R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 SCR 668

                                                 SUPREME COURT OF CANADA

Between:

C.D., A Young Person Within the Meaning of the Youth

Criminal Justice Act

Appellant

and

Her Majesty the Queen

Respondent

and

Attorney General of Ontario, Attorney General of British

Columbia, Attorney General of Manitoba and Canadian

Foundation for Children, Youth and the Law

Interveners

And between:

C.D.K., A Young Person Within the Meaning of the Youth

Criminal Justice Act

Appellant

and

Her Majesty the Queen

Respondent

and

Attorney General of Ontario, Attorney General of British

Columbia, Attorney General of Manitoba and Canadian

Foundation for Children, Youth and the Law

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. C.D.; R. v. C.D.K., [2005] 3 S.C.R. 668, 2005 SCC 78

C.D., a young person within the meaning of the Youth

Criminal Justice Act                                                                                        Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario, Attorney General of British

Columbia, Attorney General of Manitoba and Canadian

Foundation for Children, Youth and the Law                                               Interveners

- and -

C.D.K., a young person within the meaning of the Youth

Criminal Justice Act                                                                                        Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario, Attorney General of British

Columbia, Attorney General of Manitoba and Canadian

Foundation for Children, Youth and the Law                                               Interveners

Indexed as:  R. v. C.D.; R. v. C.D.K.

Neutral citation:  2005 SCC 78.

File Nos.:  30254, 30314.

2005:  April 14; 2005:  December 16.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for alberta

Criminal law — Sentencing — Young persons — Committal to custody —  Whether arson to property, possession of weapon or dangerous driving “violent offences” for purposes of imposing custodial sentences on young persons — Meaning of term “violent offence” in s. 39(1) (a) of Youth Criminal Justice Act, S.C. 2002, c. 1 .

C.D., a young person, pleaded guilty to possession of a weapon for a purpose dangerous to the public peace, arson to property, and breach of a recognizance.  In a separate proceeding, C.D.K., also a young person, pleaded guilty to dangerous driving, possession of stolen property and theft under $5,000.  They were both sentenced to six months of deferred custody followed by probation.  Section 39(1) (a) of the Youth Criminal Justice Act  (“YCJA ”), which represents one of the four gateways to a custodial sentence, provides that “[a] youth justice court shall not commit a young person to custody . . . unless (a) the young person has committed a violent offence”.  The Court of Appeal, in separate decisions, upheld both sentences, holding that the sentencing judges did not err when they determined that C.D.’s arson to property offence and C.D.K.’s dangerous driving offence were “violent offences” within the meaning of s. 39(1) (a).  The court found that, for purposes of s. 39(1) (a), an action is violent if it causes bodily harm, or is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm.

Held:  The appeals should be allowed.  The custodial sentences should be quashed and the matters remitted to the youth courts.

Per McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.:  The term “violent offence” found in s. 39(1) (a) of the YCJA  means an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. [17] [70]

The term “violent offence” is not defined either in the YCJA  or in the Criminal Code , and it must be interpreted in the same manner as any undefined term in a statute.  It is therefore not appropriate to interpret the term “violent offence” solely by reference to the definition of “serious violent offence” set out in s. 2(1)  of the YCJA .  Although the meaning of “violent offence” must be connected to the statutory definition of “serious violent offence”, Parliament’s decision not to define the term “violent offence” in the YCJA  must be given meaning and must be respected. [20] [23‑26] [86]

Dictionary, ordinary and judicially constructed definitions of the words “violent” and “violence” typically associate these words with either the application of force or the causation of harm or injury, or with both.  While it is clear that “violence” has a spectrum of meanings and that it can be applied to property as well as to persons, in the context of the YCJA , the term “violent offence” should be narrowly construed.  The object and the scheme of the YCJA , and Parliament’s intention in enacting it, all indicate that the YCJA  was designed, in part, to reduce over‑reliance on custodial sentences for young offenders.  Moreover, where two interpretations affect the liberty of an accused, the one more favourable to the accused should be adopted.  A narrow interpretation of “violent offence” means that the definition must exclude pure property crimes. Otherwise, the gate‑keeping effect of s. 39(1)(a) would be severely diminished. Custodial sentences should be an option for property offences only if the offence meets the criteria for “exceptional cases” under s. 39(1)(d). [19‑52]

A harm‑based definition of “violent offence” is preferable to a force‑based definition because it avoids the flaws associated with a force‑based definition.  Since all offences designated by a youth justice court as “serious violent offences”, and all murders, attempted murders and manslaughters, will always involve actual or attempted bodily harm, a harm‑based definition will ensure that all “serious violent offences” are also “violent offences”, and that all murders, attempted murders and manslaughters will be considered “violent offences”.  Furthermore, the YCJA  already considers offences involving physical or psychological harm to be examples of “violent behaviour” for the purpose of determining an application for the continuation of custody and, on the basis of contextual integrity, it follows that these offences should also be considered “violent offences” for purposes of s. 39(1)(a).  Also, a harm‑based definition better accords with the “usual” definition of violence, which tends to focus on the effects of violence rather than on the means employed to produce the effects.  Lastly, while a harm‑based definition may exclude assaults committed without causing, attempting to cause or threatening to cause bodily harm, these relatively minor assaults ought not to be considered “violent offences” within the meaning of s. 39(1)(a).  [53‑69]

A harm‑based definition of “violent offence” that includes offences in which bodily harm is threatened, as well as caused or attempted, makes the definition sufficiently distinct from the statutory definition of “serious violent offence”, pays adequate attention to Parliament’s decision to leave the term “violent offence” undefined, and ensures that the YCJA  operates properly and does not produce absurd results.  Including threats of bodily harm in the definition of “violent offence” also accords with the link to be made between “violent behaviour” and threats of violence when determining applications for continuation of custody, and with the commonly held view that a threat to cause bodily harm is an act of violence.  [26] [81‑86]

The meaning of “violent offence” should not capture offences where bodily harm is merely intended, because something more than a guilty mind is required before criminal punishment is imposed.  Nor should the definition be extended to include offences where bodily harm is merely reasonably foreseeable.  Such an extension would be inconsistent with a narrow interpretation of the term “violent offence”.  With a reasonable foreseeability of harm standard in place, too many Criminal Code  offences will be included in the definition.  This definition would also render s. 39(1)c) and (d) redundant.  Finally, whether an offence is likely to result in bodily harm is a question of whether the offence is dangerous rather than whether it is violent.  Since the Criminal Code  differentiates violent conduct from dangerous conduct, so too should the YCJA . [74‑80]

Here, the custodial sentences must be quashed and both matters remitted to the youth courts so that appropriate sentences can be determined.  C.D.’s arson offence and his breach of his recognizance order are not “violent offences” under s. 39(1)(a) because he did not cause, attempt to cause or threaten to cause bodily harm when committing these offences.  Since it is not clear on the record whether he threatened or attempted to cause bodily harm while committing the offence of possession of a weapon,  it cannot be determined whether this was a “violent offence”.  Similarly, C.D.K. did not cause, attempt to cause or threaten to cause bodily harm in any of his offences, and the offences were accordingly not “violent offences”.  In both cases, no argument was made that the requirements of one of the other gateways to custody set out in s. 39(1)  of the YCJA  were satisfied. [88‑94]

Per LeBel J.:  A “violent offence” should be identified as an offence whereby the offender intends, threatens or attempts to cause harm.  A fault‑based approach is more consonant with the nature of the Canada’s criminal law system, which primarily attaches criminal liability and punishment to criminal intent.  A focus on intent to apply or use force better catches the nature of violence which may expose a young offender to a custodial sentence whereas a harm‑based approach focuses more on the outcome of the act than on its nature or intent.  A fault‑based definition of “violent offence” would not fail to catch culpable homicides. [98‑99]

Cases Cited

By Bastarache J.

