Lesson 7: Youth Criminal Justice Act - Sentencing and Records

Topic 3: Adult Sentences for Youth

When Are Adult Sentences Used for Youth?

  • If the offence is murder, attempted murder, manslaughter or sexual aggravated assault (presumptive offences) then it is presumed that an adult sentence will be given unless the youth can persuade the court that a youth sentence will hold the youth accountable.
  • If the offence is not a presumptive offence (described above), the Crown may seek an adult sentence if the youth is 14 and if the offence is the youth's third serious violent offence or one which an adult could receive more than 2 years.

Prior to the Enactment of the YCJA in 2003, What was the Process for Giving Youth an Adult Sentence?
If the youth offender was 14 years of age or older, s/he could be moved to adult court. If convicted, the young offender could have received an adult sentence. If the young offender was 16 or 17 years old and was convicted of a "presumptive offence," the court would use an adult sentence unless s/he convinced the court not to. Presumptive offences were:

  • Murder
  • Attempted murder
  • Manslaughter
  • Aggravated sexual assault

What was the Problem with Being Moved to Adult Court?

The transfer hearing was complex, caused big delays, was considered unfair and it took place before the youth was found guilty of the crime. The YCJA got rid of the transfer hearing to adult court. An adult sentence may only be used for youth after they are found guilty in youth court. There are more protections throughout the process to ensure that the young offender’s rights are fully guarded.

What Types of Crimes May Have an Adult Sentence?

Youth could get an adult sentence if they are found guilty of a presumptive crime and in BC, if they are over the age of 14. An adult sentence could be ordered if youth are 14 or older and:

  • The crime is one of a pattern of repeated serious, violent crime
  • The crime is one for which an adult would get more than two years in jail

Offences that fall under the presumptive category are:

  • Murder
  • Attempted murder
  • Manslaughter
  • Aggravated sexual assault
  • Repeated serious violent offences

An adult sentence can be used for these crimes unless it is proven that the youth should not get an adult sentence. The age at which the presumption of an adult sentence applies can be 14, 15, or 16. It is up to the province or territory. For example, the age is 14 in British Columbia and 16 in Quebec. The presumption means that youth have to show why they should not get an adult sentence. Otherwise, youth can get an adult sentence.

Adult sentences should only be used when there is no youth sentence long enough to hold the young offender accountable. The judge considers the youth's reduced level of maturity and greater dependency. The Crown lawyers must give notice to the young offender and the court that it is seeking an adult sentence for all non-presumptive crimes. For this type of crime, the Crown must prove that an adult sentence is a good idea. However, for presumptive crimes under the Act, the offender’s lawyer must convince the court that s/he should get a youth sentence to avoid an adult sentence. The Crown may choose at any time not to go after an adult sentence.

You should know that in most provinces and territories, the Crown gives notice anytime they want the judge to give you an adult sentence. They do this for presumptive offences. The Quebec Court of Appeal ruled in 2003 that the YCJA violates the Charter of Rights and Freedoms by placing the burden on youth during sentencing in a presumptive crime. This ruling did not change the YCJA. However, it does mean that in most provinces and territories, the Crown gives notice for both non-presumptive and presumptive crimes.

Youth must apply for a court order under Section 63 of the Act for:

  • Murder
  • Attempted murder
  • Manslaughter
  • Aggravated sexual assault
  • Serious, violent crimes

All youth trials take place in youth court, even if an adult sentence is being sought. If the crime may attract a penalty of five or more years in custody, youth may choose the type of trial. This means that they may decide whether to have a judge and jury, or a judge alone.

There are no "elections" in trials where youth sentences are sought - except when the charges include first- or second-degree murder where the youth penalty could be 10 and 7 years respectively.

If there is an election, youth could choose a trial with a:

  • Youth justice court judge without a jury
  • Judge without a jury after a preliminary inquiry (hearing to decide if there is enough evidence to proceed to a full trial.)
  • Judge and jury after a preliminary inquiry

The court must hold a hearing to see if a youth or adult sentence should be used. The court must apply the main considerations for sentencing to make the decision. The court may consider a pre-sentence report and conference recommendations. The Crown, the young offender, and his or her parents may get a chance to speak. The court must state its reasons for the decision. Youth are eligible for adult parole if an adult sentence is used.

There is more flexibility under the YCJA for where youth would serve an adult sentence. If the young offender is under 18, s/he would serve the adult sentence in a youth facility, unless it is not in his or her best interests or if s/he would jeopardize the safety of others. If the young offender is 18 or older when sentenced and his or her sentence is less than 2 years, s/he may go to a provincial jail. If youth are 18 or older when sentenced and the sentence is more than 2 years, s/he may go to a federal jail. If s/he turn 20 in a youth facility, s/he may be moved to an adult facility.

Did You Know? 

  • There has been no death penalty in Canada since 1979. The longest adult sentence is life in prison.
  • Youth can get a life sentence if they are convicted of murder and the judge orders an adult sentence.
  • If youth are 16 or 17 years old and get an adult sentence for first-degree murder, they will get a life sentence. Youth are eligible for parole after 10 years.
  • If youth are charged with first or second-degree murder, the young offender may choose to be tried by a Supreme Court judge with a jury.
  • The Crown must apply to the judge for a crime to be considered a serious violent crime. If the judge decides that it is the third serious, violent crime that the young offender has committed, then the crime becomes presumptive and an adult sentence is most likely.

Summary

  • The transfer hearing to adult court has been eliminated
  • Deciding if an adult sentence is appropriate only takes place after a finding of guilt in youth court
  • If the offence is not a presumptive offence, the Crown may seek an adult sentence if the youth is 14 and if the offence is the youth's third serious violent offence or one which an adult could receive more than 2 years
  • If the offence is murder, attempted murder, manslaughter or sexual aggravated assault (presumptive offences) then it is presumed that an adult sentence will be given unless the youth can persuade the court that a youth sentence will hold the youth accountable. The age at which this presumption takes effect will vary as the provinces can choose the age of 14, 15 or 16
  • Adult sentences should only be used in cases where the youth sentence would not be of sufficient length to hold the youth accountable, bearing in mind the reduced level of maturity and the greater dependency of youth
  • Corrections have more flexibility under the YCJA with regard to the placement of the youth who have been given an adult sentence
  • The Crown must give notice to the youth and the court that it is seeking an adult sentence for all non-presumptive offences. The burden is on the Crown in this type of offence to prove that an adult sentence is appropriate
  • In cases of presumptive offences the youth must persuade the court that in the circumstances he or she should receive a youth sentence
  • The Crown may choose at any time during the proceedings not to pursue an adult sentence
  • All trials of youth will take place in youth court whether a youth or adult sentence is being sought
  • If an adult sentence is being sought and a conviction may attract a penalty of five or more years, then the youth may elect the mode of trial
  • If a youth sentence is sought, then there is no election - except in the case of first or second degree murder where the youth penalty could be 10 and 7 years respectively
  • During elections, youth may elect :
    • A trial by a youth justice court judge without a jury
    • A trial by judge without a jury, following a preliminary inquiry
    • A trial by judge and jury, following a preliminary inquiry
  • The court must hold a hearing to determine whether a youth or adult sentence should be imposed and must state its reasons for the decision
  • A youth under the age of 18 would serve the adult sentence in a youth facility unless it would not be in the best interests of the youth or the youth would jeopardize the safety of others