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By Joseph Neuberger
Neuberger & Partners LLP
Toronto was shocked last month when eight teenage girls were charged with second degree murder in the killing of a homeless man. Any homicide is always shocking—it strikes at our human sense of the wrongfulness of any unjustified extinguishing of life. This homicide was particularly shocking given the young age of the people accused of the crime.
That said, many politicians, police sources and members of the public made erroneous comments about the weakness of the Youth Criminal Justice Act (YCJA). These comments underscore this blog as to how serious a murder charge is under the YCJA.
In Canada, as in many other countries, the criminal justice system treats offences committed by those under 18 very differently than those committed by adults. No criminal charges can be laid against anyone before they reach the age of 12, per s. 13 of the Criminal Code. For those between the ages of 12 and 18, however, the YCJA applies.
The basic principle of the YCJA is that young people have diminished moral responsibility for their actions given their tender years, maturation and brain development. It recognizes that the justice system for young people must be kept separate from that for adults, and that it must emphasize the principles of rehabilitation and reintegration—while these principles are always to be considered in any criminal matter, the YCJA recognizes that for young people in particular, rehabilitating and reintegrating the offender is of paramount importance.
That is not to say that serious penalties are not available under the YCJA. While the general regime of the YCJA calls upon the courts to avoid custody where possible, certain particularly serious offences will have jail available as an option. For young people convicted of murder, custody is mandatory: s. 42 of the Act states that a young person shall serve a custodial sentence not to exceed 10 years in the case of first degree murder (comprised of 6 years of jail and then 4 years of supervision in the community) and in the case of second degree murder, a custodial sentence not to exceed 7 years, with no more than 4 years in custody followed by 3 years of supervision in the community. The Court also has the ability to sentence a young person to “intensive rehabilitative custody”, which involves treatment for mental health issues or emotional disturbances that may have played a part in the commission of the offence.
Sometimes, the Crown may be of the opinion that the penalties set out in the YCJA are inappropriate for one reason or another and seek an adult sentence. This is only open to the Crown if the offence was committed after the young person turned 14. The Crown must give notice to the young person before they enter a plea to their charges. If they do, then before the formal sentencing begins, there will be a hearing where the Crown will argue that an adult sentence should be imposed. The Crown needs to show that the normal presumption that the young person has reduced moral culpability is not true in the case of the offender, and that a youth sentence would not be of sufficient length to hold the young person accountable for the offending behaviour.
Finally, even if the Crown does satisfy the court that the offender deserves an adult sentence—the normal adult sentences for murder do not apply but are nonetheless serious periods of jail. The mandatory adult penalty for murder is always life imprisonment. For an adult convicted of murder, they may not apply for parole until 25 years have passed since their conviction. For an adult convicted of second-degree murder, the minimum parole ineligibility period is 10 years (but it may be more). For young people who receive adult sentences for murder, things are a bit different. The young person will still be sentenced to imprisonment for life—meaning that even if they get parole, they will be under the control of the parole system until they die—but the waiting period before they may apply for parole is shorter. If the young person was under 16 at the time of the offence, then the court may impose a parole ineligibility period between 5 and 7 years. If the young person is 16 or 17 and convicted of first-degree murder, then the parole ineligibility period will be 10 years. If the young person is 16 or 17 and convicted of second-degree murder, then the parole ineligibility period shall be 7 years.
As can be seen, the youth criminal justice system in Canada allows for a significant degree of flexibility. It creates a presumption of reduced moral culpability of the accused young person and provides for penalties that centre around rehabilitation and reintegration of the young person into the community. However, it also allows the Crown to rebut that presumption and seek an adult sentence if they can prove that in the circumstances of the offence, that a youth sentence would be insufficient to hold the young person accountable for their behaviour. The YCJA thus provides both for the rehabilitation and reintegration of young offenders when it is possible, but also allows for harsher and more punitive penalties to be invoked when the circumstances of the offence and the offender call for it. A conviction for first or second degree murder under the YCJA is not in anyway insignificant or weak. It is a serious and harsh sentence.