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The Globe and Mail

Court strikes down part of youth justice act

The Globe and Mail, Canada's largest national newspaper, By RICHARD BLACKWELL, March 25, 2006

Ontario's top court has struck down sections of the Youth Criminal Justice Act that forced some young offenders to prove that they shouldn't get adult sentences.

Three judges of the Ontario Court of Appeal said yesterday that those rules breach the Charter of Rights and Freedoms, and that it should be up to the prosecutor to make the case that a serious youth crime should draw an adult sentence.

The judges also came out strongly in support of Canada's separate justice system for youth -- a message welcomed by activists who were concerned about pre-election calls from some politicians to have more young people tried and sentenced as adults.

Yesterday's ruling dealt with the case of a young man -- he can't be identified -- who got involved in a brawl at a Hamilton, Ont., shopping mall when he was 17.

He punched another young man in the head, jumped on him when he fell, and punched him several more times. The victim died of his injuries.

The accused pleaded guilty in Ontario Superior Court, but when it came time for sentencing, his lawyers successfully challenged some sections of the Youth Criminal Justice Act as unconstitutional. The Crown appealed and the case then went to the Court of Appeal.

The key issue involves sections of the act that say that anyone between 14 and 17 who is convicted of murder, attempted murder, manslaughter or aggravated sexual assault can be given a longer, adult sentence.

The prosecution doesn't have to prove that the longer sentence is warranted, the law says, but the defence must persuade the court if it disagrees.

Essentially, the act says "an adult sentence is presumed unless the young person can satisfy the court otherwise," Mr. Justice Stephen Goudge wrote in the appeals court decision.

That requirement goes against Section 7 of the Charter of Rights and Freedoms, which promises everyone fundamental justice, he said in upholding the lower court decision to strike down those sections of the act.

He came to a similar conclusion on the issue of whether young offenders must persuade a court that their identity should be concealed after sentencing. Again, the law is wrong to place that onus on the defendant rather than the prosecution, Judge Goudge wrote.

Yesterday's ruling puts Ontario in line with an earlier decision of the Quebec Court of Appeal. However, British Columbia's top court ruled the opposite way a few weeks ago.

In a case involving a 17-year-old who killed an older man with a baseball bat, a panel of three B.C. Court of Appeal judges said it is reasonable to require a convicted young person to demonstrate that he or she should be sentenced as a youth.

Because of the conflicting rulings, the issue may eventually make its way to the Supreme Court of Canada for a final decision.

A spokesman for the Ontario Attorney-General said the government is reviewing yesterday's decision "with respect to the possibility of an appeal to the Supreme Court."

While the Ontario court's decision on the sentencing provisions in the act is important, the judge's comments on the value of the entire youth justice system is even more fatal, said Cheryl Milne, a lawyer for the Canadian Foundation for Children, Youth and the Law, which intervened in the case.

Judge Goudge wrote that having a separate system for young people "is fundamental to our societal notion of justice."