)  depending on the degree to which the young person has complied with the terms and conditions of the extrajudicial sanction, the court should or may dismiss the charges against the young person if judicial proceedings are started under the Youth Criminal Justice Act (S.C. 2002, c. 1); and
(e)  if the young person is found guilty of other offences, the extrajudicial sanction may be taken into consideration by the court when imposing a custodial sentence.
M.O. 4366, s. 18.
19. [Amendment of the agreement] The terms and conditions and the duration of an extrajudicial sanction may be amended with the consent of the young person and the provincial director.
M.O. 4366, s. 19.
20. [Administration] The provincial director sees to the administration of any extrajudicial sanction to which the young person consents to be subject.
M.O. 4366, s. 20.
21. [Prescription] The young person, after being given a reasonable opportunity to consult with counsel on the matter, may consent to an extension of the 6-month limitation on the institution of proceedings after the time when the subject-matter of the proceedings arose (section 786(2) Cr. C., via section 140 YCJA), subject to the consent of the criminal and penal prosecuting attorney.
M.O. 4366, s. 21.
22. [Idem] An institution must facilitate, by every means at its disposal, the administration of an extrajudicial sanction. The same applies to persons or organizations that agree to administer the sanction.
M.O. 4366, s. 22.
CHAPTER IV
OFFENCES OR SITUATIONS TO BE REFERRED BY THE CRIMINAL AND PENAL PROSECUTING ATTORNEY TO THE PROVINCIAL DIRECTOR
M.O. 4366, c. IV.
23. For the purposes of this program, the criminal and penal prosecuting attorney must refer a case to the provincial director when the charge against the young person is a conspiracy or attempt to commit or the commission of any of the following offences:
CRIMINAL CODE
(R.S.C. 1985, c. C-46)
SectionOffence
54Assisting deserter
56Offences in relation to members of R.C.M.P.
56.1Identity documents
57(2)False statement in relation to passport
58(1)Fraudulent use of certificate of citizenship
66(1)Member of an unlawful assembly
66(2)Concealment of identity
69Neglect by peace officer
71Duelling
73Forcible entry or forcible detainer
83(1)Engaging in prize fight
126(1)Disobeying a statute
129Offences relating to public or peace officer
134(1)Give oath without authorization
143Advertising reward and immunity
146Permitting or assisting escape
169Corrupting morals, tied sale, immoral theatrical performance
171b)Householder permitting prohibited sexual activity - between16 and 18 years old
173(1)Indecent acts
173(2)Exposure
174(1)Nudity
175(1)Causing disturbance, indecent exhibition, loitering, etc.
176(1)Obstructing or violence to or arrest of officiating clergyman
176(2)Disturbing religious worship or certain meetings
176(3)Disturbing religious worship or certain meetings
177Trespassing at night
178Offensive volatile substance
179(2)Vagrancy
180(1)Common nuisance
181Spreading false news
184(1)Interception of communications
184.5(1)Interception of radio-based telephone communications
191(1)Possession of device useful for interception of private communications communications
193(1)Disclosure of information
193.1(1)Disclosure of information received from interception of radio-based telephone communications
201(1)Keeping gaming or betting house
201(2)Person found in or owner permitting use
202(2)a)Betting, pool-selling, book-making, etc.
