Читать книгу Understanding Canadian Law Four-Book Bundle - Daniel J. Baum - Страница 7

Violent Young Offenders:

Setting and Applying Standards

There are two public policies concerning youth that may sometimes conflict: (1) acceptance of the young as vulnerable and (2) the need to protect the public from violent young offenders. The first policy focuses on rehabilitation of the young rather than imprisonment, favouring help rather than punishment and removal from society. The second policy centres on what is needed to protect society from the kind of behaviour seriously hurtful to others. In effect, society, as a matter of principle, would hold the young offender to the same general standard of responsibility as an adult.

In this chapter, the tension between these policies will be expressed in real-life scenarios involving violent young offenders whose victims are often other young people. We will see how Parliament has tried to set new approaches by marking certain crimes as more serious and thus, in Parliament’s view, requiring greater youth explanation — or for the accused youth to face the prospect of treatment as an adult criminal.

Drawing the lines between youth and adult treatment is no easy legislative task. It requires words and concepts that may sound like legalisms, such as the term presumptive offence. But such words are intended to help judges, especially youth court judges, establish guides that might be followed by other judges nationally — and thus avoid judges making individual law that reflect their values and bias. Recall the youth court judge quoted by Justice Arbour in the spanking case, cited in the last chapter. That judge justified the spanking by saying it was no more that he (the judge) had experienced as a youth.

Among the issues discussed in this chapter are:

 What is a presumptive offence under the Youth Criminal Justice Act?

 What is the purpose of a youth sentence under the criminal law?

 Can young people be tried and sentenced as adults?

 Under the criminal law, does the Charter of Rights and Freedoms apply to young persons?

 What, if any, consent must police get before taking a statement from a young person charged with an offence?

 Are the numbers of violent young offenders on the increase?

In a general sense, the actions of “violent young offenders” could include any violent behaviour of the young. It might involve a young person who steals a car or drives it in a way that endangers the safety of others, including police officers in pursuit. Applying the criminal law to such behaviour is another matter.

The criminal law can involve penalties. For adults found guilty of a criminal offence, statute may compel a court to impose fines (the proceeds of which go to the State, not necessarily to the victim) or minimum terms of imprisonment. Such penalties are not primarily directed toward rehabilitation. During the time that someone is incarcerated, society is protected from that person repeating violent behaviour. But sitting in a jail cell may do little to reform the felon.

Imprisonment in a free society affects basic rights. The common law — that is, law made by judges — has long treated such government action with great scrutiny. The courts have strictly interpreted any action by government that would deny the liberty of a person. Indeed, much of the Charter of Rights and Freedoms is directed toward protecting the individual who comes into contact with the criminal justice system, such as the police or the courts.

Over the years, an even more protective shield has been cast over young persons who have been brought into contact with the criminal law. This shield is made up of the common law and of statute that has long deemed young people as vulnerable — not being able to fully understand the difference between right and wrong, and make judgments as would adults. If young people cannot differentiate between right and wrong, should they be held liable for violating any particular criminal law?

For many years, there has been a separate system for ensuring fairness to the young person brought into contact with the criminal law. That system ranges from the contact of police with the youth in questioning and making an arrest, to an informal court trial conducted by special judges. If found guilty, a youth may be given a lesser sentence than an adult, and in that regard, a sentence that favours rehabilitation over punishment.

Youth crime and society’s perception of it have changed over the years. To some extent, that change, partly reflected in data and in dramatic incidents (some of which will be related), have influenced the enactment of new laws importantly including the Youth Criminal Justice Act (YCJA), Statutes of Canada 2002.

The YCJA, among other things, makes it possible for young persons (defined as between fourteen and eighteen) to be sentenced as adults for certain serious (and usually violent) crimes that the YCJA lists as presumptive offences. These include:

 first-degree or second-degree murder;

 attempt to commit murder;

 manslaughter;

 aggravated sexual assault; and

 “an offence in the commission of which a young person causes or attempts to cause serious bodily harm.”

There is a significant difference between the length of imprisonment for an adult sentence, such as first-degree murder, and a youth sentence for the same crime. The YCJA leaves it to the youth court judge to decide whether a young person charged with a presumptive offence should be sentenced as an adult.

In this regard, the accused young person, under the YCJA, carries the burden of demonstrating to the youth court judge why an adult sentence should not be imposed. To do this, the young person must demonstrate that the youth sentence is of sufficient length to hold him/her accountable. Under the YCJA, the Crown does not have to show that the youth has lost entitlement to a youth sentence. In effect, the burden under the law shifts to the accused. This is called reverse onus.

These are among the issues raised by reverse onus and discussed in this chapter:

 Does switching the burden of proof, that is, reverse onus, violate section 7 of the Charter of Rights and Freedoms? Does it deny a young person’s right not to be denied liberty “except in accordance with the principles of fundamental justice”?

 Can young people who commit more serious crimes be held to more serious penalties?

 May young persons subject to adult sentences also have their identities revealed?

A case that discusses and rules upon these issues is The Queen v. D.B., decided in a 5-4 decision by the Supreme Court of Canada on May 16, 2008. Justice Rosalie Abella wrote the majority decision, and Justice Marshall Rothstein the dissent.

Note, however, the incident giving rise to the offence occurred in 2003. The decision of the Supreme Court of Canada was handed down more than four years later. The course of justice often is ponderous. But more to the point in dealing with young offenders, the accused often begins an encounter with the criminal justice system as a youth and the sentence is delivered when that individual is an adult.

The Queen v. D.B.

At the time of the offence, D.B., the accused, was seventeen, a juvenile whose identity was protected under the Youth Criminal Justice Act (YCJA).

On December 13, 2003, D.B. went to a Hamilton, Ontario, shopping mall with some friends. Insults were exchanged with another group of young men, and two of them began to fight. Then D.B. turned to eighteen-year-old Jonathan Romero and said, “Me and you are going to fight right now.” Romero answered, “No.”

Romero’s arms were down at his sides when D.B. punched him on the right side of his neck and face. The punch was described as a “sucker punch.” Romero was neither prepared nor ready for it.

Romero fell to the ground from the force of the punch. D.B. did not let up. He jumped on top of Romero and hit him four times on the face and neck. Romero, having been knocked unconscious, was unable to defend himself. At that point, D.B. got up and fled back to the shopping mall.

