WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-01-21
File Number: 4814998 24 Y4811017
Region: Toronto Region
BETWEEN:
His Majesty the King
— AND —
DB, a young person
Before Justice Cidalia Faria
Heard on January 10, May 6, June 18, November 1, and December 20, 2024
Reasons for Ruling on Constitutional Question on January 21, 2025
Brianne Bovell — counsel for the Crown
Emma Rhodes — Amicus Curiae
DB — own behalf
Faria J.:
I. Introduction
[1] DB first pled before me on January 10, 2024, for an indecent act on his 5-year-old cousin in 1974, more than 50 years ago. The matter was adjourned for sentencing.
[2] Then this case took a few unusual turns.
[3] Ultimately, I am now to decide both the constitutionality of ss. 42(2)(p) and 42(5)(a) of the Youth Criminal Justice Act (YCJA), and the fit sentence for DB.
[4] These are my reasons on the constitutional question. I will provide separate reasons for sentence. (R. v. D.B., 2025 ONCJ 39)
II. Procedural History
[5] After the “first” guilty plea on January 10, 2024, sentencing was adjourned for material to be filed by both parties and submissions to be made on May 6, 2024. DB was represented by Counsel at the time.
[6] After submissions on May 6, 2024, I informed the parties that because DB was 17 years old in 1974, pursuant to ss. 158-159 of the Youth Criminal Justice Act (YCJA), the Information laid under the Juvenile Delinquents Act acted on January 10, 2024 was improper and the process followed was flawed.
[7] On June 18, 2024, the guilty plea was struck, a new YCJA Information was sworn, and a proper guilty plea to s. 149 of the Criminal Code was entered.[1]
[8] All the material filed by both parties was re-filed. The Crown modified its sentencing position, but Counsel continued to pursue his position that a fit sentence was a conditional one.
[9] I informed Counsel at the time that a conditional sentence is not an available sentence for a young person. Its equivalent under the YCJA, a Deferred Custody Supervision Order (DCSO), was also not available, as the offence pled to is an excluded one. However, I referred the parties to R. v. T.M., 2024 ONCJ 257 which had been decided just weeks before. It held that the YCJA sections barring a DCSO were unconstitutional. The matter was adjourned for Counsel to consider his position.
[10] Counsel had been ill throughout these proceedings. He had been appearing virtually to accommodate his medical condition. On November 1, 2024, Counsel applied to be removed from the record as he was medically unable to continue to represent DB. I granted the application.
[11] DB chose to represent himself for the remainder of the proceedings.
[12] Given the circumstances, on November 1, 2024, I appointed Amicus Curiae, Emma Rhodes, to assist DB, a Young Person, in relation to the finding of guilt, and to address the constitutionality issue I had raised.
[13] On November 11, 2024, amicus curiae filed an application to challenge the constitutionality of sections 42(5)(a) and 42(2)(p) of the YCJA in DB’s pursuit of a DCSO.
III. Constitutional Context and Issues
[14] The Canadian Charter of Rights and Freedoms provides:
Section 15: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Section 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.
[15] The YCJA Section 42(5)(a) excludes the availability of a DCSO, a custodial sentence served in the community, for offences committed by a young person that “causes or attempts to cause serious bodily harm”.
[16] Section 42(2)(p) of the YCJA limits a DCSO for a “specified period not exceeding 6 months”.
[17] The Criminal Code’s adult equivalent for a custodial sentence served in the community, a Conditional Sentence Order (CSO) is provided in s. 742.1. Neither the nature of the offence “causes or attempts to cause serious bodily harm” nor the 6-month limitation applies to a CSO for adults.
[18] An indecent act is a sexual offence. It is well-established sexual offences cause serious bodily harm. An indecent act is therefore an excluded offence for a DCSO for a young person per the YCJA but an indecent act is not an excluded offence for a CSO in the Criminal Code for an adult.
[19] This distinction is the root of the constitutional issue. Therefore, the two constitutional questions to be determined are:
Does s. 42(5)(a) and 42(2)(p) of the Youth Criminal Justice Act violate s. 15 of the Canadian Charter of Rights and Freedoms?
Does s. 42(5)(a) and s. 42(2)(p) of the Youth Criminal Justice Act violate s. 7 of the Canadian Charter of Rights and Freedoms?
