Monday, September 29, 2008

The Conservatives Won't Pass New Violent Youth Crime Law

On September 22 Stephen Harper announced that upon re-election a Conservative government will crack down on violent youth crime with new measures that include automatic sentencing and publication of the young offenders name. Though this campaign promise is aimed to strengthen the Conservative party's image of being tough on crime, legal experts are suggesting based on it's very questionable merit, the law is nothing more then an attempt to win votes.

Speaking in Ottawa the Conservative Party leader said the proposed law would change the Youth Crime Justice Act by stipulating that "When a person aged 14 or older is convicted of a serious violent offence such as murder, manslaughter or aggravated sexual assault, then the offender will automatically be subjected to a stiffer sentence." Harper also added that "Upon conviction, the name will be made public and the news media will not face a publication ban."

Though the Conservative-proposed law is promised to tackle violent youth crime, notable legal experts deny the Conservatives could or even would enact it due to the legal and political difficulties that would arise.

A source for one such difficulty was evident as recently as of May 15 2008 when the Supreme Court of Canada in the case of R. v. D.B. ruled that "A young person who commits a [violent] offence should not automatically be presumed to attract an adult sentence." With the Court concluding automatic stiffer sentences conflict with the Charter, the decision ensures that the very same promise made by the Conservative Party would certainly be struck down at its first challenge. The same goes in regard to the lifting of the publication ban, where the Court in the same decision added "The onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban is also a violation of s. 7 of the Charter."

The Conservative Party has officially denied that such conflicts exist however, due the fact their proposed law would not automatically issue adult sentences but instead merely issue enhanced youth sentences. Yet this response only attempts to frame the debate on semantics, suggesting enhanced youth sentences are somehow different from adult sentences when both are defined as lasting for the same durations and in the same locations. It is clear the Conservative clarification only aims at re-naming adult sentences and does not solve the law's conflict with the Charter.

James Stribopoulos, a criminal law professor at York University’s Osgoode Hall Law School, agrees that the law is irreparably flawed. "In light of [last May’s] decision, some of the proposals the Conservatives have brought forward—including life sentences for teenaged murderers, as well as identifying those charged—are likely constitutionally dead on arrival," Stribolpoulos said.

Legal scholars are quick to add that though applying Section 33, the Not-Withstanding clause of the Charter, offers a way the Conservatives can still implement their proposed violent youth crime law, such a route would be legally and politically difficult. Roger Shiner, a philosophy of law professor at the University of British Columbia, argues that in applying s.33 Stephen Harper would be challenging the moral and legal authority of the Supreme Court which would end up costing him. "Harper would have to invest a huge amount of political capital if he actually tried to pass this law. I cannot believe he would do it," Shiner said.

Both Shiner and Stribopoulos conclude due to the insurmountable legal and political difficulties facing this new Conservative campaign promise that it is nothing more then an attempt to win votes. The Osgoode Professor acknowledges that the Conservatives must know their law won't get out of the gate, saying, "I think the Conservatives are well advised, which leaves one with the impression that this is pure politics."

Roger Shiner offers additional insight into the Conservative Party's motivation, stating that the campaign promise of a new youth crime law "plays well in the hinterlands, and as long as it gets Harper a majority government, I don't think he cares about its constitutionality. Putting it forward is purely and simply a political device, and regrettably it may well be a succcessful one."


penlan said...

As noted in your post, this whole announcement is to get votes. There are lots of people out there who like this plan because all they hear on their local news, at the top of it & for the 1st 5 mins. or so is about the latest violence in their area. This gives the impression that crime is rampant - which it is not.

Statistics constantly show crime rate dropping, for years now. But you wouldn't know it by what is shown on T.V. & in print media. Headlines are for grabbing the peoples attention & keeping it there with no opposite reporting of the truth.

But I wouldn't put it past Harper, if he gets a majority, to go the way of the Not-Withstanding clause in the Charter. He's mean-spirited & nasty & will try to do whatever it takes to get "his way".

Anonymous said...

Penlan: Shiner emphasized the improbability that the Conservatives would not be dumb enough to use the nws, not only because of the implications on their political capital but because they'd have to renew the nws every 5 years and unless it went on forever, it would just be postponing eventual defeat.

Every expert I have contacted as said there is no chance of the NWS being used.