2. Criminal Responsibility and Capacity 1: Juvenile Justice

One key principle of the criminal law is that, in principle and contrary to older practice, criminal law attributes responsibility to the individual only for his own acts and never for the acts of others. Unlike the principle of legality which we saw in the previous class, this is the first time we encounter a substantive principle of the criminal law, and not simply a formal one. That limitation to one's individual responsibility is exceptionally limited for war crimes for example. Moreover, the criminal responsibility of parents for their delinquent children is occasionally touted as a criminal option. But if individual responsibility is the bedrock of liberal criminal justice, there remains the question of whether all individuals can incur it equally? We will see when we envisage various defences that one of the crucial issues in criminal justice systems is whether the commission of the acts was voluntary. Voluntariness points to something that comes even before the mens rea (the specific state of mind) and goes to the question of whether the acts were cognitively willed. You could distinguish voluntary acts from automatic ones, for example.

In this class and the next we will focus on certain broad circumstances that might have the effect of excluding the voluntariness of otherwise criminal acts. In particular, not all individuals can be responsible for crimes because not all individuals have criminal capacity. Two broad exceptions to such criminal capacity are minority and insanity/mental disorder. The former reflects the fact that most societies see children as lacking the psychocognitive development to commit crimes, and the latter the fact that the mentally insane are not capable of voluntary action. In both cases, a crucial element is missing in order to impute criminal responsibility, namely the ability to understand one's acts and exercise free will which as we saw is one of the foundations of a retributive apportioning of blame in the criminal justice system.

In the case of juveniles, the reduced blameworthiness and culpability is linked to reduced impulse control and moral maturity. In addition, young offenders are seen as responding less well to punishment and being in more need of guidance and education. There is a broad international consensus about the specificity of youth offenders, although each country's approach differs, notably in terms of what they consider the minimum age of penal maturity, up until when one may benefit from youth justice provisions, and what kind of mix the system should obtain between a repressive and welfarist approach.

As a result of juveniles being seen as not capable of bearing the same degree of criminal responsibility, a distinct and specific regime is typically adopted that is understood as suited to their needs. Juveniles can commit some horrendous crimes, and the criminal justice requires some kind of sanction/treatment at least for the older children. But the regime has always been one that is adapted to the specific needs of children and their limited development, and includes at least some emphasis on welfare. This option is confirmed as required by the Convention on the Rights of Child to which Canada is a party, although one can treat juveniles distinctly without having an entire distinct system of youth justice (as in Scandinavian countries for example).

This has not prevented legislatures from adopting adult sentences for juveniles, especially when it comes to grave crimes. Many youth justice systems have toughened over the past decades, in line with the more general evolution of criminal justice systems. At the very least, however, the Canadian Supreme Court has asserted that this should not lead to a reverse of the burden of proof where it is incumbent on a youth to demonstrate why an adult sentence is not suitable. In R v. D.B. the Supreme Court arrived at that result by 'constitutionalizing' the idea of diminished blameworthiness or culpability of youth offenders. This is consonant with both Canada's long held approach that youth should be dealt with under a separate regime, and the country's international legal obligations.

Further Readings:

• • Sayre, Francis Bowes. “Criminal Responsibility for the Acts of Another.” Harvard Law Review 43, no. 5 (1930): 689–723. doi:10.2307/1330727.

  • Greenwood, Christine T. “Holding Parents Criminally Responsible for the Delinquent Acts of Their Children: Reasoned Response or Knee-Jerk Reaction.” J. Contemp. L. 23 (1997): 401.

• SÉNAT, SESSION ORDINAIRE DE 2001-2002, Annexe au procès-verbal de la séance du 23 octobre 2001 PROPOSITION DE LOI tendant à renforcer la responsabilité pénale des personnes qui exercent l'autorité parentale sur un mineur délinquant, PRÉSENTÉE Par M. Nicolas ABOUT

  • Bala, Nicholas, Peter J. Carrington, and Julian V. Roberts. “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success.” Canadian Journal of Criminology and Criminal Justice 51, no. 2 (2009): 131–167.

  • Calverley, Donna, Adam Cotter, and Ed Halla. “Youth Custody and Community Services in Canada, 2008/2009.” Juristat: Canadian Centre for Justice Statistics 30, no. 1 (2010): 1D.