203d)Placing bets on behalf of others
204(10)Regulations regarding gaming and betting
206(1)Offence in relation to lotteries and games of chance
206(4)Offence in relation to lotteries and games of chance
207(3)a)Authorized lotteries
207.1(3)a)Things not authorized for lottery scheme on international cruise ships
209Cheating at play
250(1)Failure to keep watch on person towed
258.1(5)Unauthorized use of bodily substance or results
264.1(3)Uttering threats to harm property or animals
266a) b)Assault (without gravity or consequence for the victim)
287(2)Woman procuring her own miscarriage
288Supplying noxious things
294Pretending to solemnize marriage
295Marriage contrary to law
296(1)Blasphemous libel
301Libel
319(1)Public incitement of hatred
319(2)Wilful promotion of hatred
327(1)Possession of device to obtain use of telecommunication facility or service
333.1(1)Motor vehicle theft
334Theft
335(1)Taking motor vehicle or vessel or found therein without consent
337Public servant refusing to deliver property
338(1)Fraudulently taking cattle or defacing brand
338(2)Theft of cattle
339(1)Taking possession, etc., of drift timber
339(2)Dealer in second-hand goods
340Destroying documents of title
341Fraudulent concealment
342.2(1)Possession of device to obtain unauthorized use of computer system or to commit mischief
347(1)Criminal interest rate
348(1)e)Breaking and entering with intent, place other than a dwelling-house
351(1)Possession of break-in instrument
352Possession of instruments for breaking into coin-operated or currency exchange devices
353(1)Selling, etc., automobile master key
353.1(4)Tampering with vehicle identification number
355Possession of property obtained by crime
355b)Possession of property obtained by crime (less than $5000)
355.5a)Possession or trafficking of property obtained by crime (more than $5000)
355.5b)Possession or trafficking of property obtained by crime (less than $5000)
356(3)Theft from mail
357Bringing into Canada property obtained by crime
362False pretence or false statement
363Obtaining execution of valuable security by fraud
364(1)Fraudulently obtaining food, beverage or accommodation
365Pretending to practise witchcraft, etc.
367Forgery
368(1.1)Use, trafficking or possession of forged document
368.1Forgery instruments
369Exchequer bill paper, public seals, etc.
370Counterfeit proclamation, etc.
371Message in false name
372(1)False information
372(2)Indecent communications
374Drawing document without authority, etc.
375Obtaining, etc., by instrument based on forged document
376Counterfeiting stamp, etc.
377(1)Damaging documents
378Offences in relation to registers
380(1)Fraud
380(1)b)Fraud less than $5000
380(2)Affecting public market
381Using mails to defraud
382Fraudulent manipulation of stock exchange transactions
382.1(1)Prohibited insider trading
382.1(2)Tipping
383(1)Gaming in stocks or merchandise
384Broker reducing stock by selling for their own account
385(1)Fraudulent concealment of title documents
386Fraudulent registration of title
387Fraudulent sale of real property
388Misleading receipt
389(1)Fraudulent disposal of goods on which money advanced
390Fraudulent receipts under Bank Act
392Disposal of property to defraud creditors
393(1)Fraud in relation to fares, etc.
393(2)Fraud in relation to fares, etc.
393(3)Fraudulently obtaining transportation
394(5)Fraud in relation to valuable minerals
394.1(3)Possession of stolen or fraudulently obtained valuable minerals
396(1)Offences in relation to mines
397Falsification of books and documents
398Falsifying employment record
399False return by public officer
400False prospectus, etc.
401(1)Obtaining carriage by false billing
402(1)Trader failing to keep accounts
404Personation at examination
412(1)Forgery of trade-marks and trade descriptions (407, 408, 409, 410 or 411)
413Falsely claiming royal warrant
415Offences in relation to wreck
417(1)Applying or removing marks without authority
417(2)Unlawful transactions in public stores
418(1)Selling defective stores to Her Majesty
418(2)Offences by representatives
419Unlawful use of military uniforms or certificates
420(1)Military stores
422(1)Criminal breach of contract
425Offences by employers
427(1)Issuing trading stamps
427(2)Giving to purchaser of goods
430Mischief except 430 (2)
432Unauthorized recording of a movie
432(2)Unauthorized recording for purpose of sale, etc.
437False alarm of fire
438(2)Interfering with saving of wreck
439(1)Interfering with marine signal, etc.
440Removing natural bar without permission
442Interfering with boundary lines
446(2)Causing damage or injury to animals or birds
453Uttering coin
454Slugs and tokens
456Defacing current coins
457(3)Likeness of bank-notes
462.2Manufactures, sells, imports, exports instruments or literature for illicit drug use
CONTROLLED DRUGS AND SUBSTANCES ACT
(S.C. 1996, c.19)
SectionOffence
4(1)(5)Possession of substance
M.O. 4366, s. 23.
CHAPTER V
SITUATIONS THAT MAY BE REFERRED BY THE CRIMINAL AND PENAL PROSECUTING ATTORNEY TO THE PROVINCIAL DIRECTOR
M.O. 4366, c. V.
