On the issues: Law and order


Is Harper’s proposal to impose harsher sentences on teenaged criminals constitutional?

The usual reaction to a controversial campaign platform announcement is to ask: Is it good or bad policy? Stephen Harper’s proposal to impose harsher sentences on teenaged criminals, and to allow their names to be published, raises a starker question: Would it be constitutional?

The policy, unveiled by Harper on Monday as part of a wider Conservative law and order thrust, proposes several changes to the treatment of young criminals. Firstly, he said offenders 14 and older will “face enhanced youth sentences” if they are convicted of violent crimes, including life sentences for first- or second-degree murder. Secondly, he said offenders convicted of certain violent crimes would automatically be subject to those tougher sentences, and, unlike all other young offenders, their names could be published.

The problem is that Harper’s policy flies in the face of a fairly fresh ruling from the Supreme Court of Canada. In a decision last May, the court struck down provisions in the Youth Criminal Justice Act that forced lawyers for young offenders found guilty of serious crimes to prove why they shouldn’t be sentenced like adults, and why they shouldn’t have their names publicized. Justice Rosalie Abella, who penned the majority ruling in the 5-4 split decision, said those so-called reverse onus provisions ignored the principle that young people who commit crimes are less morally at fault because of their age. She said the provisions infringed “a principle of fundamental justice,” and thus violated the Charter of Rights and Freedoms. Abella’s stature as an icon of liberal jurisprudence guaranteed an angry response from the government. Justice Minister Rob Nicholson implied that by making it impossible to hand out adult-like sentences, and name offenders publicly, the court was stripping the system of its deterrent power. “I believe,” he said, “that our youth criminal justice system must effectively hold young offenders accountable for serious crimes with meaningful consequences.”

Still, the decision stands. And that means the new provisions proposed by Harper on the campaign trail would be challenged in the courts, and, according to some legal scholars, be almost certainly struck down. “In light of [last May’s] decision, some of the proposals the Conservatives have brought forward—including life sentences for teenaged murderers, as well as identifying those charged—are likely constitutionally dead on arrival,” said James Stribopoulos, a criminal law professor at York University’s Osgoode Hall Law School. “I think the Conservatives are well advised, which leaves one with the impression that this is pure politics.”

Not so, insist the Tories. A Conservative campaign official, who asked not to be quoted by name, said the new policy is careful not to suggest treating young offenders like adults, which was the aim of the provisions the court outlawed. Instead, the new policy proposes “enhanced youth sentences,” which the Tories insist is not the same thing. As well, the names of young offenders would only be published in combination with these enhanced sentences, again suggesting they are not exactly being treated as adults.

It’s a fine distinction, though. Is there a difference between sentencing an adult to life in prison and sentencing a young offender to life? What’s the difference between a 15-year-old criminal’s name making the front pages and a 25-year-old’s?

Harper alluded to the notion that the rights of young offenders are indeed different, but he argued that other rights trump them in the case of violent crime. “Of course offenders have rights,” he said, “but we believe those rights must be balanced with responsibilities, and that victims have rights too.”

Assuming he wins the election and enacts his reforms, it seems certain that it will be up to the courts, and ultimately the Supreme Court, to decide if his reforms get that balance right.

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On the issues: Law and order

  1. In the future (assuming no runaway AGW) we’ll recognize a third category of sentencing for these between puberty and mid-20s when a person’s brain stops being “plastic”. Harsher and cheaper sentences for +25 yr old adult repeat violent offenders, more leniency to the young.
    Dion’s decriminalization platform and Kelowna Accord are the cheapest ways to fight violent crime. Harper is campaigning on a platform of raping children and upticking in the polls. Too much USA TV, dummies. They spend more on prisons than Universities and I guess that’s where we’re headed…

  2. Didn’t Harper appoint a judge just before dropping the writ, or was that a lower court appointment? Are there any judges due/anticipated to retire within the next few years, or is Harper again trying to create a ‘crisis’ issue in which to attack the courts. It seems his patience for ‘incremental changes’ isn’t holding up… But when so many say ‘Yah!’ or ‘Whatever~’ to these kinds of wacked-out policy ideas, we may be heading to lowest common denominator status.

  3. “Stephen Harper’s proposal to impose harsher sentences on teenaged criminals, and to allow their names to be published, raises a starker question: Would it be constitutional?”

    The even starker question is: Does Harper care if it is constitutional?

    After all, any constitutional challenge will be heard looooong after the votes are in. And that is the point.

