R. v. D.B.

R. v. D.B.
Collection
Supreme Court Judgments
Date
2008-05-16
Neutral citation
2008 SCC 25
Report
[2008] 2 SCR 3
Case number
31460
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 31460
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25
Date: 20080516
Docket: 31460
Between:
Her Majesty The Queen
Appellant
and
D.B.
Respondent
‑ and ‑
Attorney General of Canada, Attorney General of Quebec,
Attorney General of Nova Scotia, Attorney General of Manitoba,
Attorney General of British Columbia and
Justice for Children and Youth
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 102)
Reasons Dissenting in part:
(paras. 103 to 192)
Abella J. (McLachlin C.J. and Binnie, LeBel and Fish JJ. concurring)
Rothstein J. (Bastarache, Deschamps and Charron JJ. concurring)
______________________________
R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25
Her Majesty The Queen Appellant
v.
D.B. (a young person within the meaning of the
Youth Criminal Justice Act ) Respondent
and
Attorney General of Canada, Attorney General of Quebec,
Attorney General of Nova Scotia, Attorney General of Manitoba,
Attorney General of British Columbia and Justice for Children
and Youth Interveners
Indexed as: R. v. D.B.
Neutral citation: 2008 SCC 25.
File No.: 31460.
2007: October 10; 2008: May 16.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Reverse onus provisions — Sentencing — Young persons — Presumptive offences — Adult sentences — Loss of privacy protection of publication ban — Youth criminal justice legislation requiring young person convicted of presumptive offence to justify why adult sentence, rather than youth sentence, should not be imposed and why publication ban should apply — Whether burden on young person infringes right not to be deprived of liberty except in accordance with principles of fundamental justice — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 7 — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 62 , 63 , 64(1) , 64(5) , 70 , 72(1) , 72(2) , 73(1) , 75 , 110(2) (b).
Criminal law — Young persons — Sentencing — Reverse onus provisions — Imposition of adult sentence for presumptive offences — Loss of privacy protection of publication ban — Youth criminal justice legislation requiring young person convicted of presumptive offence to justify why adult sentence, rather than youth sentence, should not be imposed and why publication ban should apply — Whether reverse onus provisions constitutional — Canadian Charter of Rights and Freedoms, ss. 1 , 7 — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 62 , 63 , 64(1) , 64(5) , 70 , 72(1) , 72(2) , 73(1) , 75 , 110(2) (b).
B went to the local mall with friends. A fight ensued with R, in the course of which B knocked R to the ground and punched him. B fled. By the time the paramedics saw him, R had no vital signs and was immediately taken to the hospital. Later that night, B received a call informing him that R had died from his injuries. He was arrested the following morning at a friend’s house. B pleaded guilty to manslaughter. As a 17‑year‑old, his sentencing took place under the Youth Criminal Justice Act (“YCJA ”). Under the YCJA , manslaughter is a “presumptive offence”. In the case of presumptive offences, an adult sentence is presumed to apply. B sought a youth sentence, but the Crown opposed his application. B then challenged, under s. 7 of the Canadian Charter of Rights and Freedoms , the constitutionality of the “onus provisions” in the presumptive offences regime. The basis of the challenge was that the provisions impose a “reverse onus”, since the burden is on the young person to persuade the court that he or she should not lose the benefit of the youth sentencing provisions, rather than on the Crown to attempt to prove that an adult sentence is justified. The trial judge allowed the Charter challenge and sentenced B to the maximum youth sentence that included an intensive rehabilitative custody and supervision order for a period of three years. The Court of Appeal upheld the decision.
