The basic reasoning for each side is as follows:
The majority (the side whose opinion stands) essentially argues as follows: Because...
The dissent basically concludes that because they're not convinced of position (a) made by the majority, the rest of the argument is irrelevant.
A couple of comments:
1) There was a lot of talk about "Liberal-appointed judges" on the radio. That, if I may say so respectfully, is bunkum as far as criticism goes. Essentially, the judgement was 5-4; seven of the nine judges on the court were Liberal-appointed, for whom the numbers were 4-3. One Conservative-appointed judge (Rothstein) led the dissent. The other, the Chief Justice of Canada, Beverly McLachlin (also known as, apparently, the nicest evidence prof UBC Law has ever had), was originally appointed by Mulroney. In other words, this split is essentially the same among Conservative- or Liberal-appointed judges.
2) I'm not sure the backgrounds of the judges matter in influencing the decision. The judge who wrote the majority decision is an expert in human rights law. The Supreme Court's token expert on criminal law agreed with her. On the other hand, the one who had worked as a Crown attorney agreed with the dissent.
3) Ultimately, very little will come of this. The decision is symbolic. It's not as though the Crown won't have the opportunity to try brutal juvenile criminals as adults. It just means that the Crown will have to prove just how brutal these kids were in much the same way we have to prove that the kid did it to begin with.
3 comments:
The general presumption going on here is that youth under 18 have less capacity to rationalize their behavior and "don't know any better".
What I'd like to know is: are there any recent studies to show that this presumption is actually true? Somehow I doubt it.
And even if we accept that youth really don't have the intellectual or emotional capacity to stay straight, we can't ignore the fact that they're getting more and more vicious and irreverent every year. And why? Because of the bleeding hearts that have managed to get any sort of accountability and punishment out of the schools. Kids know they can do pretty much anything without real consequences and this is a powerful reinforcement of behavior.
"What I'd like to know is: are there any recent studies to show that this presumption is actually true? Somehow I doubt it."
The forgettable criminologist they had on the radio yesterday cited things related to this but didn't elaborate.
BUT they do say that biologically, the part of our brains that makes rational decisions doesn't solidify until 25ish. But nobody's going to say that someone's not capable of being treated like an adult at 24.
Also, I note that in tort law, they have what's called "adult activity" doctrine. That is to say, if you're a kid and you do something wrong without realizing it - say, negligently running and knocking an old woman over - you're a kid, so get over it. But if you engage in what's presumed to be an "adult activity" - say you're 10, get behind the wheel, and hit that same little old lady - then you're held as responsible as an adult would've been.
jarret - you appear to have missed the point in the SCC judgment about "liberty interests". Your example of tort law is inapplicable here because liberty interest are not engaged. Obviously they are engaged when the issue is the length of the prison term to be imposed.
As for the presumption question, there is little doubt the age of 18 is an arbitrary one - but it is also one we have long used to distinguish between child and adult.
You must be 18 to drink (in some places even older), to vote, to take out a bak loan, to sue someone, to get married without your parents' permission etc. You must also be 18 to automatically receive an adult sentence.
In any event, this decision does not prevent a young person from receiving an adult sentence, it simply places the onus on the crown. That onus is not a heavy one.
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