Two of the other youths who had been fighting then stopped and, with three employees from a nearby store, tried to help Romero. An ambulance was called. When it arrived, Romero had no vital signs. He later died of his injuries.

Inside the mall, D.B. was heard to say, “You missed it. It was one punch. The guy’s not even fuckin’ moving.” He changed his clothes in a nearby restaurant and stowed the old clothes in a knapsack that he gave to someone else. He then went to a friend’s home, talking about the fight on the way. Later that evening, he went to a nightclub. He left with friends around closing time.

In the taxi, D.B. learned via a cell phone call that Romero had died. He stayed that night at a friend’s house. The next morning, police arrived at the friend’s home. D.B. attempted to flee out the back door but was caught and arrested.

D.B. pleaded guilty to manslaughter. He asked the trial judge for a youth sentence rather than that of an adult. The Crown opposed this request. However, the trial judge rejected the Crown’s request and imposed a youth sentence on D.B.

In an unreported decision, the trial judge stated:

You [D.B.] are to be the subject of an intensive rehabilitative custody and supervision order for a period of three years, and committed into a continuous period of intensive rehabilitative custody for a period of thirty months and serve the remainder of the sentence under conditional supervision in the community in accordance with section 105 of the Youth Criminal Justice Act.

In my view the maximum period of a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given credit for the one year period of pre-trial custody.

The trial court was aware of D.B.’s record through a predisposition assessment when it imposed the maximum period of a youth sentence. D.B. had frequently been involved in physical fights with his peers. And he had been suspended from school,

numerous times primarily for disruptive behaviour, verbal aggression, and disrespectful and intimidating conduct towards school staff. At the time of the offence, D.B. was bound by two separate probation orders arising out of prior convictions for possession of stolen property and robbery. Both offences involved threats and intimidation. While he was in custody awaiting disposition and sentence for manslaughter, D.B. was involved in several assaultive incidents with other inmates and staff members.

Rehabilitation versus Incarceration

The trial court judge found there was a basis for rehabilitation, which was a more desired alternative to incarceration. The trial judge stated that D.B.’s offence had to be considered “most serious” and that the act was “stupid, impulsive … borne of exuberance of youth and a misguided need for image before the offender’s peers” leading to a “tragic outcome.”

In response to the Crown’s concerns about D.B.’s maturity, character, background, and previous record, the trial judge felt that the intensive rehabilitative custody and supervision order provisions of the YCJA could address such areas. The trial judge concluded that “the need for rehabilitation of this offender and … the protection of society are better achieved through the intensive rehabilitation programme available through a youth sentence than through a more protracted period of incarceration which may result from the imposition of an adult sentence.”

Justice Abella, speaking for the majority in The Queen v. D.B., agreed. She stated:

There is no doubt that D.B. committed a serious offence with tragic consequences. It remains to determine whether the maximum allowable youth sentence he received from the trial judge should be set aside.

The purpose of sentencing under the YCJA is expressed as follows in section 38(1): “The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.”

D.B. had been previously convicted for possession of stolen property and robbery, both involving threats and intimidation, and was bound by two separate probation orders at the time of the offence. He had a history of mental health issues and behavioural problems in school.

He expressed remorse for his offence prior to sentencing and had made some positive steps while in pre-trial detention. The predisposition assessment recommended that he be treated in a therapeutic milieu, including a highly structured environment with integrated academic and social programming, and also concluded that societal as well as his personal needs could best be met by keeping D.B. in the juvenile justice correctional system rather than exposing him to more hardened criminals.

Justice Abella recited the detailed order of the trial judge set out above and concluded:

Section 72(1) of the YCJA sets out a number of matters to be considered by the youth justice court in reaching its opinion about whether a youth sentence would be sufficient. The reasons for the sentence of the trial judge reflect that he did so. His weighing of these matters to reach his opinion about sufficiency is a task that must attract deference in this court. The Crown does not suggest that he acted on an improper principle or considered extraneous matters. It essentially argues that he did the weighing wrongly. In my view, that is not enough to warrant the setting aside of his decision.

It was not a question of the trial court applying an incorrect principle of law or considering improper evidence. In that regard, Justice Abella noted that the trial judge had observed the witnesses and their demeanour, and had heard their testimony. The appellate court could look at the written record and ask whether there had been an error of law.

The major part of the decision of the Supreme Court of Canada in The Queen v. D.B. centres on the role of the Charter on the YCJA.

Youth or Adult Sentence: The Charter

As was noted before, the YCJA places the burden on the youth convicted of a presumptive offence — such as, in this matter, manslaughter — to justify why a youth sentence rather than an adult sentence should be imposed. Under the YCJA, the failure on the part of the convicted youth to carry this burden requires the trial judge to sentence that person as an adult. The judge is denied choice in the matter. This is how the Supreme Court of Canada summarized the relevant provision of the YCJA:

A young person may, however, under section 63(1) of the Act, “make an application for an order that he or she is not liable to an adult sentence.” The court is then required to consider the factors set out in section 72(1), namely: “the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant.”

The onus of satisfying the court about these matters is on the young person (section 72(2)). Consequently, if the young person is unable to persuade the court that a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour,” an adult sentence shall be imposed[emphasis added] (section 72(1)(b)). The default position, in other words, is an adult sentence.

Even the most severe youth sentence, according to the trial judge in the case of D.B., involves far less incarceration time than an adult sentence for the crime. Further, the youth sentence is directed toward rehabilitation, not punishment or protecting the public from a potentially violent offender by incarceration.

Counsel for D.B. argued that the presumptive provision of the YCJA was invalid because it violated section 7 of the Charter of Rights and Freedoms, which, as we stated before, is part of the Constitution of Canada. If a statute conflicts with the Charter, then to the extent of the conflict, the Charter sets the standard. This means that in any conflict with the Charter, either all or part of the statute will be set aside to the extent of that conflict. Both the trial court and the appellate court agreed with counsel for D.B. It was in such a context that the matter came before the Supreme Court of Canada.

The Supreme Court of Canada Decides:

The Majority Opinion

In this 5-4 decision, Justice Abella spoke for the Court majority. The Court first asked whether the presumptive provision of the YCJA was valid as measured by section 7 of the Charter, which provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The analysis of section 7 comes in two parts, Justice Abella said. First, was there a denial of life, liberty, or security of the person? And, second, if so, was that denial in accord with the principles of fundamental justice?

