Over the years, an even more protective shield has been cast over young persons who have been brought into contact with the criminal law. This shield is made up of the common law and of statute that has long deemed young people as vulnerable — not being able to fully understand the difference between right and wrong, and make judgments as would adults. If young people cannot differentiate between right and wrong, should they be held liable for violating any particular criminal law?
For many years, there has been a separate system for ensuring fairness to the young person brought into contact with the criminal law. That system ranges from the contact of police with the youth in questioning and making an arrest, to an informal court trial conducted by special judges. If found guilty, a youth may be given a lesser sentence than an adult, and in that regard, a sentence that favours rehabilitation over punishment.
Youth crime and society’s perception of it have changed over the years. To some extent, that change, partly reflected in data and in dramatic incidents (some of which will be related), have influenced the enactment of new laws importantly including the Youth Criminal Justice Act (YCJA), Statutes of Canada 2002.
The YCJA, among other things, makes it possible for young persons (defined as between fourteen and eighteen) to be sentenced as adults for certain serious (and usually violent) crimes that the YCJA lists as presumptive offences. These include:
first-degree or second-degree murder;
attempt to commit murder;
manslaughter;
aggravated sexual assault; and
“an offence in the commission of which a young person causes or attempts to cause serious bodily harm.”
There is a significant difference between the length of imprisonment for an adult sentence, such as first-degree murder, and a youth sentence for the same crime. The YCJA leaves it to the youth court judge to decide whether a young person charged with a presumptive offence should be sentenced as an adult.
In this regard, the accused young person, under the YCJA, carries the burden of demonstrating to the youth court judge why an adult sentence should not be imposed. To do this, the young person must demonstrate that the youth sentence is of sufficient length to hold him/her accountable. Under the YCJA, the Crown does not have to show that the youth has lost entitlement to a youth sentence. In effect, the burden under the law shifts to the accused. This is called reverse onus.
These are among the issues raised by reverse onus and discussed in this chapter:
Does switching the burden of proof, that is, reverse onus, violate section 7 of the Charter of Rights and Freedoms? Does it deny a young person’s right not to be denied liberty “except in accordance with the principles of fundamental justice”?
Can young people who commit more serious crimes be held to more serious penalties?
May young persons subject to adult sentences also have their identities revealed?
A case that discusses and rules upon these issues is The Queen v. D.B., decided in a 5-4 decision by the Supreme Court of Canada on May 16, 2008. Justice Rosalie Abella wrote the majority decision, and Justice Marshall Rothstein the dissent.
Note, however, the incident giving rise to the offence occurred in 2003. The decision of the Supreme Court of Canada was handed down more than four years later. The course of justice often is ponderous. But more to the point in dealing with young offenders, the accused often begins an encounter with the criminal justice system as a youth and the sentence is delivered when that individual is an adult.
The Queen v. D.B.
At the time of the offence, D.B., the accused, was seventeen, a juvenile whose identity was protected under the Youth Criminal Justice Act (YCJA).
On December 13, 2003, D.B. went to a Hamilton, Ontario, shopping mall with some friends. Insults were exchanged with another group of young men, and two of them began to fight. Then D.B. turned to eighteen-year-old Jonathan Romero and said, “Me and you are going to fight right now.” Romero answered, “No.”
Romero’s arms were down at his sides when D.B. punched him on the right side of his neck and face. The punch was described as a “sucker punch.” Romero was neither prepared nor ready for it.
Romero fell to the ground from the force of the punch. D.B. did not let up. He jumped on top of Romero and hit him four times on the face and neck. Romero, having been knocked unconscious, was unable to defend himself. At that point, D.B. got up and fled back to the shopping mall.
Two of the other youths who had been fighting then stopped and, with three employees from a nearby store, tried to help Romero. An ambulance was called. When it arrived, Romero had no vital signs. He later died of his injuries.
Inside the mall, D.B. was heard to say, “You missed it. It was one punch. The guy’s not even fuckin’ moving.” He changed his clothes in a nearby restaurant and stowed the old clothes in a knapsack that he gave to someone else. He then went to a friend’s home, talking about the fight on the way. Later that evening, he went to a nightclub. He left with friends around closing time.
In the taxi, D.B. learned via a cell phone call that Romero had died. He stayed that night at a friend’s house. The next morning, police arrived at the friend’s home. D.B. attempted to flee out the back door but was caught and arrested.
D.B. pleaded guilty to manslaughter. He asked the trial judge for a youth sentence rather than that of an adult. The Crown opposed this request. However, the trial judge rejected the Crown’s request and imposed a youth sentence on D.B.
In an unreported decision, the trial judge stated:
You [D.B.] are to be the subject of an intensive rehabilitative custody and supervision order for a period of three years, and committed into a continuous period of intensive rehabilitative custody for a period of thirty months and serve the remainder of the sentence under conditional supervision in the community in accordance with section 105 of the Youth Criminal Justice Act.
In my view the maximum period of a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given credit for the one year period of pre-trial custody.
The trial court was aware of D.B.’s record through a predisposition assessment when it imposed the maximum period of a youth sentence. D.B. had frequently been involved in physical fights with his peers. And he had been suspended from school,
numerous times primarily for disruptive behaviour, verbal aggression, and disrespectful and intimidating conduct towards school staff. At the time of the offence, D.B. was bound by two separate probation orders arising out of prior convictions for possession of stolen property and robbery. Both offences involved threats and intimidation. While he was in custody awaiting disposition and sentence for manslaughter, D.B. was involved in several assaultive incidents with other inmates and staff members.
Rehabilitation versus Incarceration
The trial court judge found there was a basis for rehabilitation, which was a more desired alternative to incarceration. The trial judge stated that D.B.’s offence had to be considered “most serious” and that the act was “stupid, impulsive … borne of exuberance of youth and a misguided need for image before the offender’s peers” leading to a “tragic outcome.”
In response to the Crown’s concerns about D.B.’s maturity, character, background, and previous record, the trial judge felt that the intensive rehabilitative custody and supervision order provisions of the YCJA could address such areas. The trial judge concluded that “the need for rehabilitation of this offender and … the protection of society are better achieved through the intensive rehabilitation programme available through a youth sentence than through a more protracted period of incarceration which may result from the imposition of an adult sentence.”
Justice Abella, speaking for the majority in The Queen v. D.B., agreed. She stated:
There