Held (Bastarache, Deschamps, Charron and Rothstein JJ. dissenting in part): The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Fish and Abella JJ.: The onus provisions in the presumptive offences regime are conceded to engage the liberty interest of the young person under s. 7 of the Charter . The inquiry in this case is into whether the deprivation of liberty is in accordance with the principles of fundamental justice. The principle of fundamental justice at issue here is that young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment. That is why there is a separate legal and sentencing regime for them. This presumption meets the three‑part threshold for defining a principle of fundamental justice within the meaning of s. 7 of the Charter . The presumption in question is, firstly, a legal principle. The legislative history of the youth criminal justice system in Canada confirms that the presumption of diminished moral culpability for young persons is a long‑standing legal principle that has consistently been acknowledged in all of the YCJA ’s statutory predecessors. This principle also finds expression in Canada’s international commitments, in particular the UN Convention on the Rights of the Child. Secondly, there is consensus that the principle is fundamental to the operation of a fair legal system. It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Courts too have acknowledged the reality of reduced moral culpability on the part of young people. The consensus also exists internationally. Thirdly, the principle can be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. It has been administered and applied to proceedings against young people for decades in this country. [38‑39] [41] [45‑48] [59‑62] [66‑67] [69]
The presumption of an adult sentence in the onus provisions is inconsistent with the principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability. This does not mean that an adult sentence cannot be imposed on a young person. It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age. The issue in this case, however, is who has the burden of proving that an adult sentence is justified. A young person who commits a presumptive offence should not automatically be presumed to attract an adult sentence. Because the presumptive sentence is an adult one, the young person must provide the court with the information and counter‑arguments to justify a youth sentence. If the young person fails to persuade the court that a youth sentence is sufficiently lengthy based on the factors set out in s. 72(1) of the YCJA , an adult sentence must be imposed. This forces the young person to rebut the presumption of an adult sentence, rather than requiring the Crown to justify an adult sentence. This clearly deprives young people of the benefit of the presumption of diminished moral blameworthiness based on age. By depriving them of this presumption because of the crime and despite their age, and by putting the onus on them to prove that they remain entitled to the procedural and substantive protections to which their age entitles them, including a youth sentence, the onus provisions infringe a principle of fundamental justice. [5] [70] [75-77]
The onus on the young person of satisfying the court of the sufficiency of the factors in s. 72(1) also contravenes another principle of fundamental justice, namely, that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies. Putting the onus on the young person to prove the absence of aggravating factors in order to justify a youth sentence, rather than on the Crown to prove the aggravating factors that justify a lengthier adult sentence, reverses the onus. [78]
The onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban is also a violation of s. 7 of the Charter . Lifting a ban on publication makes the young person vulnerable to greater psychological and social stress. Since a publication ban is part of a young person’s sentence (s. 75(4) of the YCJA ), lifting a ban renders the sentence more severe. The onus should therefore be, as with the imposition of an adult sentence, on the Crown to justify the enhanced severity, rather than on the youth to justify retaining the protection to which he or she is otherwise presumed to be entitled. [83] [87]
The onus requirements do not survive either the rational connection or minimal impairment branches of the s. 1 analysis. Parliament’s objectives of accountability, protection of the public and public confidence in the administration of justice can as easily be met by placing the onus on the Crown, where it belongs. Placing the onus on young persons is inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice which requires the Crown to justify the loss both of a youth sentence and of a publication ban. The impugned provisions are therefore inconsistent with s. 7 of the Charter and are not saved by s. 1 . To the extent that they impose this reverse onus, they are unconstitutional. [91-92] [94-95]
The youth sentence imposed by the trial judge should not be set aside. [96]
Per Bastarache, Deschamps, Charron and Rothstein JJ. (dissenting in part): The presumptive offence sentencing provisions in the YCJA do not violate s. 7 of the Charter . While the possibility of an adult sentence engages a young person’s s. 7 right to liberty, the liberty deprivation is in accordance with the two principles of fundamental justice applicable in this case: (1) the reduced moral blameworthiness of young persons and (2) the Crown’s burden of proving aggravating sentencing factors beyond a reasonable doubt. Fundamental justice, however, does not require that there always be a presumption of youth sentences for young persons. There is no societal consensus that such a presumption is a vital component of our notion of justice. [103] [122] [129-131] [141]
