The Supreme Court of Canada helped bring on the Conservative Party's election promise of a tough new young offender law by striking down a delicate compromise in the current law in May. By overreaching, the court provoked the in-your-face response of Stephen Harper, the Conservative Leader. Such is the dialogue that the court is supposed to have with Parliament.
Mr. Harper has proposed a law that is at least as punitive as the law struck down, or more so. Politically, the proposal has the added benefit of telling Conservative supporters the party is standing up to activist judges. What's more, its new, tougher proposal may yet pass muster with the Supreme Court.
Young people aged 14 to 17 who commit crimes may receive youth penalties or adult ones, depending on how a judge views the seriousness of their crime and their prospects for rehabilitation. The Youth Criminal Justice Act, passed by the Liberal government in 2002, presumed that young persons of 14 and up who committed extremely violent offences such as murder or three serious violent offences would receive adult penalties.
The Supreme Court objected to this “reverse onus” and in a 5-4 ruling said that it violated a fundamental principle of justice, namely “that young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment. That is why there is a separate legal and sentencing regime for them.”
There are two problems with this reasoning. First, the regime was by definition a separate one. A convicted youth could argue against the presumption (in fact the judge had to invite him to do so); and some of the adult parole provisions have been modified for youth.
Second, as Mr. Justice Marshall Rothstein wrote in dissent, fundamental justice “does not require that there always be a presumption of youth sentences for young persons.” How a 17-year-old (or a 14-year-old, for that matter) is held accountable and punished for intentionally killing someone is a matter for Parliament, not the courts, unless that punishment is grossly excessive or inhumane.
When the court made it tougher to sentence a young person as an adult, the Conservatives came up with a clever solution: make youth penalties similar to adult ones. The adult penalty for first-degree murder is an automatic life sentence; the new maximum youth penalty, under the Harper proposal, would also be life (with parole, though its provisions haven't been stated yet). And why shouldn't the courts accept this? It's a maximum; judges will still have leeway they don't have with adults.
Chief Justice Beverley McLachlin has said that, if Parliament makes a reasonable choice in limiting a right, the court will generally sustain it. In this case, the judges objected to a reasonable choice, and that is why Mr. Harper has thrown another, even tougher choice, right back at them.
