Canadian law has long recognized that because youth have limited capacities and greater vulnerability, they should be afforded a special status in the criminal justice system. Since the Youth Criminal Justice Act (“YCJA”) came into force in 2003, the Supreme Court has favoured a “pro-youth” interpretation of the Act, restricting the use of custody for young offenders and protecting their legal rights. The 2008 decision of the Supreme Court in R. v. B. (D.) significantly extended this protective approach, recognizing that the principle of the “diminished moral blameworthiness” of youth in the criminal justice system has not only a statutory basis, but also a constitutional foundation. Writing for a five-member majority of the Court, Abella J. ruled that provisions of the YCJA that impose an obligation on a youth found guilty of a very serious offence to justify not imposing an adult sentence are unconstitutional. The majority also took a more expansive view of section 7 of the Charter, finding that the social and psychological stresses associated with identifying publicity are engaged if a youth is named in media reports, and ruled unconstitutional a provision of the YCJA requiring a youth found guilty of one of the most serious offences and receiving a youth sentence to justify a ban on the publication of identifying information. Significantly, the Court was unanimous in accepting that the diminished moral blameworthiness of youth is a principle of fundamental justice, though it was sharply divided in the application of this newly recognized principle. R.v. B. (D.) is the most important judgment of the Court regarding youth offending in the history of Canada, and will both affect judicial approaches to youth justice issues and constrain possible legislative reforms that might make the youth system more “adult-like”. The decision also suggests that a narrow majority of the Court is prepared to take a relatively broad approach to section 7 of the Charter.
"R. v. B. (D.): The Constitutionalization of Adolescence."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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