Two different kinds of considerations would apply when you are having a hearing to determine whether there is an adult sentence. When you are dealing with specific factual allegations--was this planned and deliberate; did you bring a weapon with you; had you been previously warned not to do this?--yes, the crown must prove those beyond a reasonable doubt. But right now, in order to get an adult sentence, you have to look at the other sections of the act, section 38 and section 3, to see if in balancing the principles in those sections you can get a sentence that is of sufficient length to hold the youth accountable. It is the balancing of principles that can't be proven beyond a reasonable doubt. Those aren't the kinds of things you prove or disprove. That's why the language in the current act says “if the court is of the opinion that”. That is the critical language--“of the opinion that”--and that is what distinguishes those principled considerations from factual considerations.
In the brief there is a quote from the Supreme Court of Canada in R. v. M. (S.H.), which draws that distinction. I appreciate that it is under the previous Young Offenders Act, but the distinction remains between fact and principle.