The provisions I will speak about are the provisions dealing with the ability to obtain an adult sentence. In the time I have available to recap both our submissions and to provide some explanation for our position in the supplemental submissions, they are as follows.
It is clear that the ability to obtain an adult sentence is an integral part of any youth justice regime. These provisions are used exceptionally and sparingly, but they have been part of Canadian criminal justice and youth criminal justice since 1908. They are a part of virtually every other regime internationally to deal with youth criminal justice. It's critical that they continue to be available and to work in a manner that is functionally satisfactory.
The problem with the bill you have before you is that clause 18 effectively removes that ability. In our review of legislation from Commonwealth countries and from all of the states in the United States, we were able to find no provision anywhere that raised the test to proof beyond a reasonable doubt for obtaining an adult sentence. That's simply because the nature of the factors that must be considered really requires a balancing of factors that aren't susceptible to that level of proof.
You're talking about the maturity of the young person, their development, their background, their history, the nature of the offence—meaning whether it rises to that level of seriousness or not--and whether or not the sanctions that are available under the Youth Criminal Justice Act are of a sufficient length both to bring home a sense of accountability to the young person and to provide the best opportunity for rehabilitation. You're simply not able to prove those things beyond a reasonable doubt.
In the old Young Offenders Act, the Supreme Court of Canada explicitly recognized that and said that these kinds of matters simply aren't susceptible to that level of proof. Subsequent to the adoption of this act, the Ontario Court of Appeal confirmed that this was in fact the case.
You've heard witnesses testify that clause 18 is an attempt to codify what the Supreme Court of Canada required in R. v. D.B. With respect, we take the view that clause 18 goes too far; that D.B. in fact requires the onus to be upon the crown; that D.B. also indicates that proof of aggravating factual circumstances needs to be on the crown. That's already the case in the case law. That's already the case because of the provisions in the Criminal Code, which are well understood, that apply to adults. Although they haven't been codified in the Youth Criminal Justice Act, they're recognized as constitutional principles.
For example, in the case law as it currently exists, if I were to seek an adult sentence and one of the aggravating circumstances that I was relying on was that the accused used a knife and attempted to slash at the victim's face—and this is from a reported case—and the offender denied that, I as the crown would be put to prove beyond a reasonable doubt that this fact occurred. That's how the law operates today, and that is entirely appropriate. There's no need to codify it or to make any changes to the Youth Criminal Justice Act for this to happen, nor was there when, in another circumstance, there was a dispute about whether the person was over the age of 14 at the time the offence occurred. That, of course, is a threshold factual determination that makes an adult sentence available. If they're under 14, it is not available, so the crown was put to strict proof. We had to prove beyond a reasonable doubt the age of the young person at the time of the offence. That's fair enough. Those are factual matters that are susceptible to that level of direct proof. We've always had that burden and we're happy to continue to bear it.
To put the matter in context with respect to adult sentences, realistically what we're talking about with an adult sentence is not the length of incarceration. That's because under the Youth Criminal Justice Act, the maximum periods of incarceration for a youth sentence are fairly similar to the period of incarceration prior to parole ineligibility that will kick in under the Criminal Code. Under the Youth Criminal Justice Act, they are maximums of 10 years or seven years, consisting respectively of six years of custody followed by four years of community supervision or else of four years of custody followed by three years of community supervision.
In the Criminal Code, section 745.1 provides that for an offender under the age of 18, if they're under 16, the period of parole ineligibility varies from five to seven years--and a court will determine within that range--while for first degree murder specifically it is a period of 10 years for a person over 16 and seven years for a person under 16.
The other section of the code that's significant is section 746, which provides that the period of time begins to run from the date the offender is incarcerated, so it counts pretrial custody as part of the sentence, so you'll find that by the time the adult sentence is completed, what we're really talking about is the period of supervision under parole. If the offender is given an adult sentence, they'll be subject to that supervision for life. That's what we're talking about: whether that supervision and assistance is necessary both to protect the public and to rehabilitate the offender. In the rare circumstances in which an adult sentence is appropriate, we think that type of protection for that period of time is necessary, and I would suggest that you haven't heard any witnesses say otherwise. In my review of all the evidence before this committee, there hasn't been anybody who has said the adult sentencing provisions aren't working, that somehow they're either too tough or too lenient. In my submission, they strike the right balance.
What the bill unfortunately does is radically alter that balance. What our suggested wording attempts to do is preserve the balance as it exists today: to arm the courts with the right to consider all the background factors and consider all the circumstances in making the determination as to whether an adult sentence should apply. Essentially, the difference between our suggested wording and the wording currently in the bill is that we include the contextual factors that are removed by the bill and we remove the reference to proof beyond a reasonable doubt. Those are essentially the changes we would suggest. That's the reason we suggest them.
Thank you very much.