Depending on how the case progresses, some cases may come to a point where there will be a hearing to decide whether the youth will receive a youth or adult sentence (section 71). At this hearing, the crown prosecutor, the defence lawyer and the parents of the youth have the opportunity to speak. The judge will consider the seriousness and circumstances of the offence; the age, level of maturity and character of the youth; the background and previous record of the youth; as well as any other factors that the court considers important.
In deciding whether to impose a youth or an adult sentence, the judge must first consider the Declaration of Principle section of the Youth Criminal Justice Act. In looking at this section, the judge has to consider the principle that the criminal justice system for youth has to be separate from the adult system and that it must emphasize fair and proportionate accountability consistent with the youth’s greater dependence and reduced level of maturity. The judge also has to think about the purpose and principles of sentencing (see page 22 of this Handbook). After careful consideration of these principles, if the judge feels that a youth sentence “would be adequate to hold the young person accountable” for the crime committed, the judge must give a youth sentence.
On the other hand, if after considering these same principles above, a youth sentence “would not have sufficient length to hold the young person accountable”, the judge must give an adult sentence.
It is important to note that the test for an adult sentence requires a judge to think about what would be adequate to hold the youth accountable in that particular case. The idea of giving a youth an adult sentence in order to set an example or to deter other youth from committing the same crime is not supported by the Youth Criminal Justice Act. Deterrence is not listed as a principle in sentencing youth, so it cannot be considered in deciding whether to give an adult sentence. The judge must only look at what would be adequate to make sure that the youth is held accountable.
A youth who receives an adult sentence will be sentenced under the Criminal Code of Canada and not the Youth Criminal Justice Act. For most offences, a youth receiving an adult sentence could receive a sentence with the same maximums that an adult could receive. However, the Criminal Code (section 745.1) includes specific information about what adult sentence a youth will receive for first or second degree murder and manslaughter.