R. v. D.B., (2008) 374 N.R. 221 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 10, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2008), 374 N.R. 221 (SCC);2008 SCC 25;56 CR (6th) 203;EYB 2008-133366;293 DLR (4th) 278;JE 2008-1070;77 WCB (2d) 524;AZ-50492171;[2008] SCJ No 25 (QL);231 CCC (3d) 338;171 CRR (2d) 133;237 OAC 110;374 NR 221;92 OR (3d) 399;[2008] 2 SCR 3;[2008] CarswellOnt 2709

R. v. D.B. (2008), 374 N.R. 221 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.R. TBEd. MY.006

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 (intervenors)

(31460; 2008 SCC 25; 2008 CSC 25)

Indexed As: R. v. D.B.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

May 16, 2008.

Summary:

D.B. pled guilty to manslaughter. He was 17 years old at the time of the offence. Manslaughter was a "presumptive offence" under the Youth Criminal Justice Act (YCJA). Under the YCJA, a youth court judge had to impose an adult sentence in the case of a presumptive offence unless the young person could demonstrate that a youth sentence had "sufficient length" to hold him or her accountable. D.B. applied for a youth sentence rather than the adult sentence presumptively imposed by the YCJA. The Crown opposed the application, seeking to have him sentenced as an adult. D.B. challenged the constitutionality of the provisions of the YCJA which placed 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 provisions of the YCJA that required the young person to justify the continuance of a ban protecting him from publicity.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 807, allowed the Charter challenge. In separate reasons for sentence, the court imposed an intensive rehabilitative custody and supervision order for a period of three years. D.B. was committed into a continuous period of intensive rehabilitative custody for a period of 30 months and was to serve the remainder of the sentence under conditional supervision in the community. The Crown appealed.

The Ontario Court of Appeal, in a decision reported at 208 O.A.C. 225, dismissed the appeal. The court held that the reverse onus provisions and the publication ban provisions contravened s. 7 of the Charter and that the violations could not be saved by s. 1 of the Charter. The court upheld the sentence imposed. The Crown appealed.

The Supreme Court of Canada, Rothstein, Bastarache, Deschamps and Charron, JJ., dissenting in part, dismissed the appeal. The majority of the court held that the onus on young persons to displace the presumption of an adult sentence for presumptive offences and the onus on young persons to demonstrate why they remained entitled to the ongoing protection of a publication ban violated s. 7 of the Charter and were not saved by s. 1 of the Charter. The court upheld the sentence imposed on D.B.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 650.2

Liberty - Limitations on - Presumptive adult sentence for youth - The Youth Criminal Justice Act (YCJA) created a category of serious offences known as "presumptive offences" - A youth court judge had to impose an adult sentence in the case of those presumptive offences unless the young person could demonstrate that a youth sentence had "sufficient length" to hold him or her accountable - The legislation therefore put 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 had lost his or her entitlement to a youth sentence - The Supreme Court of Canada held that the onus on the young person to displace the presumption of an adult sentence for presumptive offences violated s. 7 of the Charter, and in particular, the young person's right not to be deprived of liberty except in accordance with principles of fundamental justice - The impugned provisions of the YCJA were inconsistent with the principle of fundamental justice that young people were entitled to a presumption of diminished moral culpability - The onus on the young person of satisfying the court of the sufficiency of the factors in s. 72(1) of the YCJA so that a youth sentence could be imposed also contravened another principle of fundamental justice, namely, that the Crown was obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relied - The impugned provisions of the YCJA were not saved by s. 1 of the Charter - See paragraphs 20 to 95.

Civil Rights - Topic 650.2

Liberty - Limitations on - Presumptive adult sentence for youth - The Youth Criminal Justice Act (YCJA) created a category of serious offences known as "presumptive offences" - Under the presumptive offences regime, an adult sentence was presumed to apply to a young person convicted of a presumptive offence and the protection of a publication ban was presumed to be lost - The Supreme Court of Canada stated that "The impugned provisions place the onus on young persons to satisfy the court that they remain entitled to a youth sentence and to a publication ban. This 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" - See paragraph 95.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See both Civil Rights - Topic 650.2 ].

Civil Rights - Topic 3143.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Nonpublication of accused's identity - The Youth Criminal Justice Act (YCJA) created a category of serious offences known as "presumptive offences" - Under the presumptive offences regime, an adult sentence was presumed to apply to a young person convicted of a presumptive offence and the protection of a publication ban was presumed to be lost - The Supreme Court of Canada held that the onus on young persons to demonstrate why they remained entitled to the ongoing protection of a publication ban was a violation of s. 7 of the Charter - The court stated that "lifting a ban on publication makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe. A publication ban is part of a young person's sentence (s. 75(4)). It is therefore subject to the same presumption as the rest of his or her sentence. Losing the protection of a publication 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" - See paragraph 87.

