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| Age for
purpose of
presumptive
offences
|
61. The lieutenant governor in council of a
province may by order fix an age greater than
fourteen years but not more than sixteen years
for the purpose of the application of the
provisions of this Act relating to presumptive
offences.
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| Imposition of
adult sentence
|
62. An adult sentence shall be imposed on
a young person who is found guilty of an
indictable offence for which an adult is liable
to imprisonment for a term of more than two
years in the following cases:
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(a) in the case of a presumptive offence, if
the youth justice court makes an order under
subsection 70(2) or paragraph 72(1)(b); or
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(b) in any other case, if the youth justice
court makes an order under subsection
64(5) or paragraph 72(1)(b) in relation to an
offence committed after the young person
attained the age of fourteen years.
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| Application
by young
person
|
63. (1) A young person who is charged with,
or found guilty of, a presumptive offence may,
at any time before evidence is called as to
sentence or, where no evidence is called,
before submissions are made as to sentence,
make an application for an order that he or she
is not liable to an adult sentence and that a
youth sentence must be imposed.
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| Application
unopposed
|
(2) If the Attorney General gives notice to
the youth justice court that the Attorney
General does not oppose the application, the
youth justice court shall, without a hearing,
order that the young person, if found guilty, is
not liable to an adult sentence and that a youth
sentence must be imposed.
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| Application
by Attorney
General
|
64. (1) The Attorney General may,
following an application under subsection
42(9) (judicial determination of serious
violent offence), if any is made, and before
evidence is called as to sentence or, where no
evidence is called, before submissions are
made as to sentence, make an application for
an order that a young person is liable to an
adult sentence if the young person is or has
been found guilty of an offence, other than a
presumptive offence, for which an adult is
liable to imprisonment for a term of more than
two years, that was committed after the young
person attained the age of fourteen years.
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| Notice of
intention to
seek adult
sentence
|
(2) If the Attorney General intends to seek
an adult sentence for an offence by making an
application under subsection (1), or by
establishing that the offence is a presumptive
offence within the meaning of paragraph (b) of
the definition ``presumptive offence'' in
subsection 2(1), the Attorney General shall,
before the young person enters a plea or with
leave of the youth justice court before the
commencement of the trial, give notice to the
young person and the youth justice court of the
intention to seek an adult sentence.
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| Included
offences
|
(3) A notice of intention to seek an adult
sentence given in respect of an offence is
notice in respect of any included offence of
which the young person is found guilty for
which an adult is liable to imprisonment for a
term of more than two years.
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| Notice to
young person
|
(4) If a young person is charged with an
offence, other than an offence set out in
paragraph (a) of the definition ``presumptive
offence'' in subsection 2(1), and the Attorney
General intends to establish, after a finding of
guilt, that the offence is a serious violent
offence and a presumptive offence within the
meaning of paragraph (b) of the definition
``presumptive offence'' in subsection 2(1) for
which the young person is liable to an adult
sentence, the Attorney General shall, before
the young person enters a plea or, with leave
of the youth justice court under subsection (2),
before the commencement of the trial, give
notice of that intention to the young person.
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| Application
unopposed
|
(5) If the young person gives notice to the
youth justice court that the young person does
not oppose the application for an adult
sentence, the youth justice court shall, without
a hearing, order that if the young person is
found guilty of an offence for which an adult
is liable to imprisonment for a term of more
than two years, an adult sentence must be
imposed.
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| Presumption
does not apply
|
65. If the Attorney General at any stage of
proceedings gives notice to the youth justice
court that an adult sentence will not be sought
in respect of a young person who is alleged to
have committed an offence set out in
paragraph (a) of the definition ``presumptive
offence'' in subsection 2(1), the court shall
order that the young person is not liable to an
adult sentence, and the court shall order a ban
on publication of information that would
identify the young person as having been dealt
with under this Act.
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| No election if
youth
sentence
|
66. If the youth justice court has made an
order under subsection 63(2) or section 65
before a young person is required to be put to
an election under section 67, the young person
shall not be put to an election unless the young
person is alleged to have committed first
degree murder or second degree murder
within the meaning of section 231 of the
Criminal Code.
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| Election -
adult sentence
|
67. (1) Subject to section 66, the youth
justice court shall, before a young person
enters a plea, put the young person to his or her
election in the words set out in subsection (2)
if
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(a) the young person is charged with having
committed an offence set out in paragraph
(a) of the definition ``presumptive offence''
in subsection 2(1);
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(b) the Attorney General has given notice
under subsection 64(2) of the intention to
seek an adult sentence for an offence
committed after the young person has
attained the age of fourteen years;
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(c) the young person is charged with having
committed first or second degree murder
within the meaning of section 231 of the
Criminal Code before the young person has
attained the age of fourteen years; or
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(d) the person to whom section 16 (status of
accused uncertain) applies is charged with
having, after attaining the age of fourteen
years, committed an offence for which an
adult would be entitled to an election under
section 536 of the Criminal Code, or over
which a superior court of criminal
jurisdiction would have exclusive
jurisdiction under section 469 of that Act.
