Marginal note:Proof of notice under subsection 64(4)

• 68. (1) When a young person is found guilty of an offence, other than an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), committed after he or she attained the age of fourteen years, and the Attorney General seeks to establish that the offence is a serious violent offence and a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the Attorney General must satisfy the youth justice court that the young person, before entering a plea, was given notice under subsection 64(4) (intention to prove prior serious violent offences).

• Marginal note:Determination of serious violent offence

  (2) If the youth justice court is satisfied that the young person was given notice under subsection 64(4) (intention to prove prior serious violent offences), the Attorney General may make an application in accordance with subsection 42(9) (judicial determination of serious violent offence).

• Marginal note:Inquiry by court and proof

  (3) If the youth justice court determines that the offence is a serious violent offence, it shall ask whether the young person admits to the previous judicial determinations of serious violent offences made at different proceedings. If the young person does not admit to any of it, the Attorney General may adduce evidence as proof of the previous judicial determinations in accordance with section 667 of the Criminal Code, with any modifications that the circumstances require. For the purposes of that section, a certified copy of the information or indictment endorsed in accordance with subsection 42(9) (judicial determination of serious violent offence) or a certified copy of a court decision is deemed to be a certificate.

• Marginal note:Determination by court

  (4) If the youth justice court, after making its inquiry under subsection (3), is satisfied that the offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the youth justice court shall endorse the information or indictment accordingly.

• Marginal note:Determination by court

  (5) If the youth justice court, after making its inquiry under subsection (3), is not satisfied that the offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the Attorney General may make an application under subsection 64(1) (application for adult sentence).

Paragraph (a) “presumptive offence” — included offences

• 69. (1) If a young person who is charged with an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1) is found guilty of committing an included offence for which an adult is liable to imprisonment for a term of more than two years, other than another presumptive offence set out in that paragraph,

  • (a) the Attorney General may make an application under subsection 64(1) (application for adult sentence) without the necessity of giving notice under subsection 64(2), if the finding of guilt is for an offence that is not a presumptive offence; or

  • (b) subsections 68(2) to (5) apply without the necessity of the Attorney General giving notice under subsection 64(2) (intention to seek adult sentence) or (4) (intention to prove prior serious violent offences), if the finding of guilt is for an offence that would be a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1) if a judicial determination is made that the offence is a serious violent offence and on proof of previous judicial determinations of a serious violent offence.

• Marginal note:Other serious offences — included offences

  (2) If the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence and the young person, after he or she has attained the age of fourteen years, is found guilty of committing an included offence for which an adult is liable to imprisonment for a term of more than two years, the Attorney General may make an application under subsection 64(1) (application for adult sentence) or seek to apply the provisions of section 68.

Marginal note:Inquiry by court to young person

• 70. (1) The youth justice court, after hearing an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called or, where no evidence is called, before submissions are made as to sentence, shall inquire whether a young person wishes to make an application under subsection 63(1) (application for youth sentence) and if so, whether the Attorney General would oppose it, if

  • (a) the young person has been found guilty of a presumptive offence;

  • (b) the young person has not already made an application under subsection 63(1); and

  • (c) no order has been made under section 65 (young person not liable to adult sentence).

• Marginal note:No application by young person

  (2) If the young person indicates that he or she does not wish to make an application under subsection 63(1) (application for youth sentence) or fails to give an indication, the court shall order that an adult sentence be imposed.

Marginal note:Hearing — adult sentences

71. The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.

Marginal note:Test — adult sentences

• 72. (1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

  • (a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

  • (b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

• Marginal note:Onus

  (2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.

• Marginal note:Pre-sentence reports

  (3) In making its decision, the youth justice court shall consider a pre-sentence report.

• Marginal note:Court to state reasons

  (4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

• Marginal note:Appeals

  (5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.

