Youth Sentencing

 

What is sentencing?

Sentencing is the process by which the judge comes to a decision about what sanctions will be appropriate for the youth who has either been found guilty of the offence charged or has plead guilty.

How does the YCJA help the judge when sentencing?

The YCJA includes a specific purpose and set of principles to guide judges in deciding on a fair and appropriate sentence.

What is the purpose of sentencing as stated in the YCJA?

The purpose of sentencing is to hold the youth accountable through just sanctions that ensure meaningful consequences for the youth, and which promote his or her rehabilitation and reintegration into society.

What are the principles of sentencing?

Sentences should:

What other factors can the judge take into account while sentencing?

The judge can consider whether the youth has made reparation to the victim or the community and whether the youth has spent time in detention prior to sentencing.

What principles apply when a custodial sentence is being considered?

The principles include:

Note that only one of these conditions need exist for allowing a custodial sentence to be imposed. If a judge does impose a custodial sentence, he or she needs to give reasons for doing so.

Who is custody primarily reserved for?

Custody is to be used primarily for violent and serious repeat offenders.

How much of a custodial sentence is served in the community?

Approximately one third of custodial sentences are served and supervised in the community but the judge must not consider that when determining the length of the sentence.

Sentencing hearings

 

Pre-sentence report: recommendations, not binding.

 

The Crown and the YP have the right to introduce evidence and to make arguments about the appropriate sentence.

 

Circle sentencing (mainly for Aboriginal YPs)

 

Conferences:

 

Youth Sentencing Options

There is a broad range of possible sanctions that a court may consider in determining an appropriate sentence. A sentence must be in accordance with the purpose and principles of sentencing and may consist of one or more sanctions that are not inconsistent with each other. These various sanctions or sentencing options include several new options along with options that existed under the YOA.

The options include both non-custodial and custodial sentences. All custodial sentences include a portion that the young person is to serve under supervision in the community. Before imposing a sentence that involves custody, the court must satisfy itself that none of the restrictions on custody set out in the YCJA exist.

Non-custodial Sentencing Options

The majority of sentencing options provide alternatives to custody, consistent with the objective in the preamble to the YCJA of reducing the over-reliance on incarceration for non-violent young persons. The YCJA provides a range of alternatives that allow a sentencing response to be tailored to the individual case, including several new options.

·         Reprimand (paragraph 42(2)(a))This new sentencing option is a formal rebuke by the judge in court. It is essentially a stern scolding or lecture from the judge and may be most appropriate in minor cases in which the experience of being apprehended, taken through the court process and reprimanded appears to be sufficient to hold the young person accountable for the offence. It can reinforce to the young person that his or her behaviour was wrong. It may be appropriate in cases in which the court has determined that reparation made by the offender to the victim, or time spent by the offender in detention, essentially satisfies the requirement of a proportionate sentence. A reprimand may also serve as a means of communicating to the prosecutor that, in the court's opinion, the case should have been dealt with outside the court process. The period of access to the record of a reprimand is two months (paragraph 119(2)(c)). This period is much shorter than the period of access that applies to the record of an absolute discharge (two years) or a conditional discharge (three years).

 

·         Absolute Discharge (paragraph 42(2)(b)) The court may order an absolute discharge of the young person if it is in the best interests of the youth and not contrary to the public interest.

 

 

·         Conditional Discharge (paragraph 42(2) (c)) The court may order a discharge of the young person on conditions. In addition, the court may require the young person to report to and be supervised by the provincial director.

 

·         Fine (paragraph 42(2)(d)) The court may impose a fine up to $1000 on the young person. The court must consider the youth's ability to pay but has discretion in fixing time and terms for payment. Provinces may establish work programs for young persons to earn work credits towards paying the fine. A surcharge may be imposed on the fine and used, at the province's discretion, to provide assistance to victims' services.

 

·         Compensation (paragraph 42(2)(e)) The court may order a young person to compensate another person for loss, damage or injury, by paying an amount of money determined by the court. The court must consider the youth's ability to pay and has discretion in fixing the time and terms for payment. As with all of the sentencing options, the court must comply with the purpose and principles of sentencing in imposing this sanction. The principle of proportionality, for example, may restrict the amount of compensation that may be ordered. The amount of loss or damage caused by the offence may exceed the seriousness of the offence and the degree of responsibility of the young person. As discussed above, a relevant factor in determining the seriousness of the case and, therefore, a proportionate sentence is whether the loss or damage was intended or could reasonably have been foreseen by the young person. In addition, accountability of young persons must be consistent with their greater dependency and reduced level of maturity.

 

·         Restitution (paragraph 42(2)(f) and (g)) The court may order restitution of property to the person owning it at the time of the offence.

 

·         Reimbursement of Innocent Purchaser (paragraph 42(2)(g))If the court has ordered restitution of property to its owner, the court may also order the reimbursement of an innocent purchaser of the property. The court may fix the time and terms for payment. As noted above with respect to compensation orders, the amount of money that the court may order as reimbursement is subject to the sentencing principles, including the principle of proportionality.

