Extrajudicial Measures

In Depth

What are extrajudicial measures?
Extrajudicial measures are processes other than court proceedings. They are used to deal with a youth who has broken the law. Examples of extrajudicial measures include:

  • Police warnings
  • Referrals to community programs
  • Crown cautions

Extrajudicial measures also include "extrajudicial sanctions." Extrajudicial sanctions usually provide for conditions that the young offender must follow.

Why does the YCJA provide for extrajudicial measures?
Measures outside the court process can provide effective responses to less serious youth crime. For example, a police warning for a minor first offence is often the most appropriate way of dealing with the youth.

Why are these measures used?
Extrajudicial measures are often the best way to address youth crime. The main reasons for using these measures are because:

  • They are often the most appropriate and effective way to address youth crime.
  • They allow for effective and timely interventions focused on correcting offending behaviour.
  • They are presumed to be adequate to hold a young person accountable if the young person has committed a non-violent offence and has not previously been found guilty of an offence.
  • Should be used in all cases where they are adequate to hold a young person accountable, even if the young person has previously been dealt with by extrajudicial measures or has previously been found guilty of an offence, as long as they're adequate to hold the young person accountable.

What is the presumption in regard to extrajudicial measures?
The normal response to youth crime should be to look at extrajudicial measures first before initiating the formal court process.

Note that extrajudicial measures are not limited to first time offenders only. The test of the measure in the case of a second or subsequent offence is to decide if it would be adequate to hold the youth accountable for that offence.

Extrajudicial measures are presumed to be adequate to deal with administration of justice offences, such as breaches of conditions or failure to appear in court, unless the youth has a history of repetitive breaches or the breach caused a safety risk to the public. The 2019 amendments aim to reduce the number of charges for administration of justice offences for youth.

Are extrajudicial measures recorded?

Yes, the 2012 amendments to the YCJA included changes to the recording of extrajudicial measures. The police force is now required to keep a record of any extrajudicial measures that they use to deal with young persons. This will enable both officers and Crown to be aware of any previous attempts to apply extrajudicial measures. The record cannot be used for sentencing considerations, but can be used for charge approval or in the consideration of further extrajudicial measures.

What should extrajudicial measures do?
Part 1: Section 5 of the YCJA states that extrajudicial measures should:

  • Provide an effective and timely response to the offending behaviour
  • Encourage the repair of harm caused to the victim and the community
  • Encourage the involvement of families, victims and the community
  • Respect the rights of young persons
  • Be proportionate to the seriousness of the offence

A measure that repairs the harm done can often be the most meaningful consequence for the youth and can be effectively implemented outside the court process.

When can an extrajudicial measure be used?
Part 1: Sections 6, 8 and 10 of the YCJA identify the types of measures that can be used. These measures should only be used if there are reasonable grounds to charge the youth with an offence.

Whether an offence is serious or not is determined by looking at the circumstances. If significant harm has been done to a person, if substantial damage has been done or if property of substantial value has been stolen, the police and Crown will consider these factors when considering extrajudicial measures.

What extrajudicial measures can the police use?
Taking into account the principles and presumption for the use of extrajudicial measures, the police may use the following extrajudicial measures:

  • Take No Further Action: Here, the parents, victim or others may have already taken sufficient steps to hold the youth accountable.
  • Warning the Young Person: It is intended to be an informal warning and an exercise of informal police discretion.
  • Police Caution: This is a more formal warning in the form of a letter to the youth and parents or a request that the youth and parent come to the police station for a talk with a senior officer. No formal police caution has been adopted in BC.
  • Referrals to Community Programs: Here, the youth is referred to a community program or agency that may help the youth and prevent him or her from committing further offences. The informed and voluntary consent of the youth is required. The youth may consult with counsel.

What are some examples of Community Programs?

  • Police-based diversion programs, such as Youth Intervention Program
  • Community accountability programs, such as Restorative Justice
  • Recreational programs, Boys & Girls Clubs and sporting clubs
  • Substance use treatment programs

What extrajudicial measures can Crown use?
The Crown may use the following extrajudicial measures:

  • Crown Caution: Given after the police have referred the case. This is usually in the form of a letter to the youth and his or her parents.
  • Referral to an Extrajudicial Sanctions Program: A program that is intended for more serious offenders and where a more formal set of rules apply.

Why do police or the Crown use conferences?
Section 19 of the Act authorizes a police officer or a Crown counsel to hold a conference in order to obtain advice on appropriate measures. Conferences are a way to get:

  • More ideas on a case
  • More creative solutions
  • Better coordination of services
  • More involvement from the victim or other community members

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 are not enough to hold the youth accountable
  • There is a program in the community authorized by the government
  • It is appropriate given the needs of the youth and the interests of society
  • The youth has agreed to the sanction, has been advised of his or her right to a lawyer and has been given an opportunity to talk to a lawyer
  • The youth has accepted responsibility
  • There is enough evidence to proceed with the charge.

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 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 can ask to be told your name and how the crime has been dealt with.

What happens when taking part in extrajudicial measures?
If the youth takes responsibility for the crime as a condition for an extrajudicial measure, that information cannot be used against the youth.

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 come up during sentencing for any later findings of guilt or convictions. Other extrajudicial measures do not.