Bill C-4

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First Reading

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3rd Session, 40th Parliament,

59 Elizabeth II, 2010

house of commons of canada

BILL C-4

An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as Sébastien’s Law (Protecting the Public from Violent Young Offenders).

2002, c. 1

YOUTH CRIMINAL JUSTICE ACT

2. (1) The definition “presumptive offence” in subsection 2(1) of the Youth Criminal Justice Act is repealed.

(2) The definition “serious violent offence” in subsection 2(1) of the Act is replaced by the following:

“serious violent offence”
« infraction grave avec violence »

“serious violent offence” means an offence under one of the following provisions of the Criminal Code:

(a) section 231 or 235 (first degree murder or second degree murder);

(b) section 239 (attempt to commit murder);

(d) section 273 (aggravated sexual assault).

(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“serious offence”
« infraction grave »

“serious offence” means an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more.

“violent offence”
« infraction avec violence »

“violent offence” means

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

3. (1) Paragraph 3(1)(a) of the Act is replaced by the following:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(2) The portion of paragraph 3(1)(b) of the Act before subparagraph (i) is replaced by the following:

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

4. Subsection 29(2) of the Act is replaced by the following:

Justification for detention in custody

(2) A youth justice court judge or a justice may order that a young person be detained in custody only if the young person has been charged with a serious offence and the judge or justice is satisfied, on a balance of probabilities, that

(a) there is a substantial likelihood that, before being dealt with according to law, the young person

(i) will not appear in court when required by law to do so, or

(ii) will commit a serious offence; and

(b) no condition or combination of conditions of release would reduce, to a level below substantial, the likelihood that the young person would commit an act or omission set out in subparagraph (a)(i) or (ii).

Onus

(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General.

5. Subsection 32(1) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (b) and by repealing paragraph (d).

6. Subsection 37(4) of the Act is replaced by the following:

Appeals heard together

(4) An order under subsection 72(1) or (1.1) (adult or youth sentence), 75(2) (lifting of ban on publication) or 76(1) (placement when subject to adult sentence) may be appealed as part of the sentence and, unless the court to which the appeal is taken otherwise orders, if more than one of these is appealed they must be part of the same appeal proceeding.

7. Subsection 38(2) of the Act is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

8. Paragraph 39(1)(c) of the Act is replaced by the following:

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

9. (1) Paragraph 42(2)(o) of the Act is replaced by the following:

(o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter), or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;

(2) Subsections 42(9) and (10) of the Act are repealed.

10. Sections 61 to 63 of the Act are repealed.

11. (1) Subsections 64(1) and (2) of the Act are replaced by the following:

Application by Attorney General

64. (1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years.

Obligation

(1.1) The Attorney General must consider whether it would be appropriate to make an application under subsection (1) if the offence is a serious violent offence and was committed after the young person attained the age of 14 years. If, in those circumstances, the Attorney General decides not to make an application, the Attorney General shall advise the youth justice court before the young person enters a plea or with leave of the court before the commencement of the trial.

Order fixing age

(1.2) The lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of subsection (1.1).

Notice of intention to seek adult sentence

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

(2) Subsections 64(4) and (5) of the Act are repealed.

12. Sections 65 and 66 of the Act are repealed.

13. (1) The portion of subsection 67(1) of the Act before paragraph (b) is replaced by the following:

Election — adult sentence

67. (1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if

(2) The portion of subsection 67(3) of the Act before paragraph (b) is replaced by the following:

Election — Nunavut

(3) In respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if

14. Section 68 of the Act is repealed.

15. (1) Subsection 69(1) of the Act is repealed.

(2) Subsection 69(2) of the Act is replaced by the following:

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 is found guilty of an included offence for which an adult is liable to imprisonment for a term of more than two years, committed after he or she has attained the age of 14 years, the Attorney General may make an application under subsection 64(1) (application for adult sentence).

16. Section 70 of the Act is repealed.

17. Section 71 of the Act is replaced by the following:

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 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.

18. (1) Subsections 72(1) to (3) of the Act are replaced by the following:

Order of adult sentence

72. (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied beyond a reasonable doubt that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Order of youth sentence

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

Onus

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

Pre-sentence report

(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report.

(2) Subsection 72(5) of the Act is replaced by the following:

Appeal

(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence.