 

·         Personal Service (paragraph 42(2)(h))

The court may order the young person to compensate a person by way of personal service for a loss, damage or injury suffered. Alternatively, the court may order that the compensation be in kind. An order under paragraph 42(2)(h) requires the consent of the person to be compensated. In addition, the order must not interfere with the young person's normal hours of education or work. The order must not exceed 240 hours of service that can be completed within twelve months.

·         Community Service (paragraph 42(2)(i))

The court may order a young person to perform community service that does not exceed 240 hours of service that can be completed within twelve months. The community service must be part of a program approved by the provincial director or the person or organization for whom the service is to be performed must have consented to it.

·         Prohibition Order (paragraph 42(2)(j))

The court may impose on the young person an order of prohibition, seizure or forfeiture that is authorized under federal legislation. If a young person is found guilty of an offence referred to in subsection 109(1) of the Criminal Code (e.g., an indictable offence in which violence was used and is punishable by imprisonment for ten years or more), the court must make an order prohibiting the young person from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. This mandatory prohibition order ends not earlier than two years after the completion of the custodial portion of the sentence or, in the case of a non-custodial sentence, after the finding of guilt.

·         Probation (paragraph 42(2)(k))

The young person may be placed on probation, with conditions, for a period of up to two years. Section 55 sets out mandatory and optional conditions of probation orders. The potential range of conditions is very broad. The conditions may include requiring the young person to attend school, reside in a place that the provincial director may specify, and "any other conditions" that the court considers appropriate. Although the flexibility of a probation order permits creative, individualized sentences, it must be used with restraint because of the negative consequences of imposing unrealistic and "over-reaching" or intrusive conditions on a young person for a period of up to two years.

Conditions on probation: Under the YOA, approximately 20% of custody sentences were the result of a young person being found guilty of breach of a condition of probation. Approximately 50% of young persons found guilty of a breach of a condition of probation were sentenced to custody. Clearly, breach of a condition of probation is a significant factor contributing to Canada's over-reliance on incarceration.

A serious concern in the setting of probation conditions for a young person is that the conditions may set up the young person for failure and, therefore, a possible charge of breach of probation. The result may be that a young person is incarcerated for behaviour that would not justify a criminal charge if it were not related to a probation order.

Conditions of probation must be assessed as to whether or not they are in accordance with the purpose and principles of sentencing. Although a condition may be intended to "promote the rehabilitation" of the young person, it should be carefully scrutinized to determine whether there is a clear and direct relationship between the condition and a cause of the young person's criminal behaviour. A realistic assessment should be made as to whether the young person will be likely to comply with the condition. In addition, if a condition is essentially an attempt to address child welfare needs of the young person, it should not be imposed. A referral to a child welfare agency under section 35 should be made instead.

Although it is possible to charge the young person with breach of probation if he or she does not comply with a probation order, the YCJA does not require that a charge be laid. An alternative approach, which will often be more consistent with the objectives and principles of the YCJA, is to initiate a review of the probation order. Reviews provide an opportunity to make changes to the conditions that can be more effective in promoting the rehabilitation and reintegration of the young person. (See Reviews of Non-custodial Sentences.)

·         Intensive Support and Supervision Program Order (paragraph 42(2)(l))

In this new sentencing option, the young person receives a high level of support and supervision in the community to assist him or her to change his or her behaviour. It is intended to provide closer monitoring and more support than probation. It is intended to provide much smaller caseloads than probation and is particularly well suited for many offenders who under the YOA have been sentenced to custody.

The use of this sentencing option with an offender can occur only if the provincial director has determined that an intensive support and supervision program is available. Provinces and territories may decide not to make this option available to the court by deciding not to implement this provision of the YCJA. If the option is not available, the court may be able to achieve a similar result through a probation order by attaching various conditions that involve increased supervision and support for the young person.

The intensive support and supervision order is intended to be an alternative to custody and, therefore, is consistent with the YCJA's objective of reducing the high rate of custody under the YOA. This intended function of providing an alternative to custody is highlighted by its inclusion in subsection 42(2) as a distinct sanction that is not expected to be the same as a probation order. Federal-provincial cost sharing agreements for the YCJA's implementation specifically identify intensive support and supervision programs as one of the high priority areas in which provinces are able to receive additional federal funding.

Conditions on supervision: Conditions that may be attached to an intensive support and supervision order are similar to those that may be attached to a probation order. The provisions of the YCJA that apply to conditions of probation orders also apply to conditions of intensive support and supervision.

The issues and concerns regarding probation conditions, noted above, are also relevant to conditions of intensive support and supervision orders. There is an even greater need to be concerned about imposing conditions that may set up the young person for failure. Research has found that the higher level of supervision in this type of order can result in more findings of technical violations of conditions. Depending on enforcement policy, these technical violations can lead to incarceration. This problem reinforces the need to reserve this order for young persons who otherwise would be sentenced to custody. If not used with appropriate restraint, the use of intensive support and supervision could have a "net widening" effect of increasing the number of youths committed to custody.

The support component of this order is particularly relevant to the YCJA's sentencing requirement that a sentence must promote the rehabilitation of the young person. The support for the youth should be designed to respond to the specific needs or problems that appear to contribute to the youth's offending behaviour. Since the youths who are subject to this order are likely to have significant and multiple needs, the provincial program to implement the order should have sufficient flexibility to allow the support to be individualized and targeted to those specific needs.

