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. The shared responsibility of the Minister of Health and Social Services and the Minister of Justice in authorizing a program demonstrates Québec’s desire to promote 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. In addition, it promotes reparation of the harm done to persons who are victims. The decision on whether or not to use the program 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 persons who are 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) persons who are 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 promote 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 refers to delinquent acts generally committed by most young persons. It is characterized by a limited number of less serious offences. It is part of a developmental stage in which young people have experiences and can test social limits, which contributes to the learning of social norms. Common delinquency mostly disappears on its own at the end of adolescence. (Adapted from: Fréchette and Leblanc, 1987; Lafortune and Royer, 2015)

CHAPTER I INTERPRETATION AND APPLICATION

A.M. 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.

A.M. 4366, s. 1.

2. In this program,

0.a)  “aggravating circumstances” means an aggravating circumstance within the meaning of section 718.2 of the Criminal Code (R.S.C. 1985, c. C-46), except subparagraph (ii.1) of paragraph (a);

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 (S.C. 2002, c. 1);

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 and persons who are victims;

c.1)  “person who is a victim” means a victim within the meaning of the Youth Criminal Justice Act;

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 the governance of the health and social services system (chapter G-1.021) or the Act respecting health services and social services for the Inuit and Naskapi (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” and “extrajudicial sanction” have the meaning given by the Youth Criminal Justice Act.

A.M. 4366, s. 2; A.M. 5438, 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.

A.M. 4366, s. 3.

CHAPTER II PROCEDURE TO DETERMINE IF EXTRAJUDICIAL SANCTIONS ARE APPROPRIATE

A.M. 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 swiftly 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 30 days after receiving them, makes a decision pursuant to section 5.

A.M. 4366, s. 4; A.M. 5438, s. 4; I.N. 2025-09-01.

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 section 7 and Chapter V, may refer the case to the provincial director or authorize the prosecution of the young person.

a)  (subparagraph revoked);

b)  (subparagraph revoked).

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.

A.M. 4366, s. 5; A.M. 5438, s. 5.

6. (Revoked).

A.M. 4366, s. 6; A.M. 5438, 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, the criminal and penal prosecuting attorney must consult the provincial director, except if the criminal and penal prosecuting attorney is certain to use an extrajudicial sanction with respect to the young person, before making a decision under of section 5.

A.M. 4366, s. 7; A.M. 5438, 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 an extrajudicial sanction 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 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.

A.M. 4366, s. 8; A.M. 5438, s. 8.

9. [Notice] The provincial director must send to the criminal and penal prosecuting attorney, as soon as possible, 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 an extrajudicial sanction when the change concerns the nature of the extrajudicial sanction or leads to an extension of its application beyond the date on which the right of prosecution is prescribed.

When the 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 the 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.

A.M. 4366, s. 9; A.M. 5438, 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.

A.M. 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.

A.M. 4366, s. 11.

12. [Following an information] After an information has been laid against a young person and at any time thereafter, 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.

A.M. 4366, s. 12; A.M. 5438, s. 11.

CHAPTER III TERMS AND CONDITIONS FOR THE USE OF EXTRAJUDICIAL SANCTIONS

A.M. 4366, c. III.

13. [Nature of sanction] The provincial director may propose one of the following as extrajudicial sanctions for a young person, giving priority to reparation for the person who is a victim:

a)  reparation of the harm caused to the person who is a victim, as decided through mediation, in particular in the form of participation in a mediation session, financial compensation, work performed for the person who is a 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.

A.M. 4366, s. 13; A.M. 5438, s. 12.

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;

a.1)  when a person who is a victim is identified in the case, he or she must be consulted before the measures are determined;

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 extrajudicial sanction must be administered as soon as possible; the time allowed for doing so 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)  it 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 present 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 an extrajudicial sanction and, where applicable, take the necessary means to allow the young person to complete it.

A.M. 4366, s. 14; A.M. 4367, s. 1; A.M. 5438, s. 13.

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.

A.M. 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.

A.M. 4366, s. 16.

17. [Content of agreement] Any agreement on an extrajudicial sanction 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.

