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.






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