19. Section 73 of the Act is replaced by the following:

Court must impose adult sentence

73. (1) When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Court must impose youth sentence

(2) When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

20. Section 75 of the Act is replaced by the following:

Decision regarding lifting of publication ban

75. (1) When the youth justice court imposes a youth sentence on a young person who has been found guilty of a violent offence, the court shall decide whether it is appropriate to make an order lifting the ban on publication of information that would identify the young person as having been dealt with under this Act as referred to in subsection 110(1).

Order

(2) A youth justice court may order a lifting of the ban on publication if the court determines, taking into account the purpose and principles set out in sections 3 and 38, that the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk.

Onus

(3) The onus of satisfying the youth justice court as to the appropriateness of lifting the ban is on the Attorney General.

Appeals

(4) For the purposes of an appeal in accordance with section 37, an order under subsection (2) is part of the sentence.

21. Subsection 76(2) of the Act is replaced by the following:

Young person under age of 18

(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.

22. Section 81 of the Act is replaced by the following:

Procedure for application or notice

81. An application or a notice to the court under section 64 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.

23. (1) Paragraph 82(1)(b) of the Act is replaced by the following:

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

(2) Paragraph 82(4)(a) of the Act is repealed.

(3) Paragraph 82(4)(b) of the French version of the Act is replaced by the following:

b) de déterminer la peine applicable aux adultes à imposer.

24. Paragraph 110(2)(b) of the Act is replaced by the following:

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

25. Section 115 of the Act is amended by adding the following after subsection (1):

Extrajudicial measures

(1.1) The police force shall keep a record of any extrajudicial measures that they use to deal with young persons.

26. Paragraphs 120(3)(a) and (b) of the Act are replaced by the following:

(a) if the offence is an indictable offence, other than an offence referred to in paragraph (b), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and

(b) if the offence is a serious violent offence for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and continuing indefinitely.

27. Section 160 of the Act is repealed.

28. Section 162 of the Act is replaced by the following:

Commencement of proceedings

162. For the purposes of sections 158 and 159, proceedings are commenced by the laying of an information or indictment.

TRANSITIONAL PROVISIONS

Offences committed before this section in force

29. Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before the coming into force of this section shall be dealt with under the Youth Criminal Justice Act as amended by this Act as if the offence occurred after the coming into force of this section, except that

(a) the definition “violent offence” in subsection 2(1) of the Youth Criminal Justice Act, as enacted by subsection 2(3), does not apply in respect of the offence;

(b) paragraph 3(1)(a) of that Act, as enacted by section 3, does not apply in respect of the offence;

(d) paragraph 39(1)(c) of that Act, as enacted by section 8, does not apply in respect of the offence; and

(e) section 75 of that Act, as enacted by section 20, does not apply in respect of the offence.

RELATED AMENDMENTS

1992, c. 20

Corrections and Conditional Release Act

2004, c. 21, s. 39

30. The definition “sentence” in subsection 2(1) of the Corrections and Conditional Release Act is replaced by the following:

“sentence”
« peine » ou « peine d’emprisonnement »

“sentence” means a sentence of imprisonment and includes

(a) a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Offenders Act; and

(b) a youth sentence imposed under the Youth Criminal Justice Act consisting of a custodial portion and a portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act;

31. Paragraphs 99(2)(a) and (b) of the Act are replaced by the following:

(a) any period during which the offender could be entitled to statutory release;

(b) in the case of a youth sentence imposed under the Youth Criminal Justice Act, the portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act; or

R.S., c. P-20

Prisons and Reformatories Act

2002, c. 1, s. 196(2)

32. The definition “sentence” in subsection 2(1) of the Prisons and Reformatories Act is replaced by the following:

“sentence”
« peine »

“sentence” includes a youth sentence imposed under the Youth Criminal Justice Act consisting of a custodial portion and a portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act.

1995, c. 42, s. 82(1)

33. (1) Subsection 6(1) of the Act is replaced by the following:

Remission

6. (1) Subject to subsection (7.2), every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with 15 days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned.

2002, c. 1, s. 197

(2) Subsections 6(7.1) and (7.2) of the Act are replaced by the following:

Transfer or committal to prison

(7.1) When a prisoner is transferred from a youth custody facility to a prison as the result of the application of section 743.5 of the Criminal Code, the prisoner is credited with full remission under this section for the portion of the sentence that the offender served in the youth custody facility as if that portion of the sentence had been served in a prison.

