sentencing of young offenders Friday helps define
the job before Parliament as it wrestles with ways
to respond to youth crime and calls from sectors of the
public for tougher penalties for young people. In striking
down a section that presumes young people who
committed serious violent crimes will be sentenced as
adults, the court reminds legislators they must tread
deftly, and respect legal principles that underpin a separate
legal code for youth.
Since its passage in 2003, the Youth Criminal Justice Act has been decried as a modern-day cautionary tale of what happens when you spare the rod when dealing with young thugs. Friday's decision will not please critics of the act: the court ruled unconstitutional the act's section that forces violent offenders 14 and older to prove why they should not be subject to the same maximum jail sentences as adults. The "reverse onus" provision, the court said, trampled the legal principle that regards young people as having lesser capacity to think through their actions, and therefore "diminished moral culpability." This does not mean that a young person found guilty of murder cannot be sentenced to jail for life, rather than the six years the YCJA allows. It means simply that it will be the Crown's job to convince a judge the young person should be sentenced as an adult.
The decision is timely, coming as the Conservative government is reforming criminal law generally, introducing mandatory sentences for some crimes and tightening up both the Criminal Code and the Youth Criminal Justice Act in response to public cries for harsher sanctions for offenders. In Manitoba, such sentiment has erupted in response to rampant car thefts, public shootouts between gangs and the fact that sensational acts of extraordinary violence by young people have met with limited penalties in the courts. A young offender who killed a man with a pool-ball strike to the head suffered a one-day jail sentence; repeatedly young car thieves are caught and released by judges whose hands are tied by sentencing principles that stress rehabilitation, rather than denunciation in sentencing.
Canada has moved from the rigid attitudes of the early 20th century that framed the Juvenile Delinquents Act, which subjected children to arbitrary sanctions. But after 100 years of hammering away at an appropriate response to young offenders, the country still does not have it quite right. There are reasonable ways to swing the legal pendulum back: Judges should be free to consider deterrence and denunciation when sentencing a young offender. Canada's opposition parties should support the Conservative government's bill that seeks to do that.
Finally, the Supreme Court ruling serves as a cautionary note to the Harper government's intent to fully review the YCJA this year.
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