Discussed:  R. v. C. (J.J.) (2003), 180 C.C.C. (3d) 137, 2003 PESCAD 26; R. v. D. (T.M.) (2003), 181 C.C.C. (3d) 518, 2003 NSCA 151; R. v. McCraw, [1991] 3 S.C.R. 72; distinguished:  R. v. Keegstra, [1990] 3 S.C.R. 697; referred to:  Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Pitters v. Criminal Injuries Compensation Board (Ont.) (1996), 95 O.A.C. 325; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Lew (1978), 40 C.C.C. (2d) 140; R. v. Oakley (1986), 24 C.C.C. (3d) 351; R. v. Trudel (1984), 12 C.C.C. (3d) 342; R. v. Sayers and McCoy (1983), 8 C.C.C. (3d) 572; R. v. Lecky (2001), 157 C.C.C. (3d) 351; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122; R. v. Colburne (1991), 66 C.C.C. (3d) 235; R. v. Younger (2004), 187 Man. R. (2d) 121, 2004 MBCA 113; R. v. Criminal Injuries Compensation Board, Ex parte Clowes, [1977] 1 W.L.R. 1353; Coca Cola Ltd. v. Deputy Minister of National Revenue for Customs and Excise, [1984] 1 F.C. 447; R. v. N.S.O., [2003] O.J. No. 2251 (QL); R. v. D.L.C., [2003] N.J. No. 94 (QL).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 2 ( b ) .

Criminal Code , R.S.C. 1985, c. C‑46 , ss. 2  “bodily harm”, 24(1), 88, 145(3), 222, 229, 234, 235, 236, 239, 249(1)(a), 264.1(1)(a), 322, 343, 354, 434, 515(10)(b), 745.1, 752.

Juvenile Delinquents Act, R.S.C. 1970, c. J‑3.

Young Offenders Act , R.S.C. 1985, c. Y‑1 , s. 24(1) , (1.1) , (4) .

Youth Criminal Justice Act , S.C. 2002, c. 1 , preamble, ss. 2 “presumptive offence”, “serious violent offence”, 3, 4(c), 29(2), 38, 39, 42, 62(a), 94, 98(4)(a), 104(3)(a).

Treaties and Other International Instruments

Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 37(b).

Authors Cited

Bala, Nicholas.  Young Offenders Law.  Concord, Ont.:  Irwin Law, 1997.

Bala, Nicholas.  Youth Criminal Justice Law.  Toronto:  Irwin Law, 2003.

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

Cornu, Gérard, dir.  Vocabulaire juridique, 8^e éd.  Paris:  Presses universitaires de France, 2000, “violence”.

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths, 1983.

Markwart, Alan.  “Custodial Sanctions Under The Young Offenders Act ”, in Raymond R. Corrado et al., eds., Juvenile Justice in Canada:  A Theoretical and Analytical Assessment.  Toronto:  Butterworths, 1992, 229.

Oxford English Dictionary, 2nd ed.  Oxford:  Clarendon Press, 1989, “violence”, “violent”.

Scassa, Teresa.  “Violence Against Women in Law Schools” (1992), 30 Alta. L. Rev. 809.

Sullivan, Ruth.  Sullivan and Driedger on the Construction of Statutes, 4th ed.  Markham, Ont.:  Butterworths, 2002.

APPEAL from a judgment of the Alberta Court of Appeal (Ritter J.A. and Brooker and Martin JJ. (ad hoc)), [2005] 1 W.W.R. 442 (sub nom. R. v. D. (C)), 30 Alta. L.R. (4th) 226, 346 A.R. 289, 320 W.A.C. 289, 184 C.C.C. (3d) 160, [2004] A.J. No. 179 (QL), 2004 ABCA 14, upholding the custodial sentence imposed on C.D.  Appeal allowed.

APPEAL from a judgment of the Alberta Court of Appeal (Ritter J.A. and Bielby and Sanderman JJ. (ad hoc)) (2004), 346 A.R. 393, 320 W.A.C. 393, [2004] A.J. No. 237 (QL), 2004 ABCA 77, upholding the custodial sentence imposed on C.D.K.  Appeal allowed.

Patricia Yuzwenko and Charles Seto, for the appellants.

James C. Robb, Q.C., for the respondent.

Miriam Bloomenfeld and Geoff Chesney, for the intervener the Attorney General of Ontario.

Kathleen M. Ker, for the intervener the Attorney General of British Columbia.

Dale Tesarowski and Jo‑Ann Natuik, for the intervener the Attorney General of Manitoba.

Cheryl Milne and Emily Chan, for the intervener the Canadian Foundation for Children, Youth and the Law.

The judgment of McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ. was delivered by

Bastarache J. —

1.         Introduction

1                                   In these appeals, this Court is being asked to define the term “violent offence” for purposes of the Youth Criminal Justice Act , S.C. 2002, c. 1  (“YCJA ” or the “Act ”). This term is found in s. 39(1)  of the Act , and it represents one of only four gateways to a custodial youth sentence. Specifically, s. 39(1) provides that a youth justice court shall not commit a young person to custody under s. 42 (youth sentences) unless:

(a)   the young person has committed a violent offence;

(b)   the young person has failed to comply with non-custodial sentences;

(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; or

(d)   in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non‑custodial sentence would be inconsistent with the purpose and principles set out in section 38.

2                                   The definition of “violent offence” is at issue in these appeals because the appellants, who are young persons within the meaning of the YCJA , were both found to be eligible for the custodial sentence they ultimately received on the basis that they had committed a “violent offence” under s. 39(1) (a) of the YCJA .

3                                   With regard to the appellant C.D., he pleaded guilty to three offences: possession of a weapon for a purpose dangerous to the public peace contrary to s. 88  of the Criminal Code ,   R.S.C. 1985, c. C‑46 , arson to property contrary to s. 434 of the Code, and breach of a recognizance contrary to s. 145(3) of the Code. The sentencing judge determined that the arson to property offence, which came about when the appellant and an adult offender set fire to a truck at the direction of its owner, was a “violent offence”, explaining that “[v]iolence to property is a violent offence and it fits 39(1)(a)” (2003 CarswellAlta 1909, at para. 6).  He sentenced C.D. to six months of deferred custody to be followed by nine months of probation. Deferred custody is a type of custodial sentence that “allows the youth to serve what would otherwise be a custodial sentence in the community but subject to strict conditions and with the possibility of immediate apprehension and placement in a custody facility if the youth is believed to ‘have breached or to be about to breach’ any of the conditions”: see N. Bala, Youth Criminal Justice Law (2003), at p. 457.

