Quote:
Originally Posted by flylock shox
This passage is a bit more bothersome than I thought. Perhaps this was already the case, but I wasn't aware that it was a principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability. That, in and of itself, seems troubling.
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I didn't know that either. The SCC seems to go through a bit of an exercise to find that this is a legal principle and that there is a general consensus that it is a fundamental principle of justice. Oddly enough, the minority in dissent also agree that this is a principle of fundamental justice. They differ on how it applies to the presumptive adult sentences in the YCJA.
Quote:
Originally Posted by flylock shox
More troubling though, is that it seems that the Crown will now have to prove beyond a reasonable doubt that an adult sentence is appropriate. That's a whole different can o worms, and an awfully heavy burden to put on the Crown, especially in cases where the accused does not present any evidence of his own.
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I'm not sure that's what the passage I quoted was getting at. I think it was referring to the principle that the Crown must prove any aggravating factors it relies on in sentencing generally. The Crown conceded that is a principle of fundamental justice. If you are going to make an allegation of a fact that you suggest would increase the sentence, then you are obligated to prove it beyond a reasonable doubt.
I think with respect to the test in s. 72 of the YCJA that puts the onus on the youth to show that a youth sentence would be appropriate, the majority didn't really say what the test should be. I couldn't find anywhere that said the Crown must prove beyond a reasonable doubt that a youth sentence is inappropriate. Maybe you just need to prove on a balance of probabilities that the youth sentence is not appropriate? Although, given the tone of the rest of the decision and other factors, your prediction is quite likely correct.