International Law

Supreme Court Rules that Presumptive Adult Sentences for Youth Offenders Are Unconstitutional

By James Stribopoulos

This morning the Supreme Court of Canada released its long-awaited judgment in R. v. D.B., 2008 SCC 25. The case deals with the constitutionality of provisions in the Youth Criminal Justice Act, S.C. 2002, c. 1 (”YCJA”) which create a presumption that youths over fourteen years of age, charged with serious violent crimes, be tried and sentenced as adults, and that their identities not be protected from publication.

In a 5 to 4 decision a sharply divided Supreme Court of Canada has struck down the responsible sections of the YCJA. The constitutional infirmity, held the majority, was that these provisions are inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms. More specifically, just as the courts below had, after canvasing the historic evolution of our treatment of youth crime and Canada’s international treaty obligations, the majority recognized that there is a long-standing presumption, capable of being rebutted in individual cases, that youthful offenders have diminished moral culpability and should therefore be treated differently than adult offenders. (This flows from our recognition that because of their age, youth have heightened vulnerability, less maturity and a reduced capacity for moral judgment.) After applying the relevant criteria for assessing whether a particular principle should qualify as a “principle of fundamental justice” under s. 7 of the Charter, the Court concluded that the presumption that youth should be treated more leniently than adult offenders qualified.

Applying this newly minted principle of fundamental justice, the majority found that the provisions in the YCJA that place the onus on youth charged with serious violent crimes to demonstrate why they should not be treated like adults, were unconstitutional. This does not mean that adult sentences for youths are always constitutionally forbidden. Rather, it simply means that if the state wants to treat a particular youthful offender like an adult it will need to make out a case against that offender for doing so.

In coming to this conclusion the majority also pointed to a second principle, conceded by the Crown as qualifying as a principle of fundamental justice: that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies. By 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, s. 72 of the YCJA offended this principle and violated s. 7 of the Charter.

For similar reasons, the majority also found that the onus placed by s. 75(4) of the YCJA on young persons to demonstrate why they remain entitled to the protection of a publication ban following sentencing also violates s. 7. The majority characterized a sentence that is coupled with an order lifting a publication ban on a youth’s identity as a more severe sanction. Therefore, from a constitutional standpoint, the onus to justify such an enhancement in the sentence must rest on the Crown.

Not surprisingly, after finding violations of s. 7 the majority concluded that they could not be justified under s. 1 of the Charter.

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.

Nevertheless, the judgment does not close all of the constitutional doors on this sort of political exploitation. For example, it remains to be determined how the Court would react if Parliament attempts to circumvent the effect of the Court’s judgment by enacting lengthier minimum sentences for youthful offenders guilty of violent crimes.

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Full post as published by The Court on May 16, 2008 (boomark / email).