Youth Criminal Justice Decision

R. v. D.B., 2008 SCC 25

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 17yearold, 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, Abella and Fish 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 must meet the threepart threshold for defining a principle of fundamental justice within the meaning of s. 7 of the Charter:  (1) it must be a legal principle; (2) there must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and (3) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.  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 longstanding 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. [3839] [41] [4548] [50] [5962] [6667] [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 counterarguments 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 stateimposed 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]
 
 

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