Civil Rights - Topic 3151

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Sentencing (incl. imprisonment and parole) - [See both Civil Rights - Topic 650.2 and Civil Rights - Topic 3143.1 ].

Civil Rights - Topic 3157.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Young offenders - [See both Civil Rights - Topic 650.2 and Civil Rights - Topic 3143.1 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See both Civil Rights - Topic 650.2 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - The Supreme Court of Canada held that the principle that young people were entitled to a presumption of diminished moral culpability was a principle of fundamental justice within the meaning of s. 7 of the Charter - The presumption of diminished moral culpability was a legal principle, there was a consensus that the principle was fundamental to the operation of a fair legal system, and the principle could be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person - See paragraphs 45 to 69.

Criminal Law - Topic 5882

Sentence - Manslaughter - Seventeen year old D.B. went to a mall with friends - Insults were exchanged with another group of males - D.B. knocked 18 year old Romero to the ground and punched him - Romero lost consciousness - D.B. fled - Romero died from his injuries - D.B. pled guilty to manslaughter - He had prior convictions 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 - The trial judge held that the need for rehabilitation and the protection of society were better achieved through the intensive rehabilitation program available through a youth sentence than through a more protracted period of incarceration which might result from the imposition of an adult sentence - The trial judge sentenced D.B. to the maximum allowable sentence of an intensive rehabilitative custody and supervision order for a period of three years - D.B. was committed into a continuous period of intensive rehabilitative custody for 30 months and was to serve the remainder of the sentence under conditional supervision in the community - Since the trial judge was of the view that the maximum period of a youth sentence was necessary to achieve the desired ends of the rehabilitation program, no credit was given for one year of pretrial custody - The Supreme Court of Canada upheld the sentence - See paragraphs 96 to 101 and 192.

Criminal Law - Topic 8717

Young offenders - General principles - Procedure - Publication ban - [See second Civil Rights - Topic 650.2 and Civil Rights - Topic 3143.1 ].

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence - [See both Civil Rights - Topic 650.2 ].

Criminal Law - Topic 8843

Young offenders - Evidence and proof - Burden of proof - [See both Civil Rights - Topic 650.2 and Civil Rights - Topic 3143.1 ].

Cases Noticed:

Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 175 C.C.C.(3d) 321 (Que. C.A.), refd to. [paras. 13, 180].

Quebec Reference - see Quebec (Minister of Justice) v. Canada (Minister of Justice).

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [paras. 34, 125].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 34].

R. v. K.D.T. (2006), 222 B.C.A.C. 160; 368 W.A.C. 160; 2006 BCCA 60, refd to. [paras. 35, 164].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 35].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 35].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 38].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 44].

R. v. S.H.M., [1989] 2 S.C.R. 446; 100 N.R. 1; 100 A.R. 321, refd to. [para. 53].

R. v. R.C., [2005] 3 S.C.R. 99; 340 N.R. 53; 237 N.S.R.(2d) 204; 754 A.P.R. 204; 2005 SCC 61, refd to. [para. 61].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91, refd to. [para. 66].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 79].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 52 Q.A.C. 1, refd to. [paras. 80, 139].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 89].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 90].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 90].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 90].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 121].

Charkaoui v. Canada (Minister of Citizenship and Immigration) - see Charkaoui, Re.

R. v. S.R.B. (2008) 435 A.R. 294; 2008 ABQB 48, refd to. [para. 122].

Dumas v. National Parole Board, [1986] 2 S.C.R. 459; 72 N.R. 61; 3 Q.A.C. 133, refd to. [para. 122].

Dumas v. Leclerc Institute - see Dumas v. National Parole Board.

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 144].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 145].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 147].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 148].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 172].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 174].

F.N., Re, [2000] 1 S.C.R. 880; 255 N.R. 250; 191 Nfld. & P.E.I.R. 181; 577 A.P.R. 181; 2000 SCC 35, refd to. [para. 175].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 180].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 88]; sect. 7 [para. 20].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 2(1) [para. 21]; sect. 62, sect. 63, sect. 64(1), sect. 64(5), sect. 70, sect. 72(1), sect. 72(2), sect. 73(1) [para. 22]; sect. 75, sect. 110(2) [para. 23].

