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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