Understanding Canadian Law Four-Book Bundle. Daniel J. Baum
a serious offence with tragic consequences. It remains to determine whether the maximum allowable youth sentence he received from the trial judge should be set aside.
The purpose of sentencing under the YCJA is expressed as follows in section 38(1): “The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.”
D.B. had been previously convicted for possession of stolen property and robbery, both involving threats and intimidation, and was bound by two separate probation orders at the time of the offence. He had a history of mental health issues and behavioural problems in school.
He expressed remorse for his offence prior to sentencing and had made some positive steps while in pre-trial detention. The predisposition assessment recommended that he be treated in a therapeutic milieu, including a highly structured environment with integrated academic and social programming, and also concluded that societal as well as his personal needs could best be met by keeping D.B. in the juvenile justice correctional system rather than exposing him to more hardened criminals.
Justice Abella recited the detailed order of the trial judge set out above and concluded:
Section 72(1) of the YCJA sets out a number of matters to be considered by the youth justice court in reaching its opinion about whether a youth sentence would be sufficient. The reasons for the sentence of the trial judge reflect that he did so. His weighing of these matters to reach his opinion about sufficiency is a task that must attract deference in this court. The Crown does not suggest that he acted on an improper principle or considered extraneous matters. It essentially argues that he did the weighing wrongly. In my view, that is not enough to warrant the setting aside of his decision.
It was not a question of the trial court applying an incorrect principle of law or considering improper evidence. In that regard, Justice Abella noted that the trial judge had observed the witnesses and their demeanour, and had heard their testimony. The appellate court could look at the written record and ask whether there had been an error of law.
The major part of the decision of the Supreme Court of Canada in The Queen v. D.B. centres on the role of the Charter on the YCJA.
Youth or Adult Sentence: The Charter
As was noted before, the YCJA places the burden on the youth convicted of a presumptive offence — such as, in this matter, manslaughter — to justify why a youth sentence rather than an adult sentence should be imposed. Under the YCJA, the failure on the part of the convicted youth to carry this burden requires the trial judge to sentence that person as an adult. The judge is denied choice in the matter. This is how the Supreme Court of Canada summarized the relevant provision of the YCJA:
A young person may, however, under section 63(1) of the Act, “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 section 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 (section 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[emphasis added] (section 72(1)(b)). The default position, in other words, is an adult sentence.
Even the most severe youth sentence, according to the trial judge in the case of D.B., involves far less incarceration time than an adult sentence for the crime. Further, the youth sentence is directed toward rehabilitation, not punishment or protecting the public from a potentially violent offender by incarceration.
Counsel for D.B. argued that the presumptive provision of the YCJA was invalid because it violated section 7 of the Charter of Rights and Freedoms, which, as we stated before, is part of the Constitution of Canada. If a statute conflicts with the Charter, then to the extent of the conflict, the Charter sets the standard. This means that in any conflict with the Charter, either all or part of the statute will be set aside to the extent of that conflict. Both the trial court and the appellate court agreed with counsel for D.B. It was in such a context that the matter came before the Supreme Court of Canada.
The Supreme Court of Canada Decides:
The Majority Opinion
In this 5-4 decision, Justice Abella spoke for the Court majority. The Court first asked whether the presumptive provision of the YCJA was valid as measured by section 7 of the Charter, which provides, “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.”
The analysis of section 7 comes in two parts, Justice Abella said. First, was there a denial of life, liberty, or security of the person? And, second, if so, was that denial in accord with the principles of fundamental justice?
As to the first part of the analysis, there was no question and no objection stated by the Crown: the “reverse burden of proof” raises the possibility of imprisonment or the threat of imprisonment.
It was the second part of section 7 that required further discussion by Justice Abella: Did the reverse onus rule of the YCJA affect a principle of fundamental justice? Yes, said Justice Abella. Without a finding that the young are vulnerable, that they have a reduced capacity for moral judgment, and that this vulnerability constituted a principle of fundamental justice, section 7 of the Charter simply would not apply. Putting it differently, section 7 of the Charter can only apply if it affects a principle of fundamental justice.
The Court found that principle by looking at a number of sources. First, it looked to the YCJA itself. In section 3(1)(b), the YCJA makes clear what the courts have long recognized: “The criminal justice system for young persons must be separate from that of adults.” But why must there be this separation? Justice Abella stated:
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.
For example, Justice Abella wrote, there are numerous sentencing provisions in the YCJA to protect, presumptively, young persons from custody. Confronted with a crime committed by a young person, police must consider whether alternatives outside the court exist. Section 4 of the YCJA declares that such 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.”
Sections 38 and 39 of the YCJA also limit when a court may order custody. Before sentencing a young person to custody, the court must:
believe that no reasonable alternative or combination of alternatives exists (section 39(2));
know that the previous use of a non-custodial sentence does not preclude another non-custodial sentence (section 39(4));
recognize that custody must not be a substitute for appropriate child protection, mental health, or other social measures (section 39(5));
consider a pre-sentence report and any sentencing proposal made by the young person or the counsel present (section 39(6));
state reasons why a non-custodial sentence is inadequate (section 39(9));
consider all available sanctions other than custody first (section 38(2)(d)); and
ensure that the sentence is the least restrictive one capable of holding the young person accountable, bearing in mind the nature of the offence (section 38(2)(e)).
These provisions are core