As to the first part of the analysis, there was no question and no objection stated by the Crown: the “reverse burden of proof” raises the possibility of imprisonment or the threat of imprisonment.

It was the second part of section 7 that required further discussion by Justice Abella: Did the reverse onus rule of the YCJA affect a principle of fundamental justice? Yes, said Justice Abella. Without a finding that the young are vulnerable, that they have a reduced capacity for moral judgment, and that this vulnerability constituted a principle of fundamental justice, section 7 of the Charter simply would not apply. Putting it differently, section 7 of the Charter can only apply if it affects a principle of fundamental justice.

The Court found that principle by looking at a number of sources. First, it looked to the YCJA itself. In section 3(1)(b), the YCJA makes clear what the courts have long recognized: “The criminal justice system for young persons must be separate from that of adults.” But why must there be this separation? Justice Abella stated:

Because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.

For example, Justice Abella wrote, there are numerous sentencing provisions in the YCJA to protect, presumptively, young persons from custody. Confronted with a crime committed by a young person, police must consider whether alternatives outside the court exist. Section 4 of the YCJA declares that such measures are “presumed to be adequate to hold a young person accountable … if the young person has committed a non-violent offence and has not previously been found guilty of an offence.”

Sections 38 and 39 of the YCJA also limit when a court may order custody. Before sentencing a young person to custody, the court must:

 believe that no reasonable alternative or combination of alternatives exists (section 39(2));

 know that the previous use of a non-custodial sentence does not preclude another non-custodial sentence (section 39(4));

 recognize that custody must not be a substitute for appropriate child protection, mental health, or other social measures (section 39(5));

 consider a pre-sentence report and any sentencing proposal made by the young person or the counsel present (section 39(6));

 state reasons why a non-custodial sentence is inadequate (section 39(9));

 consider all available sanctions other than custody first (section 38(2)(d)); and

 ensure that the sentence is the least restrictive one capable of holding the young person accountable, bearing in mind the nature of the offence (section 38(2)(e)).

These provisions are core goals of the YCJA. But, it was not enough for Justice Abella to conclude that they reflected a principle of fundamental justice, namely that the young have heightened vulnerability and a reduced capacity for moral blameworthiness. She next looked to the history of the criminal law relating to the young. She referred to the English common law, academic writings, and the many laws controlling youth crime in Canada, dating from 1857. There she found an ongoing legislative recognition of diminished criminal responsibility on the part of young offenders. “Canada,” she said, “has consistently acknowledged the diminished responsibility and distinctive vulnerability of young persons in all of the YCJA’s statutory predecessors.” (See, “Challenge Question: A Matter of Principle.”)

Indeed, Justice Abella found additional support for the vulnerability of the child as a legal principle in international law. The preamble to the YCJA notes this point in its preamble. Canada became a signing party to the United Nations Convention on the Rights of the Child in 1992. Section 1 of that convention states:

[Those signing the convention] recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

That legal principle translated into a principle of fundamental justice, according to Justice Abella. She quoted from and relied upon past Supreme Court of Canada decisions as well as academic writings. For example, she noted the decision of former Chief Justice Antonio Lamer of the Supreme Court of Canada in Reference re Young Offenders Act (P.E.I.), [1991] 1 Supreme Court of Canada Reports 252, at p. 268, who said of the then controlling juvenile justice law, “What distinguishes this legislation from the Criminal Code is the fact that it creates a special regime for young persons. The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction.”

The result of this review of past Canadian legislation and the laws of other western nations led Justice Abella, speaking for the Court majority in The Queen v. D.B., to say that “a broad consensus reflecting society’s values and interests exists…. The principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.” And, Justice Abella added, this principle of fundamental justice is one that the courts can administer. It is manageable.

Applying the Principle of Fundamental Justice to “Reverse Onus”

Is the onus provision consistent with the principle of fundamental justice that young people are entitled to a presumption of diminished moral responsibility? As noted, ordinarily the Crown can seek an adult sentence for a young person over the age of fourteen who has been found guilty of certain indictable offences.

The young person must be notified of the Crown’s intention and, once notified, can elect to be tried by a youth court judge or, in the Ontario Superior Court of Justice, by a judge alone or with a jury following a preliminary inquiry. The onus is on the Crown. If the Crown does not persuade the court, a youth sentence will be imposed.

Again, as noted, under the YCJA, the young person charged with or found guilty of a presumptive offence, however, must apply for an order that he or she is not liable to an adult sentence so that a youth sentence can be imposed (section 63(1)). In making its decision, the court must consider whether a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour” (sections 72(1)(a) and (1)(b)). In deciding whether it would be a sufficiently long sentence, the court is to consider “the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant (section 72(1)).”

Justice Abella probed the effect of a presumptive sentence on a young person. She wrote:

In the case of presumptive offences, it is the young person who must satisfy the court of the factors justifying a youth sentence, whereas it is normally the Crown who is required to satisfy the court of any factors justifying a more severe sentence. A maximum adult sentence in the case of presumptive offences is, by definition, more severe than the maximum permitted for a youth sentence. A youth sentence for murder cannot exceed ten years; for second-degree murder, seven; and for manslaughter, three. The maximum adult sentence for these offences is life in prison.

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 section 7 [of the Charter].

Effect of Reverse Onus

Justice Abella, in The Queen v. D.B., stated that an adult sentence can be imposed on a youth. But that sentence must be justified by the seriousness of the offence and the circumstances of the offender.

This means, Justice Abella said,

[that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies. Putting the onus on the young person to prove the absence of aggravating factors in order to justify a youth sentence, rather than on the Crown to prove the aggravating factors that justify a lengthier adult sentence, reverses the onus.

In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.

Because the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.… It is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt.

YOU BE THE JUDGE

A Matter of Defence: Public Protection

The Facts

D.B.’s record both before and after he struck and killed his victim in a shopping mall fight was serious and lengthy. He had been involved in two parole violations following the fight that led to his second-degree murder conviction. As well, he had been involved in fights with other youths while incarcerated.

The Crown prosecutor argued that, on the face of that record, it should not have to bear the burden of proving D.B. should be sentenced as an adult offender and that the publication ban masking his identity should be removed. D.B., the Crown seemed to say, was a threat to society.

In its argument to the Supreme Court of Canada, the Crown seemed to have set out its argument in the alternative. That is, assume the burden of proof in terms of presumed offences under the YCJA was overturned because of section 7 of the Charter as a violation of liberty not “in accordance with the principles of fundamental justice.”

