Youth Defence

While using words used in “regular” adult court proceedings, a Conditional Discharge Order under the YCJA is not a young person-sized version of the adult sentence. The differences between a Conditional Discharge Order under section 42(2)(c) of the YCJA in practice lie primarily with how the records access period for youth records is affected as well as what the test is for a Conditional Discharge Order to be considered for a Young Person in certain jurisdictions.

Under the YCJA, a youth record remains open for the length of the Young Person’s last youth sentence followed by a records access period of either 3 years or 5 years from the last date of that last youth sentence. The 3 year records access period applies when the youth sentence is for a summary matter. The 5 year records access period is when the adult sentence is for when the youth sentence is for an indictable matter. Contrary to the mistaken belief that all things youth justice related disappear when the Young Person turns 18, the age a Young Person receives their last youth sentence and what they received their last youth sentence for combine to create situations where a Young Person may be over the age of majority in their jurisdiction but still have an open Youth Record that can be accessed as either the youth sentence is still being served and/or the records access period will run past the Young Person’s 18th birthday. When a Young Person is over the age of majority and is charged with a criminal offence as an adult offender, a youth record of their previous findings of guilt may be available to the prosecution to use for bail hearing purposes if the records access period has not yet expired. If a person is convicted of a criminal offence as an adult offender while having a youth record that is still open, meaning the records access period has not yet past, the adult conviction will crystallize the previous findings of guilt from the youth record and make all applicable youth findings of guilt part of the permanent adult criminal record moving forward.

With a Conditional Discharge Order under the YCJA, the records access period starts from the date the Young Person receives the Conditional Discharge Order as a youth sentence provided that all conditions of the Order were successfully complied with. Also, unlike the McFarlane test for an adult Conditional Discharge, in Alberta there is a different test used to determine if a youth Conditional Discharge Order is applicable, the test under the 2004 Alberta Court of Appeal decision in R. v CSW. CSW confirms that in Alberta, the test is only whether a Conditional Discharge Order is in the best interests of the Young Person. In McFarlane, there is the additional step of considering whether the granting of a Conditional Discharge as a sentence is contrary to the public interest.

Keeping this in mind then, one might wonder what happens if a person with an open youth record is convicted as an adult and receives a Conditional Discharge as a sentence. On this issue, there are very few reported decisions that provide any insight at this time (2024). R. v BS from Ontario’s Court of Justice suggests that if an offender is successful under a Conditional Discharge Order, the previous youth record would not crystallize and join an adult criminal record. One wonders if the timing of when someone searches for a criminal record becomes a consideration in these circumstances, as a records check during the adult Conditional Discharge period would mean that there is no confirmation of success yet and the youth record being crystallized is in a “wait and see” state. It would be interesting if further jurisprudence in this area came about, even if the area may be a unique one where a youthful adult offender with an existing and open youth criminal record has circumstances that could call for a Conditional Discharge as a sentence meeting the two-part test.