Eight teenage girls, three of them just 13 years old, have been charged with second-degree murder in the stabbing death of a man in Toronto this week. Canada, like most countries, has a youth justice system separate from the adult system. Sean Fine reports on where the principles, and punishments, differ in the two systems.
What is the most important thing to know about the youth system?
It’s premised on the idea that young people have diminished moral responsibility for their actions. Awareness has grown of “an ongoing cognitive development stage that happens into our 20s, and in particular around executive functioning and impulse control,” says Mary Birdsell, executive director of the legal aid clinic Justice for Children and Youth.
What ages does it apply to?
Twelve to 17, under the Youth Criminal Justice Act, or YCJA. Children under 12 can’t be charged.
Surely they know right from wrong at those ages.
Yes, they are still accountable for their actions. “Decidedly but differently accountable,” is how former Supreme Court justice Rosalie Abella put it. For instance, they can’t be publicly identified (unless sentenced as an adult), so as to improve their chance at reintegration.
Can youth seek bail on charges as serious as murder?
Bail is possible even for adults on murder charges. But “there’s an increased presumption that young people should be released ... into the care of a responsible person,” criminal defence lawyer Dirk Derstine says. A case with multiple accused people, and still under investigation, could take a couple of years to come to trial. And the youth system embodies the belief that custody harms young people, reserving it for the most violent or repeat offenders. Custody rates under the 2003 YCJA are down roughly 80 per cent from the 1984-2003 period under the Young Offenders Act, according to criminology professor Jane Sprott of Toronto Metropolitan University.
How might an accused person’s age affect the question of their guilt or innocence?
The Crown bears the same burden as it does with adults: to show that they are guilty beyond a reasonable doubt. Younger teenagers charged alongside older ones may argue that they acted under duress, but 18 year olds could try the same argument if charged with 21 year olds, Mr. Derstine says.
Can youths be tried as adults?
It doesn’t work that way any more. All youth are tried in Youth Court. If they’re found guilty, there’s a hearing to decide if they should be sentenced as adults. In many U.S. jurisdictions, prosecutors make the decision, not judges, whether to try an individual as an adult, Queen’s University law professor Nicholas Bala says. The United States is far more punitive: Several states had capital punishment for 16 and 17 year olds as recently as 2005, when the U.S. Supreme Court ruled it unconstitutional.
Can 13 year olds be sentenced as adults?
No. “It’s a recognition of the early stage of adolescent development that 12 and 13 year olds are in,” Ms. Birdsell said. For a while, federal law presumed that in murder and other serious violent crimes, adult sentences would be given to those 14 to 17, unless the accused could show why they deserved a youth sentence. But the Supreme Court struck that presumption down in 2008 as inconsistent with the diminished responsibility of youth.
So how do courts decide if someone deserves an adult sentence?
It’s based on the nature of the crime and of the individual. Was it planned and premeditated, showing evidence of maturity? Was it on impulse, a type of conduct more associated with adolescents? ”The question at its core is: Does this young person display behaviours that make them seem more adult or more adolescent in their approach?” Ms. Birdsell said.
So judges can’t send a tough message, based on the crime itself?
Sending a message to young people in the community is not believed to work, Ms. Birdsell and Mr. Derstine said. The question is more likely to be whether the youth sentence is enough to protect the public and rehabilitate the offender. Though the statistics aren’t easy to come by, those who work in the system such as Ms. Birdsell say adult sentences are rare, and reserved for the most egregious cases.
But the possibility remains for an adult sentence for murder?
Adult-like, let’s say. It’s a hybrid of adult and youth. Adults who commit second-degree murder receive a mandatory minimum of life, with first parole eligibility set by a judge at 10 to 25 years. Youth sentenced as adults at 16 or 17 are eligible for parole after seven years; at the age of 14 or 15, they are eligible after five to seven years (even for first-degree murder).
What is the punishment for second-degree murder if an offender is sentenced as a youth?
Four years in custody plus three years under community supervision.