With respect to the provisions relating to the presumption of publication, they do not engage a young person’s s. 7 right to liberty because a publication ban is not part of the sentence. The YCJA deems the order for a publication ban to be part of the sentence for appeal purposes only. The deeming provisions simply create an express right of appeal of publication ban orders, which would otherwise not exist. Furthermore, the interests sought to be protected in this case do not fall within the liberty interest protected by s. 7 because the presumption of publication does not cause physical restraint on young persons or prevent them from making fundamental personal choices. Moreover, the publication provisions do not engage the young person’s s. 7 right to security of the person. Here, there is no state action: the stigma and labelling that may result from release of the young offender’s identity are a product of media coverage and society’s reaction to young offenders and to the crimes they commit. In any event, the publication provisions of the YCJA are consistent with the principles of fundamental justice applicable in this case. [171-173] [178] [190]
When examining the contours of a principle of fundamental justice, individual and societal interests within s. 7 must be taken into account. In enacting the presumptive offence scheme, it was entirely appropriate for Parliament to consider the competing interests, on the one hand, of young persons to have their reduced moral blameworthiness taken into account and, on the other, of society to be protected from violent young offenders and to have confidence that the youth justice system ensures the accountability of violent young offenders. This balancing was a legitimate exercise of Parliament’s authority to determine how best to penalize particular criminal activity, a power this Court has recognized as broad and discretionary. The YCJA presumption of adult sentences and publication for serious violent offences is in accordance with principles of fundamental justice because it in no way precludes a youth sentence or a publication ban where considered appropriate by the youth criminal justice court. Further, to focus solely on the presumption of adult sentences and publication ignores the entire presumptive sentencing and publication scheme which provides extensive protections for young persons who have committed serious violent offences and recognizes the presumption of reduced moral blameworthiness, properly defined. The presumptive offence scheme significantly recognizes the age, reduced maturity and increased vulnerability of young persons. [107-108] [143] [146] [148]
The publication and sentencing provisions do not create a reverse onus which contravenes the principle of fundamental justice that the Crown bears the burden of proving aggravating sentencing circumstances. First, the potential publication is neither state imposed nor part of the young person’s sentence. Second, the impugned provisions in no way relieve the Crown of its burden of proving all aggravating facts on sentencing. In effect, the presumptive sentencing regime simply provides for a higher range of sentences for young persons convicted of the most serious violent offences. Even so, Parliament has provided young persons with the opportunity to satisfy the youth justice court that the presumptive higher range of sentence or the presumptive publication should not apply. Providing this opportunity to young persons, especially when the sentencing judge is required to prompt the young persons to take advantage of the opportunity, represents Parliament’s approach to balance the status of young persons with the need to protect society from the perpetrators of the most serious violent crimes. It does not place a “persuasive burden” on young persons that eliminates the Crown’s burden of establishing aggravating sentencing factors. [109]
The youth sentence imposed on B was reasonable and does not warrant interference. [192]
Cases Cited
By Abella J.
Approved: Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 175 C.C.C. (3d) 321; disapproved: R. v. K.D.T. (2006), 222 B.C.A.C. 160, 2006 BCCA 60; referred to: R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Shropshire, [1995] 4 S.C.R. 227; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. C.D., [2005] 3 S.C.R. 668, 2005 SCC 78; R. v. M. (S.H.), [1989] 2 S.C.R. 446; R. v. R.C., [2005] 3 S.C.R. 99, 2005 SCC 61; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Keegstra, [1990] 3 S.C.R. 697.
By Rothstein J. (dissenting in part)
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9; R. v. B. (S.R.) (2008), 166 C.R.R. (2d) 15, 2008 ABQB 48; Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; R. v. Pearson, [1992] 3 S.C.R. 665; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. K.D.T. (2006), 222 B.C.A.C. 160, 2006 BCCA 60; Blencoe v. British Columia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; R. v. Morgentaler, [1988] 1 S.C.R. 30; F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35; Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 175 C.C.C. (3d) 321; Mills v. The Queen, [1986] 1 S.C.R. 863.