24. When two extrajudicial sanctions have already been used to deal with a young person, the criminal and penal prosecuting attorney may refer the case to the provincial director or authorize proceedings against the young person.
When an extrajudicial sanction and one or more extrajudicial measures have already been used to deal with the young person, the criminal and penal prosecuting attorney may refer the case to the provincial director or authorize proceedings against the young person.
M.O. 4366, s. 24.
25. When, as part of the same incident, a young person is involved in several offences, one of which is listed in section 23, the Director of Criminal and Penal Prosecutions may refer the case to the provincial director or authorize prosecution of all the offences.
M.O. 4366, s. 25.
26. When a young person is involved in a series of offences connected with several incidents on different dates, one of the offences of which is listed in section 23, the Director of Criminal and Penal Prosecutions may authorize prosecution of all the offences if
(a)  the young person’s behaviour was not an isolated occurrence; and
(b)  the public interest requires prosecution of the offences before the court.
M.O. 4366, s. 26.
27. The criminal and penal prosecuting attorney may refer a case to the provincial director or authorize prosecution of any offence committed while the young person has a case pending before the court or is serving or has already served a youth sentence as defined in section 2 of the Youth Criminal Justice Act (S.C. 2002, c. 1), in relation to an offence under the Criminal Code (R.S.C. 1985, c. C-46) or the Controlled Drugs and Substances Act (S.C. 1996, c. 19).
M.O. 4366, s. 27.
28. The criminal and penal prosecuting attorney may refer a case to the provincial director or start judicial proceedings in respect of any offence listed in section 23 for which the provincial director has authorized detention of the young person under subsection 30(8) of the Youth Criminal Justice Act following an arrest without a warrant.
M.O. 4366, s. 28.
29. When a young person is charged with an offence listed in section 23 and the aggravating circumstances of the offence are such that the use of an extrajudicial sanction would be inconsistent with the principles and objectives of this program, the criminal and penal prosecuting attorney may, exceptionally and with the agreement of the provincial director, start judicial proceedings in respect of the offence.
M.O. 4366, s. 29.
30. If an offence listed in section 23 is replaced or amended by the Parliament of Canada, the criminal and penal prosecuting attorney may, until the date of coming into force of a new agreement concerning this program, refer a case to the provincial director or start judicial proceedings in respect of any new offence created or amended that concerns the same subject-matter as the offence initially listed in that section.
M.O. 4366, s. 30.
31. When a young person not permanently resident in Québec is alleged to have committed an offence, the criminal and penal prosecuting attorney may start judicial proceedings in respect of any offence if he or she is of the opinion that it would not be feasible to have an assessment conducted by the provincial director or an agreement made concerning an extrajudicial sanction.
M.O. 4366, s. 31.
32. When a young person resident in Canada but not permanently resident in Québec is alleged to have committed an offence, the provincial director may, after assessing the situation and reaching an agreement with the young person’s province of residence, transfer the assessment or administration of the extrajudicial sanction to that province.
M.O. 4366, s. 32.
33. After the case of a young person has been referred to the provincial director, the criminal and penal prosecuting attorney may, after consulting the provincial director, authorize proceedings in respect of any offence allegedly committed after the recall date referred to in section 5.
M.O. 4366, s. 33.
CHAPTER VI
OTHER PROVISION
M.O. 4366, c. VI.
34. A subcommittee, under the responsibility of the YCJA intersectoral committee made up of representatives from the Ministère de la Justice, the Ministère de la Santé et des Services sociaux, the provincial director, the Director of Criminal and Penal Prosecutions and certain organizations sitting on the intersectoral committee on the application of the YCJA, will monitor the application of this extrajudicial sanctions program and propose amendments to it as required.
M.O. 4366, s. 34.
CHAPTER VII
COMING INTO FORCE
M.O. 4366, c. VII.
35. (Omitted in part).
Pursuant to Décret 480-2003 made by the Gouvernement du Québec, the Minister of Justice and the Minister of Health and Social Services jointly authorize this extrajudicial sanctions program for young persons who have committed certain offences; it replaces the alternative measures program authorized on 7 January 1994.
M.O. 4366, s. 35.
REFERENCES
M.O. 4366, 2020 G.O. 2, 3263
M.O. 4367, 2020 G.O. 2, 3271