Her Majesty the Queen v. D.B. (A Young Offender) [Indexed as: R. v. B. (D.)]

79 O.R. (3d) 698

[2006] O.J. No. 1112

Dockets: C42719 and C42923

Court of Appeal for Ontario,

Goudge, Armstrong and Blair JJ.A.

March 24, 2006

Charter of Rights and Freedoms -- Fundamental justice -- Youth Criminal Justice Act placing onus on young person convicted of presumptive offence to bring application and meet onus to justify imposition of youth rather than adult sentence -- Trial judge correct in holding provisions of Youth Criminal Justice Act violating s. 7 of Charter and not justified under s. 1 -- Provisions of no force and effect -- Canadian Charter of Rights and Freedoms, ss. 1, 7 -- Youth Criminal Justice Act, S.C. 2002, c. 1.

Criminal law -- Young persons -- Sentence -- Manslaughter -- Appeal by Crown -- Youth convicted of manslaughter in beating death of another young man watching fight between two groups of youths -- After trial judge finding presumption that adult sentence must be imposed unconstitutional concluding that maximum youth sentence of three years' intensive rehabilitation and custody sufficient -- Crown arguing that even without presumption trial judge erred by failing to impose adult sentence -- Youth having prior findings of guilt including robbery and was on probation -- Trial judge considering proper factors and no extraneous ones so decision entitled to deference -- No error in finding that publication ban should remain in place -- Crown appeal from sentence dismissed.

Criminal law -- Costs -- Youth court judge finding certain provisions of Youth Criminal Justice Act to be unconstitutional and ordering Crown to pay youth's costs of Charter application -- Youth court judge mischaracterizing Charter application as test case -- Costs order quashed on appeal -- Canadian Charter of Rights and Freedoms -- Youth Criminal Justice Act, S.C. 2002, c. 1.

Sections 62, 63, 64(1) and (5), 70, 72(1) and (2) and 73(1) of the Youth Criminal Justice Act (the "Act") require that a young person found guilty of a presumptive offence receive an adult sentence unless the youth applies to the youth justice court and discharges the onus to satisfy that court that a youth sentence would be sufficient to hold him or her accountable. Section 110(1) of the Act bans the publication of the young person's name or any other information identifying him or her as someone dealt with under the Act. Section 110(2) (a) creates an exception for young persons who have received an adult sentence. Section 110(2)(b) creates a second exemption where the information relates to a young person who has received a youth sentence for a presumptive offence. B pleaded guilty to manslaughter, which is a presumptive offence. The 18- year-old victim was watching a fight between two groups of young males when B punched him in the head and continued to punch him until he was unconscious after he fell to the ground. On an application by B, the youth court judge found that ss. 62, 63, 64(1) and (5), 70, 72(1) and (2) and 73(1) violated B's rights under s. 7 of the Canadian Charter of Rights and Freedoms to the extent that they placed an onus on him to justify a youth sentence rather than an adult sentence, and that ss. 75 and 110(2) violated his s. 7 rights by imposing a burden on him to justify maintaining the publication ban. [page699]

The youth had prior findings of guilty for possession of stolen property and robbery, both of which involved threats and intimidation. He was bound by two probation orders and had problems with school and mental health issues. He was remorseful and had taken some positive steps while in pre-trial custody. The predisposition report recommended that he be kept in the youth criminal system and offered a highly structured treatment regime. The trial judge imposed a disposition of three years' intensive rehabilitative custody, 30 months of which were to be in custody, and maintained the ban on publication. He also awarded the youth his costs of the Charter application, payable by the Crown, on the basis that this was a test case. The Crown appealed.

Held, the appeal from the Charter ruling and the sentence should be dismissed; the appeal from the costs order should be allowed.

The presumed exposure to an adult sentence engages a young person's liberty interest under s. 7 of the Charter. It is a principle of fundamental justice that young persons should be dealt with separately and not as adults in recognition of their reduced maturity. The provisions of the Act that expose the youth and those similarly situated to being sentenced as adults unless they satisfy the court that a youth sentence is sufficient do not accord with fundamental justice. They presume that this group of young persons are not to be treated separately, but rather are to be treated as adults, unless an exception can be shown by the young person in a particular case. It is also a principle of fundamental justice that in sentencing, the Crown must assume the burden of demonstrating beyond a reasonable doubt that there are aggravating circumstances in the commission of the offence that warrant a more severe penalty. Section 72(2) of the Act requires a youth to prove any of the factual matters referred to in s. 72(1) not otherwise in the record that he says demonstrate that a youth sentence is sufficient. The Crown has no onus to prove any facts in order to have an adult sentence imposed and that is clearly a more severe penalty than a youth sentence. Even if the onus imposed on the youth by s. 72(2) is viewed merely as a burden of persuasion, it runs afoul of the principle. The essence of that principle is that the Crown bears the burden of justifying why a more serious penalty is necessary. The impugned provisions do not accord with the principle. The Crown can have the more serious penalty of an adult sentence imposed without discharging any burden of persuasion. Rather, the youth has the burden of satisfying the court that the youth sentence is sufficient if he is to receive the lesser penalty. Sections 62, 63, 64(1) and (5), 70, 72(1) and (2) and 73(1) of the Act violate the youth's rights under s. 7 of the Charter.

Sections 75 and 110(2)(b) of the Act contravene the fundamental principle that the Crown must bear the burden of establishing those factors that yield a more severe penalty for an offender. Where a young person in the youth's position has been found guilty of a presumptive offence and has nonetheless persuaded the youth justice court to impose a youth sentence, these provisions put a real burden on the young person to ensure his or her privacy. He or she must persuade the court that a publication ban is appropriate in light of his rehabilitation and the public interest. If the young offender's identity is published, the extremely negative impact it carries makes the sentence that much worse; the young offender is subjected to a youth sentence with publication of his identity. These sections require the young offender to shoulder the burden to ensure that his sentence is not made worse by the publication of his identity. Sections 75 and 110(2)(b) violate s. 7 of the Charter.

