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Young offenders less culpable, says SCC

|Written By Tim Naumetz

OTTAWA - The Supreme Court of Canada decision that struck down a law requiring young offenders in extremely violent crimes to prove they don’t deserve adult jail sentences also killed Justice Minister Rob Nicholson’s plan to make adult sentences automatic for the same crimes, defence lawyers say.

The ruling also may pressure the government to finally intervene in the case of Omar Khadr, the young Canadian being held on murder charges in the U.S. anti-terror prison at Guantánamo Bay, says the U.S. military lawyer defending Khadr.

The 5-4 decision in R. v. D.B. -  a teen who admitted to manslaughter after a young man died in a fight outside a Hamilton mall shortly before Christmas 2003 - means the Crown now has the onus to prove young offenders in designated crimes should get adult sentences.

The majority decision reaffirmed as a fundamental principle of justice the notion that young people are entitled to “a presumption of diminished moral culpability” because of their age and are therefore subject to the more lenient youth justice system.

The ruling also declared that the presumption young people are less culpable for their crimes continues through sentencing and a provision in the Youth Criminal Justice Act presuming an adult sentence for young defendants in designated crimes violates Charter s. 7.

The designated “presumptive” crimes for youths aged 14 to 17 are first or second-degree murder, attempted murder, manslaughter, or aggravated sexual assault.

“No one seriously disputes that there are wide variations in the maturity and sophistication of young persons over the age of 14 who commit serious offences,” Justice Rosalie Abella wrote. “But the onus provisions in the presumptive offences sentencing regime stipulate that it is the offence, rather than the age of the person, that determines how he or she should be sentenced. This clearly deprives young people of the benefit of the presumption of diminished moral blameworthiness based on age.”

The ruling went on: “A young person should receive, at the very least, the same procedural benefit afforded to a convicted adult on sentencing, namely, that the burden is on the Crown to demonstrate why a more severe sentence is necessary and appropriate in any given case. The onus on the young person reverses this traditional onus on the Crown and is, consequently, a breach of s. 7.”

It further said reverse onus provisions requiring young offenders in the designated crimes to show they qualify for a publication ban on their identities were also unconstitutional.

The dissenting opinion written by Justice Marshall Rothstein concurred that the presumption of diminished moral culpability is a constitutional right for young offenders. But, it focused more extensively on the details of the crime and D.B.’s criminal record, along with the array of checks and balances where an adult sentence is presumed, to argue reverse onus did not violate the Charter, and Parliament was balancing the rights of young offenders with the need to protect society.

Shortly after the court heard the case in October, Nicholson announced he would postpone plans for amendments to make adult sentencing automatic in designated violent crimes until the ruling. Despite the decision, Nicholson, who took the unusual step of issuing a formal statement expressing disappointment over it, has already begun a campaign to rally support for other measures to toughen up the act.

Cheryl Milne, a lawyer with Justice for Children and Youth as an intervener, says the judgment has stopped Nicholson in his tracks after he first floated a “trial balloon” for automatic sentences last year.

“What this does is effectively prevent them from doing automatic adult sentences, and they used the word automatic, not even presumptive, they said automatic sentences,” Milne tells Law Times.

Mark Ertel, president of the Defence Counsel Association of Ottawa, says Nicholson’s protest of the ruling and his campaign for tougher youth crime law stems from an ideological opposition to the Charter of Rights itself, rather than the marginal effect the judgment will have on sentencing.

“The way I see this case is there is an ideological battle going on,” he says. “People are trying to say that it’s going to have a huge impact or maybe our streets are going to be full of young offenders committing violent offences as a result of this. Really, what’s going on is the Conservative justice minister, and probably some other members of his caucus, not all of them, want Parliament to be supreme.”

Meanwhile the ruling may convince the government to act to ensure Khadr is extradited to Canada to face the charges under our youth justice system, says his lawyer, U.S. Navy Lt.-Cmdr. William Kuebler.

“It makes the [U.S.] military process that much more obviously illegal and makes the Canadian government’s inaction a little bit more inexplicable,” Kuebler says.

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