R v DB, New Legislation and Deterrence

When a seventeen-year-old, already subject to two probation orders, sucker punches another teen, and continues his assault until the victim loses consciousness and later dies – what is the appropriate societal response? Crown prosecutors said: sentence the seventeen-year-old as an adult and make him prove why his name shouldn’t be published. Two lower courts ruled that such a response unreasonably violates the Charter of Rights and Freedoms. As we wait for the Supreme Court of Canada’s (“SCC”) ruling in the case, Canada’s judiciary seems set on a collision course with the legislative branch of government. The end result could be a fascinating display of constitutional expert Prof. Peter Hogg’s “dialogue” between Parliament and the courts.

Back in September, TheCourt.ca predicted that when the SCC rules on R v DB, [2008] 2 SCR 3 [DB], a constitutional challenge to two provisions of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], the top court is likely to dismiss the Crown’s appeal. At issue are two YCJA clauses that require youths convicted of “presumptive offences” – a category of serious crimes – to, first, prove why the Act’s more lenient sentencing measures are adequate to hold them accountable and, second, to prove why the publication ban on identifying details usually offered to convicted youths is appropriate in their case. (For more information on those issues, take a look at Matthew Shogilev’s September post).

Were the SCC to uphold the lower court decisions and strike down the two provisions, the ruling would run counter to the approach to youth justice taken in recent federal legislation. The current government favours harsher and longer prison sentences. In fact, when the Conservatives came to power in 2006, one of their election platform promises was to make anyone over the age of 14 convicted of violent or repeat offences automatically subject to adult sentencing.

That plan is on hold pending the SCC’s ruling in DB While it waits, however, the government introduced a bill last month to respond to a June 2006 SCC ruling on youth offender sentencing. In R v BWP; R v BVN, [2006] 1 SCR 941, the court said that general deterrence could not be considered when sentencing a youth. The ruling explained that, though the principle appears in the sentencing guidelines of the Criminal Code, RSC 1985, c C-46, the YCJA states that those provisions do not apply to youths except for a certain few that are explicitly listed in the Act. Deterrence not being among those listed in the YCJA’s very detailed sentencing guidelines, the court reasoned that Parliament deliberately excluded the principle. What’s more, the words “deter,” “deterrence” or any equivalent concepts do not appear anywhere in the YCJA.

The proposed new legislation responds directly to the SCC’s judgment in DB. If it is adopted, Parliament will just write deterrence in. The YCJA amendments, part of the Tackling Violent Crime Act, SC 2008, c 6, would include deterrence and denunciation in the youth sentencing guidelines. In addition, the bill would make it easier for the courts to detain some youth defendants, who before their trial, are deemed to pose a risk to the public. Specifically, the amendment names those youths charged with offences that include causing bodily harm and those who breached previous conditions of release.

The intention of the legislative proposals is made clear in a message posted on the Conservatives’ web site: “Too many young offenders know they can break the law with near-impunity without facing serious charges. … As a result, violent crime by young people is rising,” the message says before later adding, “Young offenders need more than a ‘time out.’”

In its ruling on deterrence, the SCC noted that principle of deterrence was controversial and that the court was merely interpreting the statute in question, not ruling on the principle’s ultimate wisdom. Regardless, with the five year review of the YCJA set for next year, many will be listening when the SCC issues its ruling in DB.