the daily snivel
Don't blame me - I voted for Kodos
[Updated August 16, below]
Even with the narrow mandate given to our minority government of conservative insect overlords, and the cautious honeymoon period in which our beloved Prime Minister, Looney McNuttersons, kept his petulant whims andextremist colourful party members tightly under wraps, it was only a matter of time before things like this started to happen. Vic Toews, the federal Justice Minister, is calling for the Youth Criminal Justice Act to be amended so that the age of criminal responsibility is lowered from 12 to 10. Additionally, he states that he would make adult sentences mandatory for youths aged 14 and older who are charged with violent or repeat offences, and that deterrence must become a mandatory factor in all youth sentences.
Youth criminal justice is a complicated area of law. Just about every jurisdiction has a different definition of criminal responsibility, and there is also widely varying differences between jurisdictions as to when a youth vs. adult sentence is appropriate. In Canada, ths minimum age for criminal responsibility has been 12 since 1984. With the enactment of the modern YCJA in 2002, Canada has struck a balance between the competing goals of encouraging accountability and recognizing the reduced capacity to form criminal intent by creating a system that will always hold youths accountable to the courts once they have reached the age of twelve, but only imposing the most serious sanctions in the most clear and compelling circumstances.
Crime rates are generally falling across Canada, and the youth crime rate in particular has dropped 6% in 2005, the second consecutive decline. Violent youth crime dropped by 2% and property crime by youths dropped 12%. The only increase was in youths charged with homicides, which is already dealt with harshly by the Youth Criminal Justice Act, as I explain below. Overall, it is clear that we are not experiencing the kind of rash of youth offences that would justify lowering the age of criminal responsibility to 10.
Even if you think tougher sentencing for violent offences is a swell idea, it must be noted that the Youth Criminal Justice Act will already provide for the possibility of an adult sentence where a youth is found guilty of one of a list of "presumptive offences." These include first degree murder, second degree murder, attempted murder, manslaughter, and aggravated sexual assault. They also include serious violent offences where the accused is fourteen or older and has previously been found guilty of two separate violent offences, if the most recent offence is an offence for which an adult offender would receive a sentence in excess of two years. So, making the adult sentence completely mandatory in these cases is simply a bit of red meat to appease the base while removing more discretion from the hands of judges, who are ultimately the best positioned to look at the complicated facts and exceptional circumstances of a serious youth case and make a just finding. Mandatory sentences presume that the government always knows best. And it doesn't, because its decisions are political, universal, and arbitrary, rather than individual and fact-based.
Consider also that the Court of Appeal for Ontario ruled this year in R. v. B.D. (2006), 79 O.R. (3d) 768 that even the current regime for imposing adult sentences has constitutional problems that could only be worsened by mandatory adult sentences. The law previously required that when the Crown sought an adult sentence for a young offender, it was up to the young offender to satisfy the court that a youth sentence (which is considerably less severe and relies on more community-based and rehabilitative options) was more appropriate. This was seen as an unjustifiable infringement of a youth's right to liberty that did not accord with the principles of fundamental justice. Although the Court was specifically considering the reverse onus imposed on a young offender here, and not the adult sentence in general, I do not believe it would be any more constitutional for a government to say that young persons should be treated as adults without exception, despite the creation of an entirely distinct justice system premised on the recognition that youths have greater dependence and reduced maturity than adult offenders and should be in a separate system.
Whatever your opinion on law and order issues, it's hard to find an objectively sensible rationale the moves that Mr. Toews is advocating. Adult sentences are already provided for under the YCJA for serious violent offences. Youth crimes (and crime rates in general) are on the decline. There is no evidence, beyond what Mr. Toews admitted as anecdotal, for any need to get children as young as ten involved in the justice system.
Finally, and let's just appeal to common sense: don't you remember some of the stupid things you did when you were ten? How many of those things were technically criminal? We've already gone far enough with ridiculous "zero tolerance" policies that expel and suspend students for any and every kind of transgression, from schoolyard fights to sass. Would you have been better off if you'd been arrested back then to boot?
[Updated August 16, 2006, to add:] Come to think of it, when I was ten, I still believed in Santa Claus. My moral compass revolved around whether or not I would do something that would affect whether I got presents on December 25th. I'm sure some kids were more sophisticated and cynical than I was at that age, but it strikes me as ridiculous that being of an age when you're gullible enough to believe in a lie about an imaginary magic jolly elf that brings presents once a year through the chimey can mean you know right from wrong enough (let alone reality) to attract the potential for criminal liability for your actions.