The impugned provisions are not saved under s. 1 of the Charter. Taking it as a given that in appropriate serious cases it serves accountability, public protection and public confidence to impose an adult sentence on a young person and to lift [page700] the publication ban, putting the onus on the young person to demonstrate why neither should happen does little if anything to advance those objectives. There is a want of rational connection between the objectives advanced and the impugned provisions. Moreover, so far as the more severe outcome does advance the objectives put forward by the Crown, the impugned provisions do not minimally impair the young person's s. 7 rights. If the onus were on the Crown to demonstrate why an adult sentence should be imposed and the publication ban lifted, the objectives would be achieved without infringing the young persons' s. 7 rights.

The trial judge did not err in concluding that a youth sentence would have sufficient length to hold B accountable or in leaving the publication ban intact.

The trial judge erred in ordering the youth's costs of the application to be paid by the Crown on the basis that his was a test case for Ontario. The application raised an important legal issue between the Crown and the youth. Although the issue was one of general application, both the Crown and the youth had a real interest in the resolution of that issue. The Crown did not respond to the youth's application simply to get an answer to a legal question of general application. As this was not a test case and there was no other basis for finding this to be an exceptional case so as to justify a costs order against the Crown, the order should be quashed.

APPEAL from the judgment of Lofchik J. of the Superior Court of Justice, dated July 2, 2004, declaring the provisions of the Youth Criminal Justice Act to be unconstitutional and from the sentence imposed by Lofchik J., dated December 20, 2004.

Québec (Minister of Justice) v. Canada (Minister of Justice), [2003] J.Q. no 2850, [2003] R.J.Q. 1118, 228 D.L.R. (4th) 63, J.E. 2003-829, 175 C.C.C. (3d) 321, 10 C.R. (6th) 281, 108 C.R.R. (2d) 189, 58 W.C.B. (2d) 112 (C.A.); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, 234 D.L.R. (4th) 257, 315 N.R. 201, 115 C.R.R. (2d) 88, 180 C.C.C. (3d) 353, 46 R.F.L. (5th) 1, 2004 SCC 4, 16 C.R. (6th) 203, apld R. v. K.D.T., [2006] B.C.J. No. 253, 2006 BCCA 60, 206 C.C.C. (3d) 44 (C.A.), not folld Other cases referred to R. v. B.(D.) (2004), 72 O.R. (3d) 605, [2004] O.J. No. 3823, 123 C.R.R. (2d) 182, 190 C.C.C. (3d) 383 (S.C.J.); R. v. Garcia, [2005] O.J. No. 732, 195 O.A.C. 64, 194 C.C.C. (3d) 361, 12 M.V.R. (4th) 169, 29 C.R. (6th) 127 (C.A.); R. v. Heywood, [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 120 D.L.R. (4th) 348, 174 N.R. 81, 24 C.R.R. (2d) 189, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133; R. v. M. (S.H.), [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 69 Alta. L.R. (2d) 209, 100 N.R. 1, [1989] 6 W.W.R. 385, 50 C.C.C. (3d) 503, 71 C.R. (3d) 257 (sub nom. R. v. S.H.M.); R. v. Noble, [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, 146 D.L.R. (4th) 385, 210 N.R. 321, [1997] 6 W.W.R. 1, 43 C.R.R. (2d) 233, 114 C.C.C. (3d) 385, 6 C.R. (5th) 1; R. v. Pearson, [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 144 N.R. 243, 12 C.R.R. (2d) 1, 77 C.C.C. (3d) 124, 17 C.R. (4th) 1; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252, [1990] S.C.J. No. 60, 89 Nfld. & P.E.I.R. 91, 77 D.L.R. (4th) 492, 121 N.R. 81, 278 A.P.R. 91, 62 C.C.C. (3d) 385 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7 Criminal Code, R.S.C. 1985, c. C-46 Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, s. 31 Young Offenders Act, R.S.C. 1985, c. Y-1 [rep.], s. 3 Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2 "adult sentence", "presumptive offence" [as am.], 3, 38, 39, 62, 63, 64(1), (5), 70, 71, 72, 73(1), 75, 110 [page701] Authorities referred to International Convention on the Rights of the Child, 20 November 1989, Can. T.S. 1992 No. 3), preamble, art. 40

Miriam Bloomenfeld, Alexander Alvaro and Deborah Krick, for appellant. Dean D. Paquette and Ian Begg, for respondent. Cheryl Milne, for intervenor The Canadian Foundation for Children, Youth and the Law.

The judgment of the court was delivered by

GOUDGE J.A.:--

Introduction

[1] The Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA") requires that a young person found guilty of manslaughter receive an adult sentence unless the youth applies to the youth justice court and discharges the onus to satisfy that court that a youth sentence would be sufficient to hold him or her accountable.

[2] Even if the youth succeeds, and receives a youth sentence, he or she can then ensure that his or her privacy is protected only by applying for a ban on publication and persuading the court that the ban is appropriate.

[3] The central issue in this appeal is whether the sections of the YCJA that effect these results violate the rights of the young person under s. 7 of the Canadian Charter of Rights and Freedoms.

[4] In this case, [the] respondent, D.B., pleaded guilty to manslaughter under the YCJA. Prior to sentencing D.B., Lofchik J. addressed this issue. He found that ss. 62, 63, 64(1) and (5), 70, 72(1) and (2) and 73(1) violated the respondent's s. 7 rights to the extent that they placed an onus on him to justify a youth sentence rather than an adult sentence, and that ss. 75 and 110(2) violated the respondents s. 7 rights by imposing a burden on him to justify maintaining the publication ban. In the result, he imposed a youth sentence and maintained the ban on publication. He also awarded costs to the respondent, payable by the Crown.

[5] The Crown challenges each of these findings in seeking to appeal, with leave, from the sentence and the costs order. For the [page702] reasons that follow, I agree with the trial judge's Charter ruling and would not interfere with the sentence he imposed. However, I would set aside the costs order that he made.

