R. v. S.A.C., 2008 SCC 47, [2008] 2 SCR 675

                                                 SUPREME COURT OF CANADA

Between:

S.A.C.

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario, Attorney General of Manitoba,

Attorney General of Alberta, and Justice for Children and Youth

Interveners

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. S.A.C., [2008] 2 S.C.R. 675, 2008 SCC 47

S.A.C.                                                                                                                                  Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

and

Attorney General of Ontario, Attorney General of Manitoba,

Attorney General of Alberta, and Justice for Children and Youth                               Interveners

Indexed as:  R. v. S.A.C.

Neutral citation:  2008 SCC 47.

File No.:  32104.

2008:  April 17; 2008:  July 31.

Present:  McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for nova scotia

Criminal law — Young persons — Sentencing — Committal to custody — Proper interpretation of s. 39(1) (c) of Youth Criminal Justice Act  — Discrepancy between English and French versions — Youth Criminal Justice Act, S.C. 2002, c. 1, s. 39(1) (c).

Criminal law — Young persons — Sentencing — Evidence — Requirement to consider pre‑sentence report before making sentence in respect of young person — Whether pre‑sentence report contained sufficient individualized information to allow sentencing court to craft appropriate and meaningful sentence — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 39 , 40 , 42 .

Criminal law — Sentencing — Taking of DNA samples — Crown conceding on appeal that sentencing court could not order taking of DNA samples proprio motu — Whether Court of Appeal was correct in remitting matter to sentencing court for reconsideration — Criminal Code, R.S.C. 1985, c. C‑46, s. 487.051(1) (b).

S.A.C. pleaded guilty to several charges under the Criminal Code  and the Youth Criminal Justice Act  (“YCJA ”).  At the time of sentencing, he also had several prior convictions for offences under those two statutes.  According to the English version of s. 39(1) (c) YCJA , a young person who has committed an indictable offence must not be committed to custody unless he or she has “a history that indicates a pattern of findings of guilt”.  According to the French version, custody is limited to cases where the young person has committed an indictable offence “après avoir fait l’objet de plusieurs déclarations de culpabilité”.  S.A.C. was sentenced to a total of 200 days in secure custody, to be followed by 100 days of supervision in the community, and was ordered, proprio motu, to provide a DNA sample.  The sentencing judge found that in deciding whether the young person has “a history that indicates a pattern of findings of guilt” pursuant to s. 39(1) (c), a court can consider the offences for which the young person is being sentenced.  The Court of Appeal upheld the sentence, adding that even if the offences for which S.A.C. was being sentenced were excluded, a “pattern of findings of guilt” can been seen from S.A.C.’s prior criminal record, but it set aside the DNA order and remitted that issue to the sentencing judge.

Held:  The appeal should be dismissed.

The rules governing the interpretation of bilingual statutes must be applied to determine the shared meaning of the English and French versions of s. 39(1) (c) YCJA . Here, since the discrepancies between the two versions are ones of ambiguity and breadth, the shared meaning is normally the narrower one. [20] [25]

While the word “history” in the English version admits of either a broad or narrow interpretation, the word “après” in the French version indicates that the only findings of guilt to be considered for the purposes of s. 39(1) (c) YCJA  are ones that were entered prior to the commission of the offence for which the young person is being sentenced.  Furthermore, the English word “pattern” is narrower than the French “plusieurs” in that it does not specify a threshold number of offences but requires the court to identify past behaviour that will give indications of regular or escalating offending criminal behaviour.  Accordingly, to show a pattern, the Crown must, as a general rule, adduce evidence of a minimum of three prior findings of guilt, unless the court can find that the offences are so similar that a pattern can be found in only two prior convictions.  Finally, the prior findings of guilt need not relate to similar — or to indictable — offences.  Similarity may be relevant for the purpose of identifying a pattern of behaviour, but to hold that only prior convictions for indictable offences are to be considered would be to impose a limit that is not provided for in the English version and is totally absent from the French.  [1] [18‑19] [22] [24]