Still, the Crown stated, the “sentencing provisions [of the YCJA] served the goals of accountability, protection of the public, and public confidence in the administration of justice.” As such, they should be sustained.

The Issue

Who should have the burden of proving if D.B. should be sentenced as an adult?

Points to Consider

 For our purposes, assume, as indeed was the case, that the Court had ruled the presumed offences under the YCJA in terms of burden of proof were a violation of section 7 of the Charter.

 The question now is whether the Charter contains another provision that would otherwise support the Crown’s position.

 In this regard, the Crown turned to section 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

 In effect, section 1 of the Charter would allow a section 7 infringement if it were a reasonable limit set out by law as can be justified in a free and democratic society.

 To meet the section 1 defence, two conditions must be met: (1) there must be a reasonable (rational) connection between the limitation on the liberty interest protected by section 7 of the Charter and the goal to be achieved — protection of the public; and (2) the limitation must be the minimum necessary to achieve the stated goal.

Discussion

Justice Abella, speaking for the Supreme Court of Canada majority in The Queen v. D.B., rejected the section 1 Charter defence raised by the Crown. She accepted that Parliament’s objectives of accountability, public safety, and public confidence indeed were proper. But, she insisted that individual Charter rights could be safeguarded while at the same time rights set out by Parliament were protected. Thus, the need continued for the Crown to carry the burden of proof in demonstrating the need for an adult sentence.

The Young Offender: Still Accountable

The young offender still remains accountable. Justice Abella stated:

This does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection.

Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs. The Crown may still persuade a youth court judge that an adult sentence or the lifting of a publication ban is warranted where a serious crime has been committed. And young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence. But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown.

YOU BE THE JUDGE

The Queen v. D.B. — Publication Ban

The Facts

D.B. was given a youth sentence. As part of this youth sentence, the YCJA provides for a publication ban, which prohibits any publication of the accused youth’s identity. That is why D.B. is referred to by initials rather than by his full and legal name. However, the burden of showing that the ban should remain is placed on the young offender.

The Issues

Who has the burden of showing why a publication ban should be removed? What must be proved to meet that burden?

Points to Consider

 The publication ban is only technically part of the YCJA sentence. The reason for this is to allow an appeal of any court order permitting the youth’s identification.

 The YCJA imposes on the youth a “reverse onus” burden even if the court imposes a youth sentence. That is, the youth must show entitlement to a publication ban.

 The Crown prosecutor argued in The Queen v. D.B. that D.B. had the burden of showing why the publication ban should not be removed.

 In section 3(1)(b)(iii) of the YCJA, the young person’s “enhanced procedural protection … including their right to privacy” is stated to be a principle to be emphasized in the application of the Act.

 The United Nations Standard Minimum Rules for the Administration of Juvenile Justice provides that “the juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declares that “in principle, no information that may lead to the identification of a juvenile offender shall be published.”

Discussion

Justice Abella, speaking for the Court majority in The Queen v. D.B., ruled that the Crown had the burden of showing why the publication ban should be removed. She linked this conclusion to the sentence’s effect on a young offender. As such, her reasoning relating to section 7 of the Charter applied. She wrote:

I see the onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban to be a violation of section 7. As discussed, the effect of the reverse onus provisions is that if a young person is unable to persuade the court that a youth sentence should be imposed, an adult sentence is imposed.

When an adult sentence is imposed, the young person loses the protection of a publication ban. But even if the young person succeeds in discharging the reverse onus and receives a youth sentence, the YCJA imposes an additional onus by requiring the young person to apply for the ban that normally accompanies a youth sentence.

In s. 3(1)(b)(iii) of the YCJA … the young person’s “enhanced procedural protection … including their right to privacy,” is stipulated to be a principle to be emphasized in the application of the Act.

Scholars agree that “publication increases a youth’s self-perception as an offender, disrupts the family’s abilities to provide support, and negatively affects interaction with peers, teachers, and the surrounding community” (Nicholas Bala, Young Offenders Law (1997), at p. 215). Professor Doob … testified about this issue before the Standing Committee on Justice: “I think you’d be hard-pressed to find a single professional who has worked in this area who would be in favour of the publication of names. From the very beginning when this was proposed in May 1998, I’d never heard anybody give a single reasoned, principled argument for doing it. Now, there are some other arguments for doing it having to do essentially with vindictiveness, but in terms of actually trying to be constructive in any way, as I said, I would certainly find it very difficult to find anybody who has done any research on this kind of issue who would support it. It just seems to me to be a gratuitous meanness.”

International instruments have also recognized the negative impact of such media attention on young people. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules,” adopted by General Assembly Resolution A/RES/40/33 on November 29, 1985) provide in rule 8 (“Protection of privacy”) that “the juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declare that “in principle, no information that may lead to the identification of a juvenile offender shall be published.”

The foregoing demonstrates that lifting a ban on publication makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe. A publication ban is part of a young person’s sentence (section 75(4)). It is therefore subject to the same presumption as the rest of his or her sentence. Losing the protection of a publication ban renders the sentence more severe. The onus should therefore be, as with the imposition of an adult sentence, on the Crown to justify the enhanced severity, rather than on the youth to justify retaining the protection to which he or she is otherwise presumed to be entitled. The reversal of this onus too is a breach of section 7.

Dissenting Opinion

Justice Rothstein and three other justices dissented from the majority in The Queen v. D.B.

First, Justice Rothstein argued that the only purpose of the appeal provisions of the YCJA relating to publication bans was to give a limited right to seek court review where one would not otherwise exist. The reality, he said, is that publication bans simply are not part of any sentence. Publishing a story about the alleged crime does not, as such, impose any kind of sentence on the defendant, though it surely may be argued that such publication may hold the defendant up to ridicule.

Further, he argued that the provision of the YCJA relating to the presumption of publication bans does not involve issues involving section 7 of the Charter. He stated:

The liberty interest protected by section 7 encompasses freedom from physical restraint and protection of an individual’s personal autonomy.… Since the presumption of publication does not cause physical restraint on young offenders nor does it prevent them from making fundamental personal choices, the interests sought to be protected in this case do not fall within the liberty interest protected by section 7.…

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 with some form of emotional or mental disorder. The girl will serve the maximum sentence of ten years, with credit for the eighteen months already spent in custody. Under the sentence, the first four years would be spent in a psychiatric hospital rather than a youth detention centre.

