Crown must prove teens deserve adult sentences: SCC

[calculoso]

http://www.ctv.ca/servlet/ArticleNew...hub=TopStories

It is the responsibility of the Crown to prove teens convicted of violent crimes should be sentenced as adults, the Supreme Court of Canada ruled on Friday.

The ruling does not bar judges from handing adult sentences to offenders between 14 and 17 years old, but says that it is now up to the Crown to prove why a stricter sentence is appropriate.

The court, which ruled 5-4 in the matter, said young offenders should be presumed less morally culpable for their crimes than adults. It said the reverse onus is a breach of justice and of young offenders' Charter rights.

And what about the victim's rights? Do they not count?

The ruling means minors have a constitutional right to be treated differently from adults, Queen's University legal expert Nicholas Bala told the Canadian Press.

With the ruling, the Youth Criminal Justice Act moves from simple legislation to an extension of the Constitution, Bala said, calling it the most significant case about juvenile justice in all the years of the youth court system.

Great..

As a comment down below says:

Greg
Another great decision by the people who really run the country-lawyers at the helm of the SCC.

Its a great day to be a youth criminal. Goes kids go you can do the crime without the time.

BRUTAL, BRUTAL, BRUTAL!

[fredr123]

From James Stribopoulos writing for thecourt.ca:

Moving from the legal to the political implications of the judgment, the decision will thankfully serve to at least somewhat restrict the ability of politicians to exploit youth crime for political ends. Over the last twenty-five years, politicians of all political stripes have rather effectively used promises of “getting tough” on youth crime (which invariably means favouring the imposition of harsher and more adult-like sentences) to gain support from a misinformed electorate that has bought into empirically false claims that violent crime amongst youth is at epidemic levels and that the cause is a criminal justice system that treats youthful offenders with “kid gloves”. In reality, there has been a fair amount of fluctuation in youth crime levels, both up and down, and as western democracies go Canada’s approach to youth crime, measured by the rate at which we incarcerate youthful offenders, is one of the most punitive in the developed world.

[troutman]

I'm fine with this.

[Iowa_Flames_Fan]

Originally Posted by fredr123

From James Stribopoulos writing for thecourt.ca:

Moving from the legal to the political implications of the judgment, the decision will thankfully serve to at least somewhat restrict the ability of politicians to exploit youth crime for political ends. Over the last twenty-five years, politicians of all political stripes have rather effectively used promises of “getting tough” on youth crime (which invariably means favouring the imposition of harsher and more adult-like sentences) to gain support from a misinformed electorate that has bought into empirically false claims that violent crime amongst youth is at epidemic levels and that the cause is a criminal justice system that treats youthful offenders with “kid gloves”. In reality, there has been a fair amount of fluctuation in youth crime levels, both up and down, and as western democracies go Canada’s approach to youth crime, measured by the rate at which we incarcerate youthful offenders, is one of the most punitive in the developed world.

Great post--and I'm glad there are people out there questioning the empirical truth behind "youth crime" as a social issue. For those that know a little American cultural history, so-called "juvenile delinquency" was pretty much the front-burner issue as far back as the 40s and 50s, and has never really had a basis in reality in terms of a real statistical increase in youth crime.

[calculoso]

Originally Posted by fredr123

From James Stribopoulos writing for thecourt.ca:

Moving from the legal to the political implications of the judgment, the decision will thankfully serve to at least somewhat restrict the ability of politicians to exploit youth crime for political ends. Over the last twenty-five years, politicians of all political stripes have rather effectively used promises of “getting tough” on youth crime (which invariably means favouring the imposition of harsher and more adult-like sentences) to gain support from a misinformed electorate that has bought into empirically false claims that violent crime amongst youth is at epidemic levels and that the cause is a criminal justice system that treats youthful offenders with “kid gloves”. In reality, there has been a fair amount of fluctuation in youth crime levels, both up and down, and as western democracies go Canada’s approach to youth crime, measured by the rate at which we incarcerate youthful offenders, is one of the most punitive in the developed world.

and yet, at the same time:

Originally Posted by CTV Article

The ruling came on the same day that Statistics Canada reported that youth homicides in Canada reached their highest point ever in 2006. The report found that while youth crime in general is declining, violent crime is increasing.