4                                   As for the appellant C.D.K., he pleaded guilty to three offences as well: dangerous driving contrary to s. 249(1) (a) of the Criminal Code , possession of stolen property contrary to s. 354 of the Code, and theft under $5,000 contrary to s. 322 of the Code. Although the guilty plea on the theft charge was entered on a later date than the pleas on the dangerous driving and possession of stolen property charges, sentencing on all three charges occurred on the same date (C.D.K.’s factum, at para. 2). The sentencing judge determined that the dangerous driving offence before the court, which involved a high speed police chase through city streets, was a “violent offence” within the meaning of s. 39(1) (a) of the YCJA . She explained that “[t]he potential for serious damage, injury to the public, to the police and to the people in the chase is beyond question. And the violence of a car speeding through the city chased by police is, by anyone’s definition, violent” (2003 CarswellAlta 1924, at para. 7). The sentencing judge sentenced C.D.K. to six months of deferred custody followed by twelve months of probation.

5                                   Both appellants appealed their sentences to the Court of Appeal for Alberta. Prior to argument before the court, C.D. and C.D.K. both breached their deferred custody sentences and were returned to actual custody until the Crown agreed to their release on bail pending their appeals.

6                                   Before the Court of Appeal, the appellant C.D. advanced three grounds of appeal. First, C.D. argued that the sentencing judge erred in principle when he found that arson was a “violent offence” under s. 39(1) (a) of the YCJA , because, in C.D.’s view, a property offence, such as arson, could not be a “violent offence” without either actual or attempted bodily harm. Second, C.D. argued that the sentencing judge failed to consider alternatives to custody, as required by s. 39(2)  of the Act , when he decided that a community sentence without a “lever” (i.e. something to promote compliance) would not work for the appellant. Third, C.D. contended that the sentencing judge failed to properly consider the provisions of s. 38  of the YCJA  and thus imposed a sentence that was unfit. Since the Court of Appeal was of the view that the appellant also regarded the sentence imposed as demonstrably unfit, it considered this issue in its analysis as well.

7                                   Prior to the Court of Appeal rendering its decision, C.D. was arrested for breaching his release order. He was then re-released.

8                                   The Court of Appeal released its decision in C.D.’s appeal on March 2, 2004 ((2004), 346 A.R. 289, 2004 ABCA 14 (hereinafter “C.D.”)). With regard to the appellant’s first ground of appeal, it held that “if an action causes bodily harm, is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm, then it is violent” (para. 57). Applying this definition to the circumstances of the arson offence committed by C.D., the court concluded that the offence was a violent one, since “[t]he totality of the circumstances indicates that a reasonable person would have foreseen a risk of bodily harm” (para. 66). By way of explanation, the court noted that although the fire occurred on a deserted street late at night, firefighters were called to the scene within minutes after it began. The court also noted that C.D. and the adult offender used gasoline and propane, two well-known accelerants, to start the fire in the truck, and this increased “the risk to anyone who happened to use the street that night and anyone charged with controlling the fire” (para. 67).  Furthermore, the court stated that since the propane used in the fire was housed in a closed bottle and since the truck had to have had a fuel tank, “[t]here was a reasonably foreseeable risk that the burning truck might explode at any time” (para. 67).

9                                   As for the other grounds of appeal, the Court of Appeal held that the sentencing judge did not err when he decided that community sentence without a lever would not work for the appellant; nor did he err in his interpretation of s. 38  of the YCJA . The court also concluded that the appellant was unable to show that the sentence imposed was demonstrably unfit. In fact, the court was of the view that the sentence imposed was the appropriate one having regard to the offender, the offence and the sentencing principles and factors set out in the YCJA . Accordingly, the Court of Appeal dismissed C.D.’s appeal.

10                               Like C.D., C.D.K. challenged the deferred custody sentence imposed on the basis that (i) it was not an available sentence because he did not commit a “violent offence” within the meaning of s. 39(1)(a), and (ii) even if it was an available sentence, it was an unfit one.

11                               The Court of Appeal released its decision with regard to the first ground of C.D.K.’s appeal on March 10, 2004 ((2004), 346 A.R. 393, 2004 ABCA 77), eight days after it released its decision in C.D.’s appeal. The court noted that in C.D.’s appeal, it concluded that “if it is reasonably foreseeable that criminal conduct may result in bodily harm that is more than merely trifling or transitory, the offence is violent for the purposes of s. 39(1) (a) of the Act ” (para. 7). Applying this definition to the dangerous driving offence committed by C.D.K., the court concluded that “[i]n this instance the potential for harm is obvious. High speed chases are very dangerous and can easily result in serious injury or death” (para. 7).  Accordingly, the court held that “the sentencing judge did not err when she determined that the offence was violent and that a custodial sentence was available” (para. 7).

12                               As for C.D.K.’s second ground of appeal, which centred on the fitness of the sentence imposed, the Court of Appeal noted that at the appeal hearing it had granted the parties’ request to defer its decision on this issue in order to give counsel an opportunity to propose alternatives to the custodial sentence imposed. The parties made this joint request because, at the time of the appeal hearing, C.D.K. was on judicial interim release and appeared to be doing well. Unfortunately, after the hearing but before the release of the Court of Appeal’s reasons for judgment, C.D.K. was charged with another offence, which resulted in the revocation of his bail. Although the Court of Appeal stated in its reasons that this conduct may have jeopardized the Crown’s willingness to consider alternatives to the custodial sentence imposed, it nonetheless directed that the matter of the fitness of the sentence imposed on C.D.K. be returned to the panel at a date to be determined. However, after the release of the court’s ruling on the interpretation of “violent offence”, C.D.K. formally abandoned the fitness of sentence ground of appeal. In his written submissions to this Court, C.D.K. stated that he abandoned this ground of appeal because he wanted to seek leave to appeal the issue of the proper interpretation of “violent offence” concurrently with C.D. (see C.D.K.’s factum, at para. 6). Following the abandonment, the Court of Appeal issued a final judgment, dismissing C.D.K.’s appeal.

13                               On  October 7, 2004, this Court granted C.D. and C.D.K.’s applications for leave to appeal and determined that their appeals would be heard together.

