Election of Mode of Trial When Facing an Adult Sentence

Patrick Ducharme
Patrick Ducharme

The trial procedure in respect of federal offences allegedly committed by a young person is determined by the sentence that may be imposed: whether a youth sentence may be imposed or whether an adult sentence may be imposed.

Subsection 67(1) of the YCJA requires that the court shall, “before a young person enters a plea” put the young person to his or her election as to whether the young person wishes to be tried by a youth Justice court without a jury and without having a preliminary hearing, or, elect to be tried by a Judge without a jury, or, elect to be tried by a court composed of a Judge and jury. This occurs if:

(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;
(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
(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.

In R.v.B.(D.)1 the Supreme Court of Canada held that the presumption and reverse onus provisions of section 62 of the YCJA are unconstitutional and are not justified under section 1 of the Charter. The court’s decision was that the “Crown has the onus to demonstrate why the youth has lost his or her entitlement to a youth sentence.”

This conclusion was based on the principle of diminished moral blameworthiness for young persons. Canada has consistently acknowledged the diminished responsibility and vulnerability of young persons in conflict with the law. The Court held that putting the onus on the young person rather than the Crown reverses the traditional onus of proof in sentencing matters.

Canadian Criminal Procedure by Patrick J Ducharme

The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

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