October 19, 2004 - Two sections of the Youth Criminal Justice Act ruled unconstitutional by BC judge.
Two sections of Canada's young offenders law are unconstitutional because they violate Charter of Rights guarantees against age discrimination, a Vancouver judge ruled yesterday.
Provincial Court Judge Brian Davis struck down sections of the Youth Criminal Justice Act that require violent young offenders to serve custodial sentences when an adult could merely serve house arrest for the same crime.
Discriminating against offenders under 18 "promotes the view that the young person is less worthy of recognition as a member of Canadian society," Judge Davis said.
"That is, he must to go jail and serve his time in jail, as opposed to serving his custodial sentence in the community."
The ruling does not bind other lower court judges, but it may have what the courts refer to as "persuasive impact" on them.
The first section struck down yesterday denies conditional sentences for any young offender who commits a serious violent offence. The second one denies the sentence for young offenders sentenced for more than six months.
When
the Youth Criminal Justice Act Became Law
The Youth Criminal
Justice Act came into effect on April 1, 2003. It introduces sweeping
changes to the way in which the criminal justice system deals with young
persons.
Who
is Affected
The YCJA is applicable
to young persons aged 12 to 17 at the time of the alleged offence.
What
Offences are Included
The
YCJA governs criminal law and is subject to the Federal Laws of Canada
and not provincial law.
Principles
Underlying the YCJA
The Preamble
- While not legally enforceable, the preamble to the YCJA contains significant
statements from parliament about the values on which the legislation is
based. These statements can be used to help interpret the legislation
and include:
Society has a responsibility
to address the developmental challenges and needs of young persons.
Communities and families
should work in partnership with others to prevent youth crime by addressing
its underlying causes, responding to the needs of young persons and
providing guidance and support.
Accurate information about
youth crime, the youth justice system and effective measures should
be publicly available.
Young persons have rights
and freedoms, including those set out in the United Nations Convention
on the Rights of the Child.
The youth justice system
should take account of the interests of victims and ensure accountability
through meaningful consequences and rehabilitation and reintegration.
The youth justice system
should reserve its most serious interventions for the most serious crimes
and reduce the over-reliance on incarceration.
The Declaration of Principle Provides that:
The objectives
of the youth justice system are to prevent crime; rehabilitate and
reintegrate young persons into society; and ensure meaningful consequences
for offences. In these ways, the system can contribute to the long-term
protection of society.
The youth
justice system must reflect the fact that young persons lack the maturity
of adults.
The youth
system is different from the adult system in many respects, including:
measures of accountability are consistent with young persons' reduced
level of maturity; procedural protections are enhanced; rehabilitation
and reintegration are given special emphasis; and the importance of
timely intervention is recognized.
Young persons
are to be held accountable through interventions that are fair and
in proportion to the seriousness of the offence.
Within the
limits of fair and proportionate accountability, interventions should
reinforce respect for societal values, encourage the repair of harm
done, be meaningful to the young person, respect gender, ethnic, cultural
and linguistic differences and respond to the needs of Aboriginal
young persons and of young persons with special requirements.
Youth justice
proceedings require special guarantees to protect the rights of young
people; courtesy, compassion and respect for victims; the opportunity
for victims to be informed and to participate; and
that parents
be informed and encouraged to participate in addressing the young
person's offending behaviour.
Major
Provisions of The Youth Criminal Justice Act
allows an
adult sentence for any youth 14 years old or more who is convicted
of an offence punishable by more than two years in jail, if the Crown
applies and the court finds it appropriate in the circumstances;
expands
the offences for which a young person convicted of an offence would
be presumed to receive an adult sentence from murder, attempted murder,
manslaughter and aggravated sexual assault to include a new category
of a pattern of serious violent offences;
lowers the
age for youth who are presumed to receive an adult sentence for the
above offences to include 14- and 15-year-olds;
permits
the publication of names of all youth who receive an adult sentence.