  • Carrington, Peter J. “Trends in Youth Crime in Canada, 1977-1996.” Canadian J. Criminology 41 (1999): 1.

  • Corrado, Raymond R., Karla Gronsdahl, David MacAlister, and Irwin M. Cohen. “Youth Justice in Canada: Theoretical Perspectives of Youth Probation Officers 1.” Canadian Journal of Criminology and Criminal Justice 52, no. 4 (2010): 397–426.

  • Doob, Anthony N., Voula Marinos, and Kimberly N. Varma. Youth Crime and the Youth Justice System in Canada: A Research Perspective. Centre of Criminology, University of Toronto, 1995.

  • Doob, Anthony N., and Jane B. Sprott. “Punishing Youth Crime in Canada: The Blind Men and the Elephant.” Punishment & Society 8, no. 2 (2006): 223–233.

  • ———. “Youth Justice in Canada.” Crime and Justice 31 (2004): 185–242.

  • Doob, Anthony, and Michael Tonry. “Varieties of Youth Justice.” In Crime and Justice, Volume 31, edited by Anthony Doob and Michael Tonry. The University of Chicago Press, 2004.

  • Hartnagel, Timothy F. “The Rhetoric of Youth Justice in Canada.” Criminal Justice 4, no. 4 (2004): 355–374.

  • Hayes, Hennessey, and Kathleen Daly. “Youth Justice Conferencing and Reoffending.” Justice Quarterly 20, no. 4 (2003): 725–764.

  • Hogeveen, Bryan, and Russell Smandych. “Origins of the Newly Proposed Canadian Youth Criminal Justice Act: Political Discourse and the Perceived Crisis in Youth Crime in the 1990s.” Youth Justice: History, Legislation and Reform, 2001, 144–169.

  • Latimer, Jeff. “A Meta-Analytic Examination of Youth Delinquency, Family Treatment, and Recidivism.” Canadian J. Criminology 43 (2001): 237.

  • Latimer, Jeff, Craig Dowden, and Danielle Muise. “The Effectiveness of Restorative Justice Practices: A Meta-Analysis.” The Prison Journal 85, no. 2 (2005): 127–144.

  • Muncie, John. “Governing Young People: Coherence and Contradiction in Contemporary Youth Justice.” Critical Social Policy 26, no. 4 (2006): 770–793.

  • ———. “The Globalization of Crime Control—the Case of Youth and Juvenile Justice: Neo-Liberalism, Policy Convergence and International Conventions.” Theoretical Criminology 9, no. 1 (2005): 35–64.

  • Muncie, John, and Barry Goldson. Comparative Youth Justice. Sage, 2006.

  • Peterson-Badali, Michele, Rona Abramovitch, Christopher J. Koegl, and Martin D. Ruck. “Young People’s Experience of the Canadian Youth Justice System: Interacting with Police and Legal Counsel.” Behavioral Sciences & the Law 17, no. 4 (1999): 455–465.

  • Schissel, Bernard. Blaming Children: Youth Crime, Moral Panics and the Politics of Hate. Fernwood Halifax, NS, 1997.

  • ———. Social Dimensions of Canadian Youth Justice. Oxford University Press Canada, 1993.

  • Smandych, Russell Charles. Youth Justice: History, Legislation, and Reform. Harcourt, 2001.

  • Sprott, Jane B. “Understanding Public Opposition to a Separate Youth Justice System.” NCCD News 44, no. 3 (1998): 399–411.

  • ———. “Understanding Public Views of Youth Crime and Youth Justice System.” Canadian J. Criminology 38 (1996): 271.

  • Sprott, Jane B., and Anthony N. Doob. Justice for Girls?: Stability and Change in the Youth Justice Systems of the United States and Canada. University of Chicago Press, 2009.

  • Tanner, Julian. Teenage Troubles: Youth and Deviance in Canada. Nelson Thomson Learning Scarborough, Ontario, 2001.

  • White, Rob, and Chris Cunneen. “Social Class, Youth Crime and Justice.” Youth Crime and Justice 17 (2006).

  • Winterdyk, John, and Russell Charles Smandych. Youth at Risk and Youth Justice: A Canadian Overview. Oxford University Press, 2012.