·         Attendance Order (paragraph 42(2)(m))

This new sentencing option requires the young person to attend a program at specified times (up to a maximum of 240 hours over a six month period) and to abide by conditions set by the judge. It is a nonresidential program that, for many offenders, can provide an alternative to a custodial sentence. It can be designed to address the particular circumstances of the young person. For example, it could be focused on specific times and days when a young person is unsupervised and tends to violate the law. As with intensive support and supervision programs, federal-provincial cost sharing agreements for the YCJA's implementation specifically identify attendance programs as one of the high priority areas in which provinces are able to receive additional federal funding.

A pilot attendance centre program in Ontario, funded by the federal government, has been well received by youth court judges and has reported considerable success with youth referred by the court.

The use of this sentencing option with an offender can occur only if the provincial director has determined that an attendance order program is available. Provinces and territories may decide not to make this option available to the court by deciding not to implement this provision of the YCJA. If the option is not available, the court may be able to achieve a similar result through a probation order by attaching conditions that require the young person to attend a program in the community

           

Custodial Sentencing Options

The YCJA clearly reflects a strong preference for non-custodial sentences wherever possible. The preamble to the YCJA states that the youth justice system should reserve its most serious intervention for the most serious crimes and reduce the over-reliance on incarceration for non-violent young persons. Sentencing principles emphasize the requirement of proportionality in sentencing and, within the limits of proportionality, the requirements of the least restrictive alternative and the promotion of rehabilitation and reintegration. The restrictions on custody in section 39 prohibit custody in many cases and require a thorough exploration of alternatives to custody in cases in which custody is not prohibited. If the court decides to impose custody, the court must justify its decision by including in its reasons for decision an explanation of why a non-custodial sentence was not adequate to hold the young person accountable.

There are five sentencing options in the YCJA that allow the court to impose a sentence that includes custody:

Deferred Custody and Supervision (paragraph 42(2)(p))

If a young person is found guilty of an offence that is not a serious violent offence, the court may impose the new entencing option of deferred custody and supervision if it is consistent with the purpose and principles of sentencing and the restrictions on custody in section 39 (subsections 42(2)-(5)). Although the young person serves the sentence in the community on conditions, it should be considered, for most purposes, a type of custodial sentence because a breach of a condition can result in the young person serving the remainder of the sentence as a custody and supervision order.

A deferred custody and supervision order may be for a specified period that is less than six months. During that time, the young person is in the community and must follow conditions set by the youth justice court judge. A breach of conditions may result in a modification of the conditions. It is also possible for a young person who breaches the conditions to be ordered to serve the remaining time as a custody and supervision order. (See the Custody and Supervision module for a discussion of the enforcement procedure in the event of a breach of a condition.)

Custody and Supervision Orders (paragraph 42(2)(n), (o), (q) and (r))

Unlike the YOA, the YCJA provides that all custody orders include a period of supervision in the community. The purpose of the community supervision portion is to ensure appropriate supervision and support for the young person during the transition from custody back to his or her community.

The YCJA contains a list of mandatory conditions that apply to all young persons while under supervision in the community. Additional conditions can be imposed to support the young person and address his or her needs, as well as manage risk. If a young person breaches a condition while under supervision in the community, reviews will be held that can result in a change in conditions or in the young person being returned to custody.

It is also possible that a young person may not serve a portion of the sentence in the community following custody. Before the start of the community portion, the court can require the young person to remain in custody if the court is satisfied that there are reasonable grounds to believe that a young person will commit an offence causing death or serious harm before the end of the sentence.

The possible overall length of custody and supervision orders, the possible length of the community portion of the order, and the enforcement procedure in the event of a breach vary, depending on the offence. (See the Custody and Supervision module for a discussion of enforcement procedures in the event of a breach of a condition.)

Most offences: The maximum length of the custody and supervision order for most offences is two or three years, depending on the offence. The two-year maximum applies to all offences except offences for which an adult would be liable to life imprisonment. These latter offences, other than murder, can result in a maximum youth sentence of three years. The period of community supervision is one half the length of the custody period (paragraph 42(2)(n)).

Attempted murder, manslaughter, and aggravated sexual assault: The maximum overall length of the custody and supervision order for the offences of attempted murder, manslaughter, and aggravated sexual assault is three years because these are offences for which an adult would be liable to life imprisonment.

Under paragraph 42(2)(o), the period of conditional supervision is set by the court and, therefore, is not necessarily one half the length of the custody period. This provides the court added flexibility to tailor sentences imposed for these particularly serious offences. If the young person breaches a condition, the provincial director may bring the young person back into custody.

The court is not required to impose a sentence under paragraph 42(2)(o) for these offences. The court may decide to impose any other sentence under subsection 42(2).

Murder: The offence of murder is the only offence under the YCJA that must result in a custody and supervision order. The maximum length of the order is ten years for first-degree murder and seven years for second-degree murder. As with other presumptive offences, the period of conditional supervision is set by the court and, therefore, is not necessarily one half the length of the custody period.

