Adult Sentencing for Youths

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 617-675

617

Chapter 9

ADULT SENTENCING

FOR YOUTHS

a. aDULt SaNCtIONS FOr YOUNG

OFFeNDerS

1) Purpose of Adult Sanctions

All juvenile justice systems have 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 sign if‌icant not only for the

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

set an outer boundary for that s ystem and help to def‌ine its nature.

There is a recognition that some youths have committed offences that

are so serious and pose such a g reat risk to the public that it would be

inappropriate to subject t hem to the limited sentences available under

juvenile justice laws. However, countries var y greatly in the legislative

provisions that allow for adult sanctions to be imposed on adolescents.

In many US state s, for example, the deci sion about whether to seek an

adult sentence is made by the prosecutor before trial and any tr ial in

such a case is likely to be fully publicized. Thousands of juveniles are

serving sentences in adult pri sons in t he United States; in a majorit y

of states, adolescents who comm it murder c an face life imprisonment

without possibilit y of parole.1 However, in some other countries, such

1 Connie de la Vega & Michelle Leighton, “Se ntencing Our Children to Die in

YOUTH CRIM INAL JUSTICE LAW618

as New Zealand, only one or two juveniles per year are likely to face an

adult sanction.

In Canada, t he process 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 cases involving adult sentences for youths occur

relatively rarely in Canada, these cases involve serious, often brutal of-

fences. Challenging cases for t he justice system, they are among the

most highly publicized young offender cases. Laws allowing for impos-

ition of an adult sanction have been controversial and, as a re sult, these

provisions have been changed more frequently than any other parts of

Canada’s youth justice legislation over the past two decade s.

Adolescents who are Aboriginal or members of v isible minorities

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

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

where juvenile offending data records the race of the youth, the avail-

able Canadian data, as well as reported caselaw, reveal similar di sturb-

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

to adult sanction are male.4

The provisions for adult sentencing have been characteri zed as a

form of “safety valve” for those relatively rare circumstances where

the provisions of the YCJA — in particular the limit s on the max-

imum length of sentence — are considered to be insuff‌icient for hold-

ing a young person accountable. A judge who determ ines that a youth

ought to be subject to adult sanction is, in es sence, decidi ng that the

YCJA — its sentencing pr inciples and the resources est ablished pursu-

ant to it — represent an in adequate response to the offence committed

Prison: Globa l Law and Practice” (2008) 42 U.S.F. L. Rev. 983; and Jeffrey Fagan,

“Juvenile Crime a nd Criminal Justice: R esolving Border Dispute s” (200 8) 18

The Future of Childre n 81–118.

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 Correctiona l Investigator, Annual Report of the

Correctional Investigator (Ottawa : Off‌ice of the Correctional Inve stigator, 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 Changing

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

4 In 1999, under the YOA, f‌ift y-two youths — forty-seven males a nd f‌ive fe-

males — were tr ansferred: Statist ics Canada, CANSIM II. In 20 00–2001, eighty-

six case s, of which 57 percent involved seventeen-year-old s, were transferred 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 619

by a young person. Youths could be subject to adult sentences under

both the YOA and its precurs or, the Juvenile Delinquents Act.5 The pro-

cedure and the test for sanctioning adolescents as adults were substan-

tially changed by the YCJA. As will be discu ssed in detail below, in

2008 some of the procedural 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.

2) Transfer under the Juvenile Delinquents Act

Under the JDA there was a relatively informal process for transfer of

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

process could occur before or after tr ial in juvenile court, or even after

part of the juvenile sentence was served. The transfer process under the

JDA could be initiated by a juvenile court judge w ithout the request of

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

by the Crow n prosecutor. Under the JDA , a juvenile who was trans-

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

ately 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 tran sfer a young person to the jurisdic-

tion of adult court under the YOA was complex. The transfer hea ring,

held before tr ial, wa s to deter mine whether a youth would be tr ied in

adult court. If convicted in adult court, the youth would be subject to

an adult sentence. In dealing with transfer, the youth court judge was

to consider a broad range of ev idence, much of which was inadmissible

in a cr iminal trial, to deter mine which court and corrections system

and which legal regime were preferable for dealing w ith the youth. In

making this decision, the youth court was guided by the specif‌ic provi-

sions of section 16 of the YOA , as well a s the more general Decl aration

of Principle in section 3 of that Act.

5 Juvenile Delinquents A ct, enacted as S.C. 1908, c. 40; subject to mi nor amend-

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

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 al so Isabel Lebourdai s, The Trial of Ste ven

Tru s c ot t (London: Golla ncz, 1966); and Julian Sher, Until You Are Dead: Steven

Truscott’s Long Ride into Histor y (Toronto: Knopf Can ada, 2001).