Quote:
Originally Posted by fredr123
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.
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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Ah, finally Fredr123 give a bit of an opinion instead of quoting articles and the sitting back and watching the fight that erupts.
You make some good points. However, we have several laws that are reverse onus and strict liability that the courts have accepted, yet not this one?