Authors and Works Noticed:

Anand, Sanjeev S., Catalyst for Change: The History of Canadian Juvenile Justice Reform (1999), 24 Queen's L.J. 515, pp. 515 to 559 [para. 136].

Bala, Nicholas, and Kirvan, Mary-Anne, The Statute: Its Principles and Provisions and Their Interpretation by the Courts, in Mann, Ruth M., Juvenile Crime and Delinquency: A Turn of the Century Reader (2000), p. 45 [para. 47].

Bala, Nicholas, Dealing with Violent Young Offenders: Transfer to Adult Court and Bill C-58 (1990), 9 Can. J. Fam. L. 11, generally [para. 136].

Bala, Nicholas, The 1995 Young Offenders Act Amendments: Compromise or Confusion? (1994), 26 Ottawa L. Rev. 643, generally [para. 136].

Bala, Nicholas, Young Offenders Law (1997), p. 215 [para. 84].

Bala, Nicholas, Youth Criminal Justice Law (2003), pp. 1 [para. 67]; 3, 4 [para. 62]; 5 [para. 64]; 6 [para. 49]; 7 [paras. 49, 133, 134]; 8, 9 [para. 134]; 10, 12 [para. 135]; 12 to 18 [para. 136]; 184 to 271 [para. 159]; 382 [para. 175]; 501 [paras. 132, 138]; 506 [para. 157]; 521 [para. 74].

Canada, Department of Justice, A Strategy for the Renewal of Youth Justice (1998), generally [para. 146]; p. 6 [para. 137].

Canada, Hansard, House of Commons Debates, vol. 25, 2nd Sess., 37th Parliament (May 12, 2003), pp. 6086, 6087 [para. 33].

Doob, Anthony N., and Cesaroni, Carla, Responding to Youth Crime in Canada (2004), pp. 3 to 13 [para. 131]; 22, 23, 189 [para. 146].

Doob, Anthony N., and Tonry, Michael, Varieties of Youth Justice, in Youth Crime and Youth Justice: Comparative and Cross-National Perspectives (2004), pp. 1, 3, 5 [para. 67].

Doob, Anthony N., Marinos, Voula, and Varma, Kimberly N., Youth Crime and the Youth Justice System in Canada: A Research Perspective (1995), pp. 56 to 71 [para. 64].

Hansard - see Canada, Hansard, House of Commons Debates.

Mann, Ruth M., Juvenile Crime and Delinquency: A Turn of the Century Reader (2000), p. 45 [para. 47].

Manson, Allan, The Law of Sentencing (2001), pp. 103, 104 [para. 62].

Renaud, Gilles, Speaking to Sentence: A Practical Guide (2004), p. 10 [para. 63].

Sprott, Jane B., Understanding Public Opposition to a Separate Youth Justice System (1998), 44 Crime & Delinquency, No. 3 399, pp. 399 to 411 [para. 131].

Sprott, Jane B., Understanding public views of youth crime and the youth justice system (1996), 38 Can. J. Crim. 271, pp. 281 to 285 [para. 131].

Counsel:

Alexander Alvaro and Deborah Krick, for the appellant;

Dean D. Paquette and Paola Konge, for the respondent;

Janet Henchey, for the intervenor, the Attorney General of Canada;

Jean-Yves Bernard and Isabelle Fortin, for the intervenor, the Attorney General of Quebec;

Peter P. Rosinski, for the intervenor, the Attorney General of Nova Scotia;

Diana M. Cameron, for the intervenor, the Attorney General of Manitoba;

Joyce DeWitt-Van Oosten, for the intervenor, the Attorney General of British Columbia;

Cheryl Milne and Lee Ann Chapman, for the intervenor, Justice for Children and Youth.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Paquette, Dean D., & Associates, Hamilton, Ontario, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Quebec, Quebec, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the intervenor, the Attorney General of Nova Scotia;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, the Attorney General of British Columbia;

Canadian Foundation for Children, Youth & the Law, Toronto, Ontario, for the intervenor, Justice for Children and Youth.

This appeal was heard on October 10, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The  judgment  of  the  Supreme Court  was de-

livered in both official languages on May 16, 2008, including the following opinions:

Abella, J. (McLachlin, C.J.C., Binnie, LeBel, Fish, JJ., concurring) - see paragraphs 1 to 102;

Rothstein, J., dissenting in part (Bastarache, Deschamps and Charron, JJ., concurring) - see paragraphs 103 to 192.