[Thunderball]

Superficially, this smells of a detached judiciary, acting on theories more than anything else.

On further look, all it really states is that the crown has to prove why cases are deserving of adult sentencing and that its not a given, which is fair. A good prosecutor wouldn't be too bothered by this.

[jolinar of malkshor]

So much for parliamentary supremacy.

[troutman]

Originally Posted by jolinar of malkshor

So much for parliamentary supremacy.

Parliament passed the Charter Of Rights and Freedoms. Don't blame the courts.

[driveway]

I like this ruling.

[jolinar of malkshor]

Originally Posted by troutman

Parliament passed the Charter Of Rights and Freedoms. Don't blame the courts.

Can you show me where in the Charter it is a violation to be sentenced to a crime passed by parliament? This is completely arbitrary. If we really wanted we could do away with the YCJA and have everyone be bound under the same law? Then what? Will the courts order parliament to create a new law specifically for young offenders?

[troutman]

Originally Posted by jolinar of malkshor

Can you show me where in the Charter it is a violation to be sentenced to a crime passed by parliament? This is completely arbitrary. If we really wanted we could do away with the YCJA and have everyone be bound under the same law? Then what? Will the courts order parliament to create a new law specifically for young offenders?

http://laws.justice.gc.ca/en/charter/

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

No more pro bono.

[flylock shox]

I'm mildly embarrassed to admit that I thought this was already the state of the law in Canada. So I guess I'm not particularly bothered by this ruling.

I wish the article discussed the standard of proof that will be applied in determining whether or not the Crown has demonstrated that an adult sentence is warranted. Seems to me that will be pretty important.

[jolinar of malkshor]

Originally Posted by troutman

http://laws.justice.gc.ca/en/charter/

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

No more pro bono.

Oh, common on Troutman, your smarter than that. Section 1 of the charter provides the foreword of what will come within the body of the charter and can only be restricted if demonstrably justified. Section 24 simply provides relief if ones rights have been violated under the charter. Where in the charter does it say that young offenders are not subject to laws passed by the parliament of Canada?

[Resolute 14]

I have to agree with Jolinar on this one. If anything, given that I believe age based descriminiation is prohibited by the charter, the government could use section 24 to demand equal sentencing for all, as the YCJA is discriminatory.

[flylock shox]

Originally Posted by jolinar of malkshor

Oh, common on Troutman, your smarter than that. Section 1 of the charter provides the foreword of what will come within the body of the charter and can only be restricted if demonstrably justified. Section 24 simply provides relief if ones rights have been violated under the charter. Where in the charter does it say that young offenders are not subject to laws passed by the parliament of Canada?

Isn't it just the reverse onus that was struck down as unconstitutional?

I would have presumed that Parliament would still be free to strike down the YCJA in its entirety, thus alleviating the problem.

[Thunderball]

The Charter, while well meaning, is one of the most embarassing legal documents going... there is way too much room for "aggressive" interpretation, and I believe that is what Troutman is getting at.

Without the loopholes and vagueness of the charter, things like this wouldn't happen. Without the charter, we'd be much better equipped to actually handle youth crime instead of giving little Johnny Stabber a government funded 3-star time out.

[Thunderball]

Originally Posted by Resolute 14

I have to agree with Jolinar on this one. If anything, given that I believe age based descriminiation is prohibited by the charter, the government could use section 24 to demand equal sentencing for all, as the YCJA is discriminatory.

Age based discrimination is not prohibited by the charter, believe it or not... if it was, everyone's drinking age would have to be 18. Laws prohibiting legal adults on the basis of their age would be struck down, be it 18 and 19 year olds from drinking, or forced retirement regulations.

Age is, as far as I know, the only thing one can discriminate on. Even discrimination based on how someone dresses is covered by the charter (class/social status).