14                               Argument before this Court centred on the definition of “violent offence”. The appellants noted that the Alberta Court of Appeal’s conclusion on this point is in conflict with appellate-level decisions from Prince Edward Island and Nova Scotia. In these decisions, the courts defined the term “violent offence” by reference to the statutory definition of “serious violent offence” in s. 2  of the YCJA , which, as noted above, provides that a “serious violent offence” is an offence in the commission of which a young person causes or attempts to cause serious bodily harm. In R. v. C. (J.J.) (2003), 180 C.C.C. (3d) 137, 2003 PESCAD 26, Webber J.A. for the Prince Edward Island Supreme Court, Appeal Division, held that “[a] reasonable analogy can therefore be made that ‘violent offence’ refers to one in which bodily harm has been caused to the victim albeit not serious bodily harm” (para. 21). Fichaud J.A., for the Nova Scotia Court of Appeal in R. v. D. (T.M.) (2003), 181 C.C.C. (3d) 518, 2003 NSCA 151, agreed with Webber J.A.’s deductive approach, subject to her conclusion that a “violent offence” should also include an attempt to cause bodily harm, since the YCJA  defines “serious violent offence” as including an attempt to cause serious bodily harm (para. 23).

15                               Before this Court, the appellants advocated for the acceptance of the Nova Scotia Court of Appeal’s interpretation of the term “violent offence”.  In their view, this term ought to be defined by reference to the definition of “serious violent offence” found in s. 2  of the YCJA , such that an offence is “violent” if: (1) bodily harm is caused; or (2) bodily harm is attempted (see C.D.’s factum, at para. 16; C.D.K.’s factum, at para. 10). The respondent supported the Alberta Court of Appeal’s interpretation of this term, according to which, for purposes of s. 39(1)(a), an action is “violent” if it “causes bodily harm, is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm” (C.D., at para. 57).

16                               At the hearing of this appeal, one of the members of this Court invited counsel for the respondent to comment on a definition of “violent offence” that utilized a force-based touchstone rather than a harm-based one. Specifically, counsel for the respondent was asked if he agreed that a reasonable interpretation of “violent offence” was one where the offender illegally (1) used, (2) attempted to use, or (3) threatened to use force on a person in the commission or attempted commission of a crime. Counsel replied by stating that this definition would capture what would be commonly understood as violent offences (see transcript, at pp. 45-46).

17                               For the reasons given below, it is my view that the definition of “violent offence” ought to have a harm-based touchstone rather than a force-based one. As for the harm-based definitions originally offered by the parties, I am of the view that the appellants’ definition, which is drawn from the Nova Scotia Court of Appeal’s decision in D. (T.M.), and the respondent’s definition, which is, in reality, the definition crafted by the Alberta Court of Appeal, are both problematic and ought not to be endorsed by this Court. In their stead, I would substitute the following harm-based definition of “violent offence”: an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.

2. Issues

18                               Before this Court, the appellants advanced three grounds of appeal:

(1)   that the Alberta Court of Appeal erred in law in its expansive interpretation of “violent offence” in s. 39(1) (a) of the YCJA ;

(2)   that the Alberta Court of Appeal erred in law in its interpretation of the sentencing principles set out in ss. 3  and 38  of the YCJA ;

(3)   that the Alberta Court of Appeal erred in law in basing a sentence on facts which were not proven or admitted at the sentencing hearing in Youth Justice Court.

3.         Analysis

3.1       Interpretation of “Violent Offence”

3.1.1    “Violent Offence” Not Defined in the YCJA 

19                               Although the appellants raise three grounds of appeal, the resolution of this appeal really turns on the interpretation of the term “violent offence”. As noted above, this term is found in s. 39(1)  of the YCJA , and it represents one of only four gateways to a custodial youth sentence. For ease of reference, I shall reproduce this section again:

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

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(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; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non‑custodial sentence would be inconsistent with the purpose and principles set out in section 38.

20                               The term “violent offence” is not defined in the YCJA  or in the Criminal Code ; however, there is a definition of “serious violent offence” in s. 2(1)  of the YCJA . This definition reads as follows:

“serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm.

Although the concept of “bodily harm” is not defined in the YCJA , s. 2(2) of this Act  states that “[u]nless otherwise provided, words and expressions used in this Act  have the same meaning as in the Criminal Code .”  Section 2  of the Criminal Code  defines “bodily harm” as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.  In R. v. McCraw, [1991] 3 S.C.R. 72, Cory J., writing for a unanimous Court, relied on this definition of “bodily harm”, as well as the dictionary definition of “serious”, to interpret the meaning of “serious bodily harm” for purposes of s. 264.1(1) (a) of the Criminal Code  as it was worded before February 15, 1995.  Specifically, Cory J. held that “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant” (p. 81). I see no reason why this definition of “serious bodily harm” should not also be used for purposes of the YCJA , and, in particular, for purposes of the definition of “serious violent offence” that is found in s. 2(1)  of the Act .

21                               Although the definition of “serious violent offence” is relatively straightforward, even if a young person’s actions would appear to satisfy it —  i.e. even if a young person causes or attempts to cause serious bodily harm in the course of committing an offence — it does not automatically follow that he or she has committed a “serious violent offence”. Instead, pursuant to s. 42(9)  of the YCJA , the Crown must apply to have an offence designated as a “serious violent offence”, and the youth justice court to which the application is made is required to hold a hearing before it makes its decision: see Bala, Youth Criminal Justice Law, at p. 493. Additionally, s. 42(10)  of the YCJA  allows for an appeal of the determination that a criminal act was or was not a “serious violent offence”. Much is involved in deciding whether an offence is a “serious violent offence” because the consequences of such a designation are quite severe. For instance, if a youth justice court determines that a young person has committed a third “serious violent offence”, the young person may presumptively be sentenced as an adult: see ss. 2(1)  and 62 (a) of the YCJA . In addition to being presumed deserving of an adult sentence, a young person convicted of his or her third “serious violent offence” is also liable under s. 42(2) (r) to a youth sentence of intensive rehabilitative custody and supervision: see also Bala, Youth Criminal Justice Law, at p. 491. I would like to emphasize however that s. 39(1) only addresses a young person’s eligibility for a custodial sentence and not the appropriateness of custody in any given case. Indeed, s. 39(2) states that even if custody is an option, the court shall not impose custody unless alternatives have been considered that are reasonable in the circumstances, in accordance with s. 38  of the YCJA .

22                               For purposes of interpreting the term “violent offence”, two conclusions can immediately be drawn from this definition of “serious violent offence”. More specifically, these two conclusions will be important considerations in deciding whether a force-based or harm-based definition of “violent offence” better complements the definition of “serious violent offence” in the YCJA , and how this eventual definition should be constructed. I will address the precise definition of “violent offence” in paras. 53-87 below.

23                               First, the terms “violent offence” and “serious violent offence” must have connected meanings. Otherwise, if their meanings are not connected, then it would be possible for an offence to be a “serious violent offence” without also being a “violent offence”. Not only would this result be absurd, it would also interfere with the proper operation of the YCJA . Let me explain.

