SUPREME COURT OF CANADA YOUTH CRIMINAL JUSTICE ACT
Crown must justify adult sentences: ruling
BY KIRK MAKIN JUSTICE REPORTER
The Globe and Mail Weekend, A7, May 17, 2008
A fractured Supreme Court of Canada yesterday struck down a law forcing young offenders who are guilty of serious, violent offences to be sentenced as adults unless they can prove it would be unfair to them.
The 5-4 ruling drew immediate condemnation from the federal government, with Justice Minister Rob Nicholson sounding a battle cry against soft treatment for young offenders.
“Our government believes that more work needs to be done to ensure that sentences are proportional to the gravity of the offence and to the degree of responsibility of the offender,” Mr. Nicholson said. “I am disappointed about this decision and its implications for the youth criminal justice system.”
Writing for the court majority yesterday, Madam Justice Rosalie Abella said it is morally and legally wrong to treat young offenders as if they were adults for the purposes of sentencing.
“No one seriously disputes that there are wide variations in the maturity and sophistication of young persons over the age of 14 who commit serious offences,” she said.
“It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Courts, too, have acknowledged the reality of reduced moral culpability on the part of young people.”
Continuing a recent trend of badly split rulings, the decision bared sharp disagreements over how much deference ought to be shown to parliamentary decisionmaking when a bedrock element of the justice system is at stake.
“Studies on public perceptions of youth crime suggest that the prevailing views of the public are that youth crime is rising, particularly violent youth crime, and that young offenders are handled too leniently by youth justice courts,” Mr. Justice Marshall
Narrow majority finds it morally, legally wrong to treat violent youth like adults for purpose of sentencing Rothstein wrote for the fourjudge minority.
“Studies also suggest that a strong majority of Canadians think that the sentences imposed by youth justice courts are either too lenient or much too lenient,” he observed.
The decision comes amid a growing debate over legislation the government introduced recently to make it easier to detain suspected young offenders and to include deterrence and denunciation as principles of sentencing.
Judge Abella said that automatically merging the most serious young offenders into the adult justice system flies in the face of the philosophy that underlies the Youth Criminal Justice Act.
“The principle of fundamental justice at issue here is that young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment,” she said, writing on behalf of Chief Justice Beverley McLachlin, Mr. Justice Ian Binnie, Mr. Justice Louis LeBel and Mr. Justice Morris Fish.
“That is why there is a separate legal and sentencing regime for them.”
Cheryl Milne, a lawyer who made legal arguments in the case on behalf of Justice for Children and Youth, said the fatal flaw in the provision was that it catered to society’s desire for retribution without having any actual impact on rehabilitation or reducing youth crime.
At the centre of the case was a 17-year-old Ontario youth – identified only as D.B. – who was convicted of manslaughter in connection with a Dec. 13, 2003, assault in a Hamilton shopping mall.
During a fight between rival groups, D.B. sucker-punched a teenager identified as J.R. and continued to punch him in the head after he went down. J.R. died as a result of his injuries. Eighteen months after the attack, D.B. pleaded guilty to manslaughter.
Judge Abella said the court’s ruling should not be seen as giving violent young offenders a free pass.
“This does not make young persons less accountable for serious offences,” she said. “It makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person.”
She said it simply puts the onus on the Crown – “where it belongs” – to justify an adult sentence.
In a related issue yesterday, the court struck down a provision that requires young offenders, after the imposition of an adult sentence, to demonstrate why they should remain entitled to the continued protection of a publication ban of their identities.
“Lifting a ban on publication makes the young person vulnerable to greater psychological and social stress,” Judge Abella said.
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What an absolutely shiftless policy. It is not for the reasons given, nor are the benefits derived as such, but are much more dangerous to long term roles and responsibilities.
We do not need to execute 15 year olds, but to believe that a 15 year old cannot plot and carry out an act of extreme vicious and maliciousness, is foolish. To believe that these same vile and despicable toads can be rehabilitated, fails to grasp the depravity of life that some people wallow in, and is equally foolish.
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