The second process or scenario is where the youth has been charged with homicide (first or second degree murder, manslaughter), attempted murder or aggravated sexual assault. These are the “a” type presumptive offences (see page 35 for definitions of presumptive offences).
In this case, the judge is required to advise the young person at the youth’s first appearance in court that an adult sentence will be given unless the court orders otherwise. This is where the meaning of a presumptive offence becomes clearer: youth are presumed to get an adult sentence when charged with these crimes unless something occurs during the process to change this presumption.
At any point in this type of case, the crown may give notice that they will not seek an adult sentence (section 65). If this happens, the youth will receive a youth sentence if found guilty.
On the other hand, the youth can also apply for a youth sentence (section 63(1)) at any time during this type of case. If the crown does not oppose this application, then the youth will receive a youth sentence if found guilty.
If neither of these two notices is given at the first appearance, the case moves to the plea stage. If a youth pleads guilty, the case goes to sentencing. If a youth pleads not guilty, the case moves to election, possible preliminary inquiry and then trial. If a youth is found not guilty, neither a youth nor an adult sentence would be given.
If the youth is found guilty of a presumptive offence, there are two possible outcomes. First, the crown can give notice that they will not seek an adult sentence (section 65), which means the young person receives a youth sentence. Second, the court will ask if the youth wants to apply for a youth sentence at this stage (section 63(1)). If the youth chooses not to apply for a youth sentence, an adult sentence will be given.
If the youth does apply for a youth sentence, then there must be a hearing to decide whether to give a youth or an adult sentence (section 71). Please see the Test for an Adult Sentence section on page 44 for further details.
The third process or scenario is where the youth: