Defence Election for Young Accused

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General Principles

See also: Defence Election

Those charged with an offence as a young person (under 18 years of age) may have the right to elect the mode of trial where one of the following situations arise:[1]

  1. the Crown has given notice of intention to seek an adult sentence for an offence with a maximum penalty greater than 2 years and the accused was 14 years or older;
  2. the charge is murder (first or second degree) and the accused was 12 or 13 years old at the time of the offence; or
  3. it is not clear whether the accused was a young person at the time of the offence but would have had an election if an adult.
Election — adult sentence

67 (1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if

(a) [Repealed, 2012, c. 1, s. 178]
(b) the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence for an offence committed after the young person has attained the age of fourteen years;
(c) the young person is charged with having committed first or second degree murder within the meaning of section 231 of the Criminal Code before the young person has attained the age of fourteen years; or
(d) the person to whom section 16 (status of accused uncertain) applies is charged with having, after attaining the age of fourteen years, committed an offence for which an adult would be entitled to an election under section 536 of the Criminal Code, or over which a superior court of criminal jurisdiction would have exclusive jurisdiction under section 469 of that Act.


...

YCJA


Note up: 67(1)

If the accused elects trial by superior court judge or judge and jury, s. 13(2) and (3) deems the superior court of criminal jurisdiction to be a Youth Justice Court.

13.
...

Deemed youth justice court

(2) When a young person elects to be tried by a judge without a jury, the judge shall be a judge as defined in section 552 of the Criminal Code, or if it is an offence set out in section 469 of that Act, the judge shall be a judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be a youth justice court judge and the court is deemed to be a youth justice court for the purpose of the proceeding.

Deemed youth justice court

(3) When a young person elects or is deemed to have elected to be tried by a court composed of a judge and jury, the superior court of criminal jurisdiction in the province in which the election is made or deemed to have been made is deemed to be a youth justice court for the purpose of the proceeding, and the superior court judge is deemed to be a youth justice court judge.

Court of record

(4) A youth justice court is a court of record.

YCJA


Note up: 13(2), (3) and (4)


  1. see s. 67
Election Address
Election — adult sentence

67.
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Wording of election

(2) The youth justice court shall put the young person to his or her election in the following words: You have the option to elect to be tried by a youth justice court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
...

Wording of election

(4) The youth justice court shall put the young person to his or her election in the following words: You have the option to elect to be tried by a judge of the Nunavut Court of Justice alone, acting as a youth justice court without a jury and without a preliminary inquiry; or you may elect to be tried by a judge of the Nunavut Court of Justice, acting as a youth justice court without a jury; or you may elect to be tried by a judge of the Nunavut Court of Justice, acting as a youth justice court with a jury. If you elect to be tried by a judge without a jury or by a judge, acting as a youth justice court, with a jury or if you are deemed to have elected to be tried by a judge, acting as a youth justice court, with a jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

YCJA


Note up: 67(2) and (4)

Crown Override

For an accused under the Youth Criminal Justice Act, the Attorney General may similarly override the youth's election under s. 67(6) of the YCJA:

67.
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Attorney General may require trial by jury

(6) The Attorney General may, even if a young person elects under subsection (1) or (3) to be tried by a youth justice court judge without a jury or a judge without a jury, require the young person to be tried by a court composed of a judge and jury.

YCJA


Note up: 67(6)

The override of the accused's election must be done by the Attorney General or Deputy Attorney General.[1]

The use of the override in a manner that is inconsistent with the purposes and objectives of the YCJA may be an abuse of process.[2]

The Crown invocation of s. 67(6) of the YCJA is not part of the core prosecutorial discretion and therefore is not subject to deference on appeal.[3]

  1. R v GC, 2010 ONSC 115 (CanLII), per Molloy J, at para 12
  2. GC, ibid. - election overridden without explanation
  3. R v JSR, 2012 ONCA 568 (CanLII), per Feldman JA