This shared meaning of s. 39(1)(c) comports with Parliament’s intent to reduce the youth incarceration rate, and is also clearly more favourable to the accused whose liberty is at stake.  [26] [32]

Here, it was open to the sentencing court to impose a custodial sentence because of S.A.C.’s history indicating a pattern of findings of guilt.  The sentencing court considered a full pre‑sentence report and two update letters.  In view of all the information given in the letters, the Court of Appeal was amply justified in finding that the pre‑sentence report, as a whole, contained sufficient individualized information to allow the court to craft an appropriate and meaningful sentence.  [36‑38] [41] [49]

The Court of Appeal was also correct in ruling that the sentencing court had erred in making a DNA order in respect of secondary designated offences without hearing submissions from the parties and without requiring the Crown to discharge its burden of showing that an order would be in the best interests of the administration of justice.  The court was justified in remitting the matter to the sentencing court, which is the proper forum for assessing the appropriateness of issuing a DNA order.  [46‑48]

Cases Cited

Referred to:  R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. C.D., [2005] 3 S.C.R. 668, 2005 SCC 78; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. R.C., [2005] 3 S.C.R. 99, 2005 SCC 61.

Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C‑46 , ss. 145(3) , 249.1 , 334 (a), (b), 348(1) , 355 (a), (b), 487.04 , 487.051 , 487.052 .

DNA Identification Act , S.C. 1998, c. 37 .

Order fixing January 1, 2008 as the Date of the Coming into Force of Certain Sections of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act and of An Act to amend certain Acts in relation to DNA Identification, SI/2007‑108.

Youth Criminal Justice Act , S.C. 2002, c. 1 , preamble, ss. 3(1)(b)(ii), (2), 38, 39, 40, 42, 106, 109(2), 137, 139(1), (2).

Authors Cited

Canada.  House of Commons.  House of Commons Debates, vol. 137, 1st Sess., 37th Parl., February 14, 2001, p. 704.

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 3rd ed.  Scarborough, Ont.:  Carswell, 2000.

Oxford English Dictionary, online:  http://dictionary.oed.com, “pattern”.

APPEAL from a judgment of the Nova Scotia Court of Appeal (Bateman, Hamilton and Fichaud JJ.A.) (2007), 254 N.S.R. (2d) 90, 810 A.P.R. 90, [2007] N.S.J. No. 191 (QL), 2007 CarswellNS 203, 2007 NSCA 55, dismissing in part an appeal from an order by Chisholm Prov. Ct. J.  Appeal dismissed.

Chandra Gosine, for the appellant.

Peter P. Rosinski, for the respondent.

Christine Bartlett‑Hughes and Deborah Krick, for the intervener the Attorney General of Ontario.

Ami Kotler, for the intervener the Attorney General of Manitoba.

James C. Robb, Q.C., for the intervener the Attorney General of Alberta.

Mary M. Birdsell and Emily Chan, for the intervener Justice for Children and Youth.

The judgment of the Court was delivered by

[1]     Deschamps J. — The main question in this appeal concerns the interpretation of one of the limits on imposing a custodial sentence under the Youth Criminal Justice Act , S.C. 2002, c. 1  (“YCJA ”).  According to the English version of s. 39(1) (c) YCJA , a young person who has committed an indictable offence must not be committed to custody unless he or she has “a history that indicates a pattern of findings of guilt”, whereas, according to the French version, custody is limited to cases where the young person has committed an indictable offence “après avoir fait l’objet de plusieurs déclarations de culpabilité”.  The shared meaning of the English and French versions must be established in order to determine what is required under s. 39(1) (c).  I conclude that the only findings of guilt to be considered for the purposes of that provision are ones that were entered prior to the commission of the offence for which the young person is being sentenced.  Furthermore, to show a pattern of findings of guilt, the Crown must, as a general rule, adduce evidence of a minimum of three prior convictions.  However, the prior findings of guilt need not relate to similar — or to indictable — offences. The appellant raises two additional grounds, one related to the form of the pre-sentence report and the other to the appropriateness of a DNA order issued proprio motu by the trial judge, but they are unfounded.