Intensive Rehabilitative Custody and Supervision Order (para. 42(2) (r)and 42(7))

The intensive rehabilitative custody and supervision order is a new special youth sentence intended to provide treatment for serious violent offenders. The order may be made if the court determines that the following criteria are met:

Special federal funding for provinces and territories has been set aside to ensure that this sentencing option can be available throughout the country. This special treatment sentence offers a significant new option in the youth justice system for serious violent young offenders who otherwise might receive an adult sentence. This order is not available if an adult sentence is ordered.

The order is not limited to young persons who are fourteen to seventeen years of age. The court may order a twelve or thirteen year-old into intensive rehabilitative custody and supervision, if the criteria are met.

The YCJA provides in subsection 42(8) that this order does not abrogate or derogate from the rights of a young person regarding consent to physical or mental health treatment or care. The young person's right to consent to or refuse such treatment under common law or provincial legislation must be respected.

The maximum length of the order depends on the offence committed. The overall maximum lengths for the offences listed in paragraph 42(7)(a) are the same as the overall maximum lengths for the ordinary custody and supervision order, discussed above.

Duration of Youth Sentences

Single Offence

The general rule is that a youth sentence for a single offence is limited to two years duration, even if the youth sentence is comprised of more than one sanction (subsection 42(14)). However, the sentence may exceed two years if the sentence is a custodial sentence that exceeds two years. Such a custodial sentence would be available only if the offence, if committed by an adult, would be punishable by life imprisonment. As noted above, the maximum length of a youth custodial sentence for these offences is three years and, in the case of murder, seven years (for second-degree murder) and ten years (for first-degree murder). Another sentencing option that may extend beyond two years is a prohibition order, which under section 51 must run for at least two years following completion of custody or conviction where no custody is ordered.

Multiple Offences

If the court is imposing separate sentences for different offences committed by a young person, the general rule is that the combined duration of those sentences may not exceed three years (subsection 42(15)). However, the combined duration may exceed three years if one of the offences is first-degree or second-degree murder.

Subsequent Offence Committed Prior to Completion of Sentence

If the court imposes a sentence on a young person for an offence committed after the commencement of a previous sentence but before the completion of the previous sentence, the duration of the new sentence is determined by the rules in subsections 42(14) and (15). However, the combined duration of the previous sentence and the new sentence may exceed three years and, if one of the offences is murder, the combined duration may exceed seven or ten years, depending on whether the offence is second-degree murder or first-degree murder.

Sentence Calculation

The YCJA requires that youth sentences be calculated and administered in accordance with a set of rules. The statutory base for these rules is found in the YCJA as well as in the Criminal Code, Corrections and Conditional Release Act and Prisons and Reformatories Act.

These rules are described in two documents, which have been prepared by a working group of front-line and other provincial officials, led by New Brunswick and Saskatchewan. The documents express the views of the members of the working group. The first document, Sentence Calculation, provides a general overview and description of sentence calculation and administration in the YCJA. The second document, YCJA: Sentence Calculation Rules, is a more detailed examination of sentence calculation rules and how they apply in a range of situations that may arise. The document was prepared to assist administrators and calculators to consistently calculate the sentences received and crown counsel, judges and other justice personnel to understand the effect of sentence calculation in individual cases.

Merger of Custodial Sentences

In most cases the sentence calculation rules for youth are the same as the rules for youth under the Young Offenders Act. One significant difference, however, is that the YCJA extends the concept of a custody and supervision sentence, which the YOA made available only in the case of sentences for murder, to all custody sentences. This requires that administrators be able to calculate the date on which the community portion of a custody sentence begins. While this will be a relatively straightforward exercise where there is only one custody and supervision sentence, it becomes somewhat more complex when, as is often the case, a youth is subject to multiple sentences.

When a youth is serving a custody and supervision sentence and receives a new custody and supervision sentence, the old and new sentences are merged and become one sentence. The merged sentence begins from the date of imposition of the first of the sentences and ends on the date of expiration of the last of them to be served.[2] The length of a custody sentence includes the period in custody and the period of supervision in the community. That is the sentence expires at the end of the community portion of the custodial sentence. The consecutive or concurrent direction of the individual sentences is respected in determining the total merged sentence. The merged sentence serves as the basis for calculating the start of the community portion of the custodial sentence.

Adult Sentencing

Introduction

Young persons who have been arrested and charged with an offence may, in certain circumstances, be at risk of receiving an adult sentence if they are found guilty. For this situation to arise, the offence must have been one that would attract a penalty of more than two years if committed by an adult and the young person must have been alleged to have committed it when fourteen years or older. Of the offences that could fall into this category, some may carry a presumption that an adult sentence would apply on conviction, unless the youth can persuade the court that it is not necessary. The presumption does not mean that there will be an automatic adult sentence. It means that the young person must persuade the court that he or she should receive a youth sentence. With respect to the remainder of the offences in the category, the burden is on the crown not only to apply to the court for an adult sentence to be considered but also to demonstrate to the court that it is necessary

When an Adult Sentence May Be Considered

Sections 61 to 81 of the Youth Criminal Justice Act (YCJA) describe the circumstances in which a young person convicted of an offence may be subject to an adult penalty. An adult sentence will not apply automatically, even when it is an available sanction; the YCJA sets out the procedures to be followed in determining whether an adult sanction is appropriate and the test that must be met in applying this extraordinary measure.