Exceptional date of release

(7.2) When a prisoner who was sentenced to custody under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act is transferred from a youth custody facility to a prison under section 92 or 93 of that Act, or is committed to imprisonment in a prison under section 89 of that Act, the prisoner is entitled to be released on the date on which the custody portion of his or her youth sentence under paragraph 42(2)(n), (o), (q) or (r) of that Act expires.

2002, c. 1, s. 197

(3) The portion of subsection 6(7.3) of the Act before paragraph (a) is replaced by the following:

Effect of release

(7.3) When a prisoner is committed or transferred in accordance with section 89, 92 or 93 of the Youth Criminal Justice Act and, in accordance with subsection (7.2) of this section, is entitled to be released,

CONSEQUENTIAL AMENDMENTS

R.S., c. C-46

Criminal Code

2002, c. 1, s. 181

34. Paragraph 667(1)(a) of the Criminal Code is replaced by the following:

(a) a certificate setting out with reasonable particularity the conviction or discharge under section 730, the finding of guilt under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the finding of guilt under the Youth Criminal Justice Act or the conviction and sentence or finding of guilt and sentence in Canada of an offender is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, without proof of the signature or the official character of the person appearing to have signed the certificate, if it is signed by

(i) the person who made the conviction, order for the discharge or finding of guilt,

(ii) the clerk of the court in which the conviction, order for the discharge or finding of guilt was made, or

(iii) a fingerprint examiner;

1995, c. 42, par. 87(b)

35. Paragraph 746.1(2)(b) of the French version of the Act is replaced by the following:

b) de permission de sortir sans escorte sous le régime de cette loi ou de la Loi sur les prisons et les maisons de correction;

1998, c. 37

DNA Identification Act

2005, c. 25, s. 19

36. Subsection 9.1(2) of the DNA Identification Act is replaced by the following:

Exception

(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to

(a) a serious violent offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

2005, c. 25, s. 21

37. Subsection 10.1(2) of the Act is replaced by the following:

Exception

(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to

(a) a serious violent offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

COMING INTO FORCE

Order in council

38. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Youth Criminal Justice Act

Clause 2: (1) and (2) Existing text of the definitions:

“presumptive offence” means

(a) an offence committed, or alleged to have been committed, by a young person who has attained the age of fourteen years, or, in a province where the lieutenant governor in council has fixed an age greater than fourteen years under section 61, the age so fixed, under one of the following provisions of the Criminal Code:

(i) section 231 or 235 (first degree murder or second degree murder within the meaning of section 231),

(ii) section 239 (attempt to commit murder),

(iii) section 232, 234 or 236 (manslaughter), or

(iv) section 273 (aggravated sexual assault); or

(b) a serious violent offence for which an adult is liable to imprisonment for a term of more than two years committed, or alleged to have been committed, by a young person after the coming into force of section 62 (adult sentence) and after the young person has attained the age of fourteen years, or, in a province where the lieutenant governor in council has fixed an age greater than fourteen years under section 61, the age so fixed, if at the time of the commission or alleged commission of the offence at least two judicial determinations have been made under subsection 42(9), at different proceedings, that the young person has committed a serious violent offence.

“serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm.

(3) New.

Clause 3: (1) and (2) Relevant portion of subsection 3(1):

3. (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long-term protection of the public;

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

Clause 4: Existing text of subsection 29(2):

(2) In considering whether the detention of a young person is necessary for the protection or safety of the public under paragraph 515(10)(b) (substantial likelihood — commit an offence or interfere with the administration of justice) of the Criminal Code, a youth justice court or a justice shall presume that detention is not necessary under that paragraph if the young person could not, on being found guilty, be committed to custody on the grounds set out in paragraphs 39(1)(a) to (c) (restrictions on committal to custody).

Clause 5: Relevant portion of subsection 32(1):

32. (1) A young person against whom an information or indictment is laid must first appear before a youth justice court judge or a justice, and the judge or justice shall

...

(d) if the young person is charged with having committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), inform the young person in the following words of the consequences of being charged with such an offence:

An adult sentence will be imposed if you are found guilty unless the court orders that you are not liable to an adult sentence and that a youth sentence must be imposed.

