R. v. S.R.B., (2008) 435 A.R. 294 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 15, 2008
• Citations: (2008), 435 A.R. 294 (QB);2008 ABQB 48

R. v. S.R.B. (2008), 435 A.R. 294 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.193

In The Matter Of an Application for an Order pursuant to s. 52(1) of the Constitution Act, 1982;

And In The Matter Of s. 24(1) of the Judicature Act, R.S.A. 2000, c. J-2, and the provisions of the Constitutional Notice Regulations, A.R. 102/99.

Her Majesty The Queen (respondent) v. S.R.B. (applicant)

(050653377Q2; 2008 ABQB 48)

Indexed As: R. v. S.R.B.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

January 18, 2008.

Summary:

A girl was transported by the accused (SRB) and four others to a golf course under the ruse of attending a party. The girl was raped by two of the others (not SRB), then beaten to death. All five were present for all or part of the events. SRB was not present when the beating occurred. SRB and the four other accused were charged with kidnapping, aggravated sexual assault and first degree murder. One accused (the principal offender Laboucan) was convicted of all three offences, one accused was acquitted, one accused pleaded guilty to first degree murder and one accused was awaiting trial. At issue was whether SRB's level of knowledge and participation made her guilty of the offences as a party for aiding and abetting the principal offender.

The Alberta Court of Queen's Bench, in a judgment reported (2007), 416 A.R. 223, found SRB not guilty of first degree murder, but guilty of the included offence of manslaughter. SRB was also found guilty of kidnapping and aggravated sexual assault. Pursuant to s. 2(1) of the Youth Criminal Justice Act, manslaughter and aggravated sexual assault were "presumptive offences", meaning that a young person over the age of 14 was to be sentenced as an adult unless the young person satisfied the court under s. 72(2) of the Act that a youth sentence should be imposed. SRB was 17 years of age at the time of the offences. SRB applied under s. 63(1) for an order that she not be sentenced as an adult. On a preliminary application, SRB challenged the constitutionality of s. 72(2), submitting that the onus placed on her violated her right to liberty in a manner contrary to the principles of fundamental justice (Charter, s. 7).

The Alberta Court of Queen's Bench held that "s. 72(2) of the YCJA, to the extent that it imposes an onus on a young offender who has applied for a youth sentence, violates s. 7 of the Charter and is not saved by s. 1. On the hearing of the applicant's application for a youth sentence, the Crown, not the applicant, will bear the onus of satisfying the court as to the matters referred to in s. 72(1)".

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 - A 17 year old girl (SRB) was convicted of manslaughter, aggravated sexual assault and kidnapping - Pursuant to s. 2(1) of the Youth Criminal Justice Act, manslaughter and aggravated sexual assault were "presumptive offences", meaning that a young person over the age of 14 was to be sentenced as an adult unless the young person satisfied the court under s. 72(2) of the Act that a youth sentence should be imposed - SRB applied under s. 63(1) for an order that she not be sentenced as an adult - On a preliminary application, SRB challenged the constitutionality of s. 72(2), submitting that the onus placed on her violated her right to liberty in a manner contrary to the principles of fundamental justice (Charter, s. 7) - The Alberta Court of Queen's Bench held that "s. 72(2) of the YCJA, to the extent that it imposes an onus on a young offender who has applied for a youth sentence, violates s. 7 of the Charter and is not saved by s. 1. On the hearing of the applicant's application for a youth sentence, the Crown, not the applicant, will bear the onus of satisfying the court as to the matters referred to in s. 72(1)" - Section 72(2) was contrary to the fundamental principle of law that young offenders should be dealt with separately from adults in recognition of their lack of maturity - The onus was not a reasonable limit prescribed by law (s. 1), as it failed the proportionality test and did not minimally impair a young person's Charter rights (objective could be achieved by Crown bearing the onus).

Civil Rights - Topic 3151

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

Civil Rights - Topic 3157.1

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

Civil Rights - Topic 8348

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

Criminal Law - Topic 8817.8

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

Cases Noticed:

R. v. D.B. (2006), 208 O.A.C. 225; 206 C.C.C.(3d) 289 (C.A.), agreed with [para. 12].

R. v. M.B.W. (2007), 424 A.R. 18; 2007 ABPC 214, agreed with [para. 13].

Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 175 C.C.C.(3d) 321 (Que. C.A.), agreed with [para. 14].

R. v. K.D.T. (2006), 222 B.C.A.C. 160; 368 W.A.C. 160; 2006 BCCA 60, disagreed with [para. 14].

R. v. M.G.P. (1996), 40 C.R.R.(2d) 174 (B.C.S.C.), refd to. [para. 16].

R. v. A.H. (1992), 10 O.R.(3d) 683 (Gen. Div.), affd. (1993), 12 O.R.(3d) 634 (C.A.), refd to. [para. 16].

R. v. C.H.I.P. (2000), 195 Sask.R. 37 (Prov. Ct.), refd to. [para. 16].

R. v. R.C. (1996), 190 A.R. 161 (Prov. Ct.), refd to. [para. 16].

R. v. J.M.W. (1998), 217 A.R. 361 (Prov. Ct.), refd to. [para. 16].

R. v. S.H.M., [1989] 2 S.C.R. 446; 100 N.R. 1; 100 A.R. 321, refd to. [para. 16].

R. v. Wormell (W.J.) (2005), 213 B.C.A.C. 223; 352 W.A.C. 223; 198 C.C.C.(3d) 252; 2005 BCCA 328, refd to. [para. 16].

R. v. P.K. et al., [2005] A.R. Uned. 553; 2005 ABPC 190, refd to. [para. 17].

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. [para. 19].

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. 19].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 20].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 20].

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. 20].

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. 20].

R. v. D.L. (No. 2), 2005 ONCJ 344, refd to. [para. 21].

R. v. Christie (R.D.) (2004), 357 A.R. 47; 334 W.A.C. 47; 2004 ABCA 287, refd to. [para. 25].

R. v. Wainwright (M.) (2007), 422 A.R. 25; 415 W.A.C. 25; 2008 ABCA 6, refd to. [para. 25].

R. v. R.V.B. (1994), 145 A.R. 384; 55 W.A.C. 384 (C.A.), dist. [para. 27].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 31].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 2(1) [para. 5]; sect. 63(1) [para. 8].

Authors and Works Noticed:

Bala, Nicholas, Young Offenders Law (1997), p. 294 [para. 36].

Bala, Nicholas, Youth Criminal Justice Law (2003), p. 520 [para. 67].

Counsel:

John Watson and Anne Schutte (Alberta Justice), for the respondent;

Colleen Connolly (Bokenfohr Connolly & Wilson), for the applicant.

This application was heard on January 15, 2008, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 18, 2008.