Introduction

.. ears first in youth court Judge informs youth of proceedings in adult court, unless an application to handle the matter in youth court, by youth or Crown, occurs. If application unopposed – no hearing – trial in youth court Application opposed-hearing -Same transfer test applicable – restructuring of words -Shift-in-onus provisions must be assessed in context of Transfer test Longer dispositions for murder in youth court Longer parole ineligibility WHY SO MANY TRANSFERS AND ARE THEY A GOOD IDEA? In recent years, the Canadian Courts seem to be transferring more young offender cases to adult court. One would assume that the main reason for this is because it lets the system deal more harshly with these offenders. Under current law, the maximum sentence a young offender can receive, in Youth Court, is 6 years.

If tried in adult court, the maximum sentences are higher. Those who believe in the lock ’em-up and throw away the key theory do not realize a few very important realities. For example, if a young offender were to be tried in youth court for armed robbery, he/she might receive a sentence of 2 years in secure custody. Under current legislation, he/she would have to serve the entire two-year sentence. There would be no parole board that would have the authority to release him/her before the sentence completed. The only possibility for an early release would be an appeal before a youth judge, called a Review of Disposition.

If the offender were tried for the same offense in adult court, he would probably receive a sentence of about 4 years in jail, would go to prison and would be eligible for parole after serving one-sixth of his sentence, i.e. after 8 months. It would be a parole board that decides whether or not the offender would be released, and not a judge. The parole board might look at it differently than would a trial judge, and might release the offender earlier. Thus, by being sentenced as a youth, the young offender would probably serve more time in jail. As well, he/she would probably have more suitable rehabilitation programs available to him/her in a youth facility, as opposed to a federal prison. Why are we seeing this trend of more transfers to adult court? There has been a lot of public criticism of the Young Offenders Act and many people believe that the penalties are not stiff enough.

The fact that we are seeing more and more young offenders tried as adults may simply be a reaction by prosecutors and judges to this public criticism. If this is the case, then there is a potential problem, because the justice system is considering public pressures to be more important than the welfare of the young offender and of society. If some people think that our current justice system treats young offenders too harshly, and too quickly seeks to transfer young offenders to adult court, wait until they see some new federal government initiatives, initiatives which may soon become law and which I will discuss further on in this paper. The wording of the Young Offenders Act appears to be less stringent, in terms of the proof of transfer, than the standard of proof required in the old Juvenile Delinquents Act. (Bowker, pp.

479-480). In other words, it is easier to transfer under the Young Offenders Act than it was under the Juvenile Delinquents Act. This is another reason why we are seeing more transfers. SOME CASES In a 1989 case in the Supreme Court of Canada, R. v. S.H.M., the accused and another youth were charged with first degree murder and possession of stolen property.

The Crown Prosecutor applied to have the case transferred to adult court. The accused had a criminal record, for two counts of gross indecency, and had had a troubled childhood. Justice L’Heureux-Dub of the Supreme Court wrote, The test, set out by s.16(1) of the Young Offenders Act for transfer, is a balancing act. In other words, the question is whether the judge is satisfied, after weighing and balancing all the relevant considerations [as stated in section 16(2)] that the case should be transferred to adult court. In this case, seven of the nine judges ruled that the case should be transferred. The two dissenting judges believed that transfer should only be considered in exceptional cases, and they believed that this case was not exceptional. While it appears as though there is a trend in transferring to adult court more young offenders charged with serious offenses, according to Provincial Court Judge Irwin E.

Lampert of New Brunswick, transfer should only be considered when the crime in question is a very serious one and the Young Offender is close to the age of 18. As Judge Lampert said in R. v. M.L.S. , even when those two pre-conditions are present, transfer is ordered with the greatest of reluctance: Our children are our greatest investment in the future.

They bring us overwhelming joy and sometimes, extreme heartache. When they go astray, we must do all possible to direct them back onto the ‘straight and narrow’. We cannot abandon them, despite the setbacks. Programs might fail and counseling might be to no avail; yet, so long as there is a glimmer of hope, we must plod on. A 16 year old youth should not be abandoned to the adult system where he will be exposed to the very worst elements in our society unless and until we can say, with some certainty, that the youth system is not appropriate for him and has nothing else to offer him.

Without a doubt, protection of the public is of great importance. However, we must not look at this factor in the short-term. A young person dealt with in an overly harsh and inappropriate manner today might turn into a monster tomorrow, posing a far greater threat to society than he would have been, had he been dealt with in a more humane and appropriate way. CONCLUSION: The Young Offenders Act was originally established for the purpose of lowering the crime rate amongst youths. The majority of people would probably agree that it is falsely to assume that a youth between the age of 12 and 18 years has the same maturity, intelligence, and mind capability of differentiating right from wrong, as an adult with many more years of experience in life. Therefore youth crime should be handled differently than adult crime. The Young Offenders Act practices this theory.

In 1995-1996, in my home province of New Brunswick, approximately 5400 charges against young offenders were disposed of. In 1996-1997, approximately 5700 were disposed of, an increase of about 6% (Annual Report of New Brunswick Department of Justice for 1996-1997) From the statistics we read in the newspapers, it would appear that adult crime is decreasing. But as we see from the statistics in the preceding paragraph, the youth crime rate is increasing. This same situation probably exists across Canada. Therefore, maybe the government could be right in wanting to toughen up the Young Offenders Act, but only time will tell if that’s the right approach! Much can be said in critique or in praise of the Young Offenders Act. Needless to say, it is a very necessary law without which youth courts could not run and the youth justice system could not function. Therefore, in conclusion, while many people debate whether or not the Act is too “strict” or not “strict” enough, it has helped develop some decent human beings out of many troubled, and crime addicted young adults.