The Proceedings Below

[6] On December 13, 2003, the 17-year-old respondent was at a shopping mall in Hamilton with several friends. They began exchanging insults with another group of young males including J.R., the 18-year-old victim. This led to a fight between some members of the two groups. As J.R. watched the fight, his arms down at his sides, the respondent "sucker punched" him in the head. When J.R. fell to the ground, the respondent continued the assault by jumping on top of him and punching him in the head four more times until he was unconscious. The respondent then fled. Tragically, J.R. died of his injuries.

[7] The respondent was arrested on December 14, 2003, and has been in custody ever since. On July 2, 2004, he pleaded guilty to manslaughter before Lofchik J., sitting as a youth justice court judge.

[8] As the YCJA requires, the respondent then indicated that he would be applying to receive a youth sentence rather than the adult sentence presumptively imposed by the Act. The Crown opposed this application. The respondent then moved to challenge the constitutionality of the relevant sections of the YCJA to the extent that they place on the young person the onus to adduce proof of factors justifying the imposition of a youth sentence rather than an adult sentence, and further, to the extent that they impose upon the young person the burden of justifying the maintenance of the ban on publication.

[9] The trial judge heard arguments from the respondent and from the Crown. The federal government was served but chose not to participate to defend its legislation. It took the same position in this court.

[10] On September 10, 2004, the trial judge released his reasons allowing the Charter challenge and imposing a youth sentence. See R. v. B.(D.) (2004), 72 O.R. (3d) 605, [2004] O.J. No. 3823 (S.C.J.). He explicitly based his Charter conclusion on the reasoning of the Québec Court of Appeal in a reference brought to it by the Québec government, reported as Québec (Minister of Justice) v. Canada (Minister of Justice), [2003] J.Q. no 2850, 175 C.C.C. (3d) 321 (C.A.) ["Québec Reference"]. In that case, a five-judge panel declared that certain sections of the YCJA violate s. 7 of the Charter to the extent that they place the onus on a young person guilty of a specified serious offence, such as manslaughter, [page703] to justify the imposition of a youth sentence rather than an adult sentence. The court also found that certain other sections of the YCJA violate s. 7 to the extent that they oblige the young person to justify maintaining the publication ban rather than requiring the prosecutor to justify lifting the ban. Neither of the s. 7 violations could be justified under s. 1 of the Charter. The federal government, the respondent in the Québec Reference, did not appeal this decision, but indicated that the YCJA would be amended. To date, no such amendments have been introduced.

[11] The trial judge expressed his decision on the Charter issues raised by the respondent in paras. 9 and 12-13 of his reasons as follows:

I accept the contention of the applicant that ss. 62 and 63, subsections 64(1) and (5), s. 70, subsections 72(1) and (2) and subsection 73(1) violate s. 7 of the Canadian Charter of Rights and Freedoms to the extent that they place the proof of factors justifying the imposition of a youth sentence rather than adult sentence on a young person who has committed a presumptive offence and that these provisions cannot be justified under the first section of the Charter. Similarly, s. 75 and subsection 110(b) violate s. 7 of the Charter to the extent that they impose on a young person the burden of justifying maintenance of the ban against publication rather than imposing on the prosecutor the burden of justifying the removal of the ban.

There is no logical reason why it should not be the responsibility of the prosecutor who wants the court to impose an adult sentence, to bear the burden of convincing the court of his or her contentions in light of the elements provided for in subsection 72(1).

Similarly, the burden should be on the prosecution to convince the court that the ban on publication should be lifted in order to ensure the security of the public or for some other legitimate reason.

[12] The trial judge concluded his reasons [at para. 19] by awarding costs to the respondent:

In my view, this case is one of those rare and unique cases where the resolution of the constitutional validity of the legislation so clearly transcends the offender's individual case that the court's discretion to award costs should be exercised.

[13] Following this ruling, the Crown took no further steps at trial to lift the ban on publication. However, the Crown did bring an application to have the respondent sentenced as an adult, seeking a sentence of five years' incarceration. The maximum youth sentence allowable for this offence under the YCJA is three years. The respondent sought the imposition of a youth sentence although he conceded that incarceration would be a necessary component.

[14] The respondent had prior findings of guilt for possession of stolen property and robbery, both involving threats and intimidation, [page704] and he was bound by two separate probation orders at the time of the offence. He had a history of mental health issues and behavioural problems in school. However, by the time of sentencing he had expressed his remorse for what happened and had taken some positive steps while in pre-trial custody. The predisposition assessment recommended that to reduce the risk of future violence, he be offered treatment in a therapeutic milieu with a high degree of structure and integrated academic and social programming. It further recommended that his needs, and therefore the protection of society, would be best met by keeping him in the juvenile justice correctional system and away from more hardened criminals.

[15] After hearing evidence and argument, the trial judge issued his reasons for sentence on December 20, 2004. He concluded that a youth sentence involving intensive rehabilitation custody was appropriate, stating that:

Having considered all of the evidence before me and the submissions of counsel, I have come to the conclusion that a youth sentence would have sufficient length to hold Mr. [B] accountable for the offending behaviour and that he should be sentenced as a youth.

You are to be the subject of an intensive rehabilitative custody and supervision order for a period of three years, and committed into a continuous period of intensive rehabilitative custody for a period of thirty months and serve the remainder of the sentence under conditional supervision in the community in accordance with s. 105 of the Youth Criminal Justice Act.

In my view the maximum period of a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given credit for the one year period of pre-trial custody.

Analysis

[16] The Crown raises three issues in this appeal. First, it argues that the trial judge erred in finding that the various sections of the YCJA violate the respondent's s. 7 Charter rights and cannot be saved under s. 1. The Crown says that the trial judge should have required the respondent to satisfy him that a youth sentence rather than an adult sentence was sufficient and also demonstrate why the publication ban should not be lifted, precisely as the YCJA provides.