For Steinke, there is an automatic life sentence for a first-degree murder conviction. As well, there can be no eligibility for parole for twenty-five years (“Teen Gets Maximum Sentence for Medicine Hat Killings” 2007; “Steinke Found Guilty of First-Degree Murder” 2008).

Regina Teen Sentenced as an Adult

Larry Moser tried to help a Regina convenience store clerk who was fighting with a group of teens outside the store over a bag of sunflower seeds on Boxing Day, 2006. A sixteen-year-old, who cannot be named because of the YCJA, took part in the fight. He had a knife and stabbed Moser with it. Moser died from the wound.

The youth was tried and convicted of second-degree murder on November 28, 2008. The judge ordered the youth to serve a life sentence within the meaning of the YCJA. Practically, this means that the youth may not be considered for parole for seven years. The judge said the youth exhibited anti-social criminal behaviour and only the sentence imposed with its state-control would protect the public. At the time of trial and sentencing, the youth was eighteen (“Regina Teen Sentenced as Adult in Good Samaritan Killing” 2008).

Gunfight in Toronto

Jane Creba, age fifteen, was shot to death on December 26, 2005. She was an innocent bystander, part of a crowd of Boxing Day shoppers in downtown Toronto. She was the victim of a gunfight between two groups, consisting in part of youths. The stray bullet that caused her death struck her in the back. Four men and two women were wounded in the crossfire.

Two youths and seven adult suspects were arrested, including J.S.R., who was seventeen at the time of the shooting. (J.S.R. was then six weeks from his eighteenth birthday — and, thus, nearly an adult. By the conclusion of trial and before sentencing, he was twenty-one.) At the scene of the gunfight, police found seven shell casings fired from the gun that killed Creba. J.S.R. was not charged with firing the pistol that killed Creba, but he was part of the gangs in conflict.

J.S.R. was arrested only forty minutes after the shooting. Police found a pistol in his possession that had been discharged and was later found responsible for wounding two bystanders (though not Creba). J.S.R., from the time of his arrest, said that the weapon police found had been handed to him after the shooting by the actual gunman, who J.S.R. named. It appeared that J.S.R. had been “cooperative” in the police investigation.

J.S.R. was the first of the nine arrested to go to trial. On December 7, 2008, the jury returned verdicts of guilty of second-degree murder in the death of Creba, as well as five weapons charges and two of six counts of aggravated assault. The courtroom was silent when the jury foreperson rose to announce the verdict. J.S.R. showed no emotion, other than his eyes initially fluttering. The trials of the remaining defendants were to take place later.

On December 11, 2008, the Crown stated that it wanted an adult sentence for J.S.R. If he were sentenced as an adult, he would be given life in prison with no eligibility for parole for seven years for the second-degree murder conviction. If J.S.R. were sentenced as a youth, he would receive a sentence of seven years, no more than four of which would normally be served in custody.

In the course of J.S.R.’s trial, the judge reduced the charge from second-degree murder to manslaughter. However, on appeal to the Ontario Court of Appeal, the more serious charge was reinstated. The appellate court ruled that a jury could find that J.S.R. could have participated in a “frenzied shootout.” He could have “substantially contributed” to Creba’s death by engaging in a gunfight. The reasoning seemed to be that if J.S.R. had not fired the gun, then the gun that had been fired and killed Creba likely would not have been fired.

Shortly before the gunfight, video cameras spotted J.S.R. as part of an aggressive group of young men moving about the Eaton Centre in downtown Toronto, close to where the gunfight took place. They had already “committed at least two … crimes of violence in full public view.” The attacks were edited out of the tapes shown to the jurors in the J.S.R. trial. J.S.R. already had been subject to a court order prohibiting him from even being on Yonge Street — the street, as it turned out, on which Creba had been shot.

J.S.R.’s sentencing was handed down by Ontario Justice Ian Nordheimer on April 24, 2009. J.S.R. was then twenty-one. It took Justice Nordheimer about an hour to read his sentencing judgment. Within the framework of the YCJA, Justice Nordheimer sentenced J.S.R. as an adult. In doing this, the judge stripped away J.S.R.’s anonymity. His identity was revealed to the public: Jorell Simpson-Rowe. His record of conviction was archived as open to the public.

While the YCJA rules out “denunciation” as an element of sentencing a youth, Justice Nordheimer said meaningful penalties are necessary in “society’s interests.” He noted what pre-sentence reports referred to as Simpson-Rowe’s hellish upbringing. Still, said the judge, Simpson-Rowe was capable of distinguishing right from wrong. The judge said:

In essence, as found by the jury, Mr. Simpson-Rowe opened fire with a semi-automatic pistol handgun on a crowded downtown street full of innocent citizens who were simply enjoying one of the rituals of the holiday season — Boxing Day sales.

The residents of this city are entitled to expect, indeed, they are entitled to insist, that they be able to go about such ordinary activities in relative safety and not be faced with the type of inexcusable violence that was unleashed by Mr. Simpson-Rowe and his associates.

The effect of Justice Nordheimer’s sentence on Simpson-Rowe is that he will serve another three years and eight months in prison. He will be twenty-four when eligible for parole. (This may not be the end of the story. Lawyers for Simpson-Rowe announced that they will appeal the verdict — a matter that may take more than a few years.) (Appleby 2009b; Blatchford 2008; “Crown Seeks Adult Penalty in Creba Case” 2008; DiManno 2009; “Man, 20, Guilty of 2nd-Degree Murder in Jane Creba Shooting” 2008.)

CHALLENGE QUESTION

What Do Current Statistics Prove?

Q: On the same day as the Supreme Court of Canada handed down its decision in The Queen v. D.B., Statistics Canada issued a report on youth crime in 2006. The report stated that youth crime in homicides had reached a historic high of fifty-four, an increase of 3 percent over 2005. Aside from an increase in youth homicides, what, if anything, is reflected in the 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, 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 law the principle of diminished culpability of young offenders.

Police Presence in High Schools

In September 2008, a new program began in Toronto. A total of thirty police officers were assigned to thirty different high schools across the city (twenty-two in the Toronto District School Board and eight in the Toronto Catholic District School Board). Some critics predicted the worst. One public school trustee said, “To have them walking the halls and wearing guns in high schools, where guns are a problem, is mind-blowing to me.”

