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.
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.
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.
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.
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.
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.
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?
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?
Ah, Jolinar... how's Edmonton?
I'd like to hope we don't have a lot of laws that are strict liability when it comes to determining how long someone will end up in jail. I like my penal statutes to require the Crown to jump through a hoop or two.
It's Friday and I can't think of too many reverse onus provisions in the criminal law context that have withstood Charter scrutiny.
There's no reverse onus with respect to sentencing for anyone but youth. As such the argument is that the reverse onus, which applies only to youth, is unfair. Reverse onuses are generally seen as unfair without strong countervailing reasons, such as where the evidentiary burden is impossible for the party who would normally have the burden to meet. In this case that is patently untrue. The Crown can adduce evidence as to why an adult sentence is more appropriate than a youth sentence and leave to the judge. If Parliament wants to make sentencing guidelines tricter for youth, then they should do that, they shouldn't create unfair evidentiary burdens as a back door to doing so.
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Last edited by onetwo_threefour; 05-16-2008 at 03:51 PM.
There's no reverse onus with respect to sentencing for anyone but youth. As such the argument is that the reverse onus, which applies only to youth, is
I guess it is a matter of how you look at it. It could be considered that the youth would be sentenced to the REGULAR sentencing principals but have a mechanism for a youth sentence if need be.
But my concern is that everyone blames the judges when the legislators have clearly created different systems for adults and youth. Why even have a YCJA if you're just going to use the adult system anyway? The judges have to assume that the legislators had some reson for having created the two separate systems and a presumption of diminished culpability fits the bill
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onetwo and threefour... Together no more. The end of an era. Let's rebuild...
But my concern is that everyone blames the judges when the legislators have clearly created different systems for adults and youth. Why even have a YCJA if you're just going to use the adult system anyway? The judges have to assume that the legislators had some reson for having created the two separate systems and a presumption of diminished culpability fits the bill
I'll agree with you when it comes to crime such as theft, etc. When it comes to Murder or Violent Sexual Assault (etc) for those that are 16, 17, I don't think there should be a separate system.
The funny thing in this case is that the actual sentence handed out by the trial judge was confirmed by ALL Supreme Justices as valid.
I'll agree with you when it comes to crime such as theft, etc. When it comes to Murder or Violent Sexual Assault (etc) for those that are 16, 17, I don't think there should be a separate system.
The funny thing in this case is that the actual sentence handed out by the trial judge was confirmed by ALL Supreme Justices as valid.
The debate about whether there should be two separate systems is a legitimate one, but that is not what people in this thread have been talking about. Instead it's been about judges subverting the will of parliament. The judges do not have the power to say there should only be one system because that was a policy decision made by politicians many years ago. All I ask is that people direct criticism appropriately. Too many people blame judges for what they do without understanding the constraints they operate within.
(although I will acknowledge that a decision which strikes down something passed by government appears to subvert parliament, in fact the court recognizes parliamentary supremacy but tells legislators when they use an illegal method to enact the will of parliament)
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onetwo and threefour... Together no more. The end of an era. Let's rebuild...
Last edited by onetwo_threefour; 05-16-2008 at 05:38 PM.
