Children’s Right to the Presumption of Innocence and to be Tried as Minors

R v DB [2008] SCC 25 (16 May 2008) The Supreme Court of Canada recently considered the validity of a rebuttable presumption that minors committing serious offences should be sentenced as adults.  A majority of the Court concluded that the presumption offended against the right not to be deprived of liberty otherwise than in accordance with principles of fundamental justice under s 7 of the Canadian Charter of Rights and Freedoms.


DB, a minor, was at the mall with some friends when he got into a fight with R, an 18 year old.  During the fight, DB ‘sucker punched’ R, who lost consciousness.  DB fled the scene.  An ambulance was called to the mall, and R was taken to hospital, where he died.  DB was arrested the following morning.

DB was charged with manslaughter and pleaded guilty.  As a minor, he was sentenced under the Youth Criminal Justice Act (‘YCJA’).  The YCJA establishes a separate sentencing regime for minors. The YCJA also establishes a category of ‘presumptive offences’.  Where a young person is convicted of a presumptive offence, they are to be sentenced as an adult, unless they can justify the imposition of a youth sentence.  Similarly, the onus is on the young person to demonstrate that they ‘remain entitled to the ongoing protection of a publication ban’ in such cases.

Manslaughter is a presumptive offence.  Accordingly, the Crown sought to have DB sentenced as an adult, denying his application for a youth sentence.  DB challenged the constitutionality of the presumptive offence sentencing regime.


The Supreme Court, by a majority of 5 to 4, found that the regime was inconsistent with the Canadian Charter.  It considered the question was not whether young people could receive adult sentences for serious crimes, but whether serious offences should be presumed to attract such sentences.

The right engaged by this question is contained in s 7 of the Canadian Charter:

Everyone has the right 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.

The Crown conceded that the imposition of an adult sentence, and thus a longer term of imprisonment, amounted to a deprivation of liberty.  Thus the question for the Court was whether the way in which the presumptive offence regime applied was ‘in accordance with the principles of fundamental justice’.


Abella J, for the majority, explained that the relevant principle of fundamental justice is that young persons should be entitled to a ‘presumption of diminished moral blameworthiness’.  The sentencing regime in the YCJA places the onus on the young person to justify their continued entitlement to that presumption, and as a consequence DB was effectively deprived of its benefit.  Accordingly, the sentencing regime was held to infringe upon a principle of fundamental justice.

Abella J also found that the default lifting of a publication ban infringed DB’s rights under s 7 of the Canadian Charter.  Because the YCJA expressly deems a publication ban to be part of a young offender’s sentence, depriving a young offender of the benefit of a publication ban was considered to render the sentence more severe.  The onus, according to Abella J, of proving that a more severe sentence should be imposed, lies fundamentally on the Crown.

Section 1 of the Canadian Charter provides that rights may be ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.  Abella J found that the limits could not be justified in this case.  Placing the onus on the young offender to prove that a youth sentence should be imposed did not serve the objective of public protection, and thus failed both the rational connection and minimal impairment branches of the s 1 test.

The impugned provisions of the YCJA were thus held to be unconstitutional, and the youth sentence imposed by the trial judge was upheld.


Rothstein J delivered the dissenting judgment for the minority.  The key point of dissent lay not in the relevant principle of fundamental justice, but in the way the principle applies to youth sentencing legislation.  That is, Rothstein J did not view the presumption of reduced moral blameworthiness as requiring a presumption of lower sentences and a publication ban.  The YCJA merely provided ‘for a higher range of sentences for young persons convicted of the most serious violent offences’.  Nevertheless, Rothstein J held that the youth sentence imposed by the trial judge was reasonable and did not require further ‘interference’.

Relevance to the Victorian Charter

The Victorian Charter includes provisions relating to the right to life (s 9), liberty and security of the person (s 21) in similar terms to the Canadian Charter.  This decision may be relevant to the interpretation of such rights pursuant to s 32(2) of the Victorian Charter.  The discussion of s 1 of the Canadian Charter may also be instructive to the interpretation of s 7 of the Victorian Charter, which provides for the circumstances in which human rights may be permissibly limited.

Another avenue through which such questions may arise in Victoria is via s 25 (rights in criminal proceedings).  In particular, s 25(3) provides that ‘a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation’.

It is important to note that, unlike the Canadian Charter, the Victorian Charter does not empower the courts to render legislation invalid (s 32(3)(a)).  In circumstances such as those arising in the present case, Victorian courts are limited to issuing a Declaration of Inconsistent Interpretation (s 36).

The decision is available at:

Sharyn Broomhead, Human Rights Law Group, Mallesons Stephen Jaques