But the critics, it seems, were wrong. At the high schools with a full-time police presence, attendance is up and suspensions and criminal charges are down.

Staff Sergeant Sharon Davis, who coordinates police officers in the School Resource Officer program, discussed the importance of the drop in criminal charges. She said, “Anybody who ends up needing to be arrested — that’s a failure. Once young people enter the criminal justice system, all studies show that their chances of success in life — finishing school, having a good job — are diminished.”

The success of the program has been in large part due to the good relationships that have been established between the police officers and the students. Officers have made an effort to get to know the students and become a part of the school communities.

The guiding principle has been that dealing with minor problems by means of warnings and no-nonsense advice can be more productive than dragging young people “into the jaws of the justice system.”

Numerous other Canadian cities and jurisdictions have comparable programs (Appleby 2009a).

The Public’s Response

When the police program in Toronto high schools was reported in the Globe and Mail, a number of people posted comments on the newspaper’s website. Most expressed support for the program, but others expressed serious concerns. A sampling of opinions follows:

 “I am all for this. I am a high school teacher and the Calgary Board of Education had an officer in each of their high schools when I taught with them several years ago.… Students were often in the constable’s office, chatting, getting advice, etc. I saw a marked change in how the students perceived the police and their role.”

 “If I were a student going to one of these schools, I would be happy knowing that there was someone to help and possibly protect me.”

 “What has happened to our society that we require police officers in school?”

 “Perhaps security guards at half the cost or more would make this a more effective program. Seemingly, it is primarily security that the police presence provides.”

 “This program shows students that cops are just regular folks and can have a positive impact on lives.… No one is expecting that this program will suddenly make crime disappear from schools, but if it steers some folks away from bad choices and makes others feel safer coming to school, which early results suggest are the outcomes, then it’s an excellent program.”

 “This should be seen as a temporary add-on but far more focus should be put into finding solutions to the cause of the issue of ‘dangerous’ schools. Hopefully these officers are first taking many courses prior to providing advice to kids. Placing individuals in positions of authority does not [guarantee] that they have all the answers for these kids (or correct ones).”

 “When I went to high school 10–15 years ago, we had many, many violent incidents occurring. We were on the news three times in my grade 9 year! The following year we had a new principal who came in, expelled all the troublemakers and brought in a police officer to walk the halls once or twice a week. Not to mention the other police who would occasionally drive through our parking lot talking to students.… Our school cleaned itself up within a year, essentially ridding itself of a gang problem. The fact that police were there when this occurred cannot be coincidence.”

 “Hopefully by being proactive rather than reactive, the police presence may help some kids who would go bad from doing so and, in any case, provide a safer classroom.”

 “This [program] makes a big difference to kids when the only time they usually see police is in squad cars or getting out to arrest someone.”

 “If the Toronto school board were serious about reducing violence in schools, it would spend more money on special education, psychologists and social workers.”

A police officer is a presence. How that person is viewed depends not only on how he or she sees their duty but also on how students, teachers, administrators, and parents view the police officer.

Youth or Adult Sentence for a Young Killer

On September 21, 2006, twenty-three-year-old Michael Oatway was sitting in the back of an Ottawa-Carleton bus, listening to music on his iPod. Suddenly, he was surrounded by S.M. and three friends. S.M. (not further identified because he was seventeen at the time) demanded, at knifepoint, that Oatway give him his iPod. Oatway refused, and was fatally stabbed.

S.M. was found guilty of first-degree murder on November 28, 2008, following a three-week trial. Following the verdict, prosecutors said they would be seeking an adult sentence for S.M.

Under the YCJA, if S.M. were sentenced as a youth, the maximum penalty for first-degree murder would carry a ten-year sentence, although an offender can only spend a maximum of six years in custody, with the remainder of the sentence to be served in open custody, meaning a halfway house or the offender’s own home. If sentenced as an adult under the YCJA, S.M. would serve ten years in jail (minus the time spent in pre-trial custody).

There is a very important difference between the two sentences, however. If charged as a youth, S.M.’s name would never be made public, and five years after the end of his sentence, the conviction would disappear from his record. If sentenced as an adult, the conviction would stay with him forever. He would remain on parole for the rest of his life, and his name would probably be made public.

The Sentencing Hearing

S.M.’s sentencing hearing began on January 28, 2009. As a result of the Supreme Court’s decision in The Queen v. D.B., the burden of proving that he warranted an adult sentence rested with the prosecution.

The prosecutor called four of Oatway’s relatives to deliver emotional victim impact statements. Then the parole officer discussed S.M.’s difficult childhood; his unsuccessful efforts to straighten out his life; and his manipulative, aggressive nature.

S.M.’s Sentence

On February 12, 2009, Justice Robert Maranger of Ontario Superior Court ruled that S.M. should be sentenced as an adult and that the seriousness of the crime warranted the lifting of the publication ban on his identity.

S.M., now identified as Shawn McKenzie, was sentenced to ten years in jail. He would be able to apply for parole in seven-and-a-half years, however, because of the two-and-a-half years spent in custody following his arrest. (With actual adult sentences, the minimum is twenty-five years behind bars before eligibility for parole.) He will remain on parole forever, and the conviction will remain on his record.

The judge took into account McKenzie’s difficult childhood and positive attributes, but added:

I can say that I found it troublesome that throughout the proceeding, he did not show any sign of remorse or regret for his actions. He did not even express remorse or regret when the victim impact statements were read in open court at the sentencing hearing.

It could be simply false pride, as described by his counsel, or frankly, it could be the emotional detachment of a very cold-blooded individual.

What may have tipped the scales for Judge Maranger opting for an adult sentence was the testimony of probation officer Andre Sarazin, who told the court that as a professional and private citizen, he would be more comfortable if McKenzie were supervised for a longer period of time.

The judge concluded, “I am not reasonably assured that Shawn McKenzie can be rehabilitated and reintegrated safely into society through a youth court sentence.”

Solutions to Youth Violence

Some criminologists who study youth crime believe that: (1) the worst offenders often come from the poorest families in the worst neighbourhoods; (2) they often have neglectful or absent parenting; and (3) the solution, if there is one, must come early, in the form of prevention programs.