1.     Factual and Legal Background

[2]     On January 10, 2006, S.A.C. was charged under the Criminal Code , R.S.C. 1985, c. C-46 , with the following offences: seven counts of theft of motor vehicles (s. 334(b)), three counts of breaking and entering and theft (s. 348(1)(b)), and two additional counts of motor vehicle theft (s. 334(a)).  On the same date, he was also charged with the following YCJA  offences: breach of an undertaking (s. 139(1) ) and breach of a probation order (s. 137 ).  In addition, on April 10, 2006, he was charged with three breaches of an undertaking (s. 139(1)  YCJA ).  On June 1, 2006, S.A.C. pleaded guilty to the three charges laid on April 10.  On June 22, 2006, he entered guilty pleas to 12 of the 14 counts in respect of which charges had been laid on January 10.  The date on which the first of these offences had been committed was May 27, 2005.  The sentencing hearing for all of these offences was adjourned until August 22, 2006.  At that time, the question of committing S.A.C. to custody was considered and the issue of the proper interpretation of s. 39(1)(c) was raised.

[3]     The English version of s. 39(1) (c) YCJA  reads as follows:

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

                                                                            . . .

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y‑1 of the Revised Statutes of Canada, 1985;

The French version, however, reads as follows:

39. (1) Le tribunal pour adolescents n’impose une peine comportant le placement sous garde en application de l’article 42 (peines spécifiques) que si, selon le cas:

                                                                            . . .

c) il [l’adolescent] a commis un acte criminel pour lequel un adulte est passible d’une peine d’emprisonnement de plus de deux ans après avoir fait l’objet de plusieurs déclarations de culpabilité dans le cadre de la présente loi ou de la Loi sur les jeunes contrevenants, chapitre Y‑1 des Lois révisées du Canada (1985);

[4]     At the time of sentencing, S.A.C. had several prior convictions for offences under the Criminal Code , including motor vehicle theft (s. 334(a)), flight from police while operating a motor vehicle (s. 249.1), possession of a stolen motor vehicle (s. 355(a)), possession of stolen property (s. 355(b)), failure to comply with the conditions of an undertaking while at large (s. 145(3)), and breaking and entering (s. 348(1)(b)).  He had also been convicted of several offences under the YCJA , including breach of a temporary detention order (ss. 139(1) and 139(2) ), failure to comply with a sentencing condition (s. 137 ), breach of a deferred custody and conditional supervision order (ss. 42(6) , 106  and 109(2) ).

[5]     S.A.C.’s record of past offences was not presented to the trial court in an organized way.  Crown counsel did not provide the dates on which the prior offences had been committed, although she did advise the trial court that S.A.C. had been sentenced on March 21, 2005, October 13, 2005, January 30, 2006, and March 27, 2006, and also provided information about the offences he had committed and the sentences he had received.  The pre-sentence report identified offences committed on August 9 and September 12, 20 and 22, 2004 (i.e. motor vehicle theft, possession of stolen motor vehicle, possession of stolen property and breach of undertaking).

2.       Judgments of the Nova Scotia Courts

2.1     Youth Justice Court

[6]     The youth justice court sentenced S.A.C. to a total of 200 days in secure custody pursuant to s. 39(1) (c) YCJA , to be followed by 100 days of supervision in the community pursuant to s. 42(2) (n) YCJA .  It also ordered proprio motu that S.A.C. provide a DNA sample.

[7]     The sentencing judge reasoned that, in deciding whether a pattern of findings of guilt had been established, he was not restricted to considering only indictable offences carrying a maximum punishment of more than two years.  Rather, the judge concluded that he could consider the full record of offences before it. The sentencing judge stated:

In my view, the Court may consider all offences during the appropriate period of time in determining whether or not there is a pattern but may only impose a period of custody in relation to those offences which meet the other criteria of the provision.

