Where, as here, the security right in section 7 is being invoked on the basis of an impact on the individual’s psychological security, “serious state-imposed psychological stress” must be demonstrated: The Queen v. Morgentaler, [1988] 1 Supreme Court of Canada Reports 30.… The two factors which must be evaluated [are]: the psychological harm must be state imposed, meaning that the harm must result from the actions of the state, and the psychological prejudice must be serious.
I accept that publication of a young offender’s identity may increase a youth’s self-perception as an offender, disrupt the ability of a youth’s family to provide support, and negatively affect interaction with peers, teachers, and the surrounding community.… However, the difficulty in this case is not the existence of harm but rather whether that harm is state induced. In my view, it is not.
As Bastarache J. [for the Supreme Court of Canada in another matter] emphasized … it is “inappropriate to hold government accountable for harms that are brought about by third parties who are not in any sense acting as agents of the state.” He explicitly stated that psychological stress resulting from media coverage can only underlie a section 7 claim where it can be directly linked to state action.
In [this] case, there is no state action: the stigma and labelling that may arise from release of the young offender’s identity result from the actions of the media and broader society. The harm is a product of media coverage and society’s reaction to young offenders and to the crimes they commit.
Although Parliament has recognized that unwanted publicity and the public’s negative reaction may harm young offenders convicted of crimes, and has afforded the vast majority of them a degree of protection by requiring a publication ban (section 110(1) YCJA), this does not mean that the state is responsible for imposing the harm that may result without the publication ban.
Age Counts under the YCJA:
Other Jurisdictions
In Canada, only young offenders aged fourteen and older, but less than eighteen, charged with committing a “presumed” offence, may be sentenced as an adult. It is here where the reverse onus, earlier described, comes into play. Other countries, on the matter of sentencing young people as adults, have taken positions similar to that of Canada. The matter of reverse onus, however, is another matter.
France, the European Union, and the United Kingdom
A government-sponsored study in France recently recommended that judges be permitted to sentence youths as young as age twelve to detention for crime. The French minister of justice had called for an overhaul of the juvenile justice system saying that it was not equipped to deal with younger and more violent criminals.
If the proposal were adopted, it would reduce the age for such sentencing from thirteen. And, as such, it would be in line with many other countries in the European Union and the United Kingdom.
The French proposal coincided with a suggestion from a spokesperson for the French president who said that toddlers could be screened for “violent tendencies” to identify those who might commit crimes in the future. The suggestion had been made in 2008 by the French president himself and a major French public health research institute. At the time, opponents of the proposal mustered fifty thousand signatures in opposition (Sachs 2008).
The Media’s Response
The following editorial on The Queen v. D.B. appeared in the Globe and Mail on May 17, 2008:
Seldom in recent years has a constitutional decision seemed so conjured out of thin air. Yesterday the Supreme Court of Canada struck down the youth-justice law’s presumption that 14- to 17-year-olds who commit the most serious offences, such as murder, will receive adult penalties. Its legal justification was simply baffling. It can be understood only as a policy choice, usurping Parliament’s role.
On what constitutional grounds did the court decide the presumption cannot stand? Madam Justice Rosalie Abella, writing for the 5-4 majority, said it violates a “principle of fundamental justice” — a value so basic to Canadians that the legal system would fall into disrepute without it. The principle is that young people in general should be held less culpable for their crimes than adults. On that, Judge Abella was right — but the law already embodies that principle.
The Youth Criminal Justice Act is a delicate political compromise and a balancing of competing societal interests. The act’s main thrust is overwhelmingly liberal: that young people should be kept out of jail if at all possible, especially if their crimes are non-violent (arson is considered a non-violent crime, as is leading police on a 160-km-an-hour car chase). The government argued that the act took into account public safety by presuming that the few youths who commit the most serious crimes (murder, attempted murder, manslaughter, aggravated assault or three serious violent offences) would receive adult penalties. (The presumption covered those 16 and 17 in 1995, and was extended to 14-and-15-year-olds in 2003.)
That presumption can be overcome, however, by the convicted youth. And the judge is required to invite the youth to argue against the presumption. And any arguments the youth and his lawyer make are presented in the context of the youth-crime law, which stresses the importance of rehabilitation. And even some of the adult penalties have been modified for youths. For instance, a first-degree murder conviction for adults brings an automatic life sentence with no parole eligibility for 25 years. A first-degree murder conviction for 16- and 17-year-olds also brings life, but parole eligibility is set at 10 years; for 14-and 15-year-olds, it’s set at seven years. The law already establishes a separate criminal law for youth based on their lesser maturity.
As Mr. Justice Marshall Rothstein said for the minority, “The presumptive offence scheme significantly recognizes the age, reduced maturity and increased vulnerability of young persons.” (His emphasis.) It cannot then violate Canadian notions of fundamental justice.
The [Supreme] Court has confused a legitimate policy choice with a fundamental value. In the United States, more than 2,000 juveniles convicted of murder are serving life sentences without a chance at parole. That would violate core Canadian principles — even for adults. Roughly a quarter of those 2,000-plus juveniles did not commit the murder themselves but were along on a robbery or other crime that turned deadly. That would shock Canadians’ consciences. Nothing in Canadian law comes close. The youth-justice law as it stood did not offend basic values. This was a case of a court imposing its political viewpoint on the country with a constitutional sleight-of-hand. (“Sleight-of-Hand at the Supreme Court,” 2008)
Guilt and Sentencing for Murder
Under the YCJA
Medicine Hat Killings
A fourteen-year-old Alberta girl was convicted in November 2007 of the first-degree murders of her mother, father, and eight-year-old brother. The killings took place in 2006 when the girl, who cannot be named under the YCJA, was twelve years old. Records indicate that she is Canada’s youngest convicted killer.
The murders were carried out with her “boyfriend,” Jeremy Steinke, then twenty-three. Steinke was tried before a jury. He steadfastly said that the murder of the eight-year-old was committed by his then twelve-year-old girlfriend. The jury deliberated for eleven hours before returning a verdict of guilty of murder in the first-degree in connection with the deaths of the three family members.
At the girl’s trial, the Crown said that the pre-sentence report suggested that she had an “oppositional defiance disorder and conduct disorder.” The Crown prosecutor, Stephanie Cleary, said of the fourteen-year-old: “The young person does not recognize that she has committed a crime, nor does she have any insight into her condition.”
Justice Scott Brooker described the murders as “horrific.” He said that the killing of the eight-year-old was “incomprehensible.” He described the girl’s mother and father as “wonderful parents” who loved their daughter and had tried to get her into family counselling.
Justice Brooker imposed a sentence known as intensive rehabilitative custody and supervision. This is a sentence rarely used under the YCJA — one for which young offenders must be diagnosed