Elliott Leyton, an anthropologist who has studied youth crime, believes that the solution to youth crime “lies in the reduction of unemployment, the increase in social programs and the use of punishment rather than prison.” He expresses concern, however, about “the generation of vipers … already created, those juveniles and young adults, some on probation, who have little if any feeling for others and are perfectly willing to slaughter the innocent.” And, he asks, “Why is the entire system focused so heavily on the needs and rights of violent men and women?”

Leyton sums up what a smart society and justice system would do: “Radically improve social conditions and economic opportunities. Ruthlessly repress violence” (Blatchford 2009a; 2009b; 2009e; Seymour 2008; “Teen Sentenced as Adult in Michael Oatway Murder” 2009).

An Adult Sentence for

a “Puppet Master” Killer

On New Year’s Day, 2008, fourteen-year-old Stefanie Rengel opened the front door of her Toronto home and faced a killer. She was stabbed six times and bled to death shortly after in the arms of a stranger who saw her staggering along the sidewalk.

Within hours, police arrested a seventeen-year-old male (identified as D.B.) and a fifteen-year-old girl (identified as M.T.) and charged them with first-degree murder. (Their identities were protected under provisions of the YCJA.) D.B. was alleged to have been the person who attacked Rengel. M.T., though not alleged to have been at the scene of the crime, was alleged to have been the “mastermind” behind the killing.

At M.T.’s trial, the court heard that she was obsessively jealous of Rengel, whom she had never met but regarded as a rival. For over eight months, through conversations, text messages, Facebook ramblings, and Internet chats, she used sexual blackmail to pressure D.B. to kill Rengel.

The jury considered thousands of pages of text messages between M.T. and D.B., including conversations that apparently detailed their plans for the murder. M.T., in explicit terms, threatened to cut off sexual relations with D.B. unless he killed Rengel. She warned him that she would break off with him completely. In one message, she had told him: “I want her dead.… We’ve been through this.” Later, she added: “If it takes more than a week, then we’re jus gonna be friends.”

The Jury Decides

The jury watched two videotaped statements given by M.T. to police just hours after being arrested. In both, she seemed emotionless. She acknowledged that, though D.B. was more violent, she was the one more committed to Rengel’s death. She was asked by police, “He wouldn’t have thought of killing her had you not been so upset about what you perceived as her interference in your relationship, right?” She answered simply, “Yes.”

Prosecutors relied on a well-established legal principle: Counselling others to kill makes a person guilty of murder. On March 20, 2009, the jury found M.T. guilty of first-degree murder. It was then up to the judge to determine whether M.T. would be sentenced as a youth or an adult.

The Media’s Response

Following the jury’s decision, the Globe and Mail published the following editorial:

Sentencing a 15-year-old girl to an adult penalty, even for first-degree murder, is a major step for Canadian justice. The adult penalty is a mandatory life term. But it is the right step in the case of the Toronto girl known as M.T., convicted last week and awaiting sentence for her role in the stabbing death of 14-year-old Stefanie Rengel.

Canada’s courts tend to look assiduously, as they should, for any hope of rehabilitation in the young. But the adult penalty for those 17 and under has a special parole clause. At age 15, M.T. would be eligible for parole after five to seven years, at the trial judge’s discretion. This is a built-in form of leniency, a promise that those who deserve a chance at rehabilitation can get that chance while they are still young. It is not really an adult penalty, but a hybrid of the adult and youth penalties. And it fits these circumstances.

The killing of Stefanie Rengel was not a crime of passion, a “mistake” in judgment which might be blamed on youthful immaturity. Its cold-bloodedness chills the spine. For months, over countless emails, text messages and cellphone conversations, M.T. urged her 17-year-old boyfriend to kill Ms. Rengel, a girl she had never even met, on the apparent basis of a grudge she had developed against her. (The boyfriend is about to be tried for first-degree murder.) When he said he might be recognized, she told him to cut leotards and put them over his face. When the boy missed an earlier deadline for the killing, she withdrew sexual favours. When it was done, she re-enacted the killing with the boyfriend. Later, she protested to police that she and the boyfriend had talked of mundane things, in addition to the killing, as if that made her less of a killer.

None of this takes the onus off the boy who allegedly stabbed Ms. Rengel six times on New Year’s Day, 2008, leaving her to bleed to death in agony, with only a kind passerby to comfort her. But it does mean that M.T., who was nearly 16, is a serious threat to public safety.

Will that threat be diminished by the time six years is past, the maximum term in custody (followed by four years supervised in the community), if she is sentenced as a youth? Will she be safe to release? It’s impossible to predict at this point. No presentencing hearing has been held, and so it is not publicly known what sort of home life she has had, and what mental difficulties she might have experienced. But it is hard to see how her personal background would help the court predict the danger she poses. In these circumstances, the community’s protection should be paramount.

With a life penalty, M.T. would have to demonstrate to a parole board that she is an acceptable risk for release. Perhaps in five to seven years — let’s hope it’s at least six — she will not be ready. But perhaps in 10 or 12 she will be. Perhaps, too, she needs the threat of life behind bars to force her to deal with whatever made her wish to kill in cold blood. Who is helped by treating her as a youth? Not her. Not society.

A life penalty has three other benefits: She will have to report to parole authorities for life, rather than be unsupervised after 10 years; the crime will not be erased from her record (if she ever winds up in adult court again) if she is crime-free for five years after a youth sentence would end; and finally, the penalty will be commensurate with the terrible crime she committed. To steal a young teenage girl’s life from her for no other reason than some twisted self-gratification is monstrous, and requires a strong response that demonstrates the value this society puts on life (“Cold Blood and Adult Penalties” 2009).

The Judge’s Decision

On July 28, 2009, after a three-week jury trial and a one-week sentencing hearing in which two psychiatrists testified about their examinations of her, M.T. was sentenced by Justice Ian Nordheimer as an adult for manipulating her boyfriend into killing Stefanie Rengel. She lost her anonymity and was identified as Melissa Tordorovic.

Psychiatrists indicated that Todorovic’s personality would not be fully developed until she was in her mid-twenties. Until then, they were reluctant to make a diagnosis. And, absent a diagnosis, let alone treatment, her future dangerousness was unknowable and unpredictable. The judge said that the sum of psychiatric evidence was that there was “some risk of a repetition of this conduct. While the precise degree of risk is unknown, the nature and extent of Melissa’s role in this incident is cause for concern.”

Justice Nordheimer said that “the puppet master is more culpable than the puppet.”

The Sentencing of D.B.

