In Praise of Judicial Deference

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The Article

With a compelling dissent in Friday’s five-to-four ruling by the Supreme Court of Canada in R. vs. D. B., Mr. Justice Marshall Rothstein confirmed his distinction as one of the few appeal court judges in Canada who consistently respects the legislative authority of Parliament and the provincial legislatures under the Constitution of Canada.

At issue in this case was an appropriate sentence for D. B., a violent offender who pummelled 18-year-old Jonathan Romero to death in a brawl outside a Hamilton, Ont. shopping mall in 2003. Under a court order, D. B. cannot be named, because he was 17 years old at the time of the offence.

The altercation with Romero began when D. B. challenged him to a fight. Romero refused and looked away, whereupon D. B. knocked him to the ground with a devastating punch to the right side of the face and neck.

Rothstein relates: “D. B. then continued the assault by jumping on top of Romero and punching him four more times on the face and neck. Romero was knocked unconscious and unable to defend himself.” By the time paramedics arrived, Romero was showing no vital signs. He was immediately taken to hospital where he was pronounced dead.

At trial, D. B. pleaded guilty to manslaughter, an offence punishable by a maximum youth sentence of just three years incarceration under the Youth Criminal Justice Act of 2002. However, in section 72, the Act authorizes the imposition of a stiffer adult sentence on a young offender aged 14 or 17 who has been found guilty of murder, attempted murder, manslaughter, aggravated sexual assault or for a third offence that resulted in serious bodily harm.

Prior to sentencing, the court was informed that D. B. had a history of frequent fights and repeated suspensions from his high school for “disruptive behaviour.” At the time of his assault on Romero, he was bound by two separate probation orders arising out of convictions for possession of stolen property and robbery, both involving threats and intimidation. While in custody awaiting disposition and sentence for manslaughter, he had engaged in several assaults with other inmates and staff members.

On this basis, the Crown asked the court to impose a stiffer adult sentence on D. B.

In conformity with section 72, the onus was then on D. B. to persuade the court that a youth sentence would be more appropriate.

Counsel for D. B. argued that the reverse onus of proof in section 72 violates the right of violent young offenders to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” as guaranteed in section 7 of the Canadian Charter of Rights and Freedoms.

The trial judge accepted this defence argument and sentenced D. B. to the maximum three-year youth term. The Ontario Court of Appeal upheld this ruling.

Now in a judgment written by Madam Justice Rosalie Abella and backed by Chief Justice Beverley McLachlin, the Supreme Court of Canada has definitively struck down the reverse onus of proof in section 72. In so doing, the court overturned the considered judgment of the Chretien Liberal government and the majority in Parliament who backed the enactment of the Youth Criminal Justice Act in 2002.

During hearings on his appointment to the Supreme Court of Canada in 2006, Rothstein promised to respect the separation of legislative and judicial powers. Referring specifically to the evaluation of legislative enactments in relation to the Charter, he said: “The important thing is that judges, when applying the Charter, have to have recognition that the statute they’re dealing with was passed by a democratically elected legislature; that it’s unlikely the legislature intended to violate the Charter.”

Correspondingly, in his dissenting opinion in R. vs. D. B., Rothstein maintained that in enacting section 72, “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. This balancing was a legitimate exercise of Parliament’s authority to determine how best to penalize particular criminal activity.”

While Abella, McLachlin and most other appellate judges have no compunction about rewriting duly enacted laws to suit their personal policy preferences, Rothstein is a learned judge of the old school who insists on respecting the separation of legislative and judicial powers. Would that we had more principled and democratic judges like him.

Rory Leishman
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