24                               Section 42(5) (a) of the YCJA  provides that:

The court may make a deferred custody and supervision order under paragraph (2)(p) if

(a) the young person is found guilty of an offence that is not a serious violent offence;

Since this statutory provision prohibits a youth justice court from imposing deferred custody for serious violent offences, this suggests that Parliament intended that young persons who commit serious violent offences should generally receive actual — i.e. not deferred — custodial sentences. However, if the meanings of “serious violent offence” and “violent offence” are not connected, such that a “serious violent offence” is not also a “violent offence”, then custody will not even be available as a sentencing option unless the other gates to custody set out in s. 39(1)(b) to (d) apply. The problem is that these other gates to custody will only open in particular circumstances. For instance, the s. 39(1)(b) gate will only open when “[a] young person has failed to comply with non-custodial sentences”.  What if the young person who commits a “serious violent offence” is a first-time offender? Likewise, the s. 39(1)(c) gate requires that the young person commit an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and have a history that indicates a pattern of findings of guilt under the YCJA  or the Young Offenders Act , R.S.C. 1985, c. Y-1  (“YOA ”).  What if the young person does not have such a history? Finally, the s. 39(1)(d) gate will only open in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of which are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38. What if the circumstances of the particular offence do not make it exceptional? If none of these other gates to custody apply, then a sentencing judge will be placed in the unenviable position of being faced with s. 42(5)(a), which suggests that Parliament intended that an actual custodial sentence should be imposed when a young person commits a “serious violent offence”, and then being prevented from ordering a sentence of this type because none of the gates to custody set out in s. 39(1) are open.

25                               Accordingly, in order to avoid absurdity and problems like the one discussed above, it is necessary for the terms “violent offence” and “serious violent offence” to have connected meanings.

26                               The second conclusion that can be drawn from the existence of the definition of “serious violent offence” is a relatively simple one: Parliament chose to define this term while leaving the term “violent offence” undefined, and this choice must mean something. In other words, although the meaning this Court ultimately ascribes to “violent offence” must be connected to the meaning of “serious violent offence” in order to avoid absurd and problematic results, it need not and, as I will explain below, should not be a mere replica of this definition with the word “serious” omitted. Had Parliament intended for “violent offence” to have such a meaning, it could have easily included this definition in the YCJA . Instead, it did not. This decision to leave the term “violent offence” undefined must be respected. Therefore, this Court must approach its task of interpreting the term “violent offence” just as it would if it were dealing with any other undefined term in a statute.

27                               In order to determine the meaning of an undefined term in a statute, it is now well established that a court is to read the words making up the term “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament”: see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.

3.1.2    Grammatical and Ordinary Sense

28                               In accordance with this approach to statutory interpretation, I will first consider the words making up the term “violent offence” in their grammatical and ordinary sense. In particular, I will consider the dictionary, ordinary and judicially constructed definitions of the words “violent” and “violence”.  I intend to examine the word “violence”, first, because its meaning is intertwined with that of the word “violent”, and, second, because it is used in the French language version of s. 39(1)(a), which reads as follows: “l’adolescent a commis une infraction avec violence”.

29                               Turning first to dictionary definitions, according to the Oxford English Dictionary (2nd ed. 1989), at p. 656, when the word “violent” is used to describe actions, it means that the actions are “[c]haracterized by the doing of harm or injury” or are “accompanied by the exercise of violence”.  The primary meaning of “violence”, according to this dictionary, is “[t]he exercise of physical force so as to inflict injury on, or cause damage to, persons or property” (p. 654).

30                               While the dictionary definition of “violence” focuses on the means employed to produce injury or damage (i.e. the exercise of physical force), one author argues that, ordinarily, the term “violence” is understood just in terms of its effects:

Violence is not an easy term to define. It is usually defined in terms of its effects. For most people, any act producing even a small amount of blood is violent. Sometimes damage to objects is accepted as a violent expression of anger or hostility against a person (as when someone vandalizes another’s car or defaces the walls of a house with slogans).

It is significant that the Criminal Code , which one might assume to be the “bible” of the control of violence in society, offers no definition of violence. It is, surprisingly, perhaps the most “assumed” term within the entire Code. Offences which one might consider the most “violent” of all crimes, such as murder and assault, do not mention violence. Rather, they talk about concrete, measurable things like “death” and “bodily harm.”

(T. Scassa, “Violence Against Women in Law Schools” (1992), 30 Alta. L. Rev. 809, at p. 816)

Similarly, in Pitters v. Criminal Injuries Compensation Board (Ont.) (1996), 95 O.A.C. 325 (Div. Ct.), Watt J. stated that “[i]n ordinary speech, ‘violent’ includes, but is not synonymous with the use of physical force” (para. 46 (emphasis in original)). Although these statements regarding the ordinary meaning of the terms “violence” and “violent” are by no means determinative of the definition of “violent offence” for purposes of s. 39(1) (a) of the YCJA , they do reveal that there is some debate over the precise meaning of “violence” (and “violent”) and whether the focus should be on the effects of violence (i.e. harm) or the means by which violence is carried out (i.e. the exercise of force). This debate is also reflected in judicially constructed definitions of the word “violence”.

31                               For example, in  Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 970, this Court held that violence as a form of expression falls outside the sphere of the guarantee of free expression set out in s. 2( b )  of the Canadian Charter of Rights and Freedoms , and in R. v. Keegstra, [1990] 3 S.C.R. 697, this Court explained what it meant when it used the term “violence”. Dickson C.J., for the majority in Keegstra, stated that this Court used the term “violence” in Irwin Toy to refer to “expression communicated directly through physical harm” (p. 732). In contrast, McLachlin J. (as she then was), for the minority, stated that “[v]iolence as discussed in Dolphin Delivery [RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573,] and Irwin Toy connotes actual or threatened physical interference with the activities of others” (p. 830).

32                               “Violence” is also a constituent element of the offence of robbery that is set out in s. 343 (a) and (b) of the Criminal Code . These paragraphs read as follows:

343. Every one commits robbery who

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;      

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

Appellate courts have attempted to define “violence” for these two forms of robbery. For instance, in R. v. Lew (1978), 40 C.C.C. (2d) 140, and R. v. Oakley (1986), 24 C.C.C. (3d) 351, the Ontario Court of Appeal held that in order to satisfy the “personal violence” element in what is now s. 343(b), something more than a mere technical assault is required. However, in R. v. Trudel (1984), 12 C.C.C. (3d) 342, the Quebec Court of Appeal held that this interpretation of “violence” ought not to apply to the form of robbery set out in what is now s. 343(a). For purposes of this type of robbery, a simple assault (i.e. the intentional application of force or the attempt or threat thereof), and not necessarily assault causing bodily harm, will satisfy the “violence” requirement. In particular, the court held that the holding of a victim’s arms while money is being taken would suffice. In contrast, in R. v. Sayers and McCoy (1983), 8 C.C.C. (3d) 572, and R. v. Lecky (2001), 157 C.C.C. (3d) 351, the Ontario Court of Appeal held that for the type of robbery set out in what is now s. 343(a), a threat of violence is really a threat to cause physical harm or injury, thereby linking violence with the causation of harm or injury rather than the application of force.