On September 17, 2009, Stefanie Rengel’s actual killer was sentenced. The youth had pleaded guilty to first-degree murder in April 2009.

D.B. was four days short of his eighteenth birthday when he stabbed Rengel on January 1, 2008. The timing was crucial. An adult committing the same crime would receive an automatic life sentence with no parole for twenty-five years. “He bought himself 15 years right off the top,” noted crown attorney Robin Flumerfelt, who emphasized the planning that had gone into the murder. “This had been planned and deliberated for months,” said Flumerfelt. “It was not an impulsive act. It was a calculated scheme.”

Stefanie Rengel’s thirteen-year-old brother, Ian, made a victim impact statement at the hearing. He said, “Being four days shy of eighteen shouldn’t mean automatically knocking fifteen years off the sentence for first-degree murder. My sister Stefanie didn’t even get to live fifteen years.”

Judge Ian Nordheimer sentenced D.B. as an adult. He has now been identified as David Bagshaw, and his photograph has been released (Blatchford 2009c; 2009d; 2009f; “Cold Blood and Adult Penalties” 2009; “Evil Must Be Taken Into Account” 2009; Small 2009; “Teen Guilty of 1st-Degree Murder in Death of Stefanie Rengel, 14” 2009).

References and Further Reading

* Cited by the Supreme Court of Canada.

Alphonso, Caroline. 2008. “Youth Violence Tied to Racism, Report Says.” Globe and Mail, November 14.

Anand, Sanjeev S. 1999. “Catalyst for Change: The History of Canadian Juvenile Justice Reform.” 24 Queen’s Law Journal 515.*

Appleby, Timothy. 2008a. “Youth Homicides Up 3 Per Cent in 2006.” Globe and Mail, May 17.

_____. 2008b. “Report Seeks $100-million for Youth Programs.” Globe and Mail, November 14.

_____. 2009a. “Police Presence in High Schools Makes the Grade.” Globe and Mail, February 5.

_____. 2009b. “Sentenced to Life, Gunman in Creba Slaying Unmasked.” Globe and Mail, April 25.

Bala, Nicholas. 1990. “Dealing with Violent Young Offenders: Transfer to Adult Court and Bill C-58.” 9 Canadian Journal of Family Law 11.*

_____. 1994. “The 1995 Young Offenders Act Amendments: Compromise or Confusion?” 26 Ottawa Law Review 643.

_____. 1997. Young Offenders Law. Concord, ON: Irwin Law.*

_____. 2003. Youth Criminal Justice Law. Toronto: Irwin Law.*

Bala, Nicholas, and Mary-Anne Kirvan. 2000. “The Statute: Its Principles and Provisions and Their Interpretation by the Courts.” In Juvenile Crime and Delinquency: A Turn of the Century Reader, edited by Ruth M. Mann, 45. Toronto: Canadian Scholars’ Press.*

Blatchford, Christie. 2008. “Creba Jury Delivers Stunning Guilty Verdict.” Globe and Mail, December 8.

_____. 2009a. “How to Sentence Evil: As a Youth, or an Adult?” Globe and Mail, January 29.

_____. 2009b. “iPod Killer Gets Adult Sentence for Murder on Ottawa City Bus.” Globe and Mail, February 13.

_____. 2009c. “No Remorse, No Mercy for Teenage ‘Puppet Master’.” Globe and Mail, July 29.

_____. 2009d. “Rengel Killer Gets Life for ‘Truly Evil’ Crime.” Globe and Mail, September 28.

_____. 2009e. “A System Focused Too Heavily on the Rights of the Violent.” Globe and Mail, January 30.

_____. 2009f. “Yes, These are Teenagers, But Murder Isn’t a Phase.” Globe and Mail, July 27.

“Cold Blood and Adult Penalties.” 2009. Globe and Mail, March 24.

“Crown Seeks Adult Penalty in Creba Case.” 2008. Globe and Mail, December 11.

Department of Justice. A Strategy for the Renewal of Youth Justice. Ottawa, 1998.*

DiManno, Rosie. 2009. “Creba Killer Gets Life — and a Name.” Toronto Star, April 25.

Doob, Anthony, and Carla Cesaroni. 2004. Responding to Youth Crime in Canada. Toronto: University of Toronto Press.*

Doob, Anthony N., and Michael Tonry. 2004. “Varieties of Youth Justice.” In Youth Crime and Youth Justice: Comparative and Cross-National Perspectives. Chicago: University of Chicago Press.*

Doob, Anthony, Voula Marinos, and Kimberly N. Varma. 1995. Youth Crime and the Youth Justice System in Canada: A Research Perspective. Toronto: Centre of Criminology, University of Toronto.*

“Evil Must Be Taken Into Account.” 2009. Globe and Mail, July 29.

“Man, 20, Guilty of 2nd-Degree Murder in Jane Creba Shooting.” 2008. CBC.ca, December 8.

Manson, Allan. 2001. The Law of Sentencing. Toronto: Irwin Law.*

“Regina Teen Sentenced as Adult in Good Samaritan Killing.” 2008. Globe and Mail, November 28.

Rushowy, Kristin. 2007. “Last Spring’s Slaying of Jordan Manners, 15, Was Catalyst for Change at Troubled High School.” Toronto Star, December 26.

Sachs, Susan. 2008. “Report on Young Offenders Spurs Controversy in France.” Globe and Mail, December 15.

Seymour, Andrew. 2008. “Man Found Guilty of First-Degree Murder in Oatway Killing.” Ottawa Citizen, November 28.

“Sleight-of-Hand at the Supreme Court.” 2008. Globe and Mail, May 17.

Small, Peter. 2009. “‘No Sex Until Deed Done,’ Rengel Trial Told.” Toronto Star, March 20.

Sprott, Jane B. 1996. “Understanding Public Views of Youth Crime and the Youth Justice System.” 38 Canadian Journal of Criminology 271.*

_____. 1998. “Understanding Public Opposition to a Separate Youth Justice System.” 44 Crime and Delinquency 399.*

“Steinke Found Guilty of First-Degree Murder.” 2008. Globe and Mail, December 5.

“Teen Gets Maximum Sentence for Medicine Hat Killings.” 2007. CBC.ca, November 8.

“Teen Guilty of 1st-Degree Murder in Death of Stefanie Rengel, 14.” 2009. CBC.ca, March 20.

“Teen Sentenced as Adult in Michael Oatway Murder.” 2009. CTV.ca, February 12.