Marginal note:Court must impose adult sentence

• 73. (1) When the youth justice court makes an order under subsection 64(5) or 70(2) or paragraph 72(1)(b) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

• Marginal note:Court must impose youth sentence

  (2) When the youth justice court makes an order under subsection 63(2), section 65 or paragraph 72(1)(a) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

Marginal note:Application of Parts XXIII and XXIV of Criminal Code

• 74. (1) Parts XXIII (sentencing) and XXIV (dangerous and long-term offenders) of the Criminal Code apply to a young person in respect of whom the youth justice court has ordered that an adult sentence be imposed.

• Marginal note:Finding of guilt becomes a conviction

  (2) A finding of guilt for an offence in respect of which an adult sentence is imposed becomes a conviction once the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed and the appeal court has upheld an adult sentence.

• Marginal note:Interpretation

  (3) This section does not affect the time of commencement of an adult sentence under subsection 719(1) of the Criminal Code.

Marginal note:Inquiry by the court to the young person

• 75. (1) If the youth justice court imposes a youth sentence in respect of a young person who has been found guilty of having committed a presumptive offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), or an offence under paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the court shall at the sentencing hearing inquire whether the young person or the Attorney General wishes to make an application under subsection (3) for a ban on publication.

• Marginal note:No application for a ban

  (2) If the young person and the Attorney General both indicate that they do not wish to make an application under subsection (3), the court shall endorse the information or indictment accordingly.

• Marginal note:Order for a ban

  (3) On application of the young person or the Attorney General, a youth justice court may order a ban on publication of information that would identify the young person as having been dealt with under this Act if the court considers it appropriate in the circumstances, taking into account the importance of rehabilitating the young person and the public interest.

• Marginal note:Appeals

  (4) For the purposes of an appeal in accordance with section 37, an order under subsection (3) is part of the sentence.

Marginal note:Placement when subject to adult sentence

• 76. (1) Subject to subsections (2) and (9) and sections 79 and 80 and despite anything else in this Act or any other Act of Parliament, when a young person who is subject to an adult sentence in respect of an offence is sentenced to a term of imprisonment for the offence, the youth justice court shall order that the young person serve any portion of the imprisonment in

  • (a) a youth custody facility separate and apart from any adult who is detained or held in custody;

  • (b) a provincial correctional facility for adults; or

  • (c) if the sentence is for two years or more, a penitentiary.

• Marginal note:When young person subject to adult penalties

  (2) The youth justice court that sentences a young person under subsection (1) shall, unless it is satisfied that to do so would not be in the best interests of the young person or would jeopardize the safety of others,

  • (a) if the young person is under the age of eighteen years at the time that he or she is sentenced, order that he or she be placed in a youth custody facility; and

  • (b) if the young person is eighteen years old or older at the time that he or she is sentenced, order that he or she not be placed in a youth custody facility and order that any portion of the sentence be served in a provincial correctional facility for adults or, if the sentence is two years or more, in a penitentiary.

• Marginal note:Opportunity to be heard

  (3) Before making an order under subsection (1), the youth justice court shall give the young person, a parent of the young person, the Attorney General, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard.

• Marginal note:Report necessary

  (4) Before making an order under subsection (1), the youth justice court shall require that a report be prepared for the purpose of assisting the court.

• Marginal note:Appeals

  (5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.

• Marginal note:Review

  (6) On application, the youth justice court shall review the placement of a young person under this section and, if satisfied that the circumstances that resulted in the initial order have changed materially, and after having given the young person, a parent of the young person, the Attorney General, the provincial director and the representatives of the provincial and federal correctional systems an opportunity to be heard, the court may order that the young person be placed in

  • (a) a youth custody facility separate and apart from any adult who is detained or held in custody;

  • (b) a provincial correctional facility for adults; or

  • (c) if the sentence is for two years or more, a penitentiary.

• Marginal note:Who may make application

  (7) An application referred to in this section may be made by the young person, one of the young person’s parents, the provincial director, representatives of the provincial and federal correctional systems and the Attorney General, after the time for all appeals has expired.

• Marginal note:Notice

  (8) When an application referred to in this section is made, the applicant shall cause a notice of the application to be given to the other persons referred to in subsection (7).