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| Wording of
election
|
(2) The youth justice court shall put the
young person to his or her election in the
following words:
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You have the option to elect to be tried by
a youth justice court judge without a jury
and without having had a preliminary
inquiry; or you may elect to have a
preliminary inquiry and to be tried by a
judge without a jury; or you may elect to
have a preliminary inquiry and to be tried by
a court composed of a judge and jury. If you
do not elect now, you shall be deemed to
have elected to have a preliminary inquiry
and to be tried by a court composed of a
judge and jury. How do you elect to be
tried?
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| Election -
Nunavut
|
(3) Subject to section 66, in respect of
proceedings in Nunavut, the youth justice
court shall, before a young person enters a
plea, put the young person to his or her
election in the words set out in subsection (4)
if
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(a) the young person is charged with having
committed an offence set out in paragraph
(a) of the definition ``presumptive offence''
in subsection 2(1);
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(b) the Attorney General has given notice
under subsection 64(2) of the intention to
seek an adult sentence for an offence
committed after the young person has
attained the age of fourteen years;
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(c) the young person is charged with having
committed first or second degree murder
within the meaning of section 231 of the
Criminal Code before the young person has
attained the age of fourteen years; or
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(d) the person to whom section 16 (status of
accused uncertain) applies is charged with
having, after attaining the age of fourteen
years, committed an offence for which an
adult would be entitled to an election under
section 536.1 of the Criminal Code.
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| Wording of
election
|
(4) The youth justice court shall put the
young person to his or her election in the
following words:
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You have the option to elect to be tried by
a judge of the Nunavut Court of Justice
alone, acting as a youth justice court
without a jury and without a preliminary
inquiry; or you may elect to have a
preliminary inquiry and to be tried by a
judge of the Nunavut Court of Justice,
acting as a youth justice court without a
jury; or you may elect to have a preliminary
inquiry and to be tried by a judge of the
Nunavut Court of Justice, acting as a youth
justice court with a jury. If you do not elect
now, you shall be deemed to have elected to
have a preliminary inquiry and to be tried by
a court composed of a judge and jury. How
do you elect to be tried?
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| Mode of trial
where
co-accused
are young
persons
|
(5) When two or more young persons who
are charged with the same offence, who are
jointly charged in the same information or
indictment or in respect of whom the Attorney
General seeks joinder of counts that are set out
in separate informations or indictments are
put to their election, then, unless all of them
elect or re-elect or are deemed to have elected,
as the case may be, the same mode of trial, the
youth justice court judge
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(a) may decline to record any election,
re-election or deemed election for trial by a
youth justice court judge without a jury, a
judge without a jury or, in Nunavut, a judge
of the Nunavut Court Justice without a jury;
and
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(b) if the judge declines to do so, shall hold
a preliminary inquiry unless a preliminary
inquiry has been held prior to the election,
re-election or deemed election.
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| Attorney
General may
require trial
by jury
|
(6) The Attorney General may, even if a
young person elects under subsection (1) or
(3) to be tried by a youth justice court judge
without a jury or a judge without a jury, require
the young person to be tried by a court
composed of a judge and jury.
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| Preliminary
inquiry
|
(7) When a young person elects to be tried
by a judge without a jury, or elects or is
deemed to have elected to be tried by a court
composed of a judge and jury, the youth
justice court referred to in subsection 13(1)
shall conduct a preliminary inquiry and if, on
its conclusion, the young person is ordered to
stand trial, the proceedings shall be conducted
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(a) before a judge without a jury or a court
composed of a judge and jury, as the case
may be; or
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(b) in Nunavut, before a judge of the
Nunavut Court of Justice acting as a youth
justice court, with or without a jury, as the
case may be.
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| Preliminary
inquiry
provisions of
Criminal
Code
|
(8) The preliminary inquiry shall be
conducted in accordance with the provisions
of Part XVIII (procedure on preliminary
inquiry) of the Criminal Code, except to the
extent that they are inconsistent with this Act.
