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Mangling the Charter
At issue in the R. vs. D. B. decision were two relatively novel "reverse onus" provisions in the Youth Criminal Justice Act. The Act, as it evolved in the 1990s, allowed young offenders to be treated as adults in several respects if their crime involved homicide or sexual assault. Any minor found guilty of such a felony could be sentenced as an adult, and would not necessarily be protected by the automatic publication ban that otherwise applies to young offenders. But the defence was left with the option of applying for a rebuttal of the presumption, and proving that its client had diminished moral capacity. The rule, in short, could have come straight from the Book of Proverbs: If you perpetrate an adult crime, you better have a damn good reason for not doing adult time. ("D. B.," for one, was a 17-year-old who sucker-punched a bystander at a shopping mall and proceeded to beat him to death.) But the court concluded that it is not enough to provide young offenders with an opportunity to show that they are reasonably entitled to the benefit of soft, rehabilitation-focused youth justice. According to Justice Abella and co., they must be granted an active presumption of diminished capacity. This is perhaps not so objectionable in itself. There is room for legitimate disagreement over where the ultimate responsibility for proof should lie when it comes to deciding whether a criminal is functionally an adult. The really glaring problem with the D. B. ruling is in the way the majority chose to handle automatic publication bans on identifying information about young offenders. Justice Abella's reasoning on publication bans goes against what we had thought was the first rule of Canadian public law: The Charter of Rights is there to protect citizens from the government, not from private actions. Citing a heap of tendentious sociological evidence, the majority in D. B. argues that "lifting a ban on publication makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe." As newspaper editors, we are startled to learn that our reporting could be logically considered part of a judicial sentence against a criminal. And Justice Rothstein was pretty surprised too. "The difficulty in this case is not the existence of harm but rather whether that harm is state induced," he wrote. "In the case at bar, there is no state action: the stigma and labelling that may arise from release of the young offender's identity result from the actions of the media and broader society." Existing tests for violations of section 7, he points out, specifically require that the harm be inflicted with the participation or complicity of the government. Justice Rothstein's argument here seems irrefutable. Nothing in the Charter
can possibly be understood to prevent media and society from "stigmatizing"
young offenders in the name of protecting the public, even if it harms
them. And given that publication bans infringe upon fundamental freedoms,
it is doubly frustrating to see them defended on bogus Charter grounds.
If putting someone's name in the paper and accurately describing their
actions can really impinge upon "life, liberty and security of the
person," then all bets are off for journalists. |