R. v. D.B.: A Sign of Things To Come?
In the field of Criminal Justice, the Supreme Court of Canada — once amorphously centrist in its politics — is beginning to show signs of right/left divisions that are more commonly found in its American counterpart. In R. v. D.B. 2008 SCC 25 the Supreme Court divided sharply along political lines on the hot button issue of the sentencing of young offenders. Whether this polarization of the Supreme Court is a precursor to its eventual politicization remains unclear. What does seem apparent however, is that D.B. has placed the Supreme Court on a collision course with the Harper government.
The majority decision, in D.B., authored by Abella J., has been ably canvassed on this site by Professor James Stribopoulos, here, (see also here for a summary of the facts of the case and the appellate and lower court decisions, as well as here and here for commentary on the disconnect between Parliament and the Judiciary as played out in D.B.). In light of these posts, the foregoing discussion will focus primarily on Rothstein J.’s dissenting opinion in D.B., which has not yet been considered. That said, it is worthwhile revisiting both the facts of the case and the majority’s opinion, if only to help frame a discussion of the dissenting opinion.
Facts and Procedural History
B, a 17 year old youth, was involved in an incident at a local mall in which B assaulted R, first ‘sucker punching’ him, then continuing to attack R when he fell to the ground. Later that evening, R died as a direct result of B’s assault. B was accordingly arrested and pleaded guilty to the charge of manslaughter. As a young offender, B was charged under the Youth Criminal Justice Act S.C. 2002, c.1 (“YCJA”) Section 2(1)(a) of the Act lists manslaughter as a “presumptive offence.” In other words, it provides courts with the authority to sentence young offenders charged with offences enumerated in s. 2(1)(a) to adult sentences. The application of an adult sentence can have a significant effect on the fate of a convicted youth, impacting not only the length of the sentence, but also whether or not his or her identity may be lawfully published. Although s. 110(1) of the YCJA forbids publication of the names and other identifying information of young offenders, s. 110(2)(a) of the Act exempts cases where an adult sentence has been applied. Moreover, s. 72(2) of the YCJA creates a reverse onus clause for presumptive offences; the burden of proof for establishing that a youth sentence (as opposed to an adult sentence) is applicable falls to the accused, who must bring an application under s. 63(1) of the YCJA to demonstrate the appropriateness of a youth sentence.
Making specific reference to the reverse onus provisions for presumptive offences, B. alleged a violation of his s. 7 Charter rights. B’s argument was successful both at trial [(2004), 72 O.R. (3d) 605 (S.C.J.)] and in the Ontario Court of Appeal [(2006) 79 O.R. (3d) 698]. Both courts drew upon a Quebec Court of Appeal ruling, Reference Re: Bill C-7 Respecting the Criminal Justice System for Young Persons,  Q.J. No. 2850 Que. C.A. The Crown appealed the decision of the Ontario Court of Appeal, and the matter proceeded to the Supreme Court.
The Majority Opinion
Writing for a slim majority, Abella J., (with McLachlin C.J., Binnie, Lebel and Fish JJ. concurring) upheld the decision of the Ontario Court of Appeal, finding that the reverse onus provisions contained in the sentencing scheme for presumptive offences set out in the YCJA engaged B.’s liberty interests. Interestingly, Abella J. made no reference to the Ontario Court of Appeal’s finding that lifting the publication ban when an adult sentence was administered offended the guarantee to security of the person under s. 7 of the Charter. Instead, her focus was primarily on the liberty interests at stake.
Abella J. found that neither the sentencing scheme nor the lifting of the publication ban were consistent with the principles of fundamental justices. She cited two such principles, (1) “the recognition of a presumption of diminished moral culpability” and (2) “that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies.” Not surprisingly, Abella J. refused to save the impugned provision of the YCJA under s. 1 of the Charter.
Rothstein J.’s dissent
Unlike Abella J. Rothstein J., writing in dissent (with Bastarache, Deschamps, and Charron JJ’s concurring), refused to countenance a s. 7 Charter violation. Rothstein J. admitted that the possibility of adult sentencing engaged a s. 7 liberty interest. He furthermore agreed with Abella J. that both the principles of reduced moral blameworthiness for young offenders and the Crown’s obligation to bear the burden of establishing aggravating sentencing factors beyond a reasonable doubt, were principles of fundamental justice within the meaning of s. 7 of the Charter. The source of disagreement between the majority and the dissent related to whether or not there was a causal connection between the presumptive sentencing scheme and the principles of fundamental justice identified by Abella J.
