Canada’s Youth Criminal Justice Act, SC 2002, c 1 defines a young offender as being someone who is 12 years of age or older, but under 18.
Convictions under the Youth Criminal Justice Act
Section 36 of the Immigration and Refugee Protection Act regulates when a foreign national or permanent resident can be inadmissible for criminality.
Section 36(3)(e)provides that:
(e) inadmissibility under subsections (1) and (2) may not be based on an offence
(i) designated as a contravention under the Contraventions Act,
(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
It is important to note that unlike in some jurisdictions, juvenile offenders in Canada are not transferred to adult court. Instead, the Youth Criminal Justice Act established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence.
If a youth in Canada receives an adult sentence, then they can be inadmissible to Canada and subject to removal.
Youth Convictions Outside of Canada
If a foreign jurisdiction’s young offender legislation establishes an age of majority that is different from Canada, visa officers must first determine whether the offence, if committed in Canada, would have resulted in the imposition of an adult sentence. If, on a balance of probabilities, an adult sentence would not have been imposed in Canada, then the individual would not be considered inadmissible based on the conviction.
Offences that can lead to an adult sentence are indictable offences committed when the youth was at least 14 years old, for which an adult would be liable to imprisonment for more than two years.
There previously was also a presumption that youth 14 or older found guilty of certain serious violent offences would receive an adult sentence, however, the Supreme Court of Canada struck this down in 2008. In 2012, Parliament amended the adult sentencing provisions of the Youth Criminal Justice Act to include the following:
- If a young person is 14 years of age or older and is charged with a serious violent offence, the prosecutor must consider applying to the court for an adult sentence. If the prosecutor decides not to apply for an adult sentence, the prosecutor must advise the court. A province may decide to change the age at which this obligation is triggered from 14 to 15 or 16.
- A court can impose an adult sentence only if (a) the prosecution rebuts the presumption that the young person has diminished moral blameworthiness or culpability and (b) a youth sentence would not be of sufficient length to hold the young person accountable.
- A young person under the age of 18 who receives an adult sentence is to be placed in a youth facility and may not be placed in an adult correctional facility. Once the young person turns 18, he or she may be placed in an adult facility.
If a person was convicted as a young offender in a foreign jurisdiction that has young offender provisions, then they are generally not considered inadmissible. However, if they were dealt with as an adult, then it can be necessary to determine equivalency.
IRCC training materials provide that some indications that a young offender was dealt with as an adult include:
- the case was transferred to an adult court for prosecution;
- an adult sentence was imposed; or
- the evidence suggests that the person was not treated as a young offender, other than a transfer to adult court or the imposition of an adult sentence.
If the foreign jurisdiction does not have young offender provisions, it is necessary to examine the circumstances of the offence to determine how the person would have been dealth with in Canada under the Youth Criminal Justice Act. If the person would not have been issued an adult sentence in Canada, then the foreign conviction would not render the person inadmissible.