Clause 6: Existing text of subsection 37(4):

(4) A judicial determination under subsection 42(9) (judicial determination of serious violent offence), or an order under subsection 72(1) (court order — adult or youth sentence), 75(3) (ban on publication) or 76(1) (placement when subject to adult sentence), may be appealed as part of the sentence and, unless the court to which the appeal is taken otherwise orders, if more than one of these is appealed they must be part of the same appeal proceeding.

Clause 7: Relevant portion of subsection 38(2):

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

Clause 8: Relevant portion of subsection 39(1):

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

...

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

Clause 9: (1) Relevant portion of subsection 42(2):

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:

...

(o) in the case of an offence set out in subparagraph (a)(ii), (iii) or (iv) of the definition “presumptive offence” in subsection 2(1), make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;

(2) Existing text of subsections 42(9) and (10):

(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

(10) For the purposes of an appeal in accordance with section 37, a determination under subsection (9) is part of the sentence.

Clause 10: Existing text of sections 61 to 63:

61. The lieutenant governor in council of a province may by order fix an age greater than fourteen years but not more than sixteen years for the purpose of the application of the provisions of this Act relating to presumptive offences.

62. An adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to imprisonment for a term of more than two years in the following cases:

(a) in the case of a presumptive offence, if the youth justice court makes an order under subsection 70(2) or paragraph 72(1)(b); or

(b) in any other case, if the youth justice court makes an order under subsection 64(5) or paragraph 72(1)(b) in relation to an offence committed after the young person attained the age of fourteen years.

63. (1) A young person who is charged with, or found guilty of, a presumptive offence may, at any time before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that he or she is not liable to an adult sentence and that a youth sentence must be imposed.

(2) If the Attorney General gives notice to the youth justice court that the Attorney General does not oppose the application, the youth justice court shall, without a hearing, order that the young person, if found guilty, is not liable to an adult sentence and that a youth sentence must be imposed.

Clause 11: (1) Existing text of subsections 64(1) and (2):

64. (1) The Attorney General may, following an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence, other than a presumptive offence, for which an adult is liable to imprisonment for a term of more than two years, that was committed after the young person attained the age of fourteen years.

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), or by establishing 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 shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

(2) Existing text of subsections 64(4) and (5):

(4) If a young person is charged with an offence, other than an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), and the Attorney General intends to establish, after a finding of guilt, 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) for which the young person is liable to an adult sentence, the Attorney General shall, before the young person enters a plea or, with leave of the youth justice court under subsection (2), before the commencement of the trial, give notice of that intention to the young person.

(5) If the young person gives notice to the youth justice court that the young person does not oppose the application for an adult sentence, the youth justice court shall, without a hearing, order that if the young person is found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years, an adult sentence must be imposed.

Clause 12: Existing text of sections 65 and 66:

65. If the Attorney General at any stage of proceedings gives notice to the youth justice court that an adult sentence will not be sought in respect of a young person who is alleged to have committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), the court shall order that the young person is not liable to an adult sentence, and the court shall order a ban on publication of information that would identify the young person as having been dealt with under this Act.

66. If the youth justice court has made an order under subsection 63(2) or section 65 before a young person is required to be put to an election under section 67, the young person shall not be put to an election unless the young person is alleged to have committed first degree murder or second degree murder within the meaning of section 231 of the Criminal Code.

Clause 13: (1) Relevant portion of subsection 67(1):

67. (1) Subject to section 66, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if

(a) the young person is charged with having committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1);

(2) Relevant portion of subsection 67(3):

(3) Subject to section 66, in respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if

(a) the young person is charged with having committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1);

Clause 14: Existing text of section 68:

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).

(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).

(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.

(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.

(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).

Clause 15: (1) and (2) Existing text of subsections 69(1) and (2):

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.

(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.

Clause 16: Existing text of section 70:

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

(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.

Clause 17: Existing text of section 71:

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.

Clause 18: (1) Existing text of subsections 72(1) to (3):

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.

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

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

(2) Existing text of subsection 72(5):

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

Clause 19: Existing text of section 73:

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.

(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.

Clause 20: Existing text of section 75:

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.

(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.

