Adult Sentences for Young Offenders: Difference between revisions

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Sentences under s. 38 YCJA does not apply for adult sentences under s. 73.<ref>
Sentences under s. 38 YCJA does not apply for adult sentences under s. 73.<ref>
''R v Nguyen'', [http://canlii.ca/t/1xdk6 2008 BCCA 252] (CanLII), 234 CCC (3d) 67{{perBCCA|Frankel JA}} (3:0)</ref>
{{CanLIIRP|Nguyen|1xdk6|2008 BCCA 252] (CanLII)|, 234 CCC (3d) 67}}{{perBCCA|Frankel JA}} (3:0)</ref>


; Dangerous Offenders
; Dangerous Offenders

Revision as of 23:23, 27 January 2021

General Principles

Under s. 64(1) of the YCJA the Crown may apply to the court to have the accused sentenced as an adult:

Application by Attorney General

64 (1) The Attorney General may, following an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence, other than a presumptive offence, for which an adult is liable to imprisonment for a term of more than two years, that was committed after the young person attained the age of fourteen years.

Obligation

(1.1) The Attorney General must consider whether it would be appropriate to make an application under subsection (1) if the offence is a serious violent offence and was committed after the young person attained the age of 14 years. If, in those circumstances, the Attorney General decides not to make an application, the Attorney General shall advise the youth justice court before the young person enters a plea or with leave of the court before the commencement of the trial.

Order fixing age

(1.2) The lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of subsection (1.1).

Notice of intention to seek adult sentence

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

Included offences

(3) A notice of intention to seek an adult sentence given in respect of an offence is notice in respect of any included offence of which the young person is found guilty for which an adult is liable to imprisonment for a term of more than two years.

(4) and (5) [Repealed, 2012, c. 1, s. 176]

2002, c. 1, s. 64; 2012, c. 1, s. 176.

– YCJA

Note up: 64(1), (1.1), (1.2), (2), and (3)

Notice and Election Required to Apply

In order to apply for an adult sentence the Crown must provide notice under s. 64(2) YCJA.[1]

  1. ↑ see s. 67 YCJA, Procedure for Young Accused

Procedure

Section 71 requires the Youth Justice to hold a s. 64 hearing at the commencement of the sentencing hearing unless the accused is consenting to the availability of an adult sentence.

Hearing — adult sentences

71 The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.

2002, c. 1, s. 71; 2012, c. 1, s. 182.

– YCJA

Note up: 71

Consequence of Findings

Where a determination has been made to impose an adult sentence, s. 73 requires the court to treat the young person as an adult:

Court must impose adult sentence

73 (1) When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Court must impose youth sentence

(2) When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

2002, c. 1, s. 73; 2012, c. 1, s. 184.

– YCJA

Note up: 73(1) and (2)

Sentences under s. 38 YCJA does not apply for adult sentences under s. 73.[1]

Dangerous Offenders

Where an adult sentence is found to be appropriate, the provisions of the Criminal Code relating to Sentencing and Dangerous Offenders apply:

Application of Parts XXIII and XXIV of Criminal Code

74 (1) Parts XXIII (sentencing) and XXIV (dangerous and long-term offenders) of the Criminal Code apply to a young person in respect of whom the youth justice court has ordered that an adult sentence be imposed.

Finding of guilt becomes a conviction

(2) A finding of guilt for an offence in respect of which an adult sentence is imposed becomes a conviction once the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed and the appeal court has upheld an adult sentence.

Interpretation

(3) This section does not affect the time of commencement of an adult sentence under subsection 719(1) of the Criminal Code.

– YCJA

Note up: 74(1), (2) and (3)

Conviction for Included Offences

69 (1) [Repealed, 2012, c. 1, s. 180]

Included offences

(2) If the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence and the young person is found guilty of an included offence for which an adult is liable to imprisonment for a term of more than two years, committed after he or she has attained the age of 14 years, the Attorney General may make an application under subsection 64(1) (application for adult sentence).

2002, c. 1, s. 69; 2012, c. 1, s. 180.

– YCJA

Note up: 69(1) and (2)

  1. ↑ R v Nguyen, 2008 BCCA 252 (CanLII)], , 234 CCC (3d) 67, per Frankel JA (3:0)

Requirement to Impose Adult Sentence

Under s. 72 of the YCJA, the court determines whether the grant the request for an adult sentence:

Order of adult sentence

72 (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
Order of youth sentence

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1) , it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.