I tend to think of the Conservatives as having a rather Victorian attitude towards a lot of things, but it really does sound like they're stuck in a rendition of Oliver Twist.
Comments:Even with the narrow mandate given to our minority government of conservative insect overlords, and the cautious honeymoon period in which our beloved Prime Minister, Looney McNuttersons, kept his petulant whims and
Youth criminal justice is a complicated area of law. Just about every jurisdiction has a different definition of criminal responsibility, and there is also widely varying differences between jurisdictions as to when a youth vs. adult sentence is appropriate. In Canada, ths minimum age for criminal responsibility has been 12 since 1984. With the enactment of the modern YCJA in 2002, Canada has struck a balance between the competing goals of encouraging accountability and recognizing the reduced capacity to form criminal intent by creating a system that will always hold youths accountable to the courts once they have reached the age of twelve, but only imposing the most serious sanctions in the most clear and compelling circumstances.
Crime rates are generally falling across Canada, and the youth crime rate in particular has dropped 6% in 2005, the second consecutive decline. Violent youth crime dropped by 2% and property crime by youths dropped 12%. The only increase was in youths charged with homicides, which is already dealt with harshly by the Youth Criminal Justice Act, as I explain below. Overall, it is clear that we are not experiencing the kind of rash of youth offences that would justify lowering the age of criminal responsibility to 10.
Even if you think tougher sentencing for violent offences is a swell idea, it must be noted that the Youth Criminal Justice Act will already provide for the possibility of an adult sentence where a youth is found guilty of one of a list of "presumptive offences." These include first degree murder, second degree murder, attempted murder, manslaughter, and aggravated sexual assault. They also include serious violent offences where the accused is fourteen or older and has previously been found guilty of two separate violent offences, if the most recent offence is an offence for which an adult offender would receive a sentence in excess of two years. So, making the adult sentence completely mandatory in these cases is simply a bit of red meat to appease the base while removing more discretion from the hands of judges, who are ultimately the best positioned to look at the complicated facts and exceptional circumstances of a serious youth case and make a just finding. Mandatory sentences presume that the government always knows best. And it doesn't, because its decisions are political, universal, and arbitrary, rather than individual and fact-based.
Consider also that the Court of Appeal for Ontario ruled this year in R. v. B.D. (2006), 79 O.R. (3d) 768 that even the current regime for imposing adult sentences has constitutional problems that could only be worsened by mandatory adult sentences. The law previously required that when the Crown sought an adult sentence for a young offender, it was up to the young offender to satisfy the court that a youth sentence (which is considerably less severe and relies on more community-based and rehabilitative options) was more appropriate. This was seen as an unjustifiable infringement of a youth's right to liberty that did not accord with the principles of fundamental justice. Although the Court was specifically considering the reverse onus imposed on a young offender here, and not the adult sentence in general, I do not believe it would be any more constitutional for a government to say that young persons should be treated as adults without exception, despite the creation of an entirely distinct justice system premised on the recognition that youths have greater dependence and reduced maturity than adult offenders and should be in a separate system.
Whatever your opinion on law and order issues, it's hard to find an objectively sensible rationale the moves that Mr. Toews is advocating. Adult sentences are already provided for under the YCJA for serious violent offences. Youth crimes (and crime rates in general) are on the decline. There is no evidence, beyond what Mr. Toews admitted as anecdotal, for any need to get children as young as ten involved in the justice system.
Finally, and let's just appeal to common sense: don't you remember some of the stupid things you did when you were ten? How many of those things were technically criminal? We've already gone far enough with ridiculous "zero tolerance" policies that expel and suspend students for any and every kind of transgression, from schoolyard fights to sass. Would you have been better off if you'd been arrested back then to boot?
[Updated August 16, 2006, to add:] Come to think of it, when I was ten, I still believed in Santa Claus. My moral compass revolved around whether or not I would do something that would affect whether I got presents on December 25th. I'm sure some kids were more sophisticated and cynical than I was at that age, but it strikes me as ridiculous that being of an age when you're gullible enough to believe in a lie about an imaginary magic jolly elf that brings presents once a year through the chimey can mean you know right from wrong enough (let alone reality) to attract the potential for criminal liability for your actions.
I tend to think of the Conservatives as having a rather Victorian attitude towards a lot of things, but it really does sound like they're stuck in a rendition of Oliver Twist.
