In short, the answer is yes. Currently in Canada, the burden is placed on the Crown to make an application for the young person to serve an adult sentence in the appropriate circumstances. This is the way it should be – but it wasn’t always this way. It used to be that youth were presumed to receive an adult sentence if found guilty of a serious violent offence. The youth then had to make an application to get a youth sentence.

A case called R v D.B. and a Bill called Bill C-10 helped get us to our current situation.

In D.B., a 17-year-old youth pled guilty to manslaughter. At the time of this case, he was required to convince the court that he be tried as a youth as opposed to an adult. He brought this application, together with a claim that his Charter rights were being violated because he was being forced to demonstrate that he had diminished culpability. The trial judge agreed with D.B., and agreed to only imposing the maximum 3-year custodial sentence under the Youth Criminal Justice Act. The case was appealed by the Crown all the way up to the Supreme Court of Canada. They also agreed with D.B. and the trial judge. The Supreme Court found that the culpability of young persons is diminished because they have heightened vulnerability, less maturity, and a reduced capacity for moral judgment because of their age. In other words, they were confirming that there is a separate process for youth offenders under the Youth Criminal Justice Act, for a reason.

After DB was decided, Bill C-10 was introduced so that other youths didn’t have to continue to be the ones to prove why they should be given a youth sentence. Now instead, the Crown has to prove that the young offender should not be entitled to this presumption of diminished culpability. They also have to prove that a youth sentence would not be of sufficient length to hold the youth accountable. There are certain circumstances when the law now tells the Crown they must consider seeking an adult sentence: when the accused is 14-to-17-years-old and when that youth has been convicted of murder, attempted murder, manslaughter, or aggravated assault.

A young offender still has the right to oppose the Crown’s application for an adult sentence. In the past, applications have been denied where there is progress made by the accused or where culpability was not found to be high.

If you have any questions about the law surrounding youth charges and adult sanctions, contact us. 519.204.7966