33                               After examining these dictionary, ordinary and judicially constructed definitions of “violence”, it can be said that “violence” is typically associated with either the application of force or the causation of harm or injury, but is also sometimes associated with both. Not only is it clear from these definitions that “violence” has a spectrum of meanings, it is also clear that “violence” can be applied to property as well as to persons. Nevertheless, while helpful, these particular definitions of “violence” are certainly not determinative of the meaning of the term “violent offence” for purposes of s. 39(1) (a) of the YCJA , because it is still necessary to examine this term in the context of the Act . Specifically, this term must be analysed in relation to the object of the YCJA , the scheme of the YCJA  and the intention of Parliament. As I will demonstrate below, all three of these indicators of legislative meaning favour a narrow interpretation of the term “violent offence”.

3.1.3    Object of the Act

34                               The primary object of the YCJA  is set out in s. 3(1) (a) of the Act . This paragraph reads as follows:

(a) the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long‑term protection of the public;

While the Act may be generally concerned with the protection of the public, it also has some specific goals, including restricting the use of custody for young offenders. This particular goal is evidenced in the preamble of the Act , as well as in s. 38(2).

35                               Turning first to the preamble, there are two parts that demonstrate that the Act  is aimed at restricting the use of custody for young persons. First, there is the part of the preamble that states that “Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms  and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms”.  This reference to the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, is important because art. 37(b) of the Convention provides that:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

36                               The second part of the preamble that demonstrates that the Act  is aimed at restricting the use of custody for young offenders reads as follows:

. . . 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;

37                               Turning next to s. 38(2)  of the YCJA , it sets out the principles that a youth justice court is to follow in determining a youth sentence. Two principles in particular reveal the Act ’s focus on restricting the use of custody for young offenders. First, the sentencing principle set out in s. 38(2) (d) provides that “all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons”. Second, the sentencing principle set out in s. 38(2) (e)(i) provides that  “the sentence must . . . be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1)”.

38                               Accepting that the Act  is aimed at restricting the use of custody for young offenders, it follows that a narrow interpretation of “violent offence” is to be preferred, because the classification of an offender’s conduct as a “violent offence” opens the gate to custody.

3.1.4    Scheme of the Act

39                               The goal of restricting the use of custody for young offenders is also reflected in the scheme of the Act , and, in particular, in s. 39. For instance, as noted above, subs. (1) of this section provides for only four “gateways” to custody. If an offence committed by a young person does not fit through one of these gateways, then a youth justice court cannot impose a period of custody. However, even if one of the gateways to custody in subs. (1) does apply, subs. (2) prohibits a youth justice court from imposing a custodial sentence under s. 42 (youth sentences) unless the court has determined that there is no reasonable alternative, or combination of alternatives, to custody that is in accordance with the purpose and principles set out in s. 38. Furthermore, subs. (3) sets out a number of factors that a court must consider in determining whether there is a reasonable alternative to custody, such as the alternatives to custody that are available and that have been used in respect of young persons for similar offences committed in similar circumstances, and subs. (9) requires a court that imposes a custodial sentence “[to] state the reasons why . . . a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1)”.

40                               The remaining subsections of s. 39 also support the goal of restricting the use of custody for young offenders. For instance, subs. (4) makes it clear that the previous imposition of a particular non-custodial sentence on a young person does not preclude a court from imposing the same or any other non-custodial sentence for another offence. Subsection (5) prohibits a court from using custody as a substitute for appropriate child protection, mental health or other social measures. Subsections (6) and (7) require a court to consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel before imposing a custodial sentence unless the court, with the consent of the prosecutor and the young person or his or her counsel, determines  that the report is not necessary. Finally, subs. (8) prohibits a court that is determining the length of a sentence that includes a custodial portion from taking into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under s. 94.

41                               The fact that the scheme of s. 39 in general reflects the Act ’s goal of restricting the use of custody for young offenders gives further support to the view that the term “violent offence”, being one of the gateways to custody, ought to be narrowly interpreted. Apart from this conclusion about s. 39 in general, there are also two other aspects of the Act ’s scheme that favour a narrow interpretation.

42                               First, as I explained above, s. 39(1) provides for four gateways to custody, the first of which is the commission of a “violent offence”. Whatever interpretation this Court ultimately ascribes to this term, it must ensure that the remaining gateways to custody set out in s. 39(1) continue to be meaningful routes to custody. In my view, the only way to do so is to narrowly interpret the term “violent offence”. Otherwise, if “violent offence” is given a broad interpretation, such that it encompasses most indictable offences under the Criminal Code , then ss. 39(1)(c) and 39(1)(d) will lose their importance as gateways to custody, since they both require something in addition to the commission of an indictable offence before they will allow the imposition of a custodial sentence. Section 39(1)(c) requires that the indictable offence committed by the youth be one for which an adult would be liable to imprisonment for a term of more than two years and that the youth have a history that indicates a pattern of findings of guilty under the YCJA  or the YOA .  Section 39(1)(d) requires that the aggravating circumstances of the indictable offence be such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38.

43                               The use of the term “violent offence” elsewhere in the YCJA  is the second  aspect of the Act ’s scheme that favours a narrow interpretation of this term. Aside from s. 39(1)(a), there are two other places in the YCJA  where the term “violent offence” (or its antonym, “non-violent offence”) is used: s. 4 (c), which states that extrajudicial measures are presumed adequate for a first-time offender who has committed a non-violent offence, and s. 29(2) , which provides that in considering whether the detention of a young person is necessary for protection or safety of the public under s. 515(10) (b) of the Criminal Code , a youth justice court is to presume that detention is not necessary under that paragraph if the young person could not, on being found guilty, be committed to custody under ss. 39(1)(a) (i.e. “the young person has committed a violent offence”) to 39(1)(c). If the term “violent offence” is interpreted narrowly, this will likely mean that extrajudicial measures will be presumed adequate in more cases, and less young people will be detained pending trial, thereby supporting the Act ’s goal of restricting the use of custody for young persons. Therefore, the use of the term “violent offence” in these two provisions of the YCJA  militates in favour of a narrow interpretation of this term.

3.1.5    Intention of Parliament

44                               Not only is a narrow interpretation of the term “violent offence” supported by the object and scheme of the Act , it is also supported by Parliament’s intention in enacting the YCJA . Let me explain.

45                               Enacted in 1984, the YOA  created a discretionary sentencing regime which, when compared to the experience under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, resulted in a substantial increase in the number of custodial sentences for young persons who had violated the criminal law: see Bala, Youth Criminal Justice Law, at p. 444; A. Markwart, “Custodial Sanctions Under The Young Offenders Act ”, in R. R. Corrado et al., eds., Juvenile Justice in Canada: A Theoretical and Analytical Assessment (1992), 229. For example, between 1986 and 1994, the average daily population of young offenders in custody in Canada increased by 24 percent, although on average, young persons sentenced to custody under the YOA  spent less time in custody than those sent to training school under the Juvenile Delinquents Act.

46                               In 1986, s. 24(1)  of the YOA  was amended so as to prevent the overuse of custody. This subsection provided that a judge should not commit a young person to custody unless it is considered “necessary for the protection of society having regard to the seriousness of the offence and the circumstances in which it was committed and having regard to the needs and circumstances of the young person”.