A.M. 4366, s. 17; A.M. 5438, s. 16.

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 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 an extrajudicial sanction 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 sanctions used to deal with him or her in the two preceding years may be taken into consideration by the court when imposing a custodial sentence.

A.M. 4366, s. 18; A.M. 5438, s. 17.

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.

A.M. 4366, s. 19.

20. [Administration] The provincial director sees to the administration of an extrajudicial sanction to which the young person consents to be subject.

A.M. 4366, s. 20; A.M. 5438, s. 19.

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 limitation on the institution of proceedings after the time when the subject-matter of the proceedings arose, provided for in section 786(2) of the Criminal Code (R.S.C. 1985, c. C-46) via section 140 YCJA, subject to the consent of the criminal and penal prosecuting attorney.

A.M. 4366, s. 21; A.M. 5438, s. 20.

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.

A.M. 4366, s. 22.

CHAPTER IV

(Revoked)

A.M. 4366, c. IV; A.M. 5438, s. 21.

23. (Revoked).

A.M. 4366, s. 23; A.M. 5438, s. 21.

CHAPTER V SITUATIONS THAT MUST OR MAY BE REFERRED BY THE CRIMINAL AND PENAL PROSECUTING ATTORNEY TO THE PROVINCIAL DIRECTOR

A.M. 4366, c. V; A.M. 5438, s. 22.

23.1. For the purposes of this program, the criminal and penal prosecuting attorney must refer a case to the provincial director when charges are brought against a young person, except if the aggravating circumstances of the offence are such that the use of an extrajudicial sanction would be contrary to the principles and objectives of this program, or the offence involved violence, including physical, psychological, verbal, economic or sexual violence.

However, in the event of aggravating circumstances, for offences punishable by imprisonment for 5 years or less, the prosecuting attorney must consult the provincial director before deciding how to proceed with the case.

A.M. 5438, s. 23.

23.2. The following offences are excluded from the program:

1°  offences causing death, or attempts or conspiracies to commit such offences;

2°  offences referred to in section 469 of the Criminal Code (R.S.C. 1985, c. C-46) that are under the exclusive jurisdiction of a superior court;

3°  offences relating to terrorism;

4°  offences in connection with a criminal organization;

5°  offences relating to firearms, prohibited weapons or imitations thereof, where prosecuted by indictment.

A.M. 5438, s. 23.

24. When an extrajudicial sanction has already been used twice 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.

A.M. 4366, s. 24; A.M. 5438, s. 24.

25. When, as part of the same incident, a young person is involved in several offences, the Director of Criminal and Penal Prosecutions may refer the case to the provincial director or authorize prosecution of all the offences.

A.M. 4366, s. 25; A.M. 5438, s. 25.

26. When a young person is involved in a series of offences connected with several incidents on different dates, 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.

A.M. 4366, s. 26; A.M. 5438, 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).

A.M. 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 for which the provincial director has authorized detention of the young person under subsection 30(8) of the Youth Criminal Justice Act (S.C. 2002, c. 1) following an arrest without a warrant.

A.M. 4366, s. 28; A.M. 5438, s. 27.

29. (Revoked).

A.M. 4366, s. 29; A.M. 5438, s. 28.

30. (Revoked).

A.M. 4366, s. 30; A.M. 5438, s. 29.

30.1. 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.

A.M. 5438, s. 30.

31. When a young person not permanently resident in Canada 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.

A.M. 4366, s. 31; A.M. 5438, s. 31.

32. (Revoked).

A.M. 4366, s. 32; A.M. 5438, 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.

A.M. 4366, s. 33.

CHAPTER VI OTHER PROVISION

A.M. 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.

A.M. 4366, s. 34.

CHAPTER VII COMING INTO FORCE

A.M. 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.

A.M. 4366, s. 35.

REFERENCES

M.O. 4366, 2020 G.O. 2, 3263

A.M. 4367, 2020 G.O. 2, 3271

S.Q. 2023, c. 34, ss. 1293 and 1634

A.M. 5438, 2025 G.O. 2, 2870