The Youth Criminal Justice Act

In 1908, the Juvenile Delinquents Act determined that young people would be charged with “delinquency” rather than specific criminal offences.[1]Youth were treated much like adults under this regime. Judges based their discretionary sentencing decisions on the likelihood of rehabilitation.[2] In 1984, the Young Offenders Act (YOA) was introduced in order to allow youth to be charged with specific offences.[3] The change was intended to instill a greater sense of responsibility in young offenders. However, the new Act was also subject to wide-ranging criticism[4] for failing to give appropriate recognition to victims, for lacking coherent principles of youth justice in Canada, for failing to provide consistent and fair sentences, and for burdening the courts unnecessarily. These considerations were eventually taken into account by the federal government and in 2003, the Youth Criminal Justice Act (YCJA) came into force.[5] Its Declaration of Principles states that the main goals of the YCJA are to rehabilitate youth, to provide meaningful consequences and, thereby, to promote enduring protection of the public.

There are a number of important elements of the Act:[6]

• Youth are no longer transferred from youth court to adult court; adult sentences may be imposed within the youth court setting.
• The Act presumes that youth 14 and older, who commit serious offences such as murder, should be tried as adults. This presumption may be rebutted and provinces may choose to raise this age to 15 or 16. Under the YOA it was presumed that youth over 16 would be transferred to adult court.
• Jail time is de-emphasized, except in cases of repeat and violent offenders.
• Alternative measures such as community service, meetings with police, and communication with parents are prioritized.
• Victims are given access to youth court records, and notice of sentencing outside of court.
• Upon release from jail, youth, under the Act, face intensive supervision.

The Supreme Court of Canada Decision in R. v. D.B.[7]

In May 2008, the Supreme Court of Canada decided that youth charged with serious offences will no longer bear the burden of having to prove that they should be sentenced as youth.[8] It will now be up to the Crown to prove that the youth ought to be sentenced as an adult.

The YCJA provides that a person, over the age of 14, can be sentenced either as an adult or a youth if they have committed a crime such as murder, aggravated sexual assault, or manslaughter.[9] The implications can be dramatic because the maximum youth sentence for first-degree murder is 10 years, while, for an adult, the sentence would be life with no possibility of parole for 25 years.[10]

The majority found that these provisions of the YCJA breach section 7 of the Canadian Charter of Rights and Freedoms.[11] Section 7 states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.[12]

Justice Rosalie Abella, on behalf of a 5-4 majority, explained that it is a principle of fundamental justice that young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, “because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment.”[13] The majority suggested that the international community’s support for this decision is evident in the United Nations Convention on the Rights of the Child.[14] The dissenting judges argued that there is no societal consensus that the presumption in question forms a principle of fundamental justice.[15]

The Court also struck down a provision that requires young offenders, who have been given adult sentences, to demonstrate that their identities should continue to be protected by a publication ban.[16] The publication ban, Justice Abella explained, is part of the sentence.[17] To remove it adds to the severity of the sentence because the degree of psychological and social pressure on the person escalates as a result. Since the onus is on the Crown to prove that an adult sentence is necessary, the majority argued that the Crown should have to prove that the publication ban, and the added stresses it brings, should be added to the sentence.[18]

On this point, the dissenting judgment also disagreed, saying that the conclusion arrived at by Parliament was a legitimate exercise in balancing competing societal interests.[19] The dissent also found that because the harm is not state induced, the Charter should not apply here. Justice Rothstein stated that, in the case at bar, “there is no state action: the stigma and labelling that may result from release of the young offender’s identity are a product of media coverage and society’s reaction to young offenders and to the crimes they commit.”[20]