Statutes and Regulations Cited
An Act to amend the Young Offenders Act and the Criminal Code, S.C. 1992, c. 11.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 718.1 , 718.2 (a), 724 , 745 (a), (c), 745.1 , 745.3 , 745.5 .
Juvenile Delinquents Act, R.S.C. 1970, c. J‑3, s. 3(2).
Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, ss. 7, 31.
Juvenile Delinquents Act, 1929, S.C. 1929, c. 46, s. 3(2).
Youth Criminal Justice Act, S.C. 2002, c. 1 , preamble, ss. 2(1) “adult sentence”, “presumptive offence”, “serious violent offence”, “young person”, 3, 4(c), 10, 14(1), 26, 32(1)(d), 34(1), (2)(b), 37(4), 38, 39, 40(2), 42(7), 62, 63, 64(1), (5), 65, 70 to 73, 75, 76(2), (9), 110(1), (2), 113(2), 146(2), (4).
Young Offenders Act, R.S.C. 1985, c. Y‑1, ss. 3(1) , 16 .
Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110.
Treaties and International Documents
United Nations. Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 40(1).
United Nations. General Assembly. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, A/RES/40/33, November 29, 1985, Annex, Rule 8.
Authors Cited
Anand, Sanjeev S. “Catalyst for Change: The History of Canadian Juvenile Justice Reform” (1999), 24 Queen’s L.J. 515.
Bala, Nicholas. “Dealing with Violent Young Offenders: Transfer to Adult Court and Bill C‑58” (1990), 9 Can. J. Fam. L. 11.
Bala, Nicholas. “The 1995 Young Offenders Act Amendments: Compromise or Confusion?” (1994), 26 Ottawa L. Rev. 643.
Bala, Nicholas. Young Offenders Law. Concord, Ont.: Irwin Law, 1997.
Bala, Nicholas. Youth Criminal Justice Law. Toronto: Irwin Law, 2003.
Bala, Nicholas, and Mary‑Anne Kirvan. “The Statute: Its Principles and Provisions and Their Interpretation by the Courts”. In Ruth M. Mann, ed., Juvenile Crime and Delinquency: A Turn of the Century Reader. Toronto: Canadian Scholars’ Press, 2000, 45.
Canada. Department of Justice. A Strategy for the Renewal of Youth Justice. Ottawa: The Department, 1998.
Canada. House of Commons. House of Commons Debates, vol. 25, 2nd Sess., 37th Parl., May 12, 2003, pp. 6086‑87.
Doob, Anthony N., and Carla Cesaroni. Responding to Youth Crime in Canada. Toronto: University of Toronto Press, 2004.
Doob, Anthony N., and Michael Tonry. “Varieties of Youth Justice”. In Youth Crime and Youth Justice: Comparative and Cross‑National Perspectives. Chicago: University of Chicago Press, 2004, 1.
Doob, Anthony N., Voula Marinos, and Kimberly N. Varma. Youth Crime and the Youth Justice System in Canada: A Research Perspective. Toronto: Centre of Criminology, University of Toronto, 1995.
Manson, Allan. The Law of Sentencing. Toronto: Irwin Law, 2001.
Renaud, Gilles. Speaking to Sentence: A Practical Guide. Toronto: Thomson/Carswell, 2004.
Sprott, Jane B. “Understanding Public Opposition to a Separate Youth Justice System” (1998), 44 Crime & Delinquency 399.
Sprott, Jane B. “Understanding public views of youth crime and the youth justice system” (1996), 38 Can. J. Crim. 271.