Therefore, with respect to the matter before the Court, I have considered all of the offences committed by S.C. during the period May through September of 2005, which include the three break and enters, and the nine car thefts, which are before the Court this afternoon, one of those being over $5,000, and the two break and enters for which he was sentenced in January of this year, those offences having been committed in August of last year.

                                                                            . . .

In my view, the number of offences, the similarity of circumstances of offences, the similarity of offences themselves, all establish a pattern of behaviour and a pattern of findings of guilt, now that those convictions have been entered with respect to the matters from May through September of 2005.

2.2      Court of Appeal

[8]     S.A.C. appealed the youth justice court’s ruling on the grounds that a custodial sentence could not be imposed in these circumstances and that the pre-sentence report before the court had been insufficient.  He also argued that the sentencing court had erred in making a DNA order.

[9]     The Court of Appeal agreed with the youth justice court that, pursuant to s. 39(1) (c) YCJA , the court could consider the offences for which S.A.C. was being sentenced in deciding whether he had “a history that indicates a pattern of findings of guilt”.  Writing for the court, Bateman J.A. reasoned that “history” means the time prior to the date of sentencing and that accordingly, all offences, including those currently before the sentencing court, may be considered. She agreed that the findings of guilt which may be considered are not limited to indictable offences, but added that in any event, the indictable offences in S.A.C.’s pre-sentence criminal record were in themselves sufficient to indicate a pattern of findings of guilt ((2007), 254 N.S.R. (2d) 90, 2007 NSCA 55).

[10] Concerning the pre-sentence report, the Court of Appeal was satisfied that it had provided the sentencing court with sufficient individualized information to craft an appropriate sentence for S.A.C. in accordance with the requirements set out in ss. 38 , 39  and 40(2) (d) YCJA .

[11] Finally, the Court of Appeal ruled that the DNA order was to be set aside and that any sample taken was to be destroyed.  It remitted the issue to the sentencing court for reconsideration.

3.       Analysis

[12] S.A.C. appeals to this Court on the same grounds raised in the Court of Appeal.  The first issue to be dealt with is the proper interpretation of s. 39(1) (c) of the YCJA .  The second issue concerns the requirements for a pre-sentence report under the YCJA .  The final issue concerns the appropriateness of the DNA order.

3.1     Interpretation of Section 39(1) (c) YCJA 

[13] The portions of the provision that require interpretation are, in English, “the young person has committed an indictable offence . . . and has a history that indicates a pattern of findings of guilt” and, in French, “il [l’adolescent] a commis un acte criminel  . . . après avoir fait l’objet de plusieurs déclarations de culpabilité”.  Three difficulties of interpretation arise.  The first relates to the date as of which the prior findings of guilt must have been entered, the second to the number of findings of guilt required to conclude that a “pattern” exists and the third to the nature of the offences on which the findings of guilt were based.  The first two difficulties can be resolved through the approach established for interpreting bilingual statutes; as for the third, I conclude that it can be resolved by considering the context of the words.

[14] The interpretation of bilingual statutes begins with a search for the shared meaning of the English and French versions. This Court has on a number of occasions discussed the appropriate approach for determining the shared meaning of English and French legislative provisions: see, e.g., R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62.  In those cases, the Court adopted a two-step approach.

[15] The first step is to determine whether there is discordance between the English and French versions of the provision and, if so, whether a shared meaning can be found.  Where a provision may have different meanings, the court has to determine what kind of discrepancy is involved.  There are three possibilities. First, the English and French versions may be irreconcilable.  In such cases, it will be impossible to find a shared meaning and the ordinary rules of interpretation will accordingly apply: Daoust, at para. 27; P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at  p. 327.  Second, one version may be ambiguous while the other is plain and unequivocal.  The shared meaning will then be that of the version that is plain and unambiguous: Daoust, at para. 28; Côté, at p. 327.  Third, one version may have a broader meaning than the other. According to LeBel J. in Schreiber, at para. 56, “where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning”.

