Quote:
Originally Posted by fredr123
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.
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True, that quoted passage doesn't go that far, but in context it seems to me that the Crown is going to have to prove the existence of sufficient aggravating factors (beyond a reasonable doubt) in order to justify an adult sentence being imposed on a young offender and bring such a sentence in line with the constitutionally protected principle of fundamental justice the Court refers to. It seems implicit that if the Crown does not do this, the sentencing judge is now constitutionally bound to place emphasis on the principle that the youth has diminished moral culpability, and has no discretion to impose an adult sentence merely on the request of the Crown. So, basically, a young offender has a constitutional right to have his sentence mitigated by the fact that he is young, unless the Crown can prove that imposing an adult sentence is justified and consistent with the principles of fundamental justice protected by the Charter.
Seems to me the Court is mixing the sentencing principle that youth is a mitigating factor, with the legislative scheme created by the YCJA. Presumably a 19 year old would be entitled to have his youth considered as a mitigating factor as well. The difference is the Crown wouldn't have to prove anything to get his sentence into the adult sentencing range.
Where was I going with this again...?