APPEAL from a judgment of the Ontario Court of Appeal (Goudge, Armstrong and Blair JJ.A.) (2006), 79 O.R. (3d) 698, 208 O.A.C. 225, 206 C.C.C. (3d) 289, 37 C.R. (6th) 265, 140 C.R.R. (2d) 168, [2006] O.J. No. 1112 (QL), 2006 CarswellOnt 1719, upholding a decision of Lofchik J. (2004), 72 O.R. (3d) 605, 190 C.C.C. (3d) 383, 123 C.R.R. (2d) 182, [2004] O.J. No. 3823 (QL), 2004 CarswellOnt 3747. Appeal dismissed, Bastarache, Deschamps, Charron and Rothstein JJ. dissenting in part.
Alexander Alvaro and Deborah Krick, for the appellant.
Dean D. Paquette and Paola Konge, for the respondent.
Janet Henchey, for the intervener the Attorney General of Canada.
Jean‑Yves Bernard and Isabelle Fortin, for the intervener the Attorney General of Quebec.
Peter P. Rosinski, for the intervener the Attorney General of Nova Scotia.
Diana M. Cameron, for the intervener the Attorney General of Manitoba.
Joyce DeWitt‑Van Oosten, for the intervener the Attorney General of British Columbia.
Cheryl Milne and Lee Ann Chapman, for the intervener the Justice for Children and Youth.
The judgment of McLachlin C.J. and Binnie, LeBel, Fish and Abella JJ. was delivered by
[1] Abella J. — Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.
[2] The Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA ”), creates a category of serious offences known as “presumptive offences”. Presumptive offences are murder, attempted murder, manslaughter, and aggravated sexual assault. A third “serious violent offence”, defined as “an offence in the commission of which a young person causes or attempts to cause serious bodily harm”, is also designated as a presumptive offence.
[3] A youth court judge must impose an adult sentence in the case of these presumptive offences unless the young person can demonstrate that a youth sentence has “sufficient length” to hold him or her accountable. The legislation thus puts the onus on the young person to justify why an adult sentence should not be imposed, rather than on the Crown to show why the youth has lost his or her entitlement to a youth sentence.
[4] The issue in this case, therefore, is whether this burden on the young person violates s. 7 of the Canadian Charter of Rights and Freedoms , and, in particular, the young person’s right not to be deprived of liberty except in accordance with principles of fundamental justice.
[5] The question is not whether young people who commit more serious crimes can attract more serious penalties. They can. In some cases, it may even be that they should receive the same sentence as an adult. What is before us, however, is whether young people who commit presumptive offences should automatically be presumed to attract an adult sentence, or whether, as previously, they continue to be subject to the youth justice sentencing provisions unless the Crown can demonstrate that the combination of the circumstances of the crime and of the offender warrant the imposition of an adult sentence.
[6] For the reasons that follow, I conclude that there is a breach of s. 7 and that the breach is not saved by s. 1 of the Charter .
BACKGROUND
[7] On December 13, 2003, D.B. went to the local mall with friends. A fight ensued with 18‑year‑old Jonathan Romero, in the course of which D.B. knocked Romero to the ground and punched him. Romero lost consciousness. D.B. fled.
[8] An ambulance was called. By the time the paramedics saw him, Romero had no vital signs and was immediately taken to the hospital.
[9] Later that night, D.B. received a call informing him that Romero had died from his injuries. He was arrested the following morning at a friend’s house.
[10] D.B. pleaded guilty to manslaughter in July 2004. As a 17-year-old, he was sentenced under the YCJA .
Prior Proceedings
[11] The offence to which D.B. pleaded guilty, manslaughter, is a presumptive offence. D.B. applied for a youth sentence rather than the adult sentence presumptively imposed by the YCJA . The Crown opposed his application, seeking to have him sentenced as an adult and recommending a sentence of five years’ imprisonment. The maximum youth sentence allowable for this offence under the YCJA is three years.
[12] D.B. then challenged the constitutionality of the provisions of the YCJA which place the onus on a young person to prove that a youth sentence, not an adult one, should be imposed. He also challenged the constitutionality of the provision that requires the young person to justify the continuance of a ban protecting him from publicity.