Section 62 sets out the circumstances in which a court may consider an adult sentence:

With respect to certain particularly serious offences, a presumption is created by the legislation that an adult sentence will result following a finding of guilt. Sections 61 permits jurisdictions to determine the age (14, 15 or 16) at which this presumption will begin to arise. With respect to all other offences with a penalty of more than two years (for which no presumption arises), the crown must apply to the court if it wishes an adult sentence to be considered. In either case, all trials of young persons take place in youth court and, following a finding of guilt, the court is required to determine whether an adult penalty is sought or opposed by the parties. The court will do so by holding a hearing to assess whether a youth sentence would be of sufficient length to hold the youth accountable for his or her conduct. Only if the court finds that a youth sentence would not be sufficiently long may it go on to consider imposing an adult sentence.

Governing Principles

Informing the process are several statements of principle set out in the YCJA. Of particular relevance are the statements of principle in section 3, which applies to the Act as a whole, and section 38, which governs the imposition of youth sentences and is material to the consideration of whether adult sentences are necessary.

Paragraph 3(1) (b) makes it clear that the youth justice system must be separate from that for adults and emphasize a fair and proportionate accountability consistent with the greater dependency of young persons and their reduced level of maturity. It stresses the need for enhanced procedural protection to ensure fair treatment and the protection of youths' rights, the importance of rehabilitation and reintegration as well as the need for timeliness of intervention in order to reinforce the link between the offending behaviour and its consequences. Paragraph 3(1)(c) reinforces the requirement for fair and proportionate accountability and describes the goals to be achieved when taking measures against youth.

Section 38 principles set out guidance for determining a fair and proportionate youth sentence. These determine how the court will determine the quantum of youth sentence that would hold a youth accountable and provide guidance on objectives the court should bear in mind in structuring the content of the sentence. This guidance is key to the question of determining whether a youth sentence would be of sufficient length to hold a young person accountable.

Categories of Offences that May Attract an Adult Sentence

A youth could be liable for an adult sentence if convicted of an offence for which an adult could receive a sentence of more than two years. Within this offence range, the youth's liability and the process to be followed vary according to the nature or type of offence. These variations fall into three groups:

Process Prior to Trial

In cases where a youth is at risk for an adult sentence, the YCJA ensures that the youth has access to a range of procedural protections from the outset of the process. The youth is entitled to know what he or she may be liable to following a finding of guilt. Certain obligations arise on the part of the court and crown to make sure this happens.

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Presumptive "A" Offences

With respect to presumptive "a" offences, the crown is not required to make an application to the court for an adult sentence nor to give notice that it intends to seek one. To ensure that the youth is aware, at the earliest possible opportunity, of the penalty he or she may face if charged with one of these four offences, the court is required, under paragraph 32(1)(d), to inform the youth at the his or her first appearance, that an adult sentence will apply if the youth is found guilty, unless the court orders that a youth sentence should be imposed.

When charged with a presumptive "a" offence, the youth has the option, under section 63, to apply to the court for an order that a youth sentence would be imposed instead of an adult sentence. The youth may do this at any time prior to sentencing. The court will consider this application as it proceeds to determine sentence, unless the crown has already indicated a willingness to forgo seeking an adult sentence. The crown may decide to do this by giving notice that it will not oppose the youth's application under section 63, in which case the court is required to order that a youth sentence would be imposed.

Even where a youth has not made an application for a youth sentence, under section 65, the crown may choose not to pursue an adult sentence for a presumptive "a" offence. To do so, it gives notice to that effect to the court, which it may do at any stage of the proceedings. If this notice is unopposed by the youth, the court must order that a youth sentence would apply on conviction and that there will be a ban on publication of information about the youth.

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Presumptive "B" Offences

For a presumption to arise under subsection 2(1), " presumptive offence," paragraph (b), the crown must apply to the court under subsection 42(9) for the opportunity to establish that the offence of which the youth has just been found guilty is a serious violent offence. Where the youth already has had at least two such prior judicial determinations relating to other serious violent offences for which he or she has been found guilty, a presumption may arise under section 2(b). Similar age restrictions apply to the operation of this presumption as they do to presumptive "a" offences. For an adult sentence to be possible, the offence must have been committed when the youth was 14 years or older and, for the presumption to attach to it, must have been committed within the relevant age range set by the jurisdiction.

However, the court's ability to designate offences as serious violent offences under section 42(9) is not subject to these age restrictions. As long as the offence was committed when the young person was at least twelve years of age or older, the crown may request the offence be designated as a serious violent offence. If the court does so, this could then count as one of the prior designations needed to fulfill the requirements of a subsequent presumptive "b" application.

The crown makes the application for a designation after there has been a finding of guilt. In order to have the court consider this request, the crown must already have given notice, under subsection 64(2), to the youth and the court, prior to the youth's making a plea, [2] that it intends to seek an adult sentence. When the court receives this notice, it must inform the youth at his or her first appearance that an adult sentence may apply on conviction (para. 32(1)(c)). The crown must also give the youth, but not the court in this instance, notice under subsection 64(4),[3] that it intends to ask the court to make a determination that the conduct constitutes a serious violent offence and it intends to establish that this at least the third such determination made in respect of the youth's conduct.