[16] At the second step, it must be determined whether the shared meaning is consistent with Parliament’s intent: Daoust, at para. 30.  In the penal context, courts must also ensure that any ambiguity is resolved in favour of the accused whose liberty is at stake (Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108).

[17] Turning to the application of these principles of interpretation to the case at bar, it is clear that the English and French versions of s. 39(1)(c) are reconcilable.  The discrepancies here are ones of ambiguity and breadth.

[18] The use of the word “history” in the English version admits of either a broad or a narrow interpretation.  Because the potential ambit of the word “history” is broad and open to qualification, it might be understood to mean that all findings of guilt made before the time of sentencing are to be considered in determining whether the young person may be committed to custody, including the very findings in respect of which he or she is being sentenced.  But it might also be understood to mean all findings of guilt made before the time of sentencing, excluding those in respect of which the young person is to be sentenced.  Furthermore, the conjunction “and” does not indicate the time of the findings of guilt.  They could be either findings made before the commission of the offence for which the person is being sentenced or findings made before the sentencing date.

[19] The French version is narrower and permits of a single interpretation as regards the timing of the findings of guilt.  The equivalent of the word “history” is not used in French.  Instead, the word “après” indicates that the only findings of guilt to be considered for the purpose of determining whether the young person may be committed to custody are those made before the commission of the offence for which the person is being sentenced.  This interpretation excludes any finding of guilt that postdates the commission of the offence.

[20]  The first step in reconciling the two versions is to establish the shared meaning, which, when the discrepancy is one of breadth, is normally the narrower one.  In this case, the French version is clearer and more restrictive.  It sets a specific date as regards the convictions that may be considered when determining whether the young person may be committed to custody under s. 39(1)(c).  Although all prior conduct is relevant for the general purpose of determining the sentence, the same is not true of the determination whether a custodial sentence may be imposed.  According to the French version, the findings of guilt the court can take into consideration to determine whether a custodial sentence may be imposed are those made before the offence was committed.  The relevant period does not extend to the sentencing date.

[21] The second difficulty, which concerns the requirement of a “pattern” of findings of guilt, can also be resolved by applying the narrower version of the provision.  In the French version, the word “plusieurs” is used.  Although this word may encompass a larger number, it can simply mean “more than one”.  Thus, the provision could be interpreted as only requiring evidence that the young person had already been convicted twice before committing the offence for which he or she is to be sentenced.

[22] The English word “pattern” evokes a somewhat stronger image.  One existing definition of “pattern” is as follows :

A regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based. Freq. with “of”, as pattern of behaviour.

(Oxford English Dictionary, online edition, http://dictionary.oed.com)

In providing that the sentencing court must look for a pattern, Parliament instructs the court to identify past behaviour that will give indications of regular or escalating behaviour. The type of behaviour the court is called on to identify is one of criminality, not the repetition of a specific offence, hence the use of the expressions “findings of guilt” in English and “déclarations de culpabilité” in French.  However, the word “pattern” does not specify a threshold number.  Also, while similarity is not a requirement, it may be relevant to identifying a pattern of criminal behaviour.  In some circumstances, two prior findings of guilt will be sufficient to indicate a pattern of behaviour.  For example, if, before committing a sexual assault, a young person had already been convicted twice for other sexual assaults, the court might find a pattern in the prior findings of guilt.  If, however, the record consists of disparate offences, such as theft and breach of an undertaking, two convictions may be insufficient to permit the identification of a mode of offending behaviour. Therefore, unless the sentencing court finds that the offences are so similar that a pattern of findings of guilt can be found in only two prior convictions, the threshold for demonstrating a “pattern” of findings of guilt is at least three prior convictions.  The narrower meaning which makes it possible to resolve this second difficulty is thus found in the English version of s. 39(1)(c).