[17] Second, the Crown says that regardless of where the onus should be placed, the trial judge erred in imposing a youth sentence when an adult sentence was required in all the circumstances.

[18] Third, the Crown argues that this was not a proper case for costs to be awarded against it and that the trial judge erred in doing so. [page705]

1. The Charter issue

[19] Two sets of provisions in the YCJA are at stake here. The first puts the onus on the respondent to justify receiving a youth sentence rather than an adult sentence. The second requires the respondent to justify the continued protection of his privacy. Before turning to these arguments, it is helpful to put these provisions in the context of the YCJA as a whole and its broad legislative history.

(a) The legislation

[20] Canada has had a system of criminal justice for young people distinct from the system of criminal justice for adults from as early as the beginning of the last century, with the enactment of the Juvenile Delinquents Act, 1908, S.C. 1908, c. 40.

[21] While that Act gave the judge a defined discretion to transfer to the ordinary courts a young person over the age of 14 charged with an indictable offence, the fundamental principle of a separate criminal justice system for young persons, tailored to meet their needs, was clearly set out in s. 31 of that Act:

31. This Act shall be liberally construed to the end that its purpose may be carried out, to wit: That the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by its parents, and that as far as practicable every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child, and one needing aid, encouragement, help and assistance.

[22] In 1984, Parliament substantially reformed Canada's youth criminal justice system by adopting the Young Offenders Act, R.S.C. 1985, c. Y-1 (the "YOA"). However, the fundamental principle remained the same, namely a separate youth criminal justice system. Two subsections of s. 3, the section declaring the principles of the legislation, exemplify this. Section 3(1) (a.1) and (c) read as follows:

3(1) It is hereby recognized and declared that

(a.1) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;

(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance[.] [page706]

[23] By 1995, the YOA had been amended to require that a 16- or 17-year-old charged with murder, attempted murder, manslaughter or aggravated sexual assault should be tried as an adult in the ordinary courts unless the young person or the Crown applied to have the matter proceed in youth court. This presumption has not been tested in the Supreme Court of Canada.

[24] After much study and consultation with the provinces, the YCJA replaced the YOA. The YCJA was passed on February 19, 2002 and came into force on April 1, 2003. While it effected many changes, it continued to anchor criminal justice for young persons in a system separate from that of adults. Section 3 sets out the fundamental principles that apply in the YCJA. Section 3(1) (b) reflects the approach that has existed in Canada for almost a century. Sections 3(1)(b)(i) to (iii) say this:

3(1) The following principles apply in this Act:

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

[25] The YCJA provides that all proceedings are conducted before the youth justice court. As in this case, where the charge is sufficiently serious that the young person is entitled to elect trial in the superior court of criminal jurisdiction, that court is then deemed a youth justice court for the proceedings, although retaining the jurisdiction and powers of a superior court.

[26] The YCJA defines the most serious criminal offences, when committed by a young person who has reached the age of 14, to be "presumptive" offences. The statutory definition of a "presumptive offence" in s. 2(1) (a) includes murder, attempted murder, manslaughter and aggravated sexual assault. While not relevant to this appeal, it also includes a serious violent offence (itself a defined term) if it is the young person's third such offence.

[27] Where a young person is found guilty of manslaughter (or other presumptive offence), the YCJA permits the youth justice court to impose either an adult sentence or a youth sentence. Both are defined terms. [page707]

[28] In s. 2(1), "adult sentence" is defined simply as any sentence that could be imposed on an adult who has been convicted of the same offence.

[29] The concept of "youth sentence" is more complex. Section 38 of the Act sets out the purpose and principles of sentencing to be followed in imposing a youth sentence:

38(1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[30] Section 39(2) of the YCJA makes it clear that even for the most serious offences, when a young person receives a youth sentence, custody is to be imposed only if the youth justice court concludes that a non-custodial sentence is not adequate to achieve the purposes of sentencing set out in s. 38(1).

[31] Moreover, the maximum length of a youth sentence that can be imposed for the specified presumptive offences, such as murder and manslaughter, is significantly less than that permitted for an adult sentence. For first degree murder it is ten years. For second degree murder it is seven years, and for manslaughter three years.

[32] It is in the context of this general legislative scheme that the two sets of provisions of the YCJA at issue must be construed.

(b) The onus provisions

[33] The first set of provisions in issue includes ss. 62, 63, 64(1) and (5), 70, 72(1) and (2) and 73(1). The trial judge found that these sections violate the respondent's s. 7 rights to the extent that they put the onus on a young person found guilty of manslaughter or other presumptive offence to satisfy the youth justice court of the matters that, under the legislation, would yield a youth sentence rather than an adult sentence. The important sections here are ss. 62(a), 63(1) and, especially, s. 72(1) and (2).

[34] If a young person is found guilty of a presumptive offence that is an indictable offence for which an adult would be liable to imprisonment for more than two years, then, if the court has made an order under s. 72(1)(b) that a youth sentence does not have sufficient length to hold the young person accountable, s. 62(a) compels the youth justice court to impose an adult sentence.

[35] Section 63(1) permits a young person charged with, or found guilty of, a presumptive offence to make an application for [page708] an order that he or she is not liable to an adult sentence and that a youth sentence must be imposed. Section 71 requires the youth justice court to hold a hearing in respect of such an application. Section 70(2) requires that an adult sentence be imposed if the young person does not make such an application.

[36] The most important section is s. 72. Section 72(1) and (2) read as follows:

72(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.

(Emphasis added)

[37] Despite the complexity of these provisions, the combined effect is simple: a young person in the respondent's position must apply and satisfy the youth justice court that the youth sentence is sufficient to hold him accountable or he will receive an adult sentence.