Publication of the names of 14- to 17-year-olds who receive a youth
sentence for murder, attempted murder, manslaughter, aggravated sexual
assault or repeat serious violent offences will also be permitted;
allows the
Crown greater discretion in seeking adult sentences and publication
of offenders’ names;
creates
a special sentence for serious violent offenders who suffer from mental
illness, psychological disorder or emotional disturbance that will
include an individualized plan for custodial treatment and intensive
control and supervision;
promotes
a constructive role for victims and communities, including ensuring
they receive the information they need and have opportunities to be
involved in the youth justice system;
gives the
courts more discretion to receive as evidence voluntary statements
by youth to police;
requires
all periods of custody to be followed by a period of controlled supervision
in the community to support safe and effective reintegration;
permits
tougher penalties for adults who wilfully fail to comply with an undertaking
made to the court to properly supervise youth who have been denied
bail and placed in their care. This responds to a proposal made by
Chuck Cadman, M.P. (Surrey North) in a private member’s bill;
permits
the provinces to require young people or their parents to pay for
their legal counsel in cases where they are fully capable of paying;
allows for
and encourages the use of a full range of community-based sentences
and effective alternatives to the justice system for youth who commit
non-violent offences; and
recognize
the principles of the United Nation Convention on the Rights of the
Child, to which Canada is a signatory.
May.
2, 2003 - Toronto Star Article
Youth
crime law to get overhaul
Ottawa to consult with provinces on possible amendments
Won't appeal Quebec ruling declaring parts unconstitutional
ANDREW CHUNG
OTTAWA BUREAUOTTAWA
- The federal government will not appeal a Quebec court ruling
that declared certain provisions in the new Youth Criminal Justice
Act unconstitutional.And
Justice Minister Martin Cauchon made it clear yesterday it is
already open to other changes in the act, which only came into
effect April 1.The
act, which has been fiercely opposed by Quebec as too harsh
and Ontario as too lenient, attempted to strike a balance between
getting tough with youth who commit serious crimes and rehabilitating
less serious offenders with non-jail solutions. But
already it appears set for the same fate as its predecessor,
the much-maligned 1984 Young Offenders Act, often criticized
as not tough enough and frequently amended in response to pressure
from the provinces, police and victims groups.The
government will go ahead with consultations with the provinces
to determine what amendments should be made to the act, Cauchon
said. Amendments
will not be put in place until at least the fall. Quebec
viewed the federal law as overly harsh, infringing on provincial
jurisdiction and violating the legal and human rights of young
people. The province challenged its constitutionality by referring
the matter to the Quebec Court of Appeal.A
court tribunal ruled on March 31 that two sections of the Act,
dealing with sentencing a minor as an adult, and having a youth's
identity publicly disclosed, violated Canada's Charter of Rights
and Freedoms. Cauchon
acknowledged the ruling in the House of Commons yesterday —
the last day to appeal — and said the government would
not argue against it at the Supreme Court."We
have decided today to not proceed with an appeal," Cauchon
said, "since there is means to meet the intention of the
legislation in a different way."The
appeal court found it wrong that the onus was on the young offender
to argue against a tougher adult sentence being imposed rather
than on the crown to argue why it should be.It
also didn't like the burden being placed on the young offender
to argue that information about his or her sentence should not
be made public, said Catherine Latimer, the justice department's
director-general of youth justice policy.But
the burden will now be on the crown to show the sentences are
necessary and that information can be publicly revealed, Latimer
said."The
public needs to be assured adult penalties will still be available,"
she said.Latimer
stressed the Quebec ruling was a declaratory judgment —
in effect, an opinion of the judges — that does not strike
down the provisions of the act."Our
conclusion is that our policy objectives can be achieved without
violating rights," she added.The
new act requires police to consider alternatives to laying a
criminal charge, including letting a youth off with a warning,
a formal caution or referring the youth to a community program.
Judges are also obliged to consider all reasonable alternatives
to custody. It's
tougher in some ways. For instance, it lowers, to 14 from 16
, the age at which it's presumed youths will be sentenced as
adults for crimes such as homicide and aggravated sexual assault.
Canada
now has one of the highest youth-incarceration rates among Western
countries.
