Imposing Adult Sentences on Young Offenders

By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

The legal system in Canada treats young offenders differently than adults.

The Youth Criminal Justice Act (YCJA) regulates the youth justice system. Under the YCJA, young people are held accountable for their criminal acts, but not in the same way as adults. The YCJA provides special protections, unique procedures and numerous possible sentences for youth offenders.

However, young people can get an adult sentence in certain circumstances. In these cases, the Criminal Code sentences for adult offenders will be applied to young offenders.

The YCJA Provisions

Section 2(1) of the YCJA defines a “young person” as anyone who is “12 years old or more, but less than 18 years old.” Also, under this section, adult sentence means “any sentence that could be imposed on an adult who has been convicted of the same offence.”

Section 3(1)(b) of the YCJA states that “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize rehabilitation and reintegration,” among others.

The YCJA acknowledges that young people are vulnerable and have special needs and circumstances that must be considered when making decisions about them. For example, section 42(2) of the YCJA contains specific sentencing measures for young offenders that differ from the sentencing provisions for adults under the Criminal Code. However, under the YCJA, young offenders can be tried as adults for serious violent offences such as “murder, attempted murder, manslaughter or aggravated sexual assault.”

Adult Sentences for Youth

Before the YCJA was enacted, section 16 of the Young Offenders Act allowed the transfer of young persons who committed indictable offences to adult court. The YCJA eliminated this process.

However, at the time, section 72(2) of the YCJA, required young people to persuade the court that they should not be sentenced as adults.

According to the Department of Justice:

The YCJA established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. Offences that can lead to an adult sentence are indictable offences committed when the youth was at least 14 years old, for which an adult would be liable to imprisonment for more than two years. The YCJA […] also included a presumption that youth 14 or older found guilty of certain serious violent offences would receive an adult sentence. In these circumstances, the onus was on the young person to convince the court that a youth sentence would be appropriate.

This onus was challenged in 2008 by a youth convicted of manslaughter. In R v D.B, 17-year-old Bwas accused of killing R in a fistfight. B pleaded guilty to manslaughter – which was a presumptive offence under the YCJA and where an adult sentence was expected to be imposed. B sought a youth sentence, which the Crown opposed. B then challenged, under section 7 of the Charter of Rights and Freedoms, the constitutionality of the onus provisions when there is a presumptive offence. He claimed that the onus provisions placed the burden on the young person to convince the court that they should be given a youth sentence, rather than on the Crown to prove to the court that an adult sentence should be imposed.

The Supreme Court agreed with B and found that the sentencing provisions under section 72 of the YCJA were unconstitutional. The Court also overturned a provision that required young offenders who had been given adult sentences to show that their identities should continue to be protected by a publication ban.

The Supreme Court stated:

Because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability (at para 41).

The Supreme Court decided:

Under the presumptive offences regime, an adult sentence is presumed to apply and the protection of a publication ban is presumed to be lost. The impugned provisions place the onus on young persons to satisfy the court that they remain entitled to a youth sentence and to a publication ban. This onus on young persons is inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice which requires the Crown to justify the loss both of a youth sentence and of a publication ban. The impugned provisions are therefore inconsistent with s[ection] 7 of the Charter and are not saved by s[ection] 1. To the extent that they impose this reverse onus, they are unconstitutional (at para 95).

The publication ban is part of the sentence, removing it “makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe” (at para 87). The Supreme Court stated that the Crown must prove that an adult sentence is necessary. Therefore, the Crown should also have to prove that the lifting of a publication ban should be added to the sentence (at para 94).

Amending the YCJA

In 2012, Parliament responded to the Supreme Court decision by amending the YCJA, repealing the presumptive offences provisions. The Crown must now persuade the court that an adult sentence is justified.

After the amendment, section 72 of the YCJA read:

1. The youth justice court shall order that an adult sentence be imposed if it is satisfied that
   1. the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
   2. 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.

(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.

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

Section 73 (1) states:

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.

Summary

It is generally accepted that young people lack the maturity of adults. The YCJA addresses this by providing young people with their own unique court process and punishments.

A court may decide, however, to sentence a youth in the same way as an adult, for certain violent offences. That said, if the Crown wants to ask the court for an adult sentence, it must give notice of that intention before a trial occurs. The judge will hear arguments on that matter after a trial and a guilty verdict.