  4. Does he care if it’s constitutional?


    He’d love nothing more than to have the Supreme Court strike it down. It would launch 100,000 fundraising letters.

    Meanwhile, where is Maclean’s on Harper’s brainwave to “assymetrize” the appliction of the criminal law for Quebec’s sake?

  5. With respect, I would disagree with Prof Stribopoulos. It will depend in part of the details, but the D.B. decision to which you refer says (in the headnote) that the principle “does not mean that an adult sentence cannot be imposed on a young person. It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age.” Already we know that PM Harper’s proposal sorts offences by their seriousness. It may turn out that this is enough. If it is combined with differences in rehabilitation programs and a discretion in sentencing not available in trials of adults, then I see very little likelihood of a successful challenge…

  6. Yes David. It’s insane that we aren’t raising more fuss about different legal standards: one for regions Harper needs to win seats in, and a different standard for the areas he can take for granted.

  7. It’s worth noting that harper probably has the least legal understanding of any prime minister in Canadian history. His comments soon after the Supreme Court’s gay marriage reference were especially disturbing – not that he disagreed with it, but that he didn’t understand what it meant. Add to this the Calgary School notion of the illegitimacy of common law itself, and you’re going to get weird legislative policy.

  8. with respect Mike T,I can help but wonder if you are not correct.

    Does this proposed reform share an MO with the fixed elections date law? Potentially a second case of the PM achieving his objective (known in this case, unknown in the fixed election date law) via tight and carefully worded legislation that meets the technical specification of the law.

  9. Well, since the SCC would seem to rather write and “read in” all sorts of law on its own, I suppose it’s a crap shoot whether anything Parliament spits out will please the beast.

  10. I fully agree with Harper. We need the ability to better nail the young delinquents of society for their antisocial and unlawful behavior.

  11. Eight gun crimes committed in toronto in the span of a week and not one of the perpetrators was an adult.

    They know they will get a slap on the wrist, so they are better of in jail in isolation for a good long stretch guaranteeing they won’t be doing any more crimes.

  12. Somehow I just can’t quite agree that youthful offenders have some quality that makes them “less morally at fault because of their age”. To state that a 16 year old is less morally wrong when committing an offence than a 24 year old and is less aware of the principles that our society uses to determine right and wrong is somehow incorrect. It is just as morally wrong for a 4 year old to strike a playmate in anger as it is for an adult to beat up a family member in a rage. The age of the miscreant is completely irrevelant to the morals of the situation. It is wrong to hurt other people. Period. Children know this!

    The difficulty arises when we as a society or family attempt to remedy an injustice. We naturally punish a small childs’ angry outbursts of violence in a less severe manner than we would an adult.

    One writer above mentioned the eight gun crimes in Toronto in one week. It’s my view that if a person above some certain age has the means, knowledge and desire to obtain a gun and use it to kill, then they should be treated like anyone else. The rub of the matter arises when we attempt to bring the criminal to justice. At what age does a person obtain the self control needed to live independently? At what point does the right of the public to a safe community outweigh the rights of a criminal to not be unjustly punished.

    Most Canadians, I feel, agree that treating first time youthful offenders like hardened criminals is unjust. Yet, there’s no way I can agree that anyone can be less morally at fault for a wrong than anyone else, barring situations such as mental or psychological incompetence.

    One persons’ morals can be less mature, or more so than another persons’, but the distinction between right and wrong is still there and it is no less distinct. To say a youth is less morally at fault for a wrong is inaccurate. They may be held to differing amounts of punishment, but the morals are pretty well absolute.

    Anyone old enough to talk and interact with others learns quickly that hurting others is wrong, and will be punished if they get caught.

    We should make the punishment fit both the crime and the individual, but we must also not lose sight of making the punishment fit the community. Treating street gang members who kill like a 6 year old who has struck another in anger is not sufficient.

  13. The difficulty you’re running into, Steve, is that you’re placing “punishment” as the first priority of the justice system.

    Put the welfare of society first, and then it tends to become more clear; as instead of relying on emotional reactions and subjective judgements as to what is “fair” or not we can look at the various statistics and research out there and find what objectively works best.

  14. Privatizing the country’s prions is “a catastrophic idea,”
    he told The Huffington Post Canada during an editorial lunch meeting.

    A privatized prison “is like any other business. They want it to be bigger. So there is this constant agitation by
    shareholders … to have stricter laws, longer sentences, more criminal statutes,
    bigger prison populations.”


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