[23] The third difficulty stems from the question whether the findings of guilt must concern only indictable offences.  It might be argued that the word “pattern” relates to offences that are similar in nature to the one for which the young person is being sentenced.  If that were so, a pattern of indictable offences would be required, since s. 39(1)(c) applies only where the young person is to be sentenced for an offence for which an adult would be liable to a term of imprisonment of more than two years.

[24] I am not convinced by this argument.  The word “pattern” relates to prior findings of guilt, not to the finding in respect of which the young person is being sentenced.  To hold that only prior convictions for indictable offences are to be considered would be to impose a limit that is not provided for in the English version and is totally absent from the French. Although similarity can be relevant to the determination whether a pattern exists, the threshold is a pattern of findings of guilt, not a pattern of findings of guilt for the same type of offence as the one for which the young person is being sentenced.

[25] In summary, the rules governing the interpretation of bilingual statutes can be applied to make a preliminary determination of the proper meaning of the provision.  The shared meaning is found, on the issue of the date as of which the prior findings of guilt must have been entered, in the clearer and more restrictive French version and, on the issue of what constitutes a pattern of findings of guilt, in the clearer and more restrictive English version.

[26]  Before the shared meaning can be adopted, however, it is necessary to proceed to the second step of the interpretation.  At this step, the court must determine whether the shared meaning comports with Parliament’s intent.  There are many indications that the legislative intent behind several of the YCJA ’s provisions was to reduce the youth incarceration rate.  This is stated plainly in the YCJA ’s preamble:

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;

. . .

[27] This intent is further reflected in ss. 3(1) (b)(ii) and 3(2)  of the YCJA :

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:

                                                                            . . .

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

                                                                            . . .

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[28] Parliament’s intent concerning the YCJA  was stated explicitly by former Minister of Justice Anne McLellan during the debates leading up to the adoption of the Act:

The proposed youth criminal justice act is intended to reduce the unacceptably high level of youth incarceration that has occurred under the Young Offenders Act. The preamble to the new legislation states clearly that the youth justice system should reserve its most serious interventions for the most serious crimes and thereby reduce its over-reliance on incarceration.

(House of Commons Debates, vol. 137, 1st Sess., 37th Parl., February 14, 2001, at p. 704 (emphasis added))

Indeed, the Court has already accepted, in R. v. C.D., [2005] 3 S.C.R. 668, 2005 SCC 78, at paras. 44-52, that the YCJA  was designed, in part, to reduce over-reliance on custodial sentences for young offenders.

[29] The narrower interpretation of s. 39(1) (c) YCJA  clearly comports with Parliament’s express intent to reduce the youth incarceration rate.  By requiring that custody be limited to cases where the findings of guilt were made prior to the commission of the offence for which the young person is being sentenced and where the prior convictions indicate a pattern of findings of guilt, the provision is both clear and consistent with the legislative intent behind s. 39(1) (c) and the YCJA  as a whole.

[30] In the case at bar, an additional analytic step is relevant.  Where the interpretation of penal provisions is concerned, courts must generally ensure that any ambiguity is resolved in favour of the liberty of the accused whose liberty is at stake.  In Marcotte, at p. 115, Dickson J. (as he then was) stated the principle as follows:

Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal . . . I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.

[31] This principle of statutory interpretation was reaffirmed by this Court in R. v. McIntosh, [1995] 1 S.C.R. 686, per Lamer C.J., at para. 29:

It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation.

It was again reaffirmed in C.D., at para. 50.

[32] In the case at bar, the shared meaning of s. 39(1)(c) is clearly more favourable to the accused — whose liberty is unquestionably at stake — because it imposes a stricter limitation on the discretion the sentencing court may exercise in assessing whether the accused may be committed to custody.

[33] Because the shared meaning comports with Parliament’s intent to reduce the youth incarceration rate, and because it reflects the version most favourable to the accused, it must prevail. 

