quoted statistic? Does it indicate an increased level of crimes of violence by the young?
This question was suggested in a Globe and Mail article by Timothy Appleby (Appleby 2008a). He briefly cited the Court’s holding in The Queen v. D.B., then reported the statistic quoted above.
Appleby asked for, received, and set out the following comments from experts — both police officers and youth advocates.
Constable Scott Mills, Toronto’s Crime Stoppers officer for schools, stated, “I deal with kids every day and they have told me personally, directly, many times: ‘I’ll [commit the crime] because the consequences are minimal.…’ So there has to be a deterrent, and as a street cop I can tell you this: I don’t think the legislators or the judges were expecting fourteen- and fifteen-year-olds to be doing armed robberies and murders on the level they are today.”
Bernard Richard, a New Brunswick provincial advocate for children and youth, stated, “The research [of Statistics Canada and that which the Supreme Court cited in The Queen v. D.B.] is pretty solid — that as much as possible we should divert youth away from custodial sentences.… In the five years since the YCJA replaced the Young Offenders Act, the number of juveniles behind bars has dropped by a third.”
The Statistics Canada report was taken from nationwide police reports. The data showed that youth crime was down 6 percent from a decade earlier, and down 25 percent from a 1991 peak. The youth crime rate was 6,885 for every 100,000 young people. Homicides committed by the young represented .05 percent of youth crimes. Still, the fifty-four homicides reached their highest peak since such data was first collected in 1961. The fifty-four killings involved seventy-two boys and twelve girls. Knives were used in 44 percent of the killings and firearms in 17 percent.
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,
