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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.
4 Comments
While I appreciate your analysis, I would point out two things: First, there was no mention of the dissenting judgment, a passionately argued defense of the current law and a call for greater deference to Parliament. Not only does this deprive the reader of hearing the whole decision (something more akin to typical media portrayals of SCC cases, and very unlike this blog), but it is also disingenuous: if you're going to side with the majority in a 5-4 decision and commend them for their reasoning, you should at least be willing to acknowledge the arguments supported by 4 Supreme Court judges.
Second, I would point you to an article also released today by StatsCan: http://www.theglobeandmail.com/servlet/story/RTGAM.20080516.wyouthcrime0516/BNStory/National/home
A few points from the article: Canadian youth crime rates rose 3 per cent over the last year, drug-related youth crime rates have doubled in the last decade, homicide rates have risen 41 percent since 1991, and most importantly, youth violent crime rates have increased 30 per cent since 1991 (and 12 percent in the last decade). In spite of the increase in crime rates amongst youth, the rate of youth actually charged with a crime has dropped 27 per cent since 2002, as per the mechanisms of the Youth Criminal Justice Act.
While some of these stats certainly could be down to "fluctuation" as you claim (though I'd like to see that argument that a 30 percent increase in violent youth crime over 16 years represents a "fluctuation"), it certainly doesn't conform with your statement that politicians endorse harsher crime laws "to gain support from a misinformed electorate that has bought into empirically false claims that violent crime amongst youth is at epidemic levels." Perhaps youth crime is not epidemic, but it is certainly rising, especially violent crime.
The public is not necessarily misinformed, a spike in violent youth crime is not necessarily a fluctuation, and efforts by politicians (of all stripes, as you rightly point out) to do something about this aren't necessarily "exploitative." Rightly or wrongly, it could represent an effort to actually do something about youth crime.
All this is not to say that "tough on crime" situations are always best, or that the laws are always effective. I just felt it necessary to point out that this issue (and this case, for that matter) contains two sides, both of which have merit in their arguments, and both of which can point to empirical data for some of their conclusions. To assert the superiority of one position while misrepresenting (or simply not representing) the other side is at best misleading, and at worst intellectually dishonest. As someone who reads this blog regularly, I found this one-sided analysis disappointing.
Thanks for the comment. You're right, I should have said at least something about the dissent. My apologies for that, but just like a journalist my goal was to summarize the effect of the holding sooner rather than later. I can assure you that we will endeavour to post in a more comprehensive way on the judgment in the days and weeks to come.
With respect to your substantive points, thanks for the link to the Globe article. It is of course troubling that violent crime by youth is up, while heartening that youth crime more generally is down. Even assuming we are at some sort of crisis point, and that is a very large assumption, there is absolutely no evidence to suggest that longer sentences for violent youth are the best fix for this complex social problem.
Putting to one side the controversy regarding deterrence more generally, there is widespread consensus that youthful offenders are especially unlikely to be deterred by lengthier sentences. And, yet, this continues to be the only solution that our politicians seem willing to embrace. Do you really believe that their commitment to "tough on crime" positions in response to youth crime is motivated by a belief on their part that, despite the evidence, longer sentences might just do the trick? Or, do you think it more likely that being tough on crime is simply far more politically expedient a route to take. First, it is very popular with the electorate (which is indeed rather misinformed by the media on these issues). Second, and closely related, is that it is much cheaper, at least in the short term, than funding the sort of programs that would be necessary to ameliorate the social conditions that spawn youth crime.
If we truly want to reduce youth crime we should start by making a serious commitment to ending child poverty in Canada. In 1989 Parliament resolved to do so. Nevertheless, almost twenty years later, despite a 50 per cent increase in the size of the economy, the child poverty rate remains relatively unchanged at 11.7%.
Thankfully, the decision of the majority today will make it just a bit more difficult for our politicians to duck the real issues in this important debate.
There is a sharp difference of view between the majority and dissent about how much deference is owed Parliament, and this debate within the Court and country will doubtless continue. Interesting that both the majority and dissent see limited moral accountability of youth as a principle of fundamental justice. This will constrain some types of law "reform" in this area, such as lowering the age of adult court to 16 years, and of course mandatory adult sentences for serious violent offenders. The "court bashers" will, however, likely get some perverse mileage from this - elect us so that we can appoint judges who will not do this any more.
One might want to look at USSC in Roper v Simmons (2005) which held unconstitutional capital punishment for juvenile offenders for reasons similar to Abella J. in SCC in DB; also a controversial split decision.
On the broader issue of youth crime, some of the reported increase in violent youth crime may reflect increased reporting to the police rather than an actual increase in youth crime rates; increased reporting is especially likely from the schools (zero tolerance etc.) There may, however, actually have been a real increase in serious violent crimes related to gangs, drugs, gun access etc. It is, however, important to note that the YCJA imposes the greatest restrictions on using custody for non-violent offence, and this is also where we have seen a significant drop the greatest drop in youth crime. If deterrence worked with adolescent offenders, one might expect property crime to go up and violent crime to remain constant, or go down.
Reducing levels of youth crime will require social interventions and changes in policing, not simplistic solutions like more severe sentences.
The "presumptive offences" provision, on its face, engages sentencing principles and theories of punishment. A purposive interpretation of section 12 would have enabled the Court to address the real issue in D.B., which was whether the Charter permits Parliament to punish some youths as adults, and others - pursuant to a different standard - as youths. The Court found, instead, that section 7 guarantees young persons in the criminal justice system a constitutional right to "a presumption of diminished moral responsibility". In an article which will be published very shortly, I argue that issues about the relationship between fault - or blameworthiness - and punishment should be decided under section 12, rather than section 7. In D.B. the Court used the wobbly three-part test from Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519 which was used there and in other cases to defeat the section 7 claim, to support the conclusion that diminished moral responsibility is a principle of fundamental justice. By creating a new fault principle to deal with an unjust sentencing provision, D.B. could not help but draw attention to the limits of its section 12 jurisprudence. D.B. has fortified my view that the Court's section 7 jurisprudence is moving in the wrong direction, and that both guarantees - 7 and 12 - are in need of a conceptual overhaul.
The second part of the Court's opinion in D.B. found - effectively - that the Charter guarantees young people in the criminal justice system the right to a publication ban on their identity. Yet it seems as though the real problem was one of differential treatment: the YCJA provided a publication ban to all youths in the system, and then lifted that ban in the case of those who fell under the "presumptive offences" scheme. Much of the discussion on the scheme and its ban-lifting provision revolved around onuses which, on each issue, was imposed on young persons subject to the Act. The point is that it would have been difficult, if not impossible, to establish that the YCJA's differential treatment of young people violated section 15 of the Charter. Instead, the Court decided the claim under section 7, and found that the ban-lifting provision violated a young person's privacy right to a publication ban. The fit with section 7 was not strong and the Court - to some extent - constitutionalized publication bans without mentioning or considering that any ban is prima facie a violation of section 2(b), which must be justified under section 1.
To my mind, D.B. is indicative of the broader problems with the section 7 jurisprudence, and the Court's failure to identify and define the guarantee's core concept in a way that would bring coherence and predictive value to its decision making.