[13] The trial judge, Lofchik J., allowed the Charter challenge ((2004), 72 O.R. (3d) 605 (S.C.J.)). In so doing, he relied primarily on the decision of a five‑judge panel of the Quebec Court of Appeal in a reference brought by the Quebec government (Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 175 C.C.C. (3d) 321 (“Quebec Reference”)).
[14] In separate unreported reasons for sentence, the trial judge concluded that a youth sentence involving intensive rehabilitation custody would be appropriate for D.B., explaining to him:
You are to be the subject of an intensive rehabilitative custody and supervision order for a period of three years, and committed into a continuous period of intensive rehabilitative custody for a period of thirty months and serve the remainder of the sentence under conditional supervision in the community in accordance with s. 105 of the Youth Criminal Justice Act .
In my view the maximum period of a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given credit for the one year period of pre-trial custody.
The Crown appealed.
[15] The Ontario Court of Appeal dismissed the Crown’s appeal ((2006), 79 O.R. (3d) 698). Goudge J.A., writing for a unanimous court (Armstrong and Blair JJ.A.), concluded that the onus provision in the YCJA placed a considerable burden on the young person. The burden was not only one of persuasion, but an evidentiary one to support the factors referred to in the YCJA , including maturity and other facts which may not otherwise be in the record.
[16] He identified two principles of fundamental justice that were breached by what he described as the reverse onus provisions: (1) that “young offenders should be dealt with separately and not as adults in recognition of their reduced maturity” (para. 55) and (2) that “in sentencing, the Crown must assume the burden of demonstrating beyond a reasonable doubt that there are aggravating circumstances in the commission of the offence that warrant a more severe penalty” (para. 63).
[17] Because the YCJA requires the young person to prove the factual matters in order to justify a lesser sentence, the principle that it is the Crown who must justify a harsher penalty was held by Goudge J.A. to be violated.
[18] Goudge J.A. also held that the publication ban provisions contravene s. 7 of the Charter . Since publishing a young person’s identity adds to the harshness of his punishment, the Crown should similarly bear the burden of proving that it is appropriate for the young person to be deprived of the ban.
[19] The court did not accept the Crown’s submission that these violations of
s. 7 could be saved by s. 1 of the Charter , concluding that placing the onus on the Crown to demonstrate the need for an adult sentence and for the lifting of a publication ban, would serve the same objectives without impairing the young person’s rights.
ANALYSIS
[20] The constitutionality of two sets of provisions of the YCJA are at issue, both of which D.B. asserts violate s. 7 of the Charter , which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[21] Both sets of provisions affect a young person who has been found guilty of a “presumptive offence”. A presumptive offence is defined as follows in s. 2(1):
(a) an offence committed, or alleged to have been committed, by a young person who has attained the age of fourteen years, or, in a province where the lieutenant governor in council has fixed an age greater than fourteen years under section 61, the age so fixed, under one of the following provisions of the Criminal Code :
(i) section 231 or 235 (first degree murder or second degree murder within the meaning of section 231),
(ii) section 239 (attempt to commit murder),
(iii) section 232, 234 or 236 (manslaughter), or
(iv) section 273 (aggravated sexual assault) . . .
(b) a serious violent offence for which an adult is liable to imprisonment for a term of more than two years committed, or alleged to have been committed, by a young person after the coming into force of section 62 (adult sentence) and after the young person has attained the age of fourteen years, or, in a province where the lieutenant governor in council has fixed an age greater than fourteen years under section 61, the age so fixed, if at the time of the commission or alleged commission of the offence at least two judicial determinations have been made under subsection 42(9), at different proceedings, that the young person has committed a serious violent offence.
[22] The first group of impugned provisions requires a young person convicted of a presumptive offence to justify the imposition of a youth sentence rather than an adult one. They are ss. 62 , 63 , 64(1) and (5) , 70 , 72(1) and (2) , and 73(1) , and are appended to these reasons.
