In effect, section 1 of the Charter would allow a section 7 infringement if it were a reasonable limit set out by law as can be justified in a free and democratic society.
To meet the section 1 defence, two conditions must be met: (1) there must be a reasonable (rational) connection between the limitation on the liberty interest protected by section 7 of the Charter and the goal to be achieved — protection of the public; and (2) the limitation must be the minimum necessary to achieve the stated goal.
Discussion
Justice Abella, speaking for the Supreme Court of Canada majority in The Queen v. D.B., rejected the section 1 Charter defence raised by the Crown. She accepted that Parliament’s objectives of accountability, public safety, and public confidence indeed were proper. But, she insisted that individual Charter rights could be safeguarded while at the same time rights set out by Parliament were protected. Thus, the need continued for the Crown to carry the burden of proof in demonstrating the need for an adult sentence.
The Young Offender: Still Accountable
The young offender still remains accountable. Justice Abella stated:
This does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection.
Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs. The Crown may still persuade a youth court judge that an adult sentence or the lifting of a publication ban is warranted where a serious crime has been committed. And young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence. But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown.
YOU BE THE JUDGE
The Queen v. D.B. — Publication Ban
The Facts
D.B. was given a youth sentence. As part of this youth sentence, the YCJA provides for a publication ban, which prohibits any publication of the accused youth’s identity. That is why D.B. is referred to by initials rather than by his full and legal name. However, the burden of showing that the ban should remain is placed on the young offender.
The Issues
Who has the burden of showing why a publication ban should be removed? What must be proved to meet that burden?
Points to Consider
The publication ban is only technically part of the YCJA sentence. The reason for this is to allow an appeal of any court order permitting the youth’s identification.
The YCJA imposes on the youth a “reverse onus” burden even if the court imposes a youth sentence. That is, the youth must show entitlement to a publication ban.
The Crown prosecutor argued in The Queen v. D.B. that D.B. had the burden of showing why the publication ban should not be removed.
In section 3(1)(b)(iii) of the YCJA, the young person’s “enhanced procedural protection … including their right to privacy” is stated to be a principle to be emphasized in the application of the Act.
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice provides that “the juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declares that “in principle, no information that may lead to the identification of a juvenile offender shall be published.”
Discussion
Justice Abella, speaking for the Court majority in The Queen v. D.B., ruled that the Crown had the burden of showing why the publication ban should be removed. She linked this conclusion to the sentence’s effect on a young offender. As such, her reasoning relating to section 7 of the Charter applied. She wrote:
I see the onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban to be a violation of section 7. As discussed, the effect of the reverse onus provisions is that if a young person is unable to persuade the court that a youth sentence should be imposed, an adult sentence is imposed.
When an adult sentence is imposed, the young person loses the protection of a publication ban. But even if the young person succeeds in discharging the reverse onus and receives a youth sentence, the YCJA imposes an additional onus by requiring the young person to apply for the ban that normally accompanies a youth sentence.
In s. 3(1)(b)(iii) of the YCJA … the young person’s “enhanced procedural protection … including their right to privacy,” is stipulated to be a principle to be emphasized in the application of the Act.
Scholars agree that “publication increases a youth’s self-perception as an offender, disrupts the family’s abilities to provide support, and negatively affects interaction with peers, teachers, and the surrounding community” (Nicholas Bala, Young Offenders Law (1997), at p. 215). Professor Doob … testified about this issue before the Standing Committee on Justice: “I think you’d be hard-pressed to find a single professional who has worked in this area who would be in favour of the publication of names. From the very beginning when this was proposed in May 1998, I’d never heard anybody give a single reasoned, principled argument for doing it. Now, there are some other arguments for doing it having to do essentially with vindictiveness, but in terms of actually trying to be constructive in any way, as I said, I would certainly find it very difficult to find anybody who has done any research on this kind of issue who would support it. It just seems to me to be a gratuitous meanness.”
International instruments have also recognized the negative impact of such media attention on young people. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules,” adopted by General Assembly Resolution A/RES/40/33 on November 29, 1985) provide in rule 8 (“Protection of privacy”) that “the juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declare that “in principle, no information that may lead to the identification of a juvenile offender shall be published.”
The foregoing demonstrates 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 (section 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. The reversal of this onus too is a breach of section 7.
Dissenting Opinion
Justice Rothstein and three other justices dissented from the majority in The Queen v. D.B.
First, Justice Rothstein argued that the only purpose of the appeal provisions of the YCJA relating to publication bans was to give a limited right to seek court review where one would not otherwise exist. The reality, he said, is that publication bans simply are not part of any sentence. Publishing a story about the alleged crime does not, as such, impose any kind of sentence on the defendant, though it surely may be argued that such publication may hold the defendant up to ridicule.
Further, he argued that the provision of the YCJA relating to the presumption of publication bans does not involve issues involving section 7 of the Charter. He stated:
The liberty interest protected by section 7 encompasses freedom from physical restraint and protection of an individual’s personal autonomy.…