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| Parts XIX and
XX of
Criminal
Code
|
(9) Proceedings under this Act before a
judge without a jury or a court composed of a
judge and jury or, in Nunavut, a judge of the
Nunavut Court of Justice acting as a youth
justice court, with or without a jury, as the case
may be, shall be conducted in accordance with
the provisions of Parts XIX (indictable
offences - trial without jury) and XX
(procedure in jury trials and general
provisions) of the Criminal Code, with any
modifications that the circumstances require,
except that
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(a) the provisions of this Act respecting the
protection of privacy of young persons
prevail over the provisions of the Criminal
Code; and
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(b) the young person is entitled to be
represented in court by counsel if the young
person is removed from court in accordance
with subsection 650(2) of the Criminal
Code.
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| Proof of
notice under
subsection
64(4)
|
68. (1) When a young person is found guilty
of an offence, other than an offence set out in
paragraph (a) of the definition ``presumptive
offence'' in subsection 2(1), committed after
he or she attained the age of fourteen years,
and the Attorney General seeks to establish
that the offence is a serious violent offence and
a presumptive offence within the meaning of
paragraph (b) of the definition ``presumptive
offence'' in subsection 2(1), the Attorney
General must satisfy the youth justice court
that the young person, before entering a plea,
was given notice under subsection 64(4)
(intention to prove prior serious violent
offences).
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| Determination
of serious
violent
offence
|
(2) If the youth justice court is satisfied that
the young person was given notice under
subsection 64(4) (intention to prove prior
serious violent offences), the Attorney
General may make an application in
accordance with subsection 42(9) (judicial
determination of serious violent offence).
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| Inquiry by
court and
proof
|
(3) If the youth justice court determines that
the offence is a serious violent offence, it shall
ask whether the young person admits to the
previous judicial determinations of serious
violent offences made at different
proceedings. If the young person does not
admit to any of it, the Attorney General may
adduce evidence as proof of the previous
judicial determinations in accordance with
section 667 of the Criminal Code, with any
modifications that the circumstances require.
For the purposes of that section, a certified
copy of the information or indictment
endorsed in accordance with subsection 42(9)
(judicial determination of serious violent
offence) or a certified copy of a court decision
is deemed to be a certificate.
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| Determination
by court
|
(4) If the youth justice court, after making
its inquiry under subsection (3), is satisfied
that the offence is a presumptive offence
within the meaning of paragraph (b) of the
definition ``presumptive offence'' in
subsection 2(1), the youth justice court shall
endorse the information or indictment
accordingly.
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| Determination
by court
|
(5) If the youth justice court, after making
its inquiry under subsection (3), is not satisfied
that the offence is a presumptive offence
within the meaning of paragraph (b) of the
definition ``presumptive offence'' in
subsection 2(1), the Attorney General may
make an application under subsection 64(1)
(application for adult sentence).
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| Paragraph (a)
``presumptive
offence'' -
included
offences
|
69. (1) If a young person who is charged
with an offence set out in paragraph (a) of the
definition ``presumptive offence'' in
subsection 2(1) is found guilty of committing
an included offence for which an adult is liable
to imprisonment for a term of more than two
years, other than another presumptive offence
set out in that paragraph,
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(a) the Attorney General may make an
application under subsection 64(1)
(application for adult sentence) without the
necessity of giving notice under subsection
64(2), if the finding of guilt is for an offence
that is not a presumptive offence; or
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(b) subsections 68(2) to (5) apply without
the necessity of the Attorney General
giving notice under subsection 64(2)
(intention to seek adult sentence) or (4)
(intention to prove prior serious violent
offences), if the finding of guilt is for an
offence that would be a presumptive
offence within the meaning of paragraph (b)
of the definition ``presumptive offence'' in
subsection 2(1) if a judicial determination is
made that the offence is a serious violent
offence and on proof of previous judicial
determinations of a serious violent offence.
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| Other serious
offences -
included
offences
|
(2) If the Attorney General has given notice
under subsection 64(2) of the intention to seek
an adult sentence and the young person, after
he or she has attained the age of fourteen
years, is found guilty of committing an
included offence for which an adult is liable to
imprisonment for a term of more than two
years, the Attorney General may make an
application under subsection 64(1)
(application for adult sentence) or seek to
apply the provisions of section 68.
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| Inquiry by
court to
young person
|
70. (1) The youth justice court, after hearing
an application under subsection 42(9)
(judicial determination of serious violent
offence), if any is made, and before evidence
is called or, where no evidence is called,
before submissions are made as to sentence,
shall inquire whether a young person wishes to
make an application under subsection 63(1)
(application for youth sentence) and if so,
whether the Attorney General would oppose
it, if
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(a) the young person has been found guilty
of a presumptive offence;
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(b) the young person has not already made
an application under subsection 63(1); and
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(c) no order has been made under section 65
(young person not liable to adult sentence).