47                               It would appear that this amendment did not curb the use of custody for young offenders to Parliament’s satisfaction, because it amended the YOA  again in 1995. This time, it enacted a new sentencing provision, s. 24(1.1), “the obvious intent of which was to avoid the unnecessary use of custody”: see N. Bala, Young Offenders Law (1997), at p. 261. This new provision provided that:

(1.1) In making a determination under subsection (1), the youth court shall take the following into account:

(a)  that an order of custody shall not be used as a substitute for appropriate child protection, health and other social measures;

(b)  that a young person who commits an offence that does not involve serious personal injury should be held accountable to the victim and to society through non-custodial dispositions whenever appropriate; and

(c)  that custody shall only be imposed when all available alternatives to custody that are reasonable in the circumstances have been considered.

In addition to s. 24(1.1), Parliament also enacted s. 24(4), which required a youth court judge, when imposing a custodial disposition, to give reasons why a non-custodial disposition would not have been adequate.

48                               Although these amendments were aimed at reducing over-reliance on custody for young offenders, they continued to give significant discretion to youth court judges and, therefore, had little effect on sentencing patterns: Bala, Youth Criminal Justice Law, at p. 447. With this in mind, it would appear that the YCJA , which departs from the YOA ’s discretionary approach to custodial dispositions and instead provides for clear conditions that must be satisfied before a custodial disposition can even be considered as an option, was designed, in part, to send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for young offenders: see also Bala, Youth Criminal Justice Law, at p. 447.  This conclusion is supported by comments made by the then Minister of Justice and Attorney General of Canada, Anne McLellan, when the YCJA  was introduced for its second reading in Parliament. Specifically, the Minister stated that:

As we also know, the existing YOA  has resulted in the highest youth incarceration rate in the western world, including our neighbours to the south, the United States. Young persons in Canada often receive harsher custodial sentences than adults receive for the same type of offence. Almost 80% of custodial sentences are for non-violent offences. Many non-violent first offenders found guilty of less serious offences such as minor theft are sentenced to custody.

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.

In contrast to the YOA , the new legislation provides that custody is to be reserved primarily for violent offenders and serious repeat offenders. The new youth justice legislation recognizes that non-custodial sentences can often provide more meaningful consequences and be more effective in rehabilitating young persons.  [Emphasis added.]

(House of Commons Debates, February 14, 2001, at p. 704)

49                               Since it appears that it was Parliament’s intent in enacting the YCJA  to reduce over-reliance on custody for young offenders, it follows that the term “violent offence”, which is one of the gateways to custody, should be narrowly interpreted.

3.1.6    Preliminary Conclusion Regarding Context of the Act

50                               Based on the foregoing, it is my conclusion that the object and scheme of the YCJA , as well as Parliament’s intention in enacting it, all indicate that the YCJA  was designed, in part, to reduce over-reliance on custodial sentences for young offenders, and, therefore, a narrow interpretation of the term “violent offence”, which acts as a gateway to custody, is to be preferred. This conclusion also squares with the well-known principle of statutory interpretation that states 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”: see R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 29. Clearly, a narrow interpretation of “violent offence” is more favourable to an accused, since such an interpretation will limit the circumstances in which custody will be a sentencing option.

51                               At the very least, the conclusion that the term “violent offence” must be interpreted narrowly means that the definition of this term must exclude pure property crimes. The Court of Appeal came to this same conclusion and the parties wisely do not take issue with it (C.D., at paras. 3, 56 and 58). This conclusion makes sense because if violence to property was captured by the definition of “violent offence”, then the gate-keeping effect of s. 39(1)(a) would be severely diminished, since many Criminal Code  offences involve some type of actual or potential “violence” to property (C.D., at para. 36).  At the same time, this narrow interpretation of “violent offence” complements the existence of s. 39(1)(d). Thus it is still possible for a property offence to trigger a gateway to custody under s. 39(1). But consistent with the object of the Act , the scheme of the Act and the intention of Parliament, I believe it is correct that custodial sentences should only be an option for offenders guilty of property offences in “exceptional cases”. If it seems incongruous to some that a general act involving the destruction of property or cruelty to animals is excluded simply because no person was physically harmed, I believe it is for Parliament to amend the YCJA  if it deems it is required.

52                               Of course, while it can be concluded that the definition of “violent offence” ought to be interpreted narrowly and ought to exclude pure property crimes, this does not mean that the interpretation of this term is complete. It is still necessary to define precisely what is meant by the term “violent offence”.

3.2       Definitions for “Violent Offence”

53                               Definitions for the term “violent offence” may be divided into two categories: those force-based definitions that identify violence where force is exerted, and those harm-based definitions that identify violence where harm is suffered. Below, I first explain why a harm-based definition of “violent offence” for purposes of the YCJA  is to be preferred. Then, examining what the scope of this harm-based definition should be, I conclude that a “violent offence” is an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.

3.2.1      Proposed Definitions of “Violent Offence”

3.2.1.1   Force-Based Definition

54                               From the outset, I must admit that a number of arguments can be made in support of a force-based definition; however, as I will explain below, I find none of these arguments to be particularly convincing. In fact, I will describe below how one of the apparent advantages of a force-based definition of “violent offence” — i.e. the fact that a force-based definition of “violent offence” is quite distinct from the statutory definition of “serious violent offence” — is also one of its two fatal flaws.

55                               First, in support of a force-based definition, it can be argued that a definition of “violent offence” that focuses on a young offender’s application of force to a person rather than on the harm caused by him or her would avoid having the availability of custody vary with the resilience of a victim. In other words, a force-based definition of “violent offence” would capture and therefore expose to a custodial sentence the young offender who punches a victim, irrespective of whether the punch results in bodily harm. However, it bears mentioning here that the criminal law often distinguishes between two offenders who commit the same underlying act on the basis of the act’s consequences. For example, two offenders may throw the very same type of punch at two similar victims. The first victim sustains no bodily harm; the other dies from the punch. Assuming the requisite mens rea is present on the facts, in the first case, the offender is guilty of an assault simpliciter and, at most, is liable to imprisonment for six months, if the offence is charged as a summary offence, and five years, if charged as an indictable offence; whereas, in the second case, the offender is guilty of manslaughter and is liable to imprisonment for life. Accordingly, although a harm-based definition would occasionally have the availability of custody, and therefore the severity of a sentence, vary with the resilience of a victim, since the criminal law does this anyhow, I do not find this argument in support of a force-based definition to be that compelling.

56                               Second, it could also be argued that a force-based definition of “violent offence” ought to be used because it would accord with many of the dictionary and judicially constructed definitions of “violent” and “violence” discussed above. However, as noted in that discussion, these definitions are by no means determinative of the meaning of the term “violent offence” for purposes of s. 39(1) (a) of  the YCJA .

57                               Finally, a force-based definition of “violent offence” would respect Parliament’s decision to leave that term undefined while defining the term “serious violent offence”, since a force-based definition of “violent offence” is certainly distinct from the statutory definition of “serious violent offence”.

