Adult Sentences for Young Offenders

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General Principles

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

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.


– YCJA

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

72(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and
(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.
(3) In making its decision, the youth justice court shall consider a pre-sentence report.
(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.


– YCJA

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 in on the Crown to establish that a 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]

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".[8]

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

  1. ↑ R v Ferriman, 2006 CanLII 33472 (ON SC), per McCombs J at 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. 48-52
    R v CS, 2014 ONSC 4362 (CanLII),, [2014] OJ No 4206, per Kelly J at paras. 9-10
    R v BL, 2013 MBQB 89 (CanLII), 292 Man. R. (2d) 51, per Mainella J, at paras. 3, 35
  5. ↑ DB, supra at para 45, 77, and 93
    Joseph, supra at paras. 48-52
    CS, supra at paras. 9-10
    RBL, supra at paras. 3, 35
  6. ↑ R v AO, 2007 ONCA 144 (CanLII), per curiam at para 30
  7. ↑ A.O. at para 36
  8. ↑ AO, ibid. at para 34

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:

“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

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 B. (G.C.) 2008 ABCA 156 (CanLII), per Hart J, at para 7
  2. ↑ R v C. (E.N.) 2009 ABPC 141 (CanLII), per McLellan J at para 26
    R v B. (K.G.) 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

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


– YCJA

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

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