As with presumptive "a" offences, a youth charged with an offence that may be found to be a presumptive "b" offence has the option, under section 63, to apply to the court for an order that a youth sentence would be imposed on a finding of guilt instead of an adult sentence. The youth may do this at any time prior to sentencing. The crown may decide not to oppose the youth's application, in which case the court is required to order that a youth sentence would be imposed.

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Non-presumptive Offences

The crown must give notice under subsection 64(2) to the youth and the court, prior to the youth's making a plea, [4] that it intends to seek an adult sentence. When it has received such a notice, the court is required, under paragraph 32(1)(c), at the youth's first appearance before it, to inform the youth that an adult sentence may apply on conviction. The youth may, under subsection 64(5), give notice that he or she does not oppose the crown's application for an adult sentence. In this case, the court must order that an adult sentence would be imposed.

Trial Process

All trials of young people now take place in youth court, whether a youth or an adult penalty is sought. There is no transfer to adult court with its attendant delay, failure to provide the youth with a process separate from the adult system and potential for unfairness, in exposing the youth to an examination of penalty before a determination of guilt or innocence has begun.

Under the YOA, the process of transfer hearings to adult court led to unfairness and delay in the treatment of youth. Excessive delay not only condemned the youth and other parties to unnecessarily prolonged uncertainty in the resolution of the matter, but also diluted the potential for meaningful consequences for the youth by creating distance between the conduct and its consequences. Subjecting youth to trial in adult court rather than youth court, where procedural protections are specifically tailored to the distinct requirements of youth, created unfairness and disadvantage, for no purpose. Judging the nature of the conduct — in order to determine the type of penalty that would apply — before the youth has undergone a trial to establish whether he or she had any guilt in the matter, is inconsistent with the presumption of innocence and has significant risk for prejudice in the subsequent trial proceedings.

The YCJA provides for a more appropriate, fair and useful process for determining when an adult sentence is a necessary and justified option. All trials and sentencing are conducted separately from the adult process, with youth appropriate protections clearly set out and applicable to youth. The potential for timeliness in disposition is significantly increased. Unfairness resulting from a pre-adjudication consideration of sentence is relieved. The YCJA provides for full procedural protections and notices wherever a youth may be at risk for these extraordinary measures.

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Electing Mode of Trial

Where an offence may attract a penalty, on conviction, of five years or more, the YCJA guarantees the youth's entitlement to elect his or her mode of trial, which is provided in the Criminal Code. This is a recognition of rights guaranteed the youth (and all other accused) under the Charter of Rights. The youth may choose between trial by judge or by judge and jury and may opt to have a preliminary inquiry. This arises in the case of offences that carry adult penalties of five years or more and in the case of murder whether an adult or youth penalty may apply (s. 66, 67). Whatever mode of trial the young person selects, all trials take place in youth court.

Where the crown has indicated that it does not intend to seek an adult sentence and the court has ordered that an adult sentence shall not apply, an election is not necessary as any resulting youth sentence would be three years or less. There is one key exception to this rule, which arises in the case of first or second degree murder, for which the youth could be sentenced to 10 and 7 years, respectively. With respect to a possible youth sentence for one of these offences the court must put the youth to an election as to how he or she wishes to be tried (s. 66).

Wherever entitled to elect mode of trial, the young person may elect between:

The judge reads the election to the young person before he or she makes a plea, explaining the options for trial and asking the young person to select one. The judge may require co-accused young persons to be tried by a court composed of a judge and jury. The crown may also require a young person to be tried before a jury despite his or her having elected another mode.

Once the young person has elected a mode of trial before a judge or a judge and jury, the youth court judge must hold a preliminary inquiry, conducted in accordance with procedure in Part XVIII of the Criminal Code. Otherwise procedure at trials before a judge or a judge and jury follows the Criminal Code, Parts XVIV and XX, except for special protections relating to privacy and entitlement to counsel.

Sentencing Stage: Features of the Process

Following a finding of guilt, the court must proceed to consider the question of an appropriate sentence. In so doing, it must ensure that the youth's procedural protections are safeguarded and that governing standards are applied to the question of sentence sufficiency. The court has access to various sources of information in making its consideration of sentence. These may include submissions from the parties, conference advice and various reports. The court is required, under subsection 72(3), to consider a pre-sentence report.

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Presumptive "A" Offences

With respect to presumptive "a" offences, the court needs first to ensure that the young person is aware that an adult sentence will be imposed unless he or she makes an application for a youth sentence. Under subsection 70(1), the court must ask the young person if he or she, knowing that an adult sentence will apply, wishes to make an application for a youth sentence. If the young person indicates that he or she does not want to make such an application, or fails to indicate either way, the court must order that an adult sentence will be imposed.

Where the young person indicates that he or she wishes to apply for a youth sentence, the court must hold a hearing to determine whether a youth or adult sentence should be imposed. With respect to presumptive offences (both "a" and"b"), the onus is on the young person to satisfy the court that a youth sentence, imposed in accordance with subparagraph 3(1)(b)(ii) and the purpose and principles of youth sentencing set out in section 38, would be of sufficient length to hold the young person accountable for offending behaviour. If the court is satisfied of this, it must order that a youth sentence, determined in accordance with those principles, shall be imposed. If the court is not satisfied, it may order an adult sentence (s. 72).