IV. Position of the Parties
[20] Amicus curiae submits that should I find that a DCSO is the most appropriate sentence for DB, and that a DCSO for a period of more than 6 months is the most appropriate length, it would require me to find that ss. 42(5)(a) and 42(2)(p) violate ss. 15 and 7 of the Charter, and to the extent of the violations, are of no force and effect.
[21] Further, amicus curiae submits that the principle of horizontal stare decisis applies to this case. Justice Camara of the Ontario Court of Justice found that ss. 42(5)(a) and 42(2)(p) violate both ss. 15 and 7 of the Charter in T.M.[2] She submits that pursuant to R. v. Sullivan, 2022 SCC 19, I am bound by T.M.
[22] The Crown agrees with amicus curiae’s submission on the applicability of horizontal stare decisis in this case.
[23] The Crown submits that the same factual and legal circumstances in T.M. exist in the case at bar. The Applicant raises the same issues as those in T.M. and I am therefore bound to follow the precedent set in T.M.
[24] The Crown made no submissions on either the constitutionality of the impugned YCJA provisions or on whether they are justified by s. 1 of the Charter.
V. Constitutional Analysis
[25] The analysis of the constitutional question must proceed via two steps:
i. If I find that a DCSO is not an appropriate disposition for DB, I may decline to answer the constitutional question.
ii. If I find a DCSO to be an appropriate disposition for DB, and the appropriate length of it to be more than 6 months, I am bound by horizontal stare decisis to strike down s. 42(5)(a) and declare the 6-month limitation in 42(2)(p) invalid.
[26] DB is a 68-year-old man who has pled guilty to an offence he committed 50 years ago when he was only 17 years old. His circumstances at the time were severely compromised. He had been sent to Canada alone at the age of 13. He was in Canada illegally. He was not permitted to go to school. He was unparented. DB has pled guilty and demonstrated significant remorse. These circumstances warrant the consideration of a DCSO as a disposition.
[27] Given the serious nature of the offence, and its impact on the victim, however, a 6-month term would be inappropriate. A DCSO longer than 6 months would be required to reflect the gravity of the offence if a DCSO is to be imposed.
[28] As a result, I must decide the constitutional questions.
[29] However, my task is simplified as both the Crown and amicus curiae submit the principle of horizontal stare decisis applies.
[30] Justice Camara in T.M. found that both ss. 42(5)(a) and 42(2)(p) of the YCJA violate both ss. 15 and 7 of the Charter when she stated at para. 46:
…the distinction based on age created by ss. 42(5)(a) and 42(2)(p) of the YCJA does deny young persons a benefit in a manner that reinforces, perpetuates and exacerbates their disadvantage. Rather than working in tandem with the rest of the sentencing scheme of the YCJA to address the disadvantage of young persons arising from their diminished moral blameworthiness, the impugned provisions work against it. They prevent youth court justices from giving meaning to the important ameliorative provisions and may result in sentences that actually violate them. This is not a situation where a side-by-side comparison of the DCSO provisions of the YCJA and the CSO provisions of the Criminal Code demonstrates a simple distinction, it is a situation where the distinction that arises between the two has the effect of denying young persons the benefit of a fit and appropriate sentence and thereby perpetuates the disadvantage occasioned by their age.
[31] Per Sullivan, there are three narrow circumstances in which trial courts should depart from a binding decision issued by a court of coordinate jurisdiction. These are:
The rationale of an earlier decision has been undermined by subsequent appellant decisions.
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.[3]
[32] None of these circumstances apply to Justice Camara’s decision. Hers is a clear, thoughtful, well-reasoned analysis.
VI. Finding
[33] I find that not only am I bound by T.M. but I agree with its reasoning and similarly conclude that ss. 42(5)(a) and 42(2)(p) violate ss. 15 and 7 of the Charter. The Crown did not argue the provisions are justified by s.1.
[34] I therefore strike down s. 42(5)(a) and delete 6-month limitation in s. 42(2)(p).
Released: January 21, 2025
Signed: Justice Cidalia C.G. Faria
[1] This section of the Criminal Code (CC) was repealed in An Act to Amend the Criminal Code in relation to sexual offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8. However, since this offence was committed in 1974, this was the provision of the CC that was in force at the relevant time. While the YCJA only came into effect in 2002, s. 158 requires that the Young Person be sentenced pursuant to the YCJA, despite that the offence was committed before the YCJA’s enactment.
[2] R. v. T.M., 2024 ONCJ 257, at paras. 38, 46 and 57. Respondent’s Factum, at para. 12.
[3] R. v. Sullivan, 2022 SCC 19 at para. 75.