[38] To elaborate, because the respondent has been found guilty of manslaughter, he bears the onus in s. 72(2). To discharge that onus, he must persuade the youth justice court that the factual matters referred to in s. 72(1) together with the purpose and principles applicable to the Act as a whole and to youth sentencing in particular, meet the test in s. 72(1) (a). That is, a youth sentence would have sufficient length to hold him accountable for his offending behaviour. If the young person fails in this, he will receive an adult sentence even if the Crown has not persuaded the court of the opposite, namely that a youth sentence would not have sufficient length to hold him accountable. In other words, an adult sentence is presumed unless the young person can satisfy the court otherwise. This onus on the young person is therefore significant. [page709]

[39] The onus is more than one of persuasion. It requires the young person to adduce evidence of any factual matters referred to in s. 72(1) that are not otherwise in the record and on which the young person wishes to rely to demonstrate that a youth sentence would be sufficient. The Crown need not adduce any evidence to discharge an onus, since it is not required to satisfy the court of anything for the young person to be sentenced as an adult.

[40] The trial judge reached his conclusion that these provisions contravene the respondent's s. 7 rights by relying on the reasoning of the Québec Court of Appeal in the Québec Reference, supra.

[41] The Québec Reference asked the Québec Court of Appeal a number of questions, including the one at issue here. The court began its answer to this question by setting out s. 7 of the Charter which reads as follows:

Life, liberty and security of person

7. 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.

[42] The federal Crown conceded that these sentencing provisions engaged the liberty interests protected by s. 7. The court went on to decide that they are also likely to compromise the psychological security of a young person and therefore the security of the person interest is also implicated.

[43] It then turned to the relevant principles of fundamental justice. The Attorney General of Québec put forward four, that he called substantive principles [Québec Reference, supra, at para. 215]:

[TRANSLATION]

Young offenders must be dealt with separately from adults;

Rehabilitation, rather than suppression and dissuasion, must be at the heart of legislative and judicial intervention with young persons;

The justice system for minors must limit the disclosure of the minor's identity so as to prevent stigmatization that can limit rehabilitation;

It is imperative that the justice system for minors consider the best interests of the child.

[44] At paras. 230 and 231, the court then set out its agreement with the submission of the Attorney General:

Are the elements set forth by the Attorney General of Quebec principles of fundamental justice?

The Court believes they are, since there is a broad consensus that they are and they play an essential role in our legal system. Their crucial importance has been recognized since the very first legislation in the field and, over the [page710] years, their parameters have been refined in order to respond more and more precisely to the situation and particular needs of young persons.

(Internal citations omitted)

[45] The court found that the young persons targeted by these provisions are treated as adults and are stigmatized as a consequence. It concluded that the presumption of an adult sentence goes further than necessary to achieve the purpose of the YCJA and the violation of the young person's liberty and psychological security does not abide by the principles of fundamental justice as articulated by the Attorney General.

[46] Finally, the court declared that to the extent that s. 72(2) places the burden on the young person to put evidence before the youth justice court to convince the youth justice court that he or she should be exempted from the presumptive adult sentence, it is not in accordance with the principle of fundamental justice derived from the presumption of innocence, namely that in sentencing, the Crown has the burden of proving beyond a reasonable doubt any aggravating circumstances in the commission of the offence.

[47] Having held that these provisions violate the rights guaranteed by s. 7, the court then found that the violation could not be justified under s. 1 of the Charter.

[48] In this court, as in the Québec Reference, supra, the Crown does not dispute that the presumed exposure to an adult sentence engages the young person's liberty interest. It argues, however, that jurisprudence subsequent to the Québec Reference, has clarified the test for identifying principles of fundamental justice and that as a result, three of the four principles put forward by the Attorney General of Québec would not now qualify. In any event, it says that the provisions of the YCJA, properly understood, conform to these principles and are in accordance with the presumption of innocence as it applies to the sentencing process. Finally, in an omnibus submission, it says all impugned provisions of the YCJA are saved by s. 1 of the Charter.

[49] In response, the intervenor, supported by the respondent, argues that the Québec Court of Appeal was correct and particularly in light of Canada's international law obligations, these provisions cannot be reconciled with principles of fundamental justice, particularly the principle that there be a separation in the criminal justice system between young persons and adults. Moreover, s. 1 cannot justify the violation of s. 7 that results.

[50] In my view, the Québec Court of Appeal reached the correct conclusion. The sections of 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 [page711] sentence is sufficient, curtail his liberty and do not accord with the principles of fundamental justice. For these young persons an adult sentence is the presumed norm and a youth sentence is the exception that they must demonstrate to be applicable.

[51] There is no doubt that these sections engage the liberty interest of young persons. They expose these young persons to the harsher sentencing regime imposed on adults, rather than the youth sentencing regime. The Crown concedes as much. Since this is so, I do not find it necessary to determine if the sections also deprive young persons of security of the person before turning to whether the deprivation of liberty accords with the principles of fundamental justice.

[52] The Crown is correct to say that since the Québec Reference, supra, the Supreme Court of Canada has clarified the characteristics that define a principle of fundamental justice. In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, 180 C.C.C. (3d) 353, at para. 8, Chief Justice McLachlin, speaking for the majority, summarized the necessary requirements of a principle of fundamental justice:

Jurisprudence on s. 7 has established that a "principle of fundamental justice" must fulfill three criteria: R. v. Malmo-Levine, 2003 SCC 74 [now reported 233 D.L.R. (4) 415, 179 C.C.C. (3d) 417], at para. 113. First, it must be a legal principle. This serves two purposes. First, it "provides meaningful content for the s. 7 guarantee"; second, it avoids the "adjudication of policy matters": Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at p. 503, [24 D.L.R. (4) 536, 23 C.C.C. (3d) 289, sub nom. Reference re: Section 94(2) of the Motor Vehicle Act]. Second, there must be sufficient consensus that the alleged principle is "vital or fundamental to our societal notion of justice": Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at p. 590, [107 D.L.R. (4th) 342, 85 C.C.C. (3d) 15]. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results.