3.2   Application to the Facts

[34] While the shared meaning of s. 39(1)(c) is the correct formulation of the rule, the outcome of the case at bar is not necessarily affected by this. A “history that indicates a pattern of findings of guilt” emerges from S.A.C.’s convictions for Criminal Code  offences prior to the commission of the offences for which he was being sentenced.  As I mentioned above, the sentencing hearing of August 22, 2006 related to offences committed on and after May 27, 2005.  The prior convictions included the following:

(1)               motor vehicle theft (s. 334(a)) — offence committed on August 9, 2004, sentence imposed on March 21, 2005;

(2)               possession of stolen motor vehicle (s. 355(a)) — offence committed on September 12, 2004, sentence imposed on March 21, 2005;

(3)               flight from police while operating motor vehicle (s. 249.1) — offence committed on September 20, 2004, sentence imposed on March 21, 2005;

(4)               possession of stolen property (s. 355(b)) — offence committed on September 20, 2004, sentence imposed on March 21, 2005; and

(5)               breach of undertaking (s. 145(3)) — offence committed on September 23, 2004, sentence imposed on March 21, 2005.

[35] As the Court of Appeal aptly noted, at para. 23: “Even if the offences that were before the court for sentencing are excluded, there remains a ‘pattern of findings of guilt’ as can be seen from S.A.C.’s prior criminal record . . . .”  While S.A.C.’s counsel conceded, before the sentencing court, that these offences gave every indication of a pattern, S.A.C. nevertheless challenges the conclusion that there is evidence of a history of findings of guilt and that a custodial order was appropriate.  However, this argument is linked to his position on the sufficiency of the pre-sentence report, to which I will now turn.

3.3      The Pre-Sentence Report

[36] Sections 39(6)  and 42  YCJA  require that a youth justice court consider a pre-sentence report before imposing a custodial sentence on a young person found guilty of an indictable offence.  Section 40 specifies the form and content of such a report.  It reads in part as follows:

40. (1) Before imposing sentence on a young person found guilty of an offence, a youth justice court

(a) shall, if it is required under this Act to consider a pre‑sentence report before making an order or a sentence in respect of a young person . . .

                                                                            . . .

require the provincial director to cause to be prepared a pre-sentence report in respect of the young person and to submit the report to the court.

                                                                            . . .

(2) A pre‑sentence report made in respect of a young person shall . . . include the following . . .:

                                                                            . . .

(d) any information that is applicable to the case, including

                                                                            . . .

(v) the availability and appropriateness of community services and facilities for young persons and the willingness of the young person to avail himself or herself of those services or facilities,

                                                                            . . .

[37] The purpose of s. 40  YCJA  is to ensure that a sentencing court is provided with a pre-sentence report containing sufficient individualized information to allow the court to craft a sentence that is appropriate for and meaningful to the young person.  Section 40(2)(d)(v) requires, in particular, that the pre-sentence report contain any information “that is applicable to the case”, including information regarding the availability and appropriateness of community services and facilities and the young person’s willingness to take advantage of them.

[38] In the case at bar, the sentencing court was provided with a full pre-sentence report.  In addition, probation officers furnished the court with two update letters. Counsel for S.A.C. did not challenge either the form or the content of the report and the updates at sentencing.  Counsel argued in the Court of Appeal that the report and the updates were not in strict compliance with s. 40(2)(d)(v), because adequate consideration had not been given to the appropriateness of community services and facilities for S.A.C.  The Court of Appeal found, however, that the first report fully detailed the community resources available to S.A.C. and that S.A.C. had received the benefit of those services but had continued to reoffend.  The Court of Appeal was of the opinion that it was clear from the information provided that S.A.C. had exhausted the available community services. 

[39] The fact that the pre-sentence report was composed of several constituent documents does not mean that it did not contain the appropriate information. For the purposes of s. 40  YCJA , the only question is whether the sentencing court was given sufficient information to craft an appropriate sentence.

