The YCJA contains provisions to avoid charging a young person with a crime. The YCJA sets out extrajudicial measures (EJMs) or steps that the police or Crown can take to keep youth matters out of the courts where possible. (YCJA, s. 4) For a young person with FASD, it is critically important that their particular vulnerabilities and circumstances be taken into account when extrajudicial measures are being considered.
Police are required to consider whether they could give a warning, caution, or referral before charging a young person with a crime. (YCJA , s. 6) Under the YJCA, police must consider whether an EJM such as a warning would be enough to deter the young person in future, or whether it is more effective, timely and meaningful to refer the young person to a social service or program rather than charging them.
- EJMs are very often the most effective and appropriate way to address youth crime. They allow for timely interventions focussed on changing behaviour.
- Under the YJCA, EJMs are presumed adequate to hold a young person accountable if the offence committed was non-violent and the young person has not previously been found guilty of an offence.
- The YJCA also says that extra-judicial measures should be used if they are adequate to hold a young person accountable and their use is consistent with the above two principles.
The YCJA states that: extrajudicial measures should be designed to
- provide an effective and timely response to offending behaviour outside the bounds of judicial measures;
- encourage young persons to acknowledge and repair the harm caused to the victim and the community;
- encourage families of young persons — including extended families where appropriate — and the community to become involved in the design and implementation of those measures;
- provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation; and
- respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence.
(YCJA, s. 5)
When will a young person get an EJM?
The circumstances of the offence will be important to whether and how EJMs are deemed appropriate. A young person should be considered for an EJM in every case where:
- the offence was non-violent
- the offence related to property
- the young person has no record, or a minor record
- the harm done was minimal
EJMs can also be appropriate for more serious cases, although not initially presumed under the YCJA to be adequate. For a young person with FASD it is important that their particular vulnerabilities, how they impact their capacity for responsibility and needs for support, be taken into account when the circumstances of the offence and extrajudicial measures are being considered.