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Presumptive "B" Offences

Following a finding of guilt, the crown may apply to the court under subsection 42(9) for a determination that this is a serious violent offence. Before it may do so, the crown must first satisfy the court that it gave the youth notice of its intention to establish to the court that the offence qualifies as a presumptive "b" offence.

If the court agrees that it is a serious violent offence, it will then ask the youth if he or she admits to previous judicial determinations of serious violence offences. If the youth does not, it is then up to the crown to provide evidence that establishes them. If the youth admits to the prior designations or the crown proves them, the court will then endorse the information or indictment and the presumption under subsection 2(1), " presumptive offence," paragraph (b) will arise. After that the proceedings continue as for presumptive "a" offences on the question of sentence. If the crown fails to satisfy the court in any of these particulars, the presumption will not arise, and the crown's only recourse is to consider making an application on the basis of this being a non-presumptive offence.

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Non-presumptive Offences

Where the crown has applied for an adult sentence and the young person has not indicated under section 64 that he or she does not oppose it, the court must hold a hearing to determine whether a youth or adult sentence should be imposed. The court must consider whether a youth sentence, imposed in accordance with the purpose and principles of youth sentencing, would be of sufficient length to hold the young person accountable for offending behaviour (s. 72).

Sentencing Stage: Determining the Sentence

Where the young person applies for a youth sentence with respect to a presumptive offence or the crown applies for an adult sentence with respect to a non-presumptive offence, the court must hold a hearing to determine whether a youth or adult sentence should be imposed.

Provisions set out in the YCJA provide guidance for the decision relating to whether a youth or adult sentence should be imposed. These sections — 3, 38, 39 and 72 — create a framework to govern the relationship between sentencing length and the youth's accountability for his or her conduct. Measures such as pre-sentence and other reports as well as judicial conferencing will be helpful to the court and parties to the proceedings when focused, as the YCJA contemplates, directly on applying the statutory sentencing standards to the case. The YCJA makes it clear that the onus rests with applicant in each case; general and specific sentencing principles provide guidance for defence and crown counsel in discharging that burden in terms of reparing argument and making submissions to court. [7]

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Sentencing Standards

Under section 72, the court must consider whether a youth sentence, imposed in accordance with subparagraph 3(1)(b)(ii) and the purpose and principles of youth sentencing set out in section 38 would be of sufficient length to hold the young person accountable for offending behaviour. The court will also bear in mind the restrictions on custody set out in section 39.

The court may look at various factors, such as the seriousness and circumstances of the offence, the age, maturity, character, background and previous record of the young person and may also look at other factors that appear relevant to the court.

For more information, see the Youth Sentencing module.

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Test for an Adult Sentence: Sufficient Length

In deciding what length is sufficient to hold youth accountable for their criminal conduct, the court may consider, in certain circumstances, an adult sentence. Adult sentences, however, should be used very sparingly in relation to youth. An adult sentence would be a clear exception to the youth sentencing regime that Parliament has determined is appropriate and meaningful for youth found guilty of a crime. It would mark a recognition of particularly serious conduct together with a significant degree of responsibility on the part of the youth.

The process of applying for, considering and imposing adult sentences needs to be strictly focused so that it is targeted on appropriate cases where it is clearly demonstrated that a youth sentence, imposed in accordance with the YCJA is not sufficiently long to hold the youth accountable. The YCJA makes it clear, in section 42, that these are appropriate and useful maximum limits for youth sentences for these offences. In considering an adult sentence, judges must ask themselves what factors render a youth sentence insufficiently long in the case before it to hold the youth accountable. Crown prosecutors must indicate the compelling circumstances that must exist before an adult sentence would be imposed. Defence counsel must be fully prepared to participate in the challenge process attaching to any such applications or presumptions. Subsection 72(1) sets out the conditions under which an adult sentence should be imposed.

For more information, see the Youth Sentencing module.

The purpose of youth sentencing set out in section 38 aims at holding a young person accountable through the imposition of just sanctions have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society. Subparagraph 3(1)(b)(ii) makes it clear that with respect to sentencing youth this means recognizing that a different standard of accountability applies than the one relating to adult offenders.

Seeking the sentence that will hold the youth accountable requires the court to work through the framework of sentencing principles set out in subsection 38(2) and to take into account sentencing factors in subsection 38(3). This measure of accountability should be objectively based and consistently applied by courts so that it can be regarded as a fair and just exercise of the state's power to punish.

Having determined what would be an appropriate youth sentence, the court must then consider whether there are factors in this case that would justify holding the youth to a more stringent measure of accountability — that the sentence is insufficiently long to accomplish this. Factors set out in section 72 are comparable with factors already considered by the court by virtue of subsection 38(3). These relate primarily to the seriousness of the conduct as well as the youth's degree of responsibility. The court will require compelling argument that these are so egregious in this case to lead to a measure of accountability that is greater than the one contemplated within the standards set out in section 72: the direction in subparagraph 3(1)(b)(ii) that youth accountability should be less than that demanded from adults; how this direction is put into effect by the youth sentencing standards set out in section 38; and the sentence lengths specified in section 42.

