Sentencing Kids to Life: New approaches for challenging youth life sentences under Section 12 of the Charter.

• Author: Nasr, Leila

Introduction I. A Short History of Juvenile Justice in Canadian Law A. Adult and Life Sentences Under The YCJA II. The "Two Tracks" of Section 12 Analysis III. The "Severity Track" and The Science of Youth Culpability A. Historical Perspectives on Youth Culpability for Criminal Acts B. Biological Perspectives on Youth Culpability for Criminal Acts IV. The "Methods Track" and The Inherent Cruelty of Youth Life Sentences A. Effects-based Analysis of Youth Life Sentences Conclusion Introduction

The United Nations Committee on the Rights of the Child (UNCRC) has long recommended states abolish all forms of life sentences for children. In General Comment 10, the UNCRC made it clear that any form of life imprisonment for children--even where there is the possibility of release on parole--will make achieving the fundamental aims of juvenile justice and rehabilitation exceedingly difficult. (1) Until now, youth crime legislation and jurisprudence in Canada has approached life sentences for youth as a question of when it is permissible to impose one. This approach has stifled critical analysis by ignoring an important possibility: that sentencing a young person to life, as the UNCRC maintains, is always unacceptable.

Much of the North American scholarship on youth crime, life sentences, and cruel and unusual punishment has focused on the fact that, unlike the US, at least Canada does not use the death penalty or life sentences without the possibility of parole on youth. (2) Instead, we would do well to refocus our attention on how youth sentencing is approached relative to the constitutional protections that are owed to youth in Canada. With a view to eradicating them, this research canvasses new opportunities for arguing youth life sentences will always be grossly disproportionate and intolerable per se in Canada and, therefore, violate section 12 of the Charter.

Following a brief review of the history of youth criminal justice legislation in Canada, this paper canvases two areas where support for this proposition can be found within section 12, which holds that "[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment." (3) To frame each of these arguments, I use what Benjamin Berger and Lisa Kerr have termed the two "tracks" of section 12 analysis. (4) The first track, called the "severity" track, focuses on whether a sentence is grossly disproportionate in relation to the nature of the offence, the circumstances of the case, and the personal context of the individuals responsible. Along these lines, the first part of this paper considers how recent neurobiological research on young peoples capacity for rational decision-making casts doubt on the arbitrary age-based youth-adult culpability distinction in the Canadian justice system. In doing so, it suggests that a court's decision to effectively assign adult culpability to a youth when they are sentenced to life is out of step with science and will always be grossly disproportionate and severe, therefore amounting to a violation of section 12.

The second type of analysis available under section 12 is referred to as the "methods" track. This track assesses whether a sentence is unconstitutional purely because of the intolerable effects that a particular type of punishment has on those it is applied to. Rather than focusing on the proportionality between the circumstances of the crime and the individual responsible, the methods track invites us to consider whether life sentences are an inherently unacceptable form of youth punishment and will therefore always violate section 12. This track has been underutilized in the case law to date but has found expression in recent appeallate courts and Supreme Court of Canada decisions that strongly suggest a judicial openness to methods-based arguments.

1. A Short History of Juvenile Justice in Canadian Law

   Before expanding on the two tracks of analysis, I explore the legal frameworks governing youth crime in Canada to understand the evolution of perceptions of youth culpability and punishment over time. I then discuss the impact of this on historical and current sentencing regimes for youth who commit serious offences. In doing so, I highlight the arbitrary nature of distinctions made between youth and adult culpability for criminal activity, showing there is potential for further inquiry into the appropriateness of this separation with respect to section 12 analyses.