[53] Keeping these criteria in mind, there are two principles of fundamental justice that are of central relevance in this appeal. The first relates to the need to treat young persons separately and not as adults in administering criminal justice. The second relates to the burden on the Crown to prove aggravating circumstances when a more severe penalty is sought. Since these principles are sufficient to determine the issues in this appeal, I do not propose to address the other three substantive principles that the Québec Court of Appeal found to be principles of fundamental justice. [page712]

[54] As enunciated by the Québec Court of Appeal, the first principle is that young offenders must be dealt with separately from adults. At trial in this matter, the Crown agreed that this is a principle of fundamental justice. In this court, while not resiling from this position, the Crown used somewhat different language to describe the principle, namely, that young persons are entitled to recognition of their reduced maturity when facing criminal justice.

[55] I agree with the shared position of the parties. It is a principle of fundamental justice that young offenders should be dealt with separately and not as adults in recognition of their reduced maturity. Put another way, the system of criminal justice for young persons must be premised on treating them separately, and not as adults, because they are not yet adults.

[56] There can be no doubt that this is a legal principle. For almost a century, a system of youth criminal justice, separate from the adult system, has been enshrined in legislation. The rationale for this legal principle was set out by Lamer C.J.C. in Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252, [1990] S.C.J. No. 60, 62 C.C.C. (3d) 385, at p. 268 S.C.R., p. 396 C.C.C.:

Characterizing the jurisdiction as jurisdiction over young persons charged with a criminal offence acknowledges that what distinguishes this legislation from the Criminal Code is the fact that it creates a special regime for young persons. The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction.

[57] I think it is equally clear that this principle is fundamental to our societal notion of justice. Its very longevity suggests as much. The preamble of the current legislation reflects this consensus of what is necessary to have a just legal system by using the following language:

WHEREAS members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;

AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons;

[58] The fundamental nature of this legal principle is further reflected in the international treaty obligations Canada has undertaken. For example, the International Convention on the Rights of the Child, which has been ratified by Canada (Can. T.S. 1992 No. 3), refers in its preamble to the child's need for special [page713] safeguards, including appropriate legal protection. In particular, para. 1 of Article 40 of the Convention sets out the rights of alleged young offenders:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

[59] Finally, the principle is sufficiently precise to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. It is possible to assess the system of criminal justice provided for young persons to determine whether it adheres to the premise that young persons are to be treated separately from adults, not as adults. That must be the presumption. The precision required of this principle is not undercut if, in individual cases, it is shown that the young person ought to be treated as an adult. The principle addresses the norm required for the youth criminal justice system. It is a manageable task to assess that system against the requirement that presumptively all young offenders must be dealt with separately from adults in recognition of their reduced maturity.

[60] The principle therefore meets the three criteria required of a principle of fundamental justice.

[61] Assessed against this principle, the provisions of the YCJA that expose the respondent (and those similarly situated) to being sentenced as adults unless they satisfy the court that a youth sentence is sufficient, fall short. They do not accord with fundamental justice. They presume that this group of young persons are not to be treated separately, but rather are to be treated as adults, unless an exception can be shown by the young person in a particular case.

[62] It is true that the presumptive imposition of an adult sentence rather than a youth sentence is done by the youth justice court, not the ordinary criminal court. It is also true that some limited aspects of the adult sentence imposed, such as parole eligibility, may be less onerous for young offenders than they would be for adults. However, neither of these factors gainsay the reality that these provisions of the YCJA expose this group of young offenders to an adult sentence as the norm and not the exception. The presumption of the sentencing regime for this group of young persons is that they will be treated as adults, not separately from adults in recognition of their reduced maturity. That does not accord with this principle of fundamental justice. [page714]

[63] The second principle of fundamental justice of relevance here is that in sentencing, the Crown must assume the burden of demonstrating beyond a reasonable doubt that there are aggravating circumstances in the commission of the offence that warrant a more severe penalty.

[64] Once again, the Crown agrees that this is a principle of fundamental justice and acknowledges that it has been confirmed by the Supreme Court of Canada in R. v. Pearson, [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 77 C.C.C. (3d) 124, at p. 685 S.C.R., p. 137 C.C.C. The Crown's argument is that the onus put on the respondent by s. 72(2) is consistent with that principle.

[65] I disagree. Section 72(2) requires the respondent to prove any of the factual matters referred to in s. 72(1) not otherwise in the record that he says demonstrate that a youth sentence is sufficient. The Crown has no onus to prove any facts in order to have an adult sentence imposed. And an adult sentence is clearly a more severe penalty than a youth sentence.

[66] Even if the onus imposed on the respondent by s. 72(2) is viewed merely as a burden of persuasion, I think it runs afoul of the principle. The essence of that principle is that the Crown bears the burden of justifying why a more serious penalty is necessary. That is but an adaptation to the context of the sentencing process of the presumption of innocence. See R. v. Noble, [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, 114 C.C.C. (3d) 385, at p. 939 S.C.R., p. 430 C.C.C.

[67] These provisions do not accord with this principle. The Crown can have the more serious penalty of an adult sentence imposed on the respondent without discharging any burden of persuasion. Rather, the respondent has the burden of satisfying the court that the youth sentence is sufficient if he is to receive the lesser penalty.

[68] After argument in this court, the British Columbia Court of Appeal issued reasons for judgment in R. v. K.D.T., 2006 BCCA 60, [2006] B.C.J. No. 253, 206 C.C.C. (3d) 44 (C.A.) on February 10, 2006, which counsel properly brought to our attention. The court held that s. 72(2) did not constitute a breach of s. 7 of the Charter for two primary reasons: (1) it does not place an onerous burden of proof on the convicted youth; and (2) if such an onus was constitutionally acceptable at the pre-trial transfer stage under the YOA, it is also constitutional at the sentencing stage under the YCJA. With respect, I differ on both points. Whether the onus imposed by the section is one of proof or persuasion, it nonetheless constitutes a burden that young offenders, rather than the Crown, must bear if they are to avoid the much more serious potential consequences of an adult sentence. Moreover, [page715] as I have said, the onus provision in the YOA that is analogous to the one here did not become effective until 1995 and has not been approved by the Supreme Court of Canada. Indeed when that court did address the onus provision in the YOA, in R. v. M. (S.H.), [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 50 C.C.C. (3d) 503, the provision then in effect placed the onus on the party seeking to transfer the case to adult court.