(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.

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

Clause 21: Existing text of subsection 76(2):

(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.

Clause 22: Existing text of section 81:

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.

Clause 23: (1) Relevant portion of subsection 82(1):

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

...

(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);

(2) and (3) Relevant portions of subsection 82(4):

(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.

Clause 24: Relevant portion of subsection 110(2):

(2) Subsection (1) does not apply

...

(b) subject to sections 65 (young person not liable to adult sentence) and 75 (youth sentence imposed despite presumptive offence), in a case where the information relates to a young person who has received a youth sentence for an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), or an offence set out in paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence); and

Clause 25: New.

Clause 26: Relevant portion of subsection 120(3):

(3) For the purposes of subsections (1) and (2), the period of access to a record kept under subsection 115(3) in respect of an offence is the following:

(a) if the offence is an indictable offence, other than a presumptive offence, the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and

(b) if the offence is an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1) or an offence set out in paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and continuing indefinitely.

Clause 27: Existing text of section 160:

160. Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before the coming into force of this section shall be dealt with under this Act as if the offence occurred after the coming into force of this section, except that

(a) paragraph 62(a) applies only if the offence is one set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1) and the young person was at least sixteen years old at the time of its commission;

(b) paragraph 110(2)(b) does not apply in respect of the offence; and

Clause 28: Existing text of section 162:

162. For the purposes of sections 158 to 160, proceedings are commenced by the laying of an information or indictment.

Corrections and Conditional Release Act

Clause 30: Existing text of the definition:

“sentence” means a sentence of imprisonment and includes a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Offenders Act and a youth sentence imposed under the Youth Criminal Justice Act;

Clause 31: Relevant portion of subsection 99(2):

(2) For the purposes of this Part, a reference to the expiration according to law of the sentence of an offender shall be read as a reference to the day on which the sentence expires, without taking into account

(a) any period during which the offender could be entitled to statutory release; or

(b) any remission that stands to the credit of the offender on the coming into force of this section.

Prisons and Reformatories Act

Clause 32: Existing text of the definition:

“sentence” includes a youth sentence imposed under the Youth Criminal Justice Act.

Clause 33: (1) Existing text of subsection 6(1):

6. (1) Every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with fifteen days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned.

(2) Existing text of subsections 6(7.1) and (7.2):

(7.1) When a prisoner is transferred from a youth custody facility to a prison under section 89, 92 or 93 of the Youth Criminal Justice Act or as the result of the application of section 743.5 of the Criminal Code, the prisoner is credited with full remission under this section for the portion of the sentence that the offender served in the youth custody facility as if that portion of the sentence had been served in a prison.

(7.2) When a prisoner who was sentenced to custody under paragraph 42(2)(o), (q) or (r) of the Youth Criminal Justice Act is transferred from a youth custody facility to a prison under section 92 or 93 of that Act, or is committed to imprisonment in a prison under section 89 of that Act, the prisoner is entitled to be released on the earlier of

(a) the date on which the prisoner is entitled to be released from imprisonment in accordance with subsection (5) of this section, and

(b) the date on which the custody portion of his or her youth sentence under paragraph 42(2)(o), (q) or (r) of the Youth Criminal Justice Act expires.

(3) Relevant portion of subsection 6(7.3):

(7.3) When a prisoner is committed or transferred in accordance with section 89, 92 or 93 of the Youth Criminal Justice Act and, in accordance with subsection (7.1) or (7.2) of this section, is entitled to be released,

Criminal Code

Clause 34: Relevant portion of subsection 667(1):

667. (1) In any proceedings,

(i) the person who made the conviction, order for the discharge, finding of guilt or judicial determination,

(ii) the clerk of the court in which the conviction, order for the discharge, finding of guilt or judicial determination was made, or

(iii) a fingerprint examiner,

is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, or that a judicial determination was made against the accused or defendant, without proof of the signature or the official character of the person appearing to have signed the certificate;

Clause 35: Relevant portion of subsection 746.1(2):

(2) Subject to subsection (3), in respect of a person sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but three years of the specified number of years of imprisonment,

...

(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and

DNA Identification Act

Clause 36: Existing text of subsection 9.1(2):

(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to

(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

Clause 37: Existing text of subsection 10.1(2):

(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to

(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.