   Throughout the eighteenth century in Anglo-European jurisdictions, juveniles were rarely the subject of court proceedings and society did not tend to think of them as a separate, threatening problem requiring specialized attention. (5) European legal systems made little distinction between children and adults who committed crimes at this time, but this meant that some youth who did commit crimes received severe punishments, including the death penalty. (6) By the mid-nineteenth century, however, so-called "juvenile delinquency" had become a key source of anxiety among the wealthy and propertied classes. (7) Bolstered by a growing acknowledgement that youth were less culpable than adults for criminal behaviour on account of their age and (im)maturity, distinct penal policies and trial procedures began to be created for children who committed criminal acts. (8)

   In Canada, approaches to youth crime prior to the 1900s largely mirrored those of England and France, though sanctions for youth were not consistently applied between provinces. (9) While Quebec was thought of as having a relatively "enlightened" approach to the treatment of youth who committed crimes, other provinces such as British Columbia had a reputation for being far less tolerant of youth crime--especially when it came to violent offences. (10) According to the Department of Justice Canada, the first federal legislation on youth crime was enacted in 1894: The Act Respecting Arrest, Trial and Imprisonment of Youthful Offenders. (11) In response to growing consensus in the international community about the need to create a separate juvenile justice system, (12) the Act was extended in 1908 by the introduction of the Juvenile Delinquent's Act (JDA). (13) Both of these early legislative approaches to youth crime prioritized guidance, treatment, and rehabilitation, focusing on the young person and their needs, rather than on the nature or seriousness of the crime as the primary determinant of an appropriate sentence. (14) Nonetheless, the JDA still exposed youth to the possibility of severe sanctions such as life sentences and the death penalty (at least until capital punishment was abolished in 1976). (15) Section 9(1) of the Act allowed children 14 years and older to be tried in adult courts where they were accused of committing an indictable offence, and where the court was "of the opinion that the good of the child and the interest of the community demanded it". (16) These sentencing options were not otherwise available for youth tried and sentenced directly under the JDA. (17)

   Over time, the rehabilitative focus of the JDA was tested by youth who committed serious and violent crimes or who appeared "impervious to rehabilitation" (though critics note that this perspective was more due to the use of weak rehabilitation strategies, rather than an innate lack of capacity for some youth to benefit from rehabilitation). (18) Although the JDA offered diverse sentencing options, and although restrictions on the range of available punishments created considerable space for individualized sentences, this was also the basis of its core critique that it allowed for too much discretion in sentencing and produced inconsistent treatment among youth. (19) For instance, the JDA allowed provinces to define the maximum age of "youth", meaning a 17-year-old convicted in Quebec would receive a lighter sentence than someone convicted of the same offence in Ontario. The latter would be automatically transferred to an adult court. (20) A lack of due process, failure to balance youth welfare and rights with legal, political, and other priorities, and the overuse of custodial sentences quickly became defining features of the JDA era. (21) Following the enactment of the Canadian Bill of Rights (22) in 1960 and the Canadian Charter of Rights and Freedoms ("Charter") (23) in 1982, it became apparent that major changes were needed to address the inconsistencies between the JDA and the protections recognized in the Charter, including equality before the law (section 15) which was undermined by the interprovincial variation in the age of criminal culpability, among other things.

   After a number of successful Charter challenges against various parts of the JDA (24) it was replaced by the Young Offenders Act (YOA) in 1984. (25) The YOA responded to the limitations of the JDA by emphasizing children's procedural and substantive rights, better aligning youth crime legislation with the Charter. (26) Age-based inequalities between provinces were alleviated by the creation of a uniform national age bracket for youth culpability, from 12 to 18 years old. (27) The YOA also better protected children's due process rights and emphasized community-based solutions to youth convicted of crimes. (28)

   Indeterminate sentencing was prohibited, and sentences for crimes that would ordinarily be met with a life sentence if committed by an adult were capped at three years. (29) However, some scholars say this cap may have contributed to an increase in relatively young individuals being transferred to adult courts if they had committed serious crimes, given that fourteen years remained the minimum age for adult court transfers. (30) Finally, although one of the stated goals of the YOA was diversion from custodial and residential sentences, detention was used even more frequently by judges in youth sentencing than it had been under prior legislation. According to Minkes, "[c]ourts still saw custodial...