Indeed, Justice Abella found additional support for the vulnerability of the child as a legal principle in international law. The preamble to the YCJA notes this point in its preamble. Canada became a signing party to the United Nations Convention on the Rights of the Child in 1992. Section 1 of that convention states:
[Those signing the convention] recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
That legal principle translated into a principle of fundamental justice, according to Justice Abella. She quoted from and relied upon past Supreme Court of Canada decisions as well as academic writings. For example, she noted the decision of former Chief Justice Antonio Lamer of the Supreme Court of Canada in Reference re Young Offenders Act (P.E.I.), [1991] 1 Supreme Court of Canada Reports 252, at p. 268, who said of the then controlling juvenile justice law, “What distinguishes this legislation from the Criminal Code is the fact that it creates a special regime for young persons. The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction.”
The result of this review of past Canadian legislation and the laws of other western nations led Justice Abella, speaking for the Court majority in The Queen v. D.B., to say that “a broad consensus reflecting society’s values and interests exists…. The principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.” And, Justice Abella added, this principle of fundamental justice is one that the courts can administer. It is manageable.
Applying the Principle of Fundamental Justice to “Reverse Onus”
Is the onus provision consistent with the principle of fundamental justice that young people are entitled to a presumption of diminished moral responsibility? As noted, ordinarily the Crown can seek an adult sentence for a young person over the age of fourteen who has been found guilty of certain indictable offences.
The young person must be notified of the Crown’s intention and, once notified, can elect to be tried by a youth court judge or, in the Ontario Superior Court of Justice, by a judge alone or with a jury following a preliminary inquiry. The onus is on the Crown. If the Crown does not persuade the court, a youth sentence will be imposed.
Again, as noted, under the YCJA, the young person charged with or found guilty of a presumptive offence, however, must apply for an order that he or she is not liable to an adult sentence so that a youth sentence can be imposed (section 63(1)). In making its decision, the court must consider whether a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour” (sections 72(1)(a) and (1)(b)). In deciding whether it would be a sufficiently long sentence, the court is to consider “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 (section 72(1)).”
Justice Abella probed the effect of a presumptive sentence on a young person. She wrote:
In the case of presumptive offences, it is the young person who must satisfy the court of the factors justifying a youth sentence, whereas it is normally the Crown who is required to satisfy the court of any factors justifying a more severe sentence. A maximum adult sentence in the case of presumptive offences is, by definition, more severe than the maximum permitted for a youth sentence. A youth sentence for murder cannot exceed ten years; for second-degree murder, seven; and for manslaughter, three. The maximum adult sentence for these offences is life in prison.
A young person should receive, at the very least, the same procedural benefit afforded to a convicted adult on sentencing, namely, that the burden is on the Crown to demonstrate why a more severe sentence is necessary and appropriate in any given case. The onus on the young person reverses this traditional onus on the Crown and is, consequently, a breach of section 7 [of the Charter].
Effect of Reverse Onus
Justice Abella, in The Queen v. D.B., stated that an adult sentence can be imposed on a youth. But that sentence must be justified by the seriousness of the offence and the circumstances of the offender.
This means, Justice Abella said,
[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.
In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.
Because the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.… It is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt.
YOU BE THE JUDGE
A Matter of Defence: Public Protection
The Facts
D.B.’s record both before and after he struck and killed his victim in a shopping mall fight was serious and lengthy. He had been involved in two parole violations following the fight that led to his second-degree murder conviction. As well, he had been involved in fights with other youths while incarcerated.
The Crown prosecutor argued that, on the face of that record, it should not have to bear the burden of proving D.B. should be sentenced as an adult offender and that the publication ban masking his identity should be removed. D.B., the Crown seemed to say, was a threat to society.
In its argument to the Supreme Court of Canada, the Crown seemed to have set out its argument in the alternative. That is, assume the burden of proof in terms of presumed offences under the YCJA was overturned because of section 7 of the Charter as a violation of liberty not “in accordance with the principles of fundamental justice.”
Still, the Crown stated, the “sentencing provisions [of the YCJA] served the goals of accountability, protection of the public, and public confidence in the administration of justice.” As such, they should be sustained.
The Issue
Who should have the burden of proving if D.B. should be sentenced as an adult?
Points to Consider
For our purposes, assume, as indeed was the case, that the Court had ruled the presumed offences under the YCJA in terms of burden of proof were a violation of section 7 of the Charter.
The question now is whether the Charter contains another provision that would otherwise support the Crown’s position.
In this regard, the Crown turned to section 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”