[69] In summary, I would therefore conclude that ss. 62, 63, 64(1) and (5), 70, 72(1) and (2) and 73(1) of the YCJA infringe the respondent's liberty interest and do not accord with these two principles of fundamental justice insofar as they place the onus on him to satisfy the youth justice court that he should receive a youth sentence not an adult sentence.

(c) The privacy provisions

[70] The second set of provisions of YCJA impugned by the trial judge are s. 75 and s. 110(2)(b). He found them to violate the respondent's s. 7 rights to the extent that they impose on the young person the burden of justifying the maintenance of the ban against publication.

[71] Section 110(1) of the YCJA bans the publication of the young person's name or any other information identifying him or her as someone dealt with under the Act.

[72] Section 110(2)(a) creates an exception for young persons who have received an adult sentence. Section 110(2)(b), one of the two provisions in issue here, provides a second exception where the information relates to a young person who has received a youth sentence for a presumptive offence, such as manslaughter and therefore one for which the presumptive sentence is an adult sentence.

[73] Section 75 provides that where a youth sentence is imposed in such circumstances, the young person (or the Attorney General) may seek a publication ban. The section also sets out what the court must consider in rendering its decision. Finally, the section declares that for the purposes of an appeal, an order disposing of such an application is part of the sentence. Section 75(1), (3) and (4) read:

75(1) If the youth justice court imposes a youth sentence in respect of a young person who has been found guilty of having committed a presumptive offence set out in paragraph (a) of the definition "presumptive offence" in subsection 2(1), or an offence under paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the court shall at the sentencing hearing inquire whether the young person or the Attorney General wishes to make an application under subsection (3) for a ban on publication. [page716]

(3) On application of the young person or the Attorney General, a youth justice court may order a ban on publication of information that would identify the young person as having been dealt with under this Act if the court considers it appropriate in the circumstances, taking into account the importance of rehabilitating the young person and the public interest.

(4) For the purposes of an appeal in accordance with section 37, an order under subsection (3) is part of the sentence.

[74] Here, too, the trial judge relied on the reasons of the Québec Court of Appeal in the Québec Reference, supra. That court found that the breach of the principle of confidentiality entailed by these sections violates the psychological security of the young offender. It held that these sections do not accord with the fundamental principle that the justice system for minors must limit disclosure of the minor's identity to prevent stigmatization that can limit rehabilitation, or the principle that the young person must not have to bear the burden of demonstrating why he or she should be relieved of the weight of aggravating factors in his sentencing.

[75] While the Crown does not concede that these provisions engage the security of the person of young offenders, its main attack is on the finding that the provisions do not accord with the principles of fundamental justice.

[76] I agree with the Québec Court of Appeal that the stigmatizing and labelling of a young offender that can result from publicizing his or her identity sufficiently compromise the psychological security of that young person to engage the security of the person interest protected by s. 7 of the Charter. That principle is reflected in the assertion by that court that the principle that the law protects the identity of a young person is a cornerstone of Canadian youth justice. The very importance attached to the privacy owed to young offenders underlines the damage that publication can do to the young person's psyche, his developing self-image and his sense of self-worth. These provisions of the YCJA expose a young offender in the respondent's position to this negative impact on his psychological security unless he can persuade the court not to permit publication of his identity. Section 7 protects him against this unless it is done in accordance with the principles of fundamental justice.

[77] I agree with the Québec Court of Appeal that these provisions contravene the fundamental principle that the Crown must bear the burden of establishing those factors that yield a more severe penalty for an offender. Thus, I do not think it necessary to address whether limiting disclosure of a young [page717] offender's identity is itself (regardless of onus) a principle of fundamental justice. Questions of whether there is a consensus that this is fundamental to a fair justice system or whether it is sufficiently precise to serve as a manageable standard can be left for another day.

[78] The Crown takes no issue with the proposition that fundamental justice requires it to bear the burden of demonstrating aggravating factors in the sentencing process accorded to a young person. It simply says that these provisions do not transgress that principle.

[79] I do not agree. Where a young person in the respondent's position has been found guilty of a presumptive offence and has nonetheless persuaded the youth justice court to impose a youth sentence, these provisions of the YCJA put a real burden on the young offender to ensure his or her privacy. It is true that either the young person or the Crown can apply for a ban on publication. I suspect that it will be rare for the Crown to do so in these circumstances. In any case, the young offender can only guarantee the protection of his privacy by successfully applying to the youth justice court for a publication ban. He must persuade the court that the ban is appropriate in light of his rehabilitation and the public interest.

[80] If the young offender's identity is published, the extremely negative impact it carries makes the sentence that much worse; the young offender is subjected to a youth sentence with publication of his identity. Indeed, s. 75(4) treats an order dismissing his application for a publication ban as part of his sentence for appeal purposes.

[81] These sections require the young offender to shoulder the burden to ensure that his sentence is not made worse by the publication of his identity. The Crown need do nothing to achieve this outcome. The onus does not accord with this principle of fundamental justice.

[82] For these reasons, I agree with the trial judge that to the extent he recites, both sets of provisions of the YCJA violate the rights guaranteed to the respondent and young persons similarly situated by s. 7 of the Charter.

(d) Section 1

[83] It remains for the Crown to attempt to justify both sets of provisions under s. 1 of the Charter.

[84] The Crown properly acknowledges that provisions that violate the rights protected by s. 7 can rarely be saved pursuant to s. 1. See R. v. Heywood, [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at p. 802 S.C.R. Here the Crown's argument is put in the [page718] most general of terms. It advances accountability, protection of the public, and public confidence in the administration of justice as the pressing and substantial objectives of the impugned provisions and argues that not only are the provisions rationally connected to these objectives, but also, that they only minimally impair the young person's rights.

