Adult Sentencing for Youths

• Author: Nicholas Bala, Sanjeev Anand
• Pages: 651-709

651

Cha pter 9

ADULT SENTENCING

FOR YOUTHS

a. aDULt SaNCtIONS FOr YOUNG

OFFeNDerS

1) Purpose of Adult Sanctions

All juvenile justice systems h ave provisions that allow for the most ser-

ious of offenders to receive sentences that are similar or identical to

those imposed on adults. The statutory provisions that allow for adult

sanctions to be imposed on adolescents are signif‌icant not only for the

youths directly involved, but for the entire juvenile justice system—

they set an outer boundary for that system and help to def‌ine its nature.

They ref‌lect the recognition that some youths have committed offences

that are so serious and po se such a great risk to the public that it would

be inappropriate to subject them to the limited sentences available

under juvenile justice laws. However, countries vary greatly in the

legislative provisions th at allow for adult sanctions to be imposed on

adolescents. In many US states, for example, the decision about wheth-

er to seek an adult sentence is made by the prosecutor before tri al and

any trial in such a case can be fully publicized. Thousands of juveniles

are serving s entences in adult prisons in the United States.1 However,

1 Jeffrey Fagan, “Juven ile Crime and Crimin al Justice: Resolving Bor der Disputes”

(2008) 18 The Future of Children 81; and Jason Ziede nberg, You’re An Adult

YOUTH CRIM INAL JUSTICE LAW652

in some other countries, such as New Zealand, only one or two juven-

iles per year are likely to face an adult sanction.

In Canada, the proces s for imposing adult sentences is judicially

controlled. Under the Young Offenders Act,2 this process resulted in

fewer than 100 youth a year receiving an adult sentence (about 1 in

1,000 youth court cases). Although there is no national data available on

adult sentencing under the YCJA, these cases continue to be exceptional.

While case s involvi ng adult sentences for youths occur rarely in Canad a,

these case s involve serious, often brutal offences. Challenging c ases for

the justice system, they are among the most highly publicized young

offender cases. Laws al lowing for imposition of an adult sanction have

been controversial and, as a result, over the past three decades the se

provisions have been changed more frequently than any other parts of

Canada’s youth justice legislation.

Adolescents who are Aborigina l or members of visible minorities

are much more likely than Caucasi an youth to be sentenced as adults.

While this patter n is much better documented in the United States,

where juvenile offending data records the race of the youth, the avai l-

able Canadian data, as well as reported caselaw, reveal similar disturb-

ing trends in this country.3 The vast majority of youths who are subject

to adult sanctions are male.4

The provisions for adult sentencing have been characteri zed as a

form of “safety valve” for those rare circumstance s where the provi-

sions of the YCJA — in particula r the limits on the max imum length

of sentence — are considered to be insuff‌icient for holding a young

person accountable. A judge who determines that a youth ought to be

subject to adult sanction is, in essence, deciding t hat the YCJA — its

Now: Youth in Adult Criminal Justice Systems (Washin gton, D.C.: Nat ional Insti-

tute of Correction s, 2011).

2 Young Offenders Act, R. S.C. 1985, c. Y-1, enacted as S.C. 1980– 81–82–83, c. 110

[YOA].

3 See, for example, the C anada Correctional In vestigator, Annual Report of the

Correctional Investigator (Ottawa: Off‌ic e of the Correctional Invest igator, 1999 –

2000); that report st ated that eight of the nine youths i n Canada in 2000 under

eighteen year s who were placed in federal adult penite ntiaries were Aborig inal

or members of vi sible minorities. For US data, see Je ffrey Fagan, The Chang ing

Borders of Juvenile Justice (Chicago: Univers ity of Chicago Press, 200 0).

4 In 1999, under the YOA, f‌ift y-two youths — forty-seven male s and f‌ive females

— were transfer red: Statistics Ca nada, CANSIM II. In 2000 –2001, eighty-six

cases, of whic h 57 percent involved seventeen-year-olds, were t ransferred to

adult court: Stat istics Canada, “Youth Court S tatistics 2000/ 2001” (2002) 22:3

Juristat. Ther e is no national data on the numb er of young persons receivin g

adult sentences und er the YCJA.

Adult Sentencing for Youths 653

sentencing principles and the resources established pursuant to it —

represent an inadequate response to the offence committed by a young

person. Youths could be subject to adult sentences under both the YOA

and its precursor, the Juvenile Delinquents Act.5 The procedure and t he

test for sanctioning adolescents as adults were substantially changed

when the YCJA came into force. As will be discussed in this chapter, in

2008 some of the provisions of the YCJA that allow for adult sanctions

to be imposed on a youth were ruled unconstitutional by the Supreme

Court, though it was accepted that in appropriate, serious cases, the

Crown may establish that an adolescent offender should be subject to

an adult sentence. The 2012 YCJA amendments6 address some of the

procedural issues raised by the Supreme Court decision, and the addi-

tion of the principle of “denunciation” may affect some cases. How-

ever, the 2012 amendments do not alter the fundamental questions that

the youth courts need to address when decidi ng whether to impose

an adult sentence. One amendment actually increa ses the protection

afforded adolescents by prohibiting a young person who receives an

adult sentence from being transferre d into an adult cor rectional facility

before the age of eighteen years. Adult sentencing will continue to be an

exceptional response to some of the most ser ious cases.

2) Transfer under the Juvenile Delinquents Act

Under the JDA there wa s a relatively informal process for transfer of

juveniles into adult court and imposition of an adult sentence. This

process could occur before or after trial in juvenile court, or even after

part of the juvenile sentence was ser ved. The transfer process under the

JDA could be initiated by a juvenile court judge without the request of

counsel, though it was usually commenced a s a result of an application

by the Crown prosecutor. Under the JDA, a juvenile who was tr ans-

ferred into adult court for trial and whose ba il was denied was immedi-

ately detained in an adult prison pend ing adult trial and, if convicted of

murder, faced the prospect of capital punishment.7

5 Juvenile Delinque nts Act, enacted as S.C. 1908, c. 4 0; subject to minor amend-

ments over the yea rs, f‌inally as Juvenile Deli nquents Act, R.S.C. 1970, c. J-3 [JDA].

6 S.C. 2012, c. 1, in force 23 October 2012.

7 See, for example, R. v. Truscott, [1959] O.W.N. 320 (H.C.J.). In pract ice, sen-

tences of capita l punishment for juvenile offenders u nder the JDA were often

commuted to life impr isonment, as occurre d with Stephen Truscott, who was

fourteen year s of age when convicted of murder and sentenced to de ath. He was

released af ter ten years in an adult pri son, and eventually exonerated . See Isabel

Lebourdais, The Trial of Steve n Tru scott (London: Gollancz, 1966); and Julian