[23] The second set of provisions being challenged, the “privacy provisions”, deals with the loss of the privacy protection of a publication ban when a young person is convicted of a presumptive offence. They are ss. 75 and 110(2) , also appended to these reasons.
[24] The “onus provisions” affect the length and type of sentence that young persons receive. The “privacy provisions” determine whether or not their identity will be disclosed. The basis of the constitutional challenge before this Court is that both sets of provisions impose a “reverse onus” since the burden is on the young person to persuade the court that he or she should not lose the benefit of the youth sentencing provisions, rather than on the Crown to attempt to prove that an adult sentence is justified.
[25] The onus provisions operate as follows. Section 62 of the YCJA provides that young persons, 14 or older, who are convicted of a presumptive offence — such as manslaughter in this case — “shall” be sentenced as adults. The language is mandatory.
[26] Section 2(1) provides that an “adult sentence” means “any sentence that could be imposed on an adult who has been convicted of the same offence”.
[27] A young person may, however, under s. 63(1) of the YCJA , “make an application for an order that he or she is not liable to an adult sentence”. The court is then required to consider the factors set out in s. 72(1) , namely: “the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant”. The onus of satisfying the court about these matters is on the young person (s. 72(2) ). Consequently, if the young person is unable to persuade the court that a youth sentence would have “sufficient length to hold the young person accountable for his or her offending behaviour”, an adult sentence “shall” be imposed (s. 72(1) (b)). The default position, in other words, is an adult sentence.
[28] The “privacy provisions” of the YCJA, ss. 110 and 75 , deal with a “ban on publication”, which restricts the information about a young person that can be made publicly available. A publication ban is considered to be part of the sentence (s. 75(4) ).
[29] Section 110(1) provides that “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act”. Under s. 110(2), this protection does not apply if a young person has received an adult sentence. If an adult sentence has been imposed, the young person cannot apply for a publication ban.
[30] Under s. 75(1), if a young person has been convicted of a presumptive offence but has succeeded in persuading the court that a youth sentence is nonetheless appropriate, the sentence is not accompanied by the publication ban that normally attaches to a youth sentence. A further onus is on the young person to satisfy the court that, in addition to the youth sentence, a publication ban should also be imposed. Absent such an application by the young person, the default position is the loss of the ban.
[31] The constitutionality of these provisions has been examined by the British Columbia Court of Appeal and, as previously noted, the Quebec Court of Appeal.
[32] The Quebec Court of Appeal identified four fundamental principles of justice which it used to assess whether the onus provisions violate s. 7 . These were:
[TRANSLATION] Young offenders must be dealt with separately from adults;
Rehabilitation, rather than suppression and dissuasion, must be at the heart of legislative and judicial intervention with young persons;
The justice system for minors must limit the disclosure of the minor’s identity so as to prevent stigmatization that can limit rehabilitation;
It is imperative that the justice system for minors consider the best interests of the child.
(Quebec Reference, at para. 215)
[33] It concluded that the onus provisions represented [TRANSLATION] “an excessive burden, considering the vulnerability of the young persons on whom it rests and the purposes of the Act” (para. 249) and, accordingly, held that they violated s. 7 of the Charter and could not be saved under s. 1 . The federal government did not appeal the judgment, indicating that it intended to amend the YCJA in a manner consistent with the court’s conclusion (House of Commons Debates, vol. 25, 2nd Sess., 37th Parl., May 12, 2003, at pp. 6086‑87).
[34] The Quebec Reference, it should be noted, preceded two relevant decisions from this Court: R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, which established a template for determining a principle of fundamental justice, and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4, at paras. 10‑11, stating that the “best interests of the child” is not such a principle.
