Section 7 and 17 Year-Olds: the Constitutionality of Reverse Onus Provisions in the Youth Criminal Justice Act

While its broad scope sometimes makes it the last refuge of scoundrels, the breadth of s. 7 of the Canadian Charter of Rights and Freedoms is also the major source of its flexibility. Indeed, when contemporary issues not contemplated by the architects of the Constitution arise, it is often through s. 7 that they are addressed.

This October, the SCC will hear R v. D.B. [2006] O.J. No. 1112, and will most likely uphold appellate court decisions in Ontario and Quebec which found that portions of the Youth Criminal Justice Act (YCJA) violate s. 7 of the Charter, and cannot be saved under s. 1.

The Crown has appealed the judgment of the Ontario Court of Appeal in R v. D.B., and, by extension, a reference from the Quebec Court of Appeal, (Reference Re: Bill C-7 Respecting the Criminal Justice System for Young Persons, [2003] Q.J. No. 2850 Que. C.A.) on which the OCA relied heavily.

In the Ontario case, the respondent-defendant, a seventeen year old, assaulted the victim, first “sucker punching” him then continuing to attack after the victim had fallen to the ground. It was demonstrated at trial that the victim’s death, which occurred shortly after the altercation, was a direct result of the respondent’s assault.

The respondent-defendant pleaded guilty to manslaughter and, as a youth, was prosecuted in accordance with the YCJA, which typically imposes lighter sentences and forbids publication of the identity of youth-criminals.

The Sentencing Issue

Section 2(1)(a) of the YCJA names manslaughter as a “presumptive offence,” a designation reserved for the most serious crimes. When confronted with presumptive offences, a court may opt to sentence a youth either as a youth or as an adult. Needless to say, the category of sentence selected can have a profound effect on the fate of a convicted youth, impacting both the length of prison term and whether or not his or her identity is disclosed.

Significantly, s. 72(2) of the YCJA, by way of a reverse onus clause, creates a rebuttable presumption that an adult sentence is necessary to hold the youth accountable. In other words, it falls to the accused, not the Crown, to bring an application under s. 63(1) demonstrating the adequacy of a youth sentence.

The Right to Privacy under the YCJA

Section 110(1) of the YCJA bans publication of the names and other identifying information of youth offenders. However, s. 110(2)(a) of the Act exempts cases where an adult sentence has been given from this rule, placing the burden on the defendant to demonstrate that the publication ban should be upheld.

As in the case of sentencing, a youth accused of a presumptive offence may secure a publication ban (under s. 75 of the Act) only via an application. As such, a reverse onus clause also operates with respect to the publication of the identity of accused persons charged with committing presumptive offences: in order to sustain the publication ban, the defendant must first rebut the presumption that no publication ban applies.

Leaving aside for a moment the constitutional issues posed by the prospect of young offenders being subject to adult sentences and the publication of their identity, the common law has tended to treat reverse onus clauses with suspicion. “A basic tenet of our criminal law” wrote Lofchik J., the trial judge, “is that the onus is on the prosecution to prove all of the elements necessary for a conviction and in connection with sentencing.”

The Constitutionality of the YCJA: The Section 7 Argument

According to both the Ontario trial and appeal courts as well as the Quebec Court of Appeal, the two reverse onus schemes described above violate s. 7 of the Charter. In the OCA, Goudge J.A. provided a thorough analysis of how the s. 7 requirements impact the YCJA, demonstrating first how the impugned sections of the Act violate the guarantee to life, liberty and security of the person, and subsequently how they are inconsistent with the principles of fundamental justice.

Since the Crown conceded that the right to liberty was engaged in the impugned provisions of the YCJA, Goudge J.A. did not address how the Act’s reverse onus sentencing scheme violated life liberty and security of the person.

With respect to the publication ban issue, Goudge J.A. drew heavily on the Quebec Court of Appeal Reference in finding that the violated the security of person of young offenders:

The stigmatizing and labelling of a young offender that can result from publicizing his or her identity sufficiently compromise[s] the security of the person interest protected by s. 7 of the Charter. … [T]he principle that the law protects the identity of a young person is a cornerstone of Canadian youth justice.

At a minimum, Goudge J.A. accordingly concluded, “the Crown must bear the burden of establishing those factors that yield a more severe penalty for an offender.”

Goudge J.A. then proceeded to apply the test articulated in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 for discerning principles of fundamental justice. Canadian Foundation for Children identifies three requirements for principles of fundamental justice: (i) that they be legal principles, (ii) that there must be sufficient consensus that they are “vital or fundamental to our societal notion of justice”: Rodriguez v. British Columbia (AG), [1993] 3 S.C.R. 519 at p. 590., and (iii) they are identifiable and yield predictable results. (par 8)

Applying this test, Goudge J.A. arrived at two principles of fundamental justice that formed the basis of his conclusion that the YCJA did not satisfy the principles of fundamental justice. The first of these was that “young offenders should be dealt with separately and not as adults in recognition of their reduced maturity.” Secondly, Goudge J.A. concluded that the burden of proof should be on the Crown “to prove aggravating circumstances when a more severe penalty is sought.” Goudge J.A. concluded that the reverse onus sentencing scheme in the YCJA failed comply with the principles of fundamental justice “insofar as [it] place[s] the onus on [the accused] to satisfy the youth justice court that he should receive a youth sentence not an adult sentence.” Goudge J.A. reached a similar conclusion with respect to the publication ban, taking issue with the manner in which the accused is required to shoulder the burden of maintaining the publication ban.

A Section 1 Defence?

Perhaps in light of the fact that s. 7 violations are rarely saved by s. 1, Goudge J.A. did not spend too much time considering s. 1. He based his finding that the impugned provisions of the YCJA could not be saved under s. 1 primarily on the lack of a rational connection between the reverse onus clauses established in the impugned sections of the Act and Parliament’s objectives (increased accountability, public order, and public protection). He concluded that it was the availability of harsher sentences and the prospect of lifting publication bans on young offenders, as opposed to the reverse onus burdens thereon that best served Parliament’s objectives. (par 86).

The Supreme Court and R v. D.B.

It will be interesting to see how the SCC approaches R v. D.B. It is reasonable to suspect that the court will find the tandem of the Quebec and Ontario appellate court rulings particularly persuasive.