Adult Sentencing for Youths

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 500-552

500

A. Adult Sanctions FOR YOUNG

OFFENDERS

1) Purpose of Adult Sanctions

All juvenile justice systems have provisions that allow for the most

serious 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, since

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

nature. There is a recognition that some youths have committed

offences that are so serious, and pose such a great risk to the public that

it would be inappropriate to subject them to the limited sentences that

are available under juvenile justice laws. However, countries vary

greatly in the legislative provisions which allow for adult sanctions to

be imposed on adolescents. In most American states, for example, the

decision about whether to seek an adult sentence is made by the pros-

ecutor before trial and any trial in such a case is likely to be fully pub-

licized. Thousands of juveniles are serving sentences in adult prisons

in the United States; in some states, capital punishment is even possi-

ble for juveniles who commit murder. However, in some other coun-

tries, such as New Zealand, only one or two juveniles per year are

likely to face an adult sanction.

ADULT SENTENCING

FOR YOUTHS

chapter 9

In Canada, the process for imposing adult sentences is judicially

controlled. Under the Young Offenders Act,1this process generally

resulted in under 100 youth a year receiving an adult sentence (i.e.,

about 1 in 1000 youth court cases). Although cases involving adult

sentences for youths occur relatively rarely in Canada, these cases

involve serious, often brutal offences. They are challenging cases for

the justice system and are among the most highly publicized young

offender cases. Laws allowing for imposition of an adult sanction have

been controversial and, as a result, these provisions have been changed

more frequently than any other parts of Canada’s youth justice legisla-

tion over the past two decades. The provisions of the Youth Criminal

Justice Act2that allow for adult sanctions to be imposed on a youth are

intended to deal with those relatively rare cases where the ordinary

youth justice sentencing regime is considered inadequate to hold a

young offender accountable for a particularly serious offence.

Adolescents who are Aboriginal or members of visible minorities

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

While this pattern is better documented in the United States, where

juvenile offending data records the race of the youth, the available

Canadian data as well as reported case law reveal the similar disturbing

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

adult sanction are male.4

The provisions for adult sentencing have been characterized as a form

of “safety valve” for those relatively rare circumstances where the provi-

sions of the YCJA — in particular the limits on the maximum length of

Adult Sentencing for Youths 501

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

The Act was also amended in 1985 through An Act to amend the Young Offenders

Act, the Criminal Code, the Penitentiary Act, and the Prisons and Reformatories Act,

R.S.C. 1985 (2d Supp.), c. 24, in force September 1, 1986 and November 1,

1986, S.C. 1992, c.11, and in 1995 through An Act to amend the Young Offenders

Act and the Criminal Code, S.C. 1995, c. 19.

2Youth Criminal Justice Act, S.C. 2002, c. 1 (royal assent February 19, 2002, to

come into force April 1, 2003), often referred to in this book as the YCJA.

3 See, for example, the Correctional Investigator, Annual Report of the Correctional

Investigator (Ottawa: 1999–2000); that report stated that eight of the nine

youths in Canada in 2000 under eighteen years who were placed in federal adult

penitentiaries were Aboriginal or members of visible minorities. For American

data, see J. Fagan, The Changing Borders of Juvenile Justice (Chicago, IL:

University of Chicago Press, 2000).

4 In 1999, under the YOA, above note 1, 52 youth were transferred, of whom 47

youths transferred were males and 5 females: Statistics Canada, CANSIM II. In

2000–2001, eighty-six cases were transferred to adult court, of which 57 percent

involved seventeen-year-olds: Statistics Canada, Youth Court Statistics 2000–01

(2002) 22:3 Juristat.

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 that the YCJA — its sentencing

principles and the resources established pursuant to it — represent an

inadequate response to the offence committed by a young person. Youths

could be subjected to adult sentences under both the YOA and its precur-

sor, the Juvenile Delinquents Act.5The procedure and the test for sanction-

ing adolescents as adults are substantially changed by the YCJA.

2) Transfer Under the Juvenile Delinquents Act

Under the Juvenile Delinquents Act there was a relatively informal

process for transfer of juveniles into adult court for trial and possible

sentence. This process could occur before or after trial in juvenile

court, or even after part of the juvenile sentence was served. The trans-

fer process under the Juvenile Delinquents Act could be initiated by a

juvenile court judge without the request of counsel, though it was usu-

ally commenced as a result of an application by the Crown prosecutor.

Under the Juvenile Delinquents Act, a juvenile who was transferred into

adult court for trial could immediately be detained in an adult prison

pending adult trial and, if convicted of murder, faced the prospect of

capital punishment.6

3) Transfer Under the Young Offenders Act

The determination whether to transfer a young person to the jurisdic-

tion of adult court under the YOA was complex. The transfer hearing

was held before trial, and was to determine whether a youth would be

tried in adult court. If convicted in adult court, the youth would be

subjected to an adult sentence. In dealing with transfer, the youth court

judge was to consider a broad range of evidence, much of which was

inadmissible in a criminal trial, to determine which court and correc-

tions system and which legal regime was preferable for dealing with the

young person. In making such a decision, the youth court was to be

guided by the specific provisions of section 16 of the YOA, as well as

the more general Declaration of Principle in section 3 of that Act.

502 Youth Criminal Justice law

5Juvenile Delinquents Act, enacted as S.C. 1908, c. 40; subject to minor amend-

ments over the years, finally as Juvenile Delinquents Act, R.S.C. 1970, c. J–3.

6 See, for example, R. v. Truscott, [1959] O.W.N. 320 (sub. nom. S.M.T., Re.) 31

C.R. 76, 125 C.C.C. 100 (H.C.J.). See also Isabel Lebourdais, The Trial of Steven

Truscott (London: Gollancz, 1966); and Julian Sher, Until You are Dead: Steven

Truscott’s Long Ride into History (Toronto: Knopf Canada, 2001).