Court/Judicial body: Supreme Court of Canada
Date: May 16, 2008 CRC
Provisions: Article 40: Administration of juvenile justice
Domestic provisions: Youth Criminal Justice Act Canadian Charter of Rights and Freedoms (Section 7: due process in deprivation of life, liberty or security of the person)
Background: B, a 17-year old boy, got into a fight with R, another boy, during which B knocked R to the ground and punched him. Later that night, R died as a result of his injuries. B pleaded guilty to manslaughter. As a 17-year old, B was sentenced under the Youth Criminal Justice Act, which states that manslaughter is a “presumptive offence.” For presumtive offences, children aged 14 and over must be sentenced as adults unless they can prove that a youth sentence should be imposed. B sought a youth sentence and challenged the constitutionality of presumptive offences, claiming that they impose a “reverse onus” because they place the burden on the young person to persuade the court that he or she should not lose the benefit of the youth sentence, rather than on the Government to attempt to prove that an adult sentence is justified.
Issue and resolution: Juvenile justice. The Court agreed that imposing the burden on B to prove that he was eligible for a youth sentence was unconstitutional and that the burden should instead be placed on the prosecution to prove that an adult sentence should be imposed.
Court reasoning: The presumption of an adult sentence is inconsistent with the principle of fundamental justice that young people typically have diminished moral culpability as recognised in the CRC. This does not mean that an adult sentence cannot be imposed on a young person due to the seriousness or circumstances of the offence, but rather that the government should have the burden of proving beyond a reasonable doubt that an adult sentence would be warranted. Forcing children to prove that they should receive a youth sentence would fail to recognise their typically diminished moral blameworthiness. By depriving them of the benefit of their lesser culpability because of the offence they have committed, and by putting the burden on children to prove that they remain eligible for the protections to which their age ens them, including a youth sentence, the provisions in question infringe a principle of fundamental justice and are therefore unconstitutional.
Dissenting opinion: The presumptive offences regime is constitutional. Fundamental justice does not require that there always be a presumption of youth sentences for young persons. In enacting the presumptive offence scheme, it was appropriate for parliament to consider the competing interests, on the one hand, of young persons to have their reduced moral blameworthiness taken into account and, on the other, of society to be protected from violent young offenders. The presumptive offences regime is in accordance with principles of fundamental justice because it does not preclude a youth sentence where considered appropriate by a court. The presumptive sentencing regime simply provides for a higher range of sentences for young persons convicted of the most serious violent offences, but still provides young persons with the opportunity before a court to have the reduced youth sentence imposed.
Excerpt citing CRC and other relevant human rights [59-60] This legislative history confirms that the recognition of a presumption of diminished moral culpability for young persons is a long-standing legal principle. It is also a legal principle that finds expression in Canada’s international commitments. The United Nations Convention on the Rights of the Child, explicitly mentioned in the preamble to the Youth Criminal Justice Act, was ratified by Canada in 1992 (Can. T.S. 1992 No. 3). Paragraph 1 of art. 40 of the Convention states: “1. States Parties 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.
Notes:This issue was also addressed in January 2008 by the Alberta Court of Queen’s Bench in R. v. Bird, 2008 ABQB 48, available at http://www.adidem.org/images/2/2a/R._v._Bird,_Judgment.pdf. In that case, the Court similarly agreed that imposing the burden on a child to prove eligibility for a youth sentence was unconstitutional, finding that the burden should instead be placed on the prosecution to prove that an adult sentence should be imposed. Specifically, the Court found that the prosecution’s objective to hold young people accountable for serious violent offences was an important one, but that it would be disproportionate to presume that child offenders should be given adult sentences. The factors that must be weighed by the court in determining whether a young offender should be sentenced as a child or as an adult (the seriousness / circumstances of the offense; the age, maturity, character, background and previous record of the young person; and any other factors that the court considers relevant) can be proved by the prosecution as readily as by the young offender being sentenced.
CRIN comments: CRIN believes that this decision is consistent with the CRC in the sense that children should not be treated as adults in the criminal or juvenile justice systems. As noted by the Court, assuming that a child would be best served by an adult criminal sentence runs against Article 40 of the Convention. However, the Court’s assertion that adult sentences would be appropriate for children in some instances is troubling. CRIN believes that children should never be subjected to adult sentences; rather, the aims of juvenile justice as recognised in the CRC are rehabilitative as opposed to punitive. Accordingly, any sentence imposed on a child should promote that child’s reintegration and assumption of a constructive role in society.
Citation:  2 S.C.R. 3
Link to full judgement: http://canlii.ca/en/ca/scc/doc/2008/2008scc25/2008scc25.html