Harper Government on Crime and Changes to the YCJA

Crime

In late September 2008, Stephen Harper announced that, if re-elected, his government would define 30 offences that could not result in house arrest.[21] These include serious property crimes, invading a home, trafficking of illicit substances, kidnapping and offences that involve weapons. Since the election, the Liberals, NDP and Bloc Québécois have worked hard to lessen the stringency of this key bill.[22] They agreed that sexual and violent offences could not be punishable through house arrest, but that car theft and breaking and entering should be.[23] In an attempt to assuage those who see them as “soft on crime,” the Liberals have adopted a new slogan to counter the Conservative’s monopoly on a “tough on crime”[24] agenda. For the Liberals, being “smart on crime” suggests making laws that avoid court challenges. However, they have also agreed to bring some other, less pivotal, bills into law.[25] One is in relation to existing DNA data banks of convicted offenders. Another deals with criminal court procedures. Somewhat more dramatically, the Liberals have agreed to speed up the introduction of street-racing legislation, and a bill that could raise the age of sexual consent from 14 to 16.

Despite the Supreme Court decision in May, Harper has pledged to overhaul the YCJA, allowing for adult sentences on some occasions and removing publication bans.[26] Additionally, he hopes to raise the maximum terms for youth sentences. Legal experts have suggested these proposals have already been shut down by the Supreme Court’s decision in May.[27] The fact that the Court struck down the requirement that the burden of proof is on youth to demonstrate that they should not be sentenced as adults suggests that automatic sentences, with no judicial discretion, would also be struck down.[28] Harper said Justice Department officials advised the proposal would not conflict with constitutional principles.[29]

Federalism

In the United States, criminal law is under state jurisdiction.[30] For instance, in Texas murder is punishable by death, but this is not the case in all states.[31] In Canada, however, criminal law falls under federal jurisdiction. Some have complained that the Harper government’s position on youth justice allows provinces too much control over criminal law matters, which adds a patch-work quality to the quilt of justice.[32]

In most of Canada, the new sentences would be applied to youth over the age of fourteen. However, the Harper strategy allows provinces to choose whether they would like to see a higher age threshold.[33] Harper’s communications director, Kory Teneycke, has referred to this strategy as contributing to the federal governments “open federalism”[34] agenda. The official tenets of open federalism for this government include:[35]

• Taking advantage of the experience and expertise that the provinces and territories can contribute to the national dialogue.
• Respecting areas of provincial jurisdiction.
• Keeping the federal government’s spending power within bounds.
• Full cooperation by the Government of Canada with all other levels of government, while clarifying the roles and responsibilities of each.

The catalyst for allowing discrepancies among provinces has been Québec’s interest in having the threshold set at 16 years of age.[36]

It should be noted that the Conservatives were not the first to consider differential sentencing rules among provinces.[37] In 2002, when the YCJA passed, the provinces were given the power to opt-out of the reverse-onus provisions. Two provinces, Québec and Newfoundland and Labrador, chose not to implement the reverse onus.

On October 14, 2008 Judge Ross issued reasons for judgment in Victoria (City) v. Adams.[1] Homeless people had been setting up “tent cities” in Victoria’s city parks. In response, the City brought in bylaws which had the effect of banning overnight camping in those parks. People were allowed to sleep in the parks, but they could not shelter themselves. Judge Ross ruled that the bylaws were “of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter.”[2]

The City had originally applied for a court-ordered injunction forcing the homeless out of its parks at night. The homeless appealed arguing that the bylaws were invalid pursuant to section 7 of the Charter of Rights and Freedoms.[3] Section 7 reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The judge summarized the evidence placed before the courts:

• There are at present more than 1,000 homeless people living in the City;
• There are at present 141 permanent shelter beds in the City, expanded to 326 when the Extreme Weather Protocol is in effect;
• The number of homeless people exceeds the available supply of shelter beds;
• Exposure to the elements without adequate shelter such as a tent tarpaulin or cardboard box is associated with a number of substantial risks to health including the risk of hypothermia, a potentially fatal condition; and
• Adequate shelter for those sleeping outside in the West Coast climate requires both ground insulation and appropriate overhead protection in the form of a tent or tent-like shelter.[4]

The judge then identified the problem as follows:

In my view, the Defendants do not seek positive benefits in this action and it is therefore not necessary for the Court to consider whether s. 7 includes a positive right to the provision of shelter. The Defendants are not seeking to have the City compelled to provide the homeless with adequate shelter. Rather, the claim is that in the present circumstances, in which the number of homeless people exceeds available shelter space, it is a breach of s. 7 for the City to use its Bylaws to prohibit homeless people from taking steps to provide themselves with adequate shelter.[5]

The court did not go so far as to say that the homeless had a constitutional right to have shelters built for them. It did hold that if the City did not want the homeless sleeping in doorways or in its parks, it had to provide them with an alternate place to stay. Depriving people of a place to sleep was a breach of fundamental justice.

Reverse onus provisions and section 7 of the Charter

On May 16, 2008 the Supreme Court of Canada (S.C.C.) gave its decision in R. v. D.B.[1] The decision determined who should carry the burden of proving that a young person should be sentenced as an adult after a Charter of Rights and Freedoms review of the provisions of the federal Youth Criminal Justice Act(YCJA).[2] The S.C.C. ruled that the government should prove that young persons’ sentence should carry adult sentencing consequences after they had been found guilty of criminal acts. At the time section 72(2) of the YCJA required young persons to prove that they should not be sentenced as adults.[3]

D.B. had been in a fight with another youth. D.B. punched him to the ground and then continued to punch him into unconsciousness. The other youth died as a result. D.B. turned himself in and pled guilty to manslaughter. At sentencing, the judge noted that a large number of other reverse onus provisions had been rejected by multiple levels of court across Canada, stating:

There is no logical reason why it should not be the responsibility of the prosecutor who wants the court to impose an adult sentence, to bear the burden of convincing the court of his or her contentions in light of the elements provided for in subsection 72(1).[4]

The government appealed.

The Ontario Court of Appeal (O.C.A.) unanimously agreed with the trial judge, but expressed its own reasons for doing so, focusing on the constitutional principle of fundamental justice. The court noted that all of the parties to the appeal agreed that:

It is a principle of fundamental justice that young offenders should be dealt with separately and not as adults in recognition of their reduced maturity. Put another way, the system of criminal justice for young persons must be premised on treating them separately, and not as adults, because they are not yet adults.[5]

Canada has treated young persons separately in its criminal justice system for over a century, and governments have signed international treaty obligations to that effect. In this light, the court noted: “the principle is sufficiently precise to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.”[6] All three factors combine to show that the presumption underlying sentencing for youths in the YCJA treats them as adults, which does not account for their reduced maturity. Accordingly, the O.C.A. determined that section 71(2) of the YCJA offended a principle of fundamental justice, being the right to liberty under section 7 of the Charter.

The O.C.A. found a second reason for agreeing with the trial judge. It pointed out that previous case law required the prosecution to prove that there were aggravating circumstances in crimes requiring the courts to hand down more severe sentences. The net effect of the YCJA was that automatic adult sentences for youths were built into the act. Those sentences were much harsher than young people would face under other sections of the YCJA. The court concluded that the legislation offended the Charter on this basis too, as there was unequal treatment for individuals (youths) within the same identifiable group (Canadians).[7] The government appealed again.

The S.C.C. issued a 5-4 split decision. The majority agreed with the appeal court’s decision and reasons.[8]

A minority of the S.C.C. disagreed for two reasons. First it admitted that while Canadian youths have been treated differently from adults for over one hundred years, the previous legislation governing young people’s behaviour had not always treated youth sentencing as different from adults.[9] The concept that sentencing for youths should be different than adults had only recently appeared in the YCJA. Second, the minority noted that youth sentences and adult sentences could overlap, thus there was no requirement in law that youths receive a sentence shorter than that of an adult.[10] Finally, the dissent acknowledged that a majority of Canadians disagree with the notion that youths should receive different sentences than adults.[11] Thus, while recognizing that two fundamental principle of justice are at stake in this case, the dissenters came to the conclusion that neither offended the Charter.