Appleby stated, “The Statscan report noted that in more than half of 2006’s youth homicides, multiple perpetrators were involved. That compares with only 15 percent of the homicides in which adults were accused.… Peer pressure is a major factor in youth violence in the view of Constable Mills.” (See the discussion on bullying in chapter 3.)
Another Report on Youth Violence
The Statistics Canada data on youth violence cited above was gathered from police forces throughout Canada. It suggests a low level of violence by or against teens. However, another 2008 study, sponsored by Ontario Premier Dalton McGuinty, seemed to indicate otherwise.
Roy McMurtry and Alvin Curling headed the study. McMurty was the former Ontario attorney general and Curling was chief justice of Ontario, former speaker of the Ontario Legislative Assembly, and the first African-Canadian to hold a cabinet-level position.
The study was ordered in 2007 following the shooting death of a fifteen-year-old African-Canadian student in his Toronto school. Shortly after the killing, police arrested and charged two seventeen-year-olds with the murder. The killing apparently arose out of a fight. There did not appear to be any direct link to racism.
Still, the report stated, “We were taken aback by the extent to which racism is alive and well and wreaking its deeply harmful effects on Ontarians and on the very fabric of this Province.”
Among the report’s recommendations were: (1) that the province continue to press the federal government for a ban on handguns and (2) that community neighbourhood hubs be built for young people. This second approach envisions getting schools to assume a larger role in community youth development. The cost was estimated at $100 million (Alphonso 2008).
Help did come to the school where the teenager had been shot. Acting principal Jim Spyropoulos said, “The [school board] has been amazing.… We talk a lot about wraparound supports [for students]. You want to talk about wraparound? [The school] has got wraparound love — from facilities, from employee services.”
The school was provided with two additional full-time hall monitors (for a total of four) and another vice-principal (for a total of three). Money came to beef up the library, and a new construction shop was approved. “We’re fortunate that the people who are in the [new] roles have a really good grasp on the school and on the community,” Spyropoulos said of the monitors and vice-principals (Rushowy 2007).
“Presumption” Under the YCJA—
Burden of Proof
Who has the burden of proving presumption under the YCJA? Under the YCJA, as a principle, young persons are presumed to have diminished moral responsibility (culpability). But, what does this presumption mean?
Another way of giving meaning to presumption is to state that the Crown continues to carry the burden of proof. Justice Abella wrote:
Like all presumptions, it is rebuttable. Under the presumptive offences sentencing scheme, it is the young person himself or herself who is required to prove that the presumption should not be rebutted, rather than the Crown who is required to show why it should be. The constitutional implications of this reversal of the onus create the legal knot we are asked to untie. To do so, we must first determine whether the principle of a presumption of diminished culpability is one of fundamental justice within the meaning of section7 of the Charter.
CHALLENGE QUESTION
A Matter of Principle
Justice Abella reviewed the history of Canadian criminal law relating to young offenders. She noted that, on occasion, Parliament changed and made more restrictive both the liability and periods of custody imprisonment for young offenders. For example, she wrote of the then Young Offenders Act (YOA):
Initially, section 16 of the YOA permitted the transfer to adult court of youths charged with the most serious offences. The Crown, in applying for such a transfer, bore the burden of demonstrating that it was appropriate. In The Queen v. M. (S.H.), [1989] 2 Supreme Court of Canada Reports 446, this Court held that this was not a “heavy onus.” Nor did the Crown have to demonstrate “exceptional” circumstances to make its case for transfer. Nonetheless, the Court noted “that is not to say that the transfer of a case from Youth Court to ordinary court is not a matter of the utmost seriousness.”
The test for transfer was whether the judge was “of the opinion that, in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in ordinary court.” A number of factors were to be considered before transferring the young person, including the seriousness and circumstances of the offence, the young person’s situation, and whether he or she already had a record.
In 1992, the federal government amended the YOA to lengthen the maximum sentence in youth court for murder from three years to five years less a day. It also amended the transfer provisions to stipulate that the “protection to the public” was the paramount consideration. The period of parole ineligibility was, however, reduced for young persons convicted of first and second-degree murder in adult court so that once incarcerated in adult facilities, they could be released sooner than their adult counterparts.
In 1995, the YOA was amended by the addition of section 16(1.01) to require explicitly that 16- or 17-year-olds charged with murder, attempted murder, manslaughter or aggravated sexual assault be tried as adults in ordinary court, unless the young person or the Crown applied to have the matter proceed in youth court. The constitutionality of this provision was never tested in this Court.
Q: If Parliament was able to change the law relating to penalties for young offenders, including violent young offenders, how can it be said that their diminished responsibility has some overriding legal principle that has held true over the years?
The answer, in part, may come from the definition of principle, which includes the element of basic truth or assumption. In this regard, Justice Abella, before reciting the then new penalties, especially for violent youth crimes, noted the purpose of the YOA. She referred to section 3(1) of that act:
It is hereby recognized and declared that
(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions [violations] …
(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance.
Justice Abella, again speaking for the majority of the Supreme Court of Canada, found in the current law, in section 3(1) of the YCJA, a carry-forward of that legislative purpose:
The following principles apply in this Act:
(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.
Justice Abella wrote that “section 3(2), moreover, states that the YCJA ‘shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).’” She added, “The preamble [of the YCJA] recognizes society’s ‘responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood; encourages guidance and support; and seeks effective rehabilitation and reintegration.’”
In summary, the facts seem to be that Parliament, at one and the same time, chose to make the penalties, especially for violent serious crimes of young offenders, subject to greater penalties while also keeping as a central purpose of the