Cold Hard Wonk

No sentiment but politics

Kid Gloves

Posted by JJ in Vague Check, Chancellor's Footrule, Brass Tacks (Tuesday October 17, 2006 at 11:16 pm)

If current events are, once more, going to produce law, we can at least hope for reasoned decisions. That children younger than twelve might commit such repugnant crimes is hard to accept; but so is the prospect that they might willingly engage in acts with a cold brutality incompatible with juvenile innocence.

Which demands that, notwithstanding the Criminal Code’s prohibition against the conviction of children under twelve, there be some means of applying justice and the law to transgressions of this kind.

The problem is simple:

Some academics say holding young children accountable is a tall order, because they haven’t developed the ability to realize their actions could result in someone’s death or injury.

“As far as we know from child development literature, this whole idea of future consequences is something that … probably is not fully developed until well into late adolescence,” said professor Barry Mallin, who teaches school psychology at the University of Manitoba.

But courts already deal with this kind of problem. Children’s testimony is complicated by the fact that they may have difficulty in appreciating the situation and their role. It was once, therefore, necessary to prove that the child had the capacity to properly understand and answer questions and to distinguish between the truth and lies. Now, in federal courts, the child’s ability to testify is presumed and must be disproven if the child is to be alleged incompetent (see section 16.1 here).

A similar mechanism could be put into place. Stipulate that children under twelve are presumed incapable of comprehending the consequences of their actions; but allow the Crown to try to prove that they were capable (at the time of committing the offence) in the case of indictable offences (the more serious category of crimes), while precluding their conviction for summary conviction offences (the less serious category of crimes).

The burden of proving such capacity before the fact is onerous enough that one can scarcely expect it to be borne in any but the clearest of circumstances (recalling, of course, that criminal cases must be proven beyond a reasonable doubt). The mere fact that shooting a victim killed him would not suffice — it must be shown that the shooter knew and was cognizant of the fact that doing so would kill him. A child who, reared on televised drama, believed that gunshot wounds were barely debilitating could not be convicted of murder; but one who tracked down a victim and set out to torture or kill her could be.

And it is, after all, the willful act that makes a crime — not the maturity of its perpetrator. Crimes are offences against justice and social order. And our natural shrinking at the thought that children may be guilty of the most violent of crimes must not prevent justice from demanding to know whether, in fact, they are.

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