Pre-sentence report

(3) In making an order under subsection (1) or (1.1) , the youth justice court shall consider the pre-sentence report.

Court to state reasons

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

Appeal

(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence.

2002, c. 1, s. 72; 2012, c. 1, s. 183.
[annotation(s) added]

– YCJA

Note up: 72(1), (1.1), (2), (3), (4), and (5)

In order for the offender to be sentenced as an adult, the judge must be satisfied that the youth sentence will not be long enough to achieve the goals of accountability.[1]

Presumptions

There is a presumption of "diminished moral culpability in young persons".[2]

Burden and Standard of Proof

The burden is on the Crown to establish that an adult sentence is necessary. This includes rebutting the presumption of diminished culpability. [3]

Under either iteration of s. 72(1) of the YCJA, before a youth court judge can sentence a young person as an adult, the Crown must satisfy the court that the presumption of diminished moral blameworthiness to which the young person is constitutionally entitled has been rebutted and that a youth sentence would not be of a sufficient length to hold the young person accountable for his or her offending behaviour.[4]

This burden is overcome if "the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age."[5]

There is not a "very heavy onus" on the Crown and does not require proof beyond a reasonable doubt.[6] The underlying facts, however, must always be proven beyond a reasonable doubt.[7]

The presumption is rebutted by showing the young person possessed the level of maturity, moral sophistication and capacity for independent judgment of an adult.[8]

The question of maturity is not measured against a middle-aged adult, but instead the "average 18-year-old adult offender".[9]

The rebuttal is overcome only "after careful consideration by the court of all relevant factors"[10]

The decision requires "significant care, in line with the impact of a young person potentially receiving an adult sentence".[11]

Considerations

The court must "weigh and balance the enumerated factors and then to decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour".[12]

Where the accused is subject to an adult sentence Part XXIII regarding sentencing and Part XXIV regarding dangerous offenders applies. (s. 74(1))

"sufficient length"

The question of sufficiency of length of sentence asks whether the sentence is "long enough to provide reasonable assurance of the young person's rehabilitation to the point where [they] can be safely reintegrated into society".[13] The assurance does not need to be "absolute certainty". It means only a "reasonable prediction of future behaviour" based on all the evidence.[14]

  1. ↑ R v Ferriman, 2006 CanLII 33472 (ON SC), per McCombs J, at #par38 para 38, upheld at 2007 ONCA 710 (CanLII), per curiam
  2. ↑ R v DB, 2008 SCC 25 (CanLII), [2008] 2 SCR 3, per Abella J, at para 69
  3. ↑ DB, ibid., at para 93
  4. ↑ DB, supra, at paras 45, 93
    R v Joseph, 2016 ONSC 3061 (CanLII), [2016] OJ No 2450, per Code J, at paras 48 to 52
    R v CS, 2014 ONSC 4362 (CanLII),, [2014] OJ No 4206, per Kelly J, at paras 9 to 10
    R v BL, 2013 MBQB 89 (CanLII), 292 Man. R. (2d) 51, per Mainella J, at paras 3, 35
  5. ↑ DB, supra, at paras 45, 77, and 93
    Joseph, supra, at paras 48 to 52
    CS, supra, at paras 9 to 10
    RBL, supra, at paras 3, 35
  6. ↑ R v AO, 2007 ONCA 144 (CanLII), per curiam, at para 30
  7. ↑ AO, ibid., at para 36
  8. ↑ R v Chol, 2018 BCCA 179 (CanLII), per Stromberg-Stein JA, at para 59
    R v ASD, 2019 BCSC 147 (CanLII), per Schultes J, at para 299
    R v DB, 2008 SCC 25 (CanLII), per Abella J
  9. ↑ ASD, supra, at para 345
  10. ↑ Chol, supra
  11. ↑ R v RK, 2017 BCSC 1510 (CanLII), per Donegan J, at para 91
  12. ↑ AO, ibid., at para 34
  13. ↑ R v McClements, 2017 MBCA 104 (CanLII), per Hamilton JA, at para 70
  14. ↑ R v RK, 2017 BCSC 1510 (CanLII), per Donegan J, at para 133

Serious Violent Offence Designation

A "serious violent offence" is any offence in which the offender "causes or attempts to cause serious bodily harm".[1]

Section 2(1) of the YCJA defines "serious violent offence" as:

2...
"serious violent offence" means an offence under one of the following provisions of the Criminal Code:

(a) section 231 or 235 (first degree murder or second degree murder);
(b) section 239 (attempt to commit murder);
(c) section 232, 234 or 236 (manslaughter); or
(d) section 273 (aggravated sexual assault).

