This is the “b” type of presumptive offence. This type of offence deals with youth who have a history of violent activity and who are charged with an offence involving serious violence. As described above, this third offence becomes “presumptive” in cases where, on at least two previous times the youth has been found guilty of an offence where the court made a judicial determination in each case that the offence was a serious violent offence. This type of presumptive offence is meant to allow the courts to consider a longer sentence in cases involving repeated serious violent offenders.

A case like this starts when:

• a youth has been charged with an offence for which an adult could be sentenced to prison for more than 2 years;
• the offence may meet the definition of a serious violent offence, and;
• the youth has a record of two previous serious violent offences that were judicially determined as serious violent offences.

Before the youth enters a plea, the crown can give notice that they intend to seek an adult sentence (section 64(2)). The youth can then give notice that he or she does not oppose the application for an adult sentence (section 64(5)). In this case, the youth will receive an adult sentence if found guilty.

The crown can also give notice, before a youth enters a plea that they intend to ask the court to designate this offence as the third serious violent offence (section 64(4)).

The judge is required to advise the youth at the youth’s first appearance in court that an adult sentence may be given. The case then moves through plea. If a youth pleads guilty, then the case goes to sentencing. If a youth pleads not guilty, the case moves to election, possible preliminary inquiry and trial. If the youth is found not guilty, neither a youth nor an adult sentence would be given.

If the youth is found guilty of the offence that may qualify as presumptive, the crown can make the application for the offence to be designated as the third serious violent offence (section 68(2) and 42(9)). If the crown is not successful in achieving the judicial determination of a serious violent offence, the crown can still apply for an adult sentence (section 68(5)) under the first process described on page 39.

If the judge makes the decision that it is a serious violent offence, then the offence becomes presumptive. The court will then ask the youth whether he or she wishes to apply for a youth sentence (section 63(1)). If the youth does not apply for a youth sentence, an adult sentence will be given. If the youth does apply for a youth sentence, then there is 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.