Should an adult sentence be considered necessary, the application of these statutory principles in calculating its length should result, at the least, in a sentence that is lighter than the average sentence imposed on adults — to acknowledge the youth's greater dependence and reduced maturity. Furthermore, exposing a youth to an adult sentence would deny that youth access to the intensive rehabilitative custody and supervision order provided in paragraph 42(2)(r). This is a sentence specifically designed to respond to the circumstances of extremely troubled youth who have committed serious violent offences.

The measure of accountability may reflect, or confront, the youth's own subjective view of what he or she deserves. Efforts to achieve meaningful consequences for the youth will mean offering him or her the opportunity to come to some understanding of what he has done. This understanding must be based, first, in understanding that the conduct is proscribed and may be punished by the state. The youth must also be permitted to realize, in a more specific sense, the impact his conduct may have had on individuals who may have been affected by it, including, for example, the victim, his family, the community and himself. This understanding must be based in the length and content of the sentence imposed. The sentence should in effect be the court's statement of why the youth's conduct resulted in sanction and why a particular sanction was chosen. From that understanding the youth should be able to recognize that he or she has the responsibility, capacity and opportunity to refrain from such conduct in the future. Whether he or she accepts that responsibility is ultimately up to the youth; the sentence imposed, however, must offer it to the youth.

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Imposing the Sentence

The court is to consider a pre-sentence report and to give the young person, his or parents and the crown an opportunity to be heard. Should the court determine that a youth sentence, imposed according to the youth sentencing principles set out in the YCJA is insufficiently long to hold the youth accountable, it may then consider imposing an adult sentence Once the court has determined the sentence it believes is sufficient to hold the youth accountable, it must then impose the sentence. The court is to state the reasons for its decision. The decision for a youth or adult sentence is considered part of the decision on the sentence for the purpose of an appeal.

Process Following Sentencing

Ban on Publication (S. 75)

When a young person receives an adult sentence, there is no ban on publication of information that might identify him or her as having been dealt with under the YCJA. Where a young person has received a youth sentence for a presumptive offence, the court is required to inquire whether the youth or the Crown wants a ban on publication. If neither seeks a ban, publication will not be prohibited. If the young person or the Crown apply for a ban on publication, the court must decide whether it would be appropriate in the circumstances, taking into account the importance of rehabilitating the young person as well as the public interest. For more information, see the Publication and Records module.

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Determining Placement (S. 76)

A youth receiving an adult sentence may be ordered to serve a custodial sentence in the youth custody system, the adult provincial correctional system or the federal penitentiary system.

There is a presumption that those under eighteen should serve their sentence in a youth custody system, whether that is a youth or an adult sentence. This presumption can be rebutted when the youth is serving an adult sentence if placement in another custody system is seen as being in the best interests of the young person or the safety of others. The presumptions are aimed at separating youth from more hardened adult offenders, and are more consistent with the approach of international conventions which call for youth to be held separate and apart from any adult who is detained or held in custody.

When a person is eighteen or older at the time of sentencing, there is a presumption that he or she will be placed in the provincial adult correctional system or, if the sentence is two years or more, in a federal penitentiary. While the court sets the proportion of the sentence to be served in the various systems, this is subject to a further presumption that no youth will remain in a youth custody facility past the age of 20. A placement decision made by a court is subject to review.

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Conditional Release (S. 77)

Rules governing adult conditional release apply to a young person who is serving an adult sentence whether in a youth custody facility or in an adult facility. These rules governing adult conditional release also apply to a young person who is serving a portion of an adult sentence in a youth custody facility. The placement provisions for youth serving adult sentences operate as an exception to the "two year rule" of section 743.1 of the Criminal Code. Youth with an adult sentence who are placed in youth custody facilities for a portion or the entire period of their adult sentence are treated in the same manner as adults with respect to conditional release.

Where a young person is serving an adult sentence in a youth custody facility it is important that the youth does not fall between the cracks as might happen if the parole board is not aware of the youth person. The provincial director is required to inform the appropriate parole board where a young person sentenced as an adult is placed in a youth custody facility. The appropriate parole board is required to exercise its jurisdiction in accordance with the Corrections and Conditional Release Act. Which parole board has jurisdiction (either a provincial parole board or the National Parole Board), is identified in accordance with that Act.

Where a person who is serving an adult sentence for a crime committed as a youth is then given an adult sentence for a crime committed after reaching 18, the young person will serve the remainder of the sentence in the adult system, in accordance with section 743.1 of the Criminal Code.

A person serving an adult sentence who is then sentenced to an adult sentence under the Youth Criminal Justice Act, will serve the sentences in a correctional facility for adults or a penitentiary in accordance with section 743.1 of the Criminal Code.

Source: Department of Justice, Canada.

 

In June 2006, the Supreme Court of Canada ruled "since no basis can be found in the Youth Criminal Justice Act for imposing a harsher sanction than would otherwise be called for to deter others from committing crimes, general deterrence is not a principle of youth sentence under the new regime."