[35] The British Columbia Court of Appeal in R. v. K.D.T. (2006), 222 B.C.A.C. 160, 2006 BCCA 60, reached a contrary result, concluding that the onus under s. 72(2) did not impose “an excessive burden of proof on an applicant” (para. 59). Relying on R. v. Jones, [1994] 2 S.C.R. 229, and R. v. Shropshire, [1995] 4 S.C.R. 227, the court unanimously concluded that s. 7 protection is less robust at the post‑trial (sentencing) phase. Because it remained possible for the young person to prove that an adult sentence was inappropriate in his or her case, there was no violation of s. 7 because the vulnerability of young persons was thereby accommodated.
[36] In my view, the conclusion of the appeal courts of Ontario and Quebec is correct, namely, that the onus on young persons to displace the presumption of an adult sentence for presumptive offences is a violation of s. 7 .
The Operative Principle of Fundamental Justice
[37] The analysis under s. 7 proceeds in two stages: Is there a deprivation of life, liberty and/or security of the person? If so, does the deprivation accord with principles of fundamental justice? If there has been a deprivation that does not accord with principles of fundamental justice, a violation of s. 7 has occurred.
[38] The Crown concedes that the onus provisions in the presumptive offences regime engage the liberty interest of the young person. Imprisonment and the threat of imprisonment constitute clear deprivations of liberty (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 500-501).
[39] This concession means that the inquiry in this case is into whether that deprivation is in accordance with the principles of fundamental justice. And that in turn requires a determination first of what principle of fundamental justice is at issue here.
[40] The Quebec and Ontario Courts of Appeal set out different but conceptually related views of the governing principle, both of them emphasizing that young persons should be dealt with separately from adults based on their reduced maturity. I agree that this is important, but do not see this as engaged in this case. As the YCJA confirms, there is in fact a separate legal system for young persons. Section 3(1) (b) confirms that “the criminal justice system for young persons must be separate from that of adults”.
[41] What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.
[42] There are, for example, numerous sentencing provisions in the YCJA designed to protect, presumptively, young persons from custody. Confronted with a crime committed by a young person, police must consider whether alternatives, namely extra‑judicial measures or extra‑judicial sanctions, would be adequate before proceeding to court. Section 4 (c) of the YCJA declares that extra‑judicial measures are “presumed to be adequate to hold a young person accountable . . . if the young person has committed a non‑violent offence and has not previously been found guilty of an offence”. Section 10 of the YCJA declares that extra‑judicial sanctions “may be used . . . only if the young person cannot be adequately dealt with by a warning, caution or referral [extra‑judicial measures] . . . because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances”.
[43] Sections 38 and 39 of the YCJA also restrict when custody is available. Before sentencing a young person to custody, the court must:
· believe that no reasonable alternative or combination of alternatives exists (s. 39(2));
· know that the previous use of a non‑custodial sentence does not preclude another non‑custodial sentence (s. 39(4));
· recognize that custody must not be a substitute for appropriate child protection, mental health or other social measures (s. 39(5));
· consider a pre‑sentence report and any sentencing proposal made by the young person or the counsel present (s. 39(6));
· state reasons why a non‑custodial sentence is inadequate (s. 39(9));
· require that the principles set out in s. 3 of the YCJA govern sentencing (s. 38(2) );
· ensure that the sentence is no greater than might be afforded an adult under the same circumstances (s. 38(2)(a));
· consider all available sanctions other than custody first (s. 38(2)(d)); and
· ensure that the sentence is the least restrictive one capable of holding the young person accountable, subject to proportionality concerns (s. 38(2)(e)).
[44] This statutory preoccupation with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons, guided this Court in R. v. C.D., [2005] 3 S.C.R. 668, 2005 SCC 78, where Bastarache J. noted the YCJA ’s goal to “send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for young offenders” (para. 48). Bastarache J. concluded that “the object and scheme of the YCJA , as well as Parliament’s intention in enacting it, all indicate that the YCJA was designed, in part, to reduce over‑reliance on custodial sentences for young offenders” (para. 50).
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