• Marginal note:Limit — age twenty

  (9) No young person shall remain in a youth custody facility under this section after the young person attains the age of twenty years, unless the youth justice court that makes the order under subsection (1) or reviews the placement under subsection (6) is satisfied that remaining in the youth custody facility would be in the best interests of the young person and would not jeopardize the safety of others.

Marginal note:Obligation to inform — parole

• 77. (1) When a young person is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence), the provincial director shall inform the appropriate parole board.

• Marginal note:Applicability of Corrections and Conditional Release Act

  (2) For greater certainty, Part II of the Corrections and Conditional Release Act applies, subject to section 78, with respect to a young person who is the subject of an order under subsection 76(1) (placement when subject to adult sentence).

• Marginal note:Appropriate parole board

  (3) The appropriate parole board for the purposes of this section is

  • (a) if subsection 112(1) of the Corrections and Conditional Release Act would apply with respect to the young person but for the fact that the young person was ordered into a youth custody facility, the parole board mentioned in that subsection; and

  • (b) in any other case, the National Parole Board.

Marginal note:Release entitlement

• 78. (1) For greater certainty, section 6 of the Prisons and Reformatories Act applies to a young person who is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) only if section 743.1 (rules respecting sentences of two or more years) of the Criminal Code would direct that the young person serve the sentence in a prison.

• Marginal note:Release entitlement

  (2) For greater certainty, section 127 of the Corrections and Conditional Release Act applies to a young person who is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) only if section 743.1 (rules respecting sentences of two or more years) of the Criminal Code would direct that the young person serve the sentence in a penitentiary.

Marginal note:If person convicted under another Act

79. If a person who is serving all or a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) is sentenced to a term of imprisonment under an Act of Parliament other than this Act, the remainder of the portion of the sentence being served in the youth custody facility shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code.

Marginal note:If person who is serving a sentence under another Act is sentenced to an adult sentence

80. If a person who has been serving a sentence of imprisonment under an Act of Parliament other than this Act is sentenced to an adult sentence of imprisonment under this Act, the sentences shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code.

Marginal note:Procedure for application or notice

81. An application or a notice to the court under section 63, 64, 65 or 76 must be made or given orally, in the presence of the other party, or in writing with a copy served personally on the other party.

Effect of Termination of Youth Sentence

Marginal note:Effect of absolute discharge or termination of youth sentence

• 82. (1) Subject to section 12 (examination as to previous convictions) of the Canada Evidence Act, if a young person is found guilty of an offence, and a youth justice court directs under paragraph 42(2)(b) that the young person be discharged absolutely, or the youth sentence, or any disposition made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, has ceased to have effect, other than an order under section 51 (mandatory prohibition order) of this Act or section 20.1 (mandatory prohibition order) of the Young Offenders Act, the young person is deemed not to have been found guilty or convicted of the offence except that

  • (a) the young person may plead autrefois convict in respect of any subsequent charge relating to the offence;

  • (b) a youth justice court may consider the finding of guilt in considering an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence);

  • (c) any court or justice may consider the finding of guilt in considering an application for judicial interim release or in considering what sentence to impose for any offence; and

  • (d) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for conditional release or pardon.

• Marginal note:Disqualifications removed

  (2) For greater certainty and without restricting the generality of subsection (1), an absolute discharge under paragraph 42(2)(b) or the termination of the youth sentence or disposition in respect of an offence for which a young person is found guilty removes any disqualification in respect of the offence to which the young person is subject under any Act of Parliament by reason of a finding of guilt.

• Marginal note:Applications for employment

  (3) No application form for or relating to the following shall contain any question that by its terms requires the applicant to disclose that he or she has been charged with or found guilty of an offence in respect of which he or she has, under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, been discharged absolutely, or has completed the youth sentence under this Act or the disposition under the Young Offenders Act:

  • (a) employment in any department, as defined in section 2 of the Financial Administration Act;

  • (b) employment by any Crown corporation, as defined in section 83 of the Financial Administration Act;

  • (c) enrolment in the Canadian Forces; or

  • (d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

• Marginal note:Finding of guilt not a previous conviction

  (4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

  • (a) the purpose of establishing that an offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1); or

  • (b) the purpose of determining the adult sentence to be imposed.