58                               Nevertheless, while advantageous from this perspective, the distinctiveness of a force-based definition is also one of its two fatal flaws. This is because under such a definition not all “serious violent offences” will also be “violent offences”. For example, if a young offender commits murder without the use, attempted use or threatened use of force (e.g. by starving a victim to death or by leaving a victim to die in the cold), the offence would be liable to designation as a “serious violent offence”, since it resulted in serious bodily harm (i.e. death); however, the offence could not be considered a “violent offence”, because in the course of committing the murder, the young person did not use, attempt to use or threaten to use force. Creating a situation where not all “serious violent offences” are also “violent offences” is problematic for the two reasons I stated above. First, and quite simply, in my view it would be absurd if an offence could be a “serious violent offence” without also being a  “violent  offence”. Second, it interferes with a youth justice court’s ability to sentence a young person who commits a “serious violent offence” to custody, thereby frustrating Parliament’s intent in this regard.

59                               The second fatal flaw associated with a force-based definition of “violent offence” is that such a definition will not capture all murders, attempted murders and manslaughters, because the commission of these offences will not always require the actual, attempted or threatened application of force. We know this because none of the provisions of the Criminal Code  that set out the elements of murder, attempted murder and manslaughter — namely, ss. 222, 229, 234 and 239 — requires that an offender actually apply, attempt to apply or threaten to apply force to the victim before the offence is made out. Instead, the focus is on the harm (i.e. death) caused or attempted regardless of the means. This is also confirmed by the fact that assault, the definition of which includes the actual, attempted or threatened application of force to a person and therefore reflects the proposed force-based definition of “violent offence”, is not an included offence in attempted murder simpliciter: see R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122 (Ont. C.A.); R. v. Colburne (1991), 66 C.C.C. (3d) 235 (Que. C.A.).

60                               Additionally, the fact that murder, in particular, can be committed without the direct application of force was recently noted by the Manitoba Court of Appeal in R. v. Younger (2004), 187 Man. R. (2d) 121, 2004 MBCA 113. In this case, the court was asked if the act of abandoning a child in cold weather satisfied the actus reus of murder. In answering this question in the affirmative, the Court of Appeal stated that:

It is certainly true that murder usually involves the unlawful application of direct force on another person. Thus, we have murder by smothering or suffocation, murder by stabbing with a knife or shooting with a gun, murder by pushing the victim from a cliff or keeping the victim submerged in water, or murder by the administration of poison, as examples of murder by the direct use of force. But the fact that murder usually involves the direct application of force does not mean that you cannot have murder without it.

The following segments of the Criminal Code  are germane to this discussion:

222.  (1)  A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

. . . 

(5)  A person commits culpable homicide when he causes the death of a human being,

(a)  by means of an unlawful act,

. . .

229.  Culpable homicide is murder

(a)  where the person who causes the death of a human being

(i)  means to cause his death, or

(ii)  means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

It follows from these statutory definitions that the actus reus required is an act or, perhaps, an omission which causes the death of another. The means by which the death is caused are irrelevant as long as the death is caused in some way by the offender. The abandonment of a scantily‑clad young child is certainly an act which, in my opinion, can be accepted by a jury as the cause of the child’s death.  [Emphasis added; paras. 14-16.]

Like the Manitoba Court of Appeal, in his reasons in R. v. Criminal Injuries Compensation Board, Ex parte Clowes, [1977] 1 W.L.R. 1353 (Q.B.D.), Eveleigh J. also concluded that murder can be committed without the use of force. Specifically, in the course of interpreting the term “crime of violence” for purposes of a criminal injuries compensation scheme, the learned justice stated that:

. . . if I ask myself what kind of crime do I regard as a crime of violence, it would at once spring to my mind that the most well-known crime of violence is murder. Then if I were to ask: but is it necessary that that murder shall be committed by some particular force, or by excessive force? I would answer “No,” because I would regard any murder in common parlance as a crime of violence. In my opinion, a man in the street who is asked “Is murder a crime of violence?” would answer “Yes, it is,” even though no actual external physical force can be discerned in the commission of the murder. [p. 1358]

61                               The fact that a force-based definition of “violent offence” will fail to capture all murders, attempted murders and manslaughters is a problem because these three offences are commonly understood to be violent offences, as that term is generally understood, and, as such, are typically thought to be deserving of a custodial sentence — even when committed by a young person. This view of murder, attempted murder and manslaughter as offences typically deserving of custody, even when committed by young persons, is also reflected in certain provisions of the YCJA .

62                               For instance, under s. 2(1)  of the YCJA , murder, attempted murder and manslaughter are all considered “presumptive offences”, which means that if a youth fourteen or older is charged with one of these offences, there is a presumption that an adult sentence will be imposed upon conviction. This is important, because the Criminal Code  provides that an offender who commits murder must be sentenced to life in prison (although s. 745.1  of the Criminal Code  provides for earlier parole eligibility for young persons), whereas an offender who commits attempted murder or manslaughter must be sentenced to a minimum term of four years if a firearm is used and is otherwise liable to a life sentence: see Criminal Code , ss. 235 , 236  and 239 . If a youth sentence is imposed instead of an adult sentence for cases of murder, attempted murder and manslaughter, ss. 42(2) (o) and 42(2) (q) of the YCJA  empower a court to make a custody and supervision order for a longer duration than is available for other offences. To be precise, s. 42(2) (o) provides that a court may make a custody and supervision order in respect of a young person who attempts to commit murder or commits manslaughter for a specified period not exceeding three years, whereas in cases of murder, s. 42(2) (q) provides that a court may order the young person to serve a sentence not to exceed ten years for first degree and seven years for second degree. Additionally, s. 42(7)(a)(i) permits a youth justice court to make an intensive rehabilitative custody and supervision order if the young person has been found guilty of murder, attempted murder or manslaughter. In my view, these statutory provisions suggest that Parliament intended that custody ought to at least be an available sentencing option when a young person commits murder, attempted murder or manslaughter.

63                               However, as I explained above, a force-based definition of “violent offence” will fail to capture some murders, attempted murders and manslaughters. Accordingly, in order to impose a youth custodial sentence for one of these “missed” offences (assuming, first, that an adult sentence is not an option, and, second, that there is no reasonable alternative, or combination of alternatives, to custody that is in accordance with the purpose and principles set out in s. 38), a youth justice court will have to rely on the other gateways to custody that are set out in s. 39(1)(b) to (d). However, as I explained above, these gateways will not always be available. For instance, two of these gateways (i.e. s. 39(1)(b) and (c)) could not be used in the case of a first-time offender and the other gateway (i.e. s. 39(1)(d)) is only to be used in exceptional cases. In my opinion, murders, attempted murders and manslaughters that simply do not involve the actual, attempted or threatened application of force will not be so rare as to warrant the classification “exceptional”.  Therefore, it is reasonable to assume that if the proposed force-based definition of “violent offence” is accepted, there will be cases of murder, attempted murder and manslaughter that will most certainly deserve custody but will not be eligible for such a sentence merely