The burden should not be on a youth found guilty of a serious criminal offence to argue that he or she should not receive an adult sentence, the Ontario Court of Appeal has ruled.
"The sections of the YCJA that require an adult sentence to be imposed on a young person in the respondent's position, unless he satisfies the youth justice court that a youth sentence is sufficient, curtail his liberty and do not accord with the principles of fundamental justice," Goudge ruled late last month. "For these young persons an adult sentence is presumed the norm and a youth sentence is the exception that they must demonstrate to be applicable."
The case of R. v. DB involved a 17-year-old boy who got into a fight in 2003 at a Hamilton, Ont., shopping mall. He punched another youth in the head, jumped on him when he fell, then punched him several more times until the victim was unconscious. The victim died of his injuries.
DB pled guilty in July 2004 in Ontario Superior Court. According to the YCJA, a youth between the ages of 14 to 17 found guilty of a serious offence, such as manslaughter in this case, will receive an adult sentence unless the youth can justify that he or she deserves a youth sentence.
That same reverse onus is in place when it comes to maintaining a publication ban. The YCJA requires the youth to persuade the court that a continuation of the publication ban is appropriate.
DB's counsel argued at sentencing that this burden was unconstitutional and the trial judge agreed. The Crown appealed and the appeal was heard in November 2005.
Hamilton criminal lawyer Dean D. Paquette, counsel for DB, says he is pleased with the decision.
"There's a default position that if the defendant youth doesn't do something he's treated as an adult and his name is published. The Court of Appeal has determined that both offend the young person's rights under s. 7 and have found the reverse onus is unconstitutional," he says.
"It means for my own client, he's going to remain sentenced to a youth facility," he says. "It will be for the Ministry of the Attorney General to decide whether or not they choose to appeal that decision."
In doing so, they were guided by, but not bound by and certainly not for the entire same reasons, the Quebec Court of Appeal.
In coming to the finding that the two sections were unconstitutional, the unanimous appeal court followed the cue of Quebec (Minister of Justice) v. Canada (minister of Justice), a reference brought to Quebec's appeal court by the provincial government. However, another similar case at the British Columbia Court of Appeal, R. v. KDT, went the opposite way, with the appeal court ruling in February that it is not unreasonable for a convicted young person to demonstrate that he or she should be sentenced as a youth.
What this does, says Cheryl Milne, counsel for intervener The Canadian Foundation for Children, Youth, and the Law, is create a patchwork across the country, where young people are treated differently from province to province.
"There are different laws in each province. It leaves the individual young person to assert the constitutional argument in each case. It's an onerous burden for people to be putting forward constitutional arguments in cases," she says.
After the Quebec case, former federal minister of Justice Irwin Cotler said there were going to be amendments to the YCJA but they never came about.
"Ontario is now consistent with Quebec, but B.C. is different. I don't think with the current government that they would be so inclined, given their announcements about how they think young people should be treated in the criminal justice system, I can't imagine that they would
support an amendment," Milne says.
She says when there are inconsistent judgments across the country, that's when appeals are made to the Supreme Court of Canada.
"We'll just have to wait and see if Ontario is intending to appeal to the next level or whether the defendant in the B.C. case will appeal.
"If the law is left to stand the way it is, the federal government has to be very careful if it in fact intends to amend the YCJA for harsher penalties or more adult penalties or adult court for youth because it would run contrary to what two fairly strong courts of appeal in this country have said."
A spokesman for the Ministry of the Attorney General says they are still reviewing the decision before deciding whether to pursue an appeal.
Milne says further to the two narrow issues decided by the appeal court, the decision is important because it clearly establishes that it's a principle of fundamental justice that young people be treated in a separate youth justice system.
"You can't set up a system in which we automatically treat young people like adults as part of a criminal justice system," she says.
In striking down two sections of the Youth Criminal Justice Act, Justice Stephen Goudge, for a three-member panel, found the reverse onus placed on a defendant youth is unconstitutional as it violates a youth's s. 7 Charter rights.