“In my respectful view,” Rothstein J. opined, “the presumption of reduced moral blameworthiness of young persons as a principle of fundamental justice does not lead to the further presumption of a youth sentence or a publication ban.” This latter presumption, of youth sentences, is not in itself (according to Rothstein J.), a principle of fundamental justice:
I do not agree that the presumption of youth sentences is a principle of fundamental justice. First, there is no such thing as a youth sentence in the abstract. What constitutes a youth sentence as opposed to an adult sentence depends on the particular legislative sanctions in force at the relevant time. Further, there may be much overlap between the range of sentences that can be imposed on a young person and that which can be imposed on an adult offender for any given offence.
Therefore, Rothstein J. concluded, (drawing on the test for discerning the presence of a legal principle articulated in R. v. Malmo Levine  3 S.C.R. 571), that the presumption of youth sentences cannot be “identified with sufficient precision to yield a manageable standard against which to measure deprivations of …. liberty so as to establish a constitutional norm.”
Rothstein J. then proceeded to explain how the presumptive offence scheme was consistent with the principle of fundamental justice regarding the reduced moral blameworthiness of young offenders. The YCJA, he explained, “recognizes the age, reduced maturity and increased vulnerability of young persons and, as a result, it complies with the principles of fundamental justice.” (emphasis in original). Here too, Rothstein J. criticized Abella for conflating the principle of reduced moral blameworthiness with the presumption of a lesser youth sentence:
Abella J. focusses solely on the age of the young offender to conclude that the presumption of reduced moral blameworthiness requires the further presumption of a lesser youth sentence for serious violent offences. However, it was entirely appropriate for Parliament to consider the competing interests, on the one hand, of young persons to have their reduced moral blameworthiness taken into account and, on the other, of society to be protected from violent young offenders and to have confidence that the youth justice system ensures the accountability of violent young offenders.
What Rothstein J. seems to be suggesting here is that compliance with the principle that a reduced moral blameworthiness attaches to young offenders will not always translate into a reduced culpability on the part of young offenders. Rather, reduced moral blameworthiness may be superseded by societal concerns related to collective security.
Rothstein J. also took issue with Abella J.’s finding that the YCJA violated the principle that the Crown must discharge its burden of proof beyond a reasonable doubt. In supporting his position, Rothstein pointed to s. 63(1) of the YCJA, which provides young offenders with the right to satisfy the youth justice court that that a youth sentence should apply in the place of the higher legislated range of sentences. “Conferring this right on young offenders,” Rothstein J. suggested, represents Parliament’s approach to balance the status of young persons with the need to protect society from the perpetrators of the most serious violent crimes.”
With respect to the publication ban, Rothstein J. found that “the publication ban forms no part of the young person’s sentence.” Rather, it was “deemed part of the sentence for appeal purposes only” (emphasis in original). Furthermore, “although Parliament has recognized that unwanted publicity and the public’s negative reaction may harm young offenders convicted of crimes,” Rothstein J. posited that “this does not mean that the state is responsible for imposing the harm that may result without the publication ban” (emphasis in original).
The Harper Government’s Reaction
In addition to coming under fire from the four dissenting judges, the majority opinion in D.B. also attracted criticism from the Harper government. In a statement reacting to D.B. (here), Minister of Justice Rob Nicholson lambasted the decision as an affront to Parliament’s legislative authority. Nicholson also vowed to “remain committed to responding to the problems posed by youth crime and strengthening the YCJA.” Mr. Nicholson’s statement reads like a battle cry. If it is an indication of things to come, then the politically charged nature surrounding the Supreme Court’s decision in R.v. D.B. may only be the tip of an iceberg.
In his discussion of the political implications of R. v. D.B., Professor Stribopoulos suggested that the decision would “somewhat restrict the ability of politicians to exploit youth crime for political ends.” While this may be true, R. v. D.B. will also likely serve to mobilize “law and order” conservatives against the judiciary. To this end, what is most alarming about Mr. Nicholson’s comments is his reference to “the dissenting opinion of four justices, which defended Parliament’s ability to balance the appropriate treatment of young offenders with the public interest in safety.” Viewed in the political context of an upcoming Supreme Court appointment (to replace the retiring Bastarache J.), as well as a Supreme Court appointment process that remains very much in flux, the conditions unfortunately seem ripe for the politicization of the Supreme Court.