[40] Although the probation officers did not make any explicit recommendations in the update letters regarding alternatives to custody, they did report changes in S.A.C.’s situation, thereby indicating that the original report remained valid except for the parts that were changed by the letters.  In particular, in the second letter, the officer mentioned numerous breaches of conditions and reported that S.A.C. showed no motivation, had not followed through with the programs put in place to assist him and “continue[d] to associate with a negative peer group”.  The officer concluded that “[g]iven the young person’s inability or unwillingness to participate in the various support services offered to date, his ability to abide any further such conditions within the community remains questionable.”

[41] In view of all the information given in the letters, the Court of Appeal was amply justified in finding that the pre-sentence report, as a whole, satisfied the requirements of s. 40  YCJA .

3.4   The DNA Order

[42] Orders authorizing the taking of DNA samples are made pursuant to either s. 487.051  or s. 487.052  of the Criminal Code .  The latter provision applies to offences committed before the DNA Identification Act , S.C. 1998, c. 37 , came into force.  Section 487.051(1)(b), which applies here, reads as follows:

487.051 (1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y‑1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act  of a designated offence, the court

                                                                            . . .

(b) may, in the case of a secondary designated offence, make an order in Form 5.04 authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to do so.

[43] In R. v. R.C., [2005] 3 S.C.R. 99, 2005 SCC 61, at para. 20, Fish J. noted that Parliament has drawn a distinction between “primary” and “secondary” designated offences, which are defined in s. 487.04  of the Criminal Code .  Where the offender is convicted of a secondary designated offence, the Crown must show that an order to provide a DNA sample would be in the best interests of the administration of justice. Where, however, an offender has been convicted of a primary designated offence, a DNA order must be made unless the court is satisfied that the offender has established that s. 487.051(2) applies.

[44] Offences under s. 348(1)  of the Criminal Code  that are committed in relation to dwelling-houses were secondary designated offences pursuant to s. 487.04 until being defined as primary designated offences as of January 1, 2008 (see SI/2007-108, Canada Gazette, Part II, vol. 141, No. 25, December 12, 2007, at p. 2512).

[45] In the case at bar, the sentencing court ordered proprio motu that S.A.C. provide a DNA sample given the number of secondary designated offences before the court, the nature of the investigation, and S.A.C.’s prior and subsequent records.

[46] The Crown conceded on appeal that it was not open to the sentencing court to order the DNA samples proprio motu.  It accordingly requested that the matter be remitted to the youth justice court for a proper resolution of the issue.

[47] The Court of Appeal found that the youth justice court had erred in making a DNA order in respect of secondary designated offences without hearing submissions from the parties and without requiring the Crown to discharge its burden of showing that  an order would be in the best interests of the administration of justice.  It remitted the matter to the youth justice court for reconsideration.  S.A.C. argues in this Court that the Court of Appeal erred in remitting the matter instead of finding that the DNA order was improperly made.  He would have the order struck.

[48] The decision of the Court of Appeal should not be disturbed.  The youth justice court is the proper forum for assessing the appropriateness of issuing a DNA order.

4.     Conclusion

[49] Because of S.A.C.’s history indicating a pattern of findings of guilt, it was open to the youth justice court to impose a custodial sentence under the YCJA .  Moreover, the pre-sentence report was sufficient and the DNA order was properly remitted to the youth justice court for reconsideration.  The appeal is dismissed.

Appeal dismissed.

Solicitor for the appellant:  Nova Scotia Legal Aid, Halifax.

Solicitor for the respondent:  Public Prosecution Service of Nova Scotia, Halifax.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Manitoba:  Manitoba Justice, Winnipeg.

Solicitor for the intervener the Attorney General of Alberta:  Alberta Justice, Edmonton.

Solicitor for the intervener Justice for Children and Youth:  Canadian Foundation for Children, Youth and the Law, Toronto.