– YCJA

Note up: 2

The court must be satisfied beyond a reasonable doubt that:[2]

  1. in the commission of the offence, the offender caused
    1. physical or psychological injury or hurt; and
    2. Such injury or hurt interfered in a substantial way with the physical or psychological integrity, health or well‑being of the victim; or
  2. In the commission of the offence the young person attempted to cause physical or psychological injury or hurt that, if caused would reasonably be expected to interfere in a substantial way with the physical or psychological integrity, health or well‑being of the victim.

Focus should be on the effect of the violence and not the means employed.[3]

  1. ↑ R v GCB 2008 ABCA 156 (CanLII), per Hart J, at para 7
  2. ↑ R v ENC, 2009 ABPC 141 (CanLII), per McLellan J, at para 26
    R v B(KG), 2005 NBCA 96 (CanLII), per Richard JA
  3. ↑ see R v MAH, 2013 ONCA 235 (CanLII), per Tulloch JA, at para 31

Placement Orders

Once an adult sentence for a youth has been ordered, the court must make a placement order to direct whether any portion of the sentence should be served in a youth or adult facility.[1]

While the accused is under the age of 18 he cannot serve that portion of the sentence in an adult correctional facility or penitentiary.[2]

Placement when subject to adult sentence

76 (1) Subject to subsections (2) and (9) and sections 79 and 80 and despite anything else in this Act or any other Act of Parliament, when a young person who is subject to an adult sentence in respect of an offence is sentenced to a term of imprisonment for the offence, the youth justice court shall order that the young person serve any portion of the imprisonment in

(a) a youth custody facility separate and apart from any adult who is detained or held in custody;
(b) a provincial correctional facility for adults; or
(c) if the sentence is for two years or more, a penitentiary.

...

Opportunity to be heard

(3) Before making an order under subsection (1), the youth justice court shall give the young person, a parent of the young person, the Attorney General, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard.
...

Limit — age twenty

(9) No young person shall remain in a youth custody facility under this section after the young person attains the age of twenty years, unless the youth justice court that makes the order under subsection (1) or reviews the placement under subsection (6) is satisfied that remaining in the youth custody facility would be in the best interests of the young person and would not jeopardize the safety of others. 2002, c. 1, s. 76; 2012, c. 1, s. 186.

– YCJA

Note up: 76(1), (3) and (9)

  1. ↑ R v JJT, 2011 MBQB 41 (CanLII), per Suche J, at para 10
  2. ↑ see s. 76(2) which states "(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary."

Procedure

76.
...

Who may make application

(7) An application referred to in this section may be made by the young person, one of the young person’s parents, the provincial director, representatives of the provincial and federal correctional systems and the Attorney General, after the time for all appeals has expired.

Notice

(8) When an application referred to in this section is made, the applicant shall cause a notice of the application to be given to the other persons referred to in subsection (7).
[omitted (9)]
2002, c. 1, s. 76; 2012, c. 1, s. 186.

– YCJA

Note up: 76(7) and (8)

Appeals

For the purpose of a youth appeal under s. 37 of the YCJA, the placement order is considered part of the sentence.[1]

  1. ↑ see s. 76 which states "(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence."

Placement Report

A just must order a placement report be prepared before he or she can make a placement order.[1]

Section 76(3) entitles Defence counsel to challenge the contents of a placement report and call evidence.[2]

  1. ↑ ("76.
    ...; Report necessary (4) Before making an order under subsection (1), the youth justice court shall require that a report be prepared for the purpose of assisting the court.")
  2. ↑ R v Flett, 2015 MBCA 59 (CanLII), per Mainella JA
    s. 76(3) states "(3) Before making an order under subsection (1), the youth justice court shall give the young person, a parent of the young person, the Attorney General, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard.")

Review of Placement Order

76.
...

Review

(6) On application, the youth justice court shall review the placement of a young person under this section and, if satisfied that the circumstances that resulted in the initial order have changed materially, and after having given the young person, a parent of the young person, the Attorney General, the provincial director and the representatives of the provincial and federal correctional systems an opportunity to be heard, the court may order that the young person be placed in

(a) a youth custody facility separate and apart from any adult who is detained or held in custody;
(b) a provincial correctional facility for adults; or
(c) if the sentence is for two years or more, a penitentiary.

...
2002, c. 1, s. 76; 2012, c. 1, s. 186.

– YCJA

Note up: 76(6)

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