[fredr123]

Decision (5-4): http://scc.lexum.umontreal.ca/en/200...2008scc25.html

Highlights from the majority:

The presumption of an adult sentence in the onus provisions is inconsistent with the principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability. This does not mean that an adult sentence cannot be imposed on a young person. It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age. The issue in this case, however, is who has the burden of proving that an adult sentence is justified. A young person who commits a presumptive offence should not automatically be presumed to attract an adult sentence. Because the presumptive sentence is an adult one, the young person must provide the court with the information and counter‑arguments to justify a youth sentence. If the young person fails to persuade the court that a youth sentence is sufficiently lengthy based on the factors set out in s. 72(1) of the YCJA, an adult sentence must be imposed. This forces the young person to rebut the presumption of an adult sentence, rather than requiring the Crown to justify an adult sentence. This clearly deprives young people of the benefit of the presumption of diminished moral blameworthiness based on age. By depriving them of this presumption because of the crime and despite their age, and by putting the onus on them to prove that they remain entitled to the procedural and substantive protections to which their age entitles them, including a youth sentence, the onus provisions infringe a principle of fundamental justice. [5] [70] [75-77]

The onus on the young person of satisfying the court of the sufficiency of the factors in s. 72(1) also contravenes another principle of fundamental justice, namely, that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies. Putting the onus on the young person to prove the absence of aggravating factors in order to justify a youth sentence, rather than on the Crown to prove the aggravating factors that justify a lengthier adult sentence, reverses the onus. [78]

Highlights from the Dissent:

The presumptive offence sentencing provisions in the YCJA do not violate s. 7 of the Charter. While the possibility of an adult sentence engages a young person’s s. 7 right to liberty, the liberty deprivation is in accordance with the two principles of fundamental justice applicable in this case: (1) the reduced moral blameworthiness of young persons and (2) the Crown’s burden of proving aggravating sentencing factors beyond a reasonable doubt. Fundamental justice, however, does not require that there always be a presumption of youth sentences for young persons. There is no societal consensus that such a presumption is a vital component of our notion of justice.

When examining the contours of a principle of fundamental justice, individual and societal interests within s. 7 must be taken into account. In enacting the presumptive offence scheme, it was entirely appropriate for Parliament to consider the competing interests, on the one hand, of young persons to have their reduced moral blameworthiness taken into account and, on the other, of society to be protected from violent young offenders and to have confidence that the youth justice system ensures the accountability of violent young offenders. This balancing was a legitimate exercise of Parliament’s authority to determine how best to penalize particular criminal activity, a power this Court has recognized as broad and discretionary. The YCJA presumption of adult sentences and publication for serious violent offences is in accordance with principles of fundamental justice because it in no way precludes a youth sentence or a publication ban where considered appropriate by the youth criminal justice court. Further, to focus solely on the presumption of adult sentences and publication ignores the entire presumptive sentencing and publication scheme which provides extensive protections for young persons who have committed serious violent offences and recognizes the presumption of reduced moral blameworthiness, properly defined. The presumptive offence scheme significantly recognizes the age, reduced maturity and increased vulnerability of young persons. [107-108] [143] [146] [148]

The publication and sentencing provisions do not create a reverse onus which contravenes the principle of fundamental justice that the Crown bears the burden of proving aggravating sentencing circumstances. First, the potential publication is neither state‑imposed nor part of the young person’s sentence. Second, the impugned provisions in no way relieve the Crown of its burden of proving all aggravating facts on sentencing. In effect, the presumptive sentencing regime simply provides for a higher range of sentences for young persons convicted of the most serious violent offences. Even so, Parliament has provided young persons with the opportunity to satisfy the youth justice court that the presumptive higher range of sentence or the presumptive publication should not apply. Providing this opportunity to young persons, especially when the sentencing judge is required to prompt the young persons to take advantage of the opportunity, represents Parliament’s approach to balance the status of young persons with the need to protect society from the perpetrators of the most serious violent crimes. It does not place a “persuasive burden” on young persons that eliminates the Crown’s burden of establishing aggravating sentencing factors.

[Resolute 14]

Well, easy solution.

Maximum youth sentence for a violent crime is increased to 80 years. Maximum sentence for an adult is life...

[flylock shox]

^^^

Thanks Fredr.

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.

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.