[85] In my view, the Crown's argument is easily answered if it is remembered that the impugned sections are about placing the onus on the young person -- to justify imposing a youth sentence rather than an adult sentence and to justify maintaining the ban on publication.

[86] Taking as a given that in appropriate serious cases it serves accountability, public protection and public confidence to impose an adult sentence on the young offender and to lift the publication ban, putting the onus on the young person to demonstrate why neither should happen does little if anything to advance these objectives. Surely it is the availability of a more serious outcome (that is, the adult sentence and the lifted publication ban), rather than the placement of the onus on the young person to escape such an outcome, that serves these objectives. Thus, I think there is a want of rational connection between the objectives advanced and the impugned provisions.

[87] Moreover, so far as the more severe outcome does advance the objectives put forward by the Crown, the impugned provisions do not minimally impair the young offender's s. 7 rights. If the onus were on the Crown in each situation -- to demonstrate why an adult sentence should be imposed and the publication ban lifted -- the objectives would be achieved without infringing on the young offender's s. 7 rights at stake in this case.

[88] Ultimately, therefore, I conclude that the impugned sections of the YCJA violate the respondent's s. 7 rights in the way I have described, and cannot be saved under s. 1.

2. The sentence appeal

[89] The second issue raised by the Crown in this appeal is that the trial judge erred in concluding that a youth sentence would have sufficient length to hold the respondent accountable, and in leaving the publication ban intact. The Crown argues that regardless of who bears the onus, the circumstances of this case require an adult sentence and a lifting of the ban on publication.

[90] I cannot agree that the trial judge erred. Section 72(1) of the YCJA sets out a number of matters to be considered by the youth justice court in reaching its opinion about whether a youth sentence would be sufficient. The reasons for sentence of the trial [page719] judge reflect that he did so. His weighing of these matters to reach his opinion about sufficiency is a task that must attract deference in this court. The Crown does not suggest that he acted on an improper principle or considered extraneous matters. It essentially argues that he did the weighing wrongly. In my view, that is not enough to warrant the setting aside of his decision.

[91] With respect to the publication ban, the Crown did not make any submissions to support lifting it once the trial judge decided the onus question. Since the respondent clearly thought the ban should continue, I think the trial judge could properly proceed on the basis that no one challenged that it should be continued and that it was appropriate in the circumstances to leave the ban in place. I see no error in the trial judge's order to that effect.

[92] In summary, therefore, I see no reviewable error in the substantive dispositions made by the trial judge on the nature of the respondent's sentence and the continuation of the publication ban.

3. The costs order

[93] The trial judge ordered the respondent's costs of the application be paid by the Crown. He ultimately fixed these costs on a full indemnity basis. He exercised his discretion to make this order because he viewed this to be a "test" case for Ontario. He considered that this made it unjust for the respondent to bear the substantial expense of obtaining a ruling about the constitutionality of these sections of the YCJA. He said this in his reasons [at paras. 19 and 21]:

In my view, this case is one of those rare and unique cases where the resolution of the constitutional validity of the legislation so clearly transcends the offender's individual case that the court's discretion to award costs should be exercised.

By taking the position that the Reference Re Bill C-7 decision was not binding on an Ontario court, and insisting on proceeding with sentencing under the provisions of the YCJA which I have found to offend s. 7 of the Charter, the Crown made it necessary for the offender to bring this application, in effect making this matter a "test" case for Ontario. Under the circumstances, I consider it to be unjust for one individual to be put to the substantial expense of determining the constitutional validity of this legislation. I therefore order that the Crown pay the offender's costs of this application within 30 days of the quantum of such costs being fixed.

[94] The Crown seeks, with leave, to appeal this decision.

[95] Both the Crown and the respondent recognize that there is no express statutory provision on which this costs order could be founded. Nor is there any suggestion of Crown misconduct that [page720] might justify it. Both acknowledge, given the Charter violation here, that there is jurisdiction to award costs against the Crown, but it is to be exercised only rarely and in exceptional cases. This would include the pursuit of a test case by the Crown. The Crown simply argues that the trial judge erred in characterizing this case that way.

[96] With respect, I agree. This was an adjudication brought by the respondent. In responding, the Crown was not required to accept the Québec Reference as the law in Ontario, as persuasive as its reasoning is. The application raised an important legal issue between the Crown and the respondent. Although the issue is one of general application, both the Crown and the respondent had a real interest in this case in the resolution of that issue. The Crown did not respond to this application simply to get an answer to a legal question of general application. As Doherty J.A. said in R. v. Garcia, [2005] O.J. No. 732, 194 C.C.C. (3d) 361 (C.A.), at p. 367 C.C.C., albeit in the different but related context of a costs award made pursuant to s. 826 of the Criminal Code, R.S.C. 1985, c. C-46:

I agree with Crown counsel's submission that the mere fact that a Crown appeal raises a legal issue of general importance whose resolution will affect other cases cannot suffice to make the appeal an "exceptional" case warranting a costs order against the Crown. Were that the law, costs orders would be commonplace, certainly in this court and the Supreme Court of Canada where most Crown appeals in summary conviction matters raise legal issues that potentially impact on many other cases.

[97] I therefore conclude that this cannot be said to be a test case. Nor can I see any other basis for finding this to be an exceptional case so as to justify a costs order against the Crown. The fact that the federal government did not appeal the Québec Reference indicated that the Act would be amended but has not brought amendments forward cannot serve as a justification for a costs order against the provincial Crown in this case.

[98] I would therefore grant leave and allow the Crown's appeal from this order.

[99] To summarize, this appeal must be dismissed, save for the order of costs against the Crown which is set aside.

[100] The respondent also asks for costs of this appeal. For the reasons I have just expressed concerning costs of the application, I would dismiss that request as well.

Appeal allowed in part.