Pubdate: Wed, 16 Aug 2006
Source: National Post (Canada)
Copyright: 2006 Southam Inc.
Author: Colby Cosh
Bookmark: (Youth)


On Monday, speaking at the annual Canadian Bar Association conference 
in St. John's, federal Justice Minister Vic Toews proposed lowering 
the minimum age of criminal responsibility in Canadian law from 12 to 
10. Almost instantly, the suggestion was used to impute a certain 
kind of caricatured conservative viciousness to the Minister. You 
could practically hear the muttering at all this weekend's best 
parties: "Typical wild-West Tory -- he wants to imprison 
11-year-olds. How long before we're executing retarded teenagers?"

In fact, as Toews made clear in a follow-up letter to newspapers 
yesterday, he was motivated by the liberal tendency to regard the 
state as a substitute parent, not by the conservative instinct to 
punish. "Young people who engage in criminal behaviour before the age 
of 12 ... do not need incarceration, nor have I suggested they do," 
said the Minister. "In some cases, young people have had extensive 
police and social service interaction before age 12 ... To prevent 
them from falling through the cracks, we need to discuss whether the 
courts should have some legal recourse to intervene in a positive fashion."

Under English common law, a child was deemed doli incapax -- 
incapable of forming the intent to perpetrate a crime -- below the 
age of seven. (Arbitrary limits of this kind can be found in legal 
codes dating from before the Norman Conquest.) Anyone older was fair 
game: The Old Bailey ordered the hanging of an eight-year-old child 
as late as 1814. The progressive spirit of Victorianism -- 
personified in Canada by the great Liberal editor George Brown -- 
sought improved conditions for delinquent children, first separating 
them from the adult prison population and then gradually accepting 
the need for a parallel system of youth justice. In 1984, the Young 
Offenders Act moved the line of absolute criminal incapacity from 
seven upward to 12 -- an uncontroversial move, at the time, embedded 
in an otherwise unpopular new law.

Toews might be accused of seeking a quarrel on the furthest margins 
of plausibility. But when the criminal culpability of young people 
suddenly does become an issue, it's hard to discuss the issue with a 
cool head. On February 12, 1993, at a shopping mall in a Liverpool 
suburb, two ten-year-old boys enticed James Bulger, aged two, away 
from his mother. They took him on a four-kilometre ramble through 
Merseyside; reaching a railyard, they battered him to death with iron 
and stones and left him on the tracks. Both came from violent, broken 
homes well known to the police, and had done things an older child 
might have been arrested for. Would Vic Toews be willing to 
second-guess British justice now and state that these under-12 
youngsters did not "need incarceration"? How about Liberal justice 
critic Sue Barnes, who (in a Tuesday press release that stung the 
mind with its dishonesty) vilified Toews for wanting to "lock up 10-year-olds"?

England has never quite recovered its equilibrium; it remains prone 
to outlandish child-safety panics and vigilantism, and the killers -- 
freed in 2002 and now grown -- must still be protected by a ban on 
the publication of their whereabouts. At the time, English 
prosecutors seeking to convict a child between 10 and 14 had to 
overcome a strong legal presumption of incapability. The mass rage 
incited by the Bulger slaying helped bring Tony Blair to power 
(thanks to an elegant speech about Britain's "sleeping conscience"), 
and among his first acts was a Toews-like move to bring children 10 
and up within the insuperable grasp of criminal justice. "The 
Government believes," read a White Paper issued at the time, that 
"presuming that children of this age generally do not know the 
difference between naughtiness and serious wrongdoing ... is contrary 
to common sense."

There is only paltry evidence that Blair's legislative changes have 
done anything to cut youth crime. A Home Office study published in 
June shows that reoffending among U.K. youths is down slightly (1.4%) 
since 2000, but most of the improvement is attributable to improved 
socio-economic conditions, not the law. Nonetheless, the White 
Paper's argument for hauling 10-year-olds in front of a judge has 
been echoed in other Commonwealth countries.

But we meet here with an insoluble conundrum. Modern children are 
undoubtedly better informed than those of the past, but it's not 
clear that they are better educated. Does our overpoweringly rich 
media environment reinforce public norms of morality, or erode them? 
Should today's 10-year-old be held more responsible because of his 
sophistication, or less so because ubiquitous electronic depictions 
of violence have softened his brain? Answering such questions -- 
which hopefully we will never have to do under English circumstances 
- -- is no mere matter of applying good intentions.
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MAP posted-by: Beth Wehrman