Youth Criminal Justice  

BY: Marian E. Bryant

VII.1-2: Adult Sentences

CLICK HERE FOR ACCESS TO THIS CED TITLE AND ITS ASSOCIATED CANADIAN ABRIDGMENT LINKS ON westlaw CANADA. 

CLICK HERE FOR WESTLAW CANADA.

VII.1: Adult Sentence and Election 
See Canadian Abridgment: CRM.XIV.1.e.iv Criminal law — Youth offenders — Youth Criminal Justice Act — Sentencing — Adult sentence and election

The Crown may make an application for an order that a young person is liable to an adult sentence if the young person is found guilty of an offence for which an adult would be liable to imprisonment for more than two years and the offence was committed after the young person attained the age of 14 years.1 If the Crown intends to seek an adult sentence the Crown must give notice to the young person and the court before the entering of the plea or, with leave of the court, before trial.2

If the young person is alleged to have committed a serious violent offence when they were at least 14 years of age, or the mandated age in a province where the Lieutenant Governor in Council has fixed an age greater than 14,3 the Crown must consider applying for an adult sentence. If the Crown declines to make an application in those circumstances, the Crown must advise the court before the young person enters a plea or, with leave of the court, before trial.4

A "serious violent offence" is murder, attempted murder, manslaughter or aggravated sexual assault.5 

A young person has an election of how they will be tried if the Crown is seeking an adult sentence, the young person is charged with murder, the young person was 14 years or older at the time of the offence and is charged with an offence for which an adult would be entitled to an election or where there is uncertainty about whether the accused was 18 at the time of the alleged offence.6 In those circumstances, the young person may elect to be tried by a youth justice court judge, a judge alone, or by a judge and jury.7 The wording to be used in explaining the election options is set out in the Act.8 In Nunavut the wording of the election is varied to accommodate the unified court.9

Where two or more young persons charged with the same offence are jointly charged or in respect of whom the Attorney General seeks joinder of counts, the youth court judge may refuse to record an election, re-election or deemed election unless all the accused elect, re-elect or are deemed to have elected the same mode of trial.10 The Attorney General may still require trial by judge and jury even if the young person has elected to be tried without a jury.11 The preliminary inquiry is held in youth justice court12 in accordance with the provisions of the Criminal Code preliminary inquiry procedure13 except to the extent it is inconsistent with the Youth Criminal Justice Act.14 If two or more young persons are jointly charged and one or more of them make a request for a preliminary inquiry, it must be held with respect to all of them.15 The Criminal Code provisions relating to indictable offences tried without a jury and procedure in jury trials16 apply except that the Youth Criminal Justice Act provisions regarding the privacy of young persons prevail17 and the young person has a right to counsel if removed from court18 in accordance with the Criminal Code.19

VII.2:  Adult Sentencing Hearing 

See Canadian Abridgment: CRM.XIV.1.e.iv Criminal law — Youth offenders — Youth Criminal Justice Act — Sentencing — Adult sentence and election

At the beginning of a sentencing determination, a youth court judge must, unless the application is unopposed, hold a hearing in respect to an application for an adult sentence.1 The young person, his or her parents and the Crown may all speak at the hearing.2 The onus on the application is on the Crown.3

In order for an adult sentence to be imposed, the presumption of diminished moral blameworthiness of the young person must be rebutted and it must be established that a youth sentence would not be of sufficient length to hold the young person accountable for the offence.4 The pre-sentence report must be considered.5 If the court is not satisfied an adult sentence should be imposed, it must order that the young person is not liable to an adult sentence and a youth sentence must be imposed.6 The court must provide reasons for its decision.7

An order may be appealed in accordance with the Act as part of a sentence appeal.8 

Once appeal periods have passed or the appeal procedure has been exhausted on an adult sentence, a finding of guilt becomes a conviction.9 This does not affect the start of the adult sentence.10 The sentencing11 and dangerous offender12 provisions of the Criminal Code apply to young persons who have received an adult sentence.13

When the court orders a youth sentence rather than an adult sentence, the court must decide whether it is appropriate to order the publication ban to be lifted.14 The court may order the lifting of the ban on publication if it determines the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk.15 The onus of satisfying the court as to the appropriateness of lifting the ban is on the Crown.16

An appeal of a publication ban is part of a sentence appeal.17

A judge may order part of the adult sentence to be served in a youth facility; a provincial adult correctional facility or, if the sentence is more than two years, a penitentiary.18 It is mandatory that a report be prepared to assist the judge in making the determination.19 While the young person is under the age of 18 years, they may not serve any portion of imprisonment in an adult facility.20 No young person is to remain in a youth facility after reaching 20 years of age unless a youth justice court judge is satisfied it is in the interests of that person and would not jeopardize the safety of others.21 The Crown, young person, parent of the young person, the provincial director and representatives of the provincial and federal correctional facilities may make representations before the court determines the appropriate placement.22
An appeal of a placement order is part of a sentence appeal.23 

The placement decision may be reviewed when an application to do so is made by the young person, his or her parents, the Crown, the provincial director or representatives of the federal or provincial correctional facilities.24 The application may be made when the appeal limitation periods have expired.25 The applicant must give notice to all of the other interested parties set out above 26 The youth justice court judge who hears the review may, if satisfied circumstances have changed materially, change the placement of the young person.27

If part of the adult sentence is to be served in a youth facility, the provincial director must inform the appropriate 28 parole board.29

The release entitlement of an adult prisoner applies to a young person who is serving part of an adult sentence in a youth facility.30 

For a person serving a youth sentence in an adult facility, the person is entitled to be released on the earlier date between the day their earned remission would entitle them to release and the day the custodial portion of their youth sentence expires.31 Remission is calculated only on the custodial portion of a youth sentence.32
A young person who has an adult sentence imposed under the Youth Criminal Justice Act and a sentence of imprisonment imposed under another Act of Parliament should serve the sentences in an adult facility.33 
The effect of termination of sentence is akin to a pardon in that the young person is deemed not to have been found guilty or convicted of an offence.34 


Click here to view footnotes.