The Principles of Fundemental Justice
This is a phrase that no Conservative or their supporters understands, it seems. It was based on this part of our protections under Section 7 of the Charter that the Supreme Court ruled unconstitutional the reverse onus clause of the Youth Criminal Justice Act (formerly the YOA).
The decision states that provisions of the act requiring youths convicted of serious crimes to prove to the courts that they should not be treated as adults for sentencing, that they should, in fact, be treated as youths, is unconstitutional and violates the rights of due process of the Charter.
Its a good decision and very straightforward. It means that if the Crown wants to sentence a 14 - 17 year old to an adult sentence, they need to prove they deserve this sentence. Just as they need to prove beyond a reasonable doubt that the teen committed the crime in question, including the mens rea (literally, 'guilty mind' or intent) of the crime. This has been a requirement of our criminal justice system since at least the Magna Carta.
But, if you read the comments section on the CBC link above, you can see conservative hand wringing, pearl clutching and ignorant anger on display:
" kids know they can get away with murder."
"The 'Supreme' Court has, once again, through their decisions declared open-season on the law-abiding citizens of this country."
"Time to bring back corporal punishment."
You get the idea - more slack-jawed yammering from ignorant troglodytes who, curiously, have no problem at all treating teens differently and NOT like adults, when it comes to say, driving a car, buying a drink or having sex with the partner of their choice. Funny that.
Nothing in the ruling says that a teen who commits a serious crime can't be tried or sentenced as an adult, it merely states that the Crown must prove that they are mature enough to be held as culpable as an adult, rather than the defendant prove they are not (since, technically, its impossible to prove a negative). Indeed, I would posit that this ruling forces the courts to treat youthful offenders in the same manner they treat adults - that is, it is up to the Crown to prove all aspects of the case, including the appropriate sentence, rather than assuming the defendant must prove they are NOT worthy of a sentence, just as they do with adults.
The logic of the law, before the Supreme Court decision today, was this:
"Teens are mature enough to make moral decisions regarding criminal acts and therefore they must prove to the court that they are NOT capable of making those decisions, so we should treat them differently in regards to charging and sentencing"
Now lets apply the very same reverse onus logic to the way we treat teens in other aspects of life and law:
"Teens are mature enough to make moral decisions regarding sexual acts and therefore they must prove to the court that they are NOT capable of making those decisions so we should treat them differently in regards to the age of consent"
"Teens are mature enough to make moral decisions regarding drinking and therefore they must prove to the court that they are NOT capable of making those decisions so we should treat them differently in regards to buying and consuming alcohol"
"Teens are mature enough to make moral decisions regarding voting and therefore they must prove to the court that they are NOT capable of making those decisions so we should treat them differently in regards to the enfranchisement"
I don't think there is a Conservative or conservative out there that would agree with any of those. It takes some kind of cognitive dissonance to think its ok to apply that logic to crime.
The ruling recognizes that we treat teens different, because they are different. They are not adults, nor are they children with no culpability. And if the Crown wants to treat them as adults, because a particular teen offender is mature enough, they ought to be forced to prove why they should, on a case by case basis, in a court (which, incidentally, was an integral part of the original YOA in 1984 and was not changed until this reverse onus was brought in - by the Liberals). Even kids are innocent until proven guilty and the sentence should fit both the crime and the offender.
Considering our crime rate is at a 30-year low, including youth crime, I'd say most of this hand-wringing by Conservatives over this is out of proportion with reality. But since when have they used reality for the basis of their dogma?
Once again, the Conservatives are wrong.
Labels: authoritarianism, Bed-Wetting Conservatives, Justice, so-con idiots
posted by Mike @ 12:23 PM
9 comments
9 Comments:
Nice argument Mike. I read the decision and I agree.
Agreed. The presumption of innocence and the obligation on the prosecution and not the defendant to produce evidence of guilt or culpability is a paramount mark of civilized jurisprudence, regardless of age or any other criteria. That's one of the big problems with tribunals and commissions rather than courts as well.
Mike, why would you expect them to understand traditional judicial concepts such as natural justice? What Ayatollah, what Mullah heeds such things?
Hey Mike, this law was introduced by the LIBERALS.
Your partisanship outbounds your attachment to reality, yet again.
You should really read the articles you link to, it would avoid you looking like a fool.
Furthermore, perhaps you should address the root issue as stated by the dissenting judges in A TOTALLY SPLIT DECISION:
Four of the court's nine justices, however, gave a dissenting opinion. They said that, when it comes to violent young offenders, it is "entirely appropriate" for Parliament to consider the competing interests of public safety and the reduced moral blameworthiness of youth.
"Hey Mike, this law was introduced by the LIBERALS"
Hey anon, I know, that's why I said this:
" and was not changed until this reverse onus was brought in - by the Liberals"
But I understand you reading comprehension is poor, so I understand why you missed that.
And yes it is "entirely appropriate" for Parliament to consider the competing interests of public safety and the reduced moral blameworthiness of youth, but it is not appropriate to do so using a reverse onus clause, where the young person is guilty until they prove themselves innocent. There is no youth crime wave so great as to chuck out one of our principles of fundamental justice which has been a cornerstone of western jurisprudence since 1215.
So thanks, anon, for proving the very point I was making, that Conservatives do understand this.
So, are you now going to tell me that a 15 year old that commits and assault should be sentenced as an adult, but if that same 15 year old decides to have sex, then they should be treated as a child, because well that's different, right? I mean in the fist instance the kid clearly has the moral capacity to know right from wrong, and int eh second the kid clearly does not have the moral capacity to know right from wrong.
Right?
Gawd you guys are stupid.
Ooops,
Should read "that Conservatives do not understand this".
Big fingers, little keyboard.
:D
I have to agree with you. If you take this reverse onus nonsense to its completely logical end, a 40 year old man having sex with a 12 year old girl could not be charged with statutory rape until the girl could prove that she wasn't mature enough to have sex.
Obviously bogus. Why should she have to prove that? The onus is absolutely the other way in every other case.
"FUNDAMENTAL"
D'oh!
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