Supreme Court to rule if youths have charter right to alternative justice

A senseless crime at a Hamilton, Ont., shopping mall in 2003 comes to its legal conclusion Friday when that fundamental question is answered by the Supreme Court of Canada.

The potentially far-reaching ruling comes on the 100th anniversary of Canada's juvenile justice system, and could affect Conservative proposals to once more toughen up the Youth Criminal Justice Act.

At issue is a six-year-old provision that compels adolescents convicted of some serious crimes - including murder, manslaughter and aggravated sexual assault - to convince the court they should not be sentenced as adults.

This reverse onus on sentencing, brought in by the previous Liberal government in 2002, has been found unconstitutional by appeal courts in Quebec and Ontario. B.C.'s appeal court upheld it.

The highest court in the land delivers the final say Friday.

"This case really deals with the question of whether there is a fundamental, constitutional right under the charter for adolescents to be treated differently from adults," said Nicholas Bala, a legal expert in youth justice at Queen's University in Kingston, Ont.

The ruling comes a century after the first Juvenile Delinquents Act was established in 1908.

If the court says there is such a charter right, then the Youth Criminal Justice Act is no longer simply legislation, but becomes an extension of the Constitution, said Bala.

"It has the potential to be the most significant case about juvenile justice in the 100 years since we've had a juvenile justice system," said Bala.

Should the court rule there is no such right, then governments can rewrite the law to treat adolescents as adults.

The Conservatives, said Bala, "are certainly moving in that direction."

The government is awaiting the court judgment as it contemplates a "comprehensive review" of the Youth Criminal Justice Act this year.

Last November, Justice Minister Rob Nicholson proposed getting rid of the reverse onus on adult sentencing and instead making the stiffer terms automatic for certain serious crimes. That, too, has been put on hold awaiting Friday's ruling.

The Supreme Court has previously ruled that deterrence cannot be a factor in youth sentencing, and that mandatory DNA orders cannot be enforced on adolescent offenders.

But both those judgments dealt with legal interpretations, not charter rights, said David MacAllister, a legal expert at Simon Fraser University.

Depending on how the judgment is written, said MacAllister, "the Harper government could essentially be prohibited from amending the act to treat young people as adults."

Heidi Hollisworth, executive director of the Canadian Resource Centre for Victims of Crime, said balancing public safety with adolescent rights is at the heart of the matter.

The centre, which is funded by the Canadian Police Association, supports a separate youth criminal justice system and the diversion and intervention measures built into the model.

But once a serious violent crime has occurred, said Hollisworth, those stages have been "bypassed."

"Serious harm has been done, so now what do we do when we're looking at this young person? We need to make sure the public is protected from this sort of behaviour."

The specific case involves an all-too-mundane crime.

A 17-year-old youth, already under two probation orders, got into an altercation at a Hamilton mall that involved six people in total.

After taking the matter outside, the offender "sucker-punched" the victim and continued the beating after the 18-year-old fell to the ground, knocking him unconscious.

The victim died later that night, and a post mortem showed his death was a direct result of the assault. The offender pleaded guilty to manslaughter and was sentenced to three years - not the five-year adult sentence sought by the Crown.