Extrajudicial Measures

In Depth 3

This section explains Extrajudicial Sanctions

When can extrajudicial sanctions be used?
Extrajudicial sanctions are the most formal type of extrajudicial measures. The Crown may only use extrajudicial sanctions if:

  • Other extrajudicial measures would not be adequate to hold the youth accountable
  • There is a program in the jurisdiction authorized by the government
  • It is appropriate given the needs of the youth and the interests of society
  • The youth has given informed consent and has been advised of his or her right to counsel and has been given an opportunity to consult counsel
  • The youth has accepted responsibility for the conduct that forms the basis of the offence
  • There is sufficient evidence to proceed with the charge.

An example might be:

Assault

Mary got into a fight at school with another girl.  They were pushing and shoving and Mary slapped the other girl in face.  The police were called to the school and decided in the circumstances that an extrajudicial measure may be appropriate as it was her first offence. However, Mary suffered from Fetal Alcohol Syndrome and did not have very supportive parents.  The offence was also violent in nature. The officer decided to file a report to Crown and recommended that an extrajudicial sanction be done and that treatment be part of Mary’s conditions. 

Who deals with the referral from Crown?
Probation Services of the Ministry of Children and Family Development usually deal with a youth that has been referred by Crown.

What is the referral process?

Upon receiving a referral from Crown, the probation officer conducts a screening interview with the youth and their parent/guardian. This interview explains the extrajudicial sanctions process, advises the youth of their right to representation and their right to refuse extrajudicial sanctions, and discusses the recommended EJS agreement and obtains the support of the parent/guardian. The youth is also notified that non-compliance with the agreement may result in prosecution of the offense. All reasonable efforts to contact victims are made and victims are encouraged to give their opinions in respect to the use of extrajudicial sanctions and are encouraged to participate where possible. All decisions regarding the terms and conditions of the extrajudicial sanction agreement are subject to the approval of Crown Counsel.  

What are some examples of extrajudicial sanctions?

The terms and conditions of an extrajudicial sanction agreement should be confined to those that are reasonably achievable within a three month time period. The terms and conditions should be fair, proportionate and a relevant response to the alleged offence. Examples include:

  • a written or verbal apology to the victim
  • complete an essay or research assignment
  • attend school and or maintain employment
  • participation in a conference
  • participation in a victim-offender mediation program
  • community service work, or direct service to the victim (maximum 50 hours, money in lieu of service cannot be substituted)
  • full or partial restitution or compensation to the victim
  • counselling
  • Supervision by Probation for the purpose of completing the agreement

What happens to a charge that has been laid if the youth completes an extrajudicial sanction?
If a charge has been laid, the Crown adjourns the case until the youth has substantially complied with the extrajudicial sanction. An extrajudicial sanction is usually completed in 3-6 months. At that time the charge will be "stayed." This means that Crown will not pursue the charge in court.

If the youth does not comply with the sanction or does not complete it, the Crown will usually continue with the prosecution in court.

Who is entitled to be notified if an extrajudicial sanction is being used?
The person administering the program for the youth must notify the parents of the youth about the extrajudicial sanction. Also, the victim of the offence is entitled, on request, to be informed of the identity of the youth and how the offence has been dealt with.

What are the consequences of participating in extrajudicial measures?
Section 10(4) states "the admission of responsibility made by the youth as a condition of being dealt with by extrajudicial measures is inadmissible as evidence against that youth in civil or criminal proceedings for the purpose of proving prior offending behaviour."

However, if a youth is being sentenced in court under Section 40, any history of extrajudicial sanctions will appear in a pre-sentence report. Crown, the youth, and police may also look at the record of the extrajudicial sanctions for a certain length of time under Section 119 (2).

Extrajudicial sanctions will come up during sentencing for any later convictions, whereas other extrajudicial measures will not.