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| No
application by
young person
|
(2) If the young person indicates that he or
she does not wish to make an application
under subsection 63(1) (application for youth
sentence) or fails to give an indication, the
court shall order that an adult sentence be
imposed.
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| Hearing -
adult
sentences
|
71. The youth justice court shall, at the
commencement of the sentencing hearing,
hold a hearing in respect of an application
under subsection 63(1) (application for youth
sentence) or 64(1) (application for adult
sentence), unless the court has received notice
that the application is not opposed. Both
parties and the parents of the young person
shall be given an opportunity to be heard at the
hearing.
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| Test - adult
sentences
|
72. (1) In making its decision on an
application heard in accordance with section
71, the youth justice court shall consider the
seriousness and circumstances of the offence,
and the age, maturity, character, background
and previous record of the young person and
any other factors that the court considers
relevant, and
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(a) if it is of the opinion that a youth
sentence imposed in accordance with the
purpose and principles set out in
subparagraph 3(1)(b)(ii) and section 38
would have sufficient length to hold the
young person accountable for his or her
offending behaviour, it shall order that the
young person is not liable to an adult
sentence and that a youth sentence must be
imposed; and
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(b) if it is of the opinion that a youth
sentence imposed in accordance with the
purpose and principles set out in
subparagraph 3(1)(b)(ii) and section 38
would not have sufficient length to hold the
young person accountable for his or her
offending behaviour, it shall order that an
adult sentence be imposed.
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| Onus
|
(2) The onus of satisfying the youth justice
court as to the matters referred to in subsection
(1) is with the applicant.
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| Pre-sentence
reports
|
(3) In making its decision, the youth justice
court shall consider a pre-sentence report.
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| Court to state
reasons
|
(4) When the youth justice court makes an
order under this section, it shall state the
reasons for its decision.
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| Appeals
|
(5) For the purposes of an appeal in
accordance with section 37, an order under
subsection (1) is part of the sentence.
|
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| Court must
impose adult
sentence
|
73. (1) When the youth justice court makes
an order under subsection 64(5) or 70(2) or
paragraph 72(1)(b) in respect of a young
person, the court shall, on a finding of guilt,
impose an adult sentence on the young person.
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| Court must
impose youth
sentence
|
(2) When the youth justice court makes an
order under subsection 63(2), section 65 or
paragraph 72(1)(a) in respect of a young
person, the court shall, on a finding of guilt,
impose a youth sentence on the young person.
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| Application of
Parts XXIII
and XXIV of
Criminal
Code
|
74. (1) Parts XXIII (sentencing) and XXIV
(dangerous and long-term offenders) of the
Criminal Code apply to a young person in
respect of whom the youth justice court has
ordered that an adult sentence be imposed.
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| Finding of
guilt becomes
a conviction
|
(2) A finding of guilt for an offence in
respect of which an adult sentence is imposed
becomes a conviction once the time allowed
for the taking of an appeal has expired or, if an
appeal is taken, all proceedings in respect of
the appeal have been completed and the
appeal court has upheld an adult sentence.
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| Interpretation
|
(3) This section does not affect the time of
commencement of an adult sentence under
subsection 719(1) of the Criminal Code.
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| Inquiry by the
court to the
young person
|
75. (1) If the youth justice court imposes a
youth sentence in respect of a young person
who has been found guilty of having
committed a presumptive offence set out in
paragraph (a) of the definition ``presumptive
offence'' in subsection 2(1), or an offence
under paragraph (b) of that definition for
which the Attorney General has given notice
under subsection 64(2) (intention to seek adult
sentence), the court shall at the sentencing
hearing inquire whether the young person or
the Attorney General wishes to make an
application under subsection (3) for a ban on
publication.
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| No
application
for a ban
|
(2) If the young person and the Attorney
General both indicate that they do not wish to
make an application under subsection (3), the
court shall endorse the information or
indictment accordingly.
|
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| Order for a
ban
|
(3) On application of the young person or
the Attorney General, a youth justice court
may order a ban on publication of information
that would identify the young person as having
been dealt with under this Act if the court
considers it appropriate in the circumstances,
taking into account the importance of
rehabilitating the young person and the public
interest.
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| Appeals
|
(4) For the purposes of an appeal in
accordance with section 37, an order under
subsection (3) is part of the sentence.
|
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| Placement
when subject
to adult
sentence
|
76. (1) Subject to subsections (2) and (9)
and sections 79 and 80 and despite anything
else in this Act or any other Act of Parliament,
when a young person who is subject to an adult
sentence in respect of an offence is sentenced
to a term of imprisonment for the offence, the
youth justice court shall order that the young
person serve any portion of the imprisonment
in
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