Adult Sentences For Youth

In Depth

Prior to the YCJA being enacted, what was the procedure for adult sentences?
Youth who were 14 years of age or older could be transferred to adult court and if convicted there could receive an adult sentence. If a 16 or 17 year old was charged with murder, attempted murder, manslaughter or aggravated sexual assault, it was presumed that an adult sentence would be applied, unless the young person could persuade the court that it should not. This was considered unfair because it took place before the youth had even been found guilty of the offence. The transferred youth lost access to the procedural protections appropriate to youth and specially provided during the youth judicial process.

What is the procedure for adult sentences now?
The YCJA has eliminated the transfer hearing to adult court. Deciding if an adult sentence is appropriate only takes place after a finding of guilt in youth court. There are enhanced protections and notice requirements throughout the process to ensure that the youth’s rights are fully safeguarded, including not exposing the youth to an examination of penalty before the determination of guilt has been made.

What types of offences are subject to an adult sentence?
Whether an adult sentence is appropriate depends on the type of offence. An adult sentence could be given if the youth has been found guilty of one of the serious violent offences such as:

  • First or Second Degree Murder
  • Attempt to commit murder
  • Manslaughter
  • Aggravated sexual assault

If the offence is one of a pattern of repeated serious violent offences or is an offence for which an adult would receive over two years in jail and the youth is 14 or older, then an adult sentence could be ordered

What is the test for deciding to give a youth an adult sentence?
Adult sentences should only be used in cases where a 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.

What must the Crown do if it is seeking an adult sentence?
The Crown must give notice to the youth and the court that it is seeking an adult sentence.

What happens in the trial of a youth where the Crown is seeking an adult sentence?
All trials of youth will take place in youth court whether a youth or adult sentence is being sought. If the offence may attract a penalty, on conviction, of five or more years, and the crown is seeking an adult sentence, then the youth may elect the mode of trial. If a youth sentence is sought, then there would be no "election" - except in the case of first or second degree murder where the youth penalty could be 10 and 7 years respectively.

What are the modes of trial that a youth could elect?
The youth could elect a trial by:

  • A youth justice court judge without a jury
  • A trial by judge at the superior court, without a jury, following a preliminary inquiry
  • A trial by judge and jury at the superior court, following a preliminary inquiry

What happens at sentencing when a youth has been found guilty and an adult sentence is being sought?
The court must hold a hearing to determine whether a youth or adult sentence should be imposed. Section 72 of YCJA The court must apply the sentencing principles to make the decision. The judge shall consider a pre-sentence report and may consider conference recommendations. The judge shall give the Crown, the youth and his or her parents an opportunity to be heard. Section 71 of YCJA The judge must also give reasons for the decision. If an adult sentence is imposed, then adult parole eligibility applies.

Where would the youth serve his or her adult sentence?
A youth under the age of 18 at the time of sentencing would serve the adult sentence in a youth facility. If the youth is 18 or older when sentenced and is sentenced to less than 2 years, he or she may go to provincial jail. If the youth is 18 or older when sentenced and is sentenced to more than 2 years, he or she may go to a federal penitentiary. If the youth turns 20 in a youth facility, he or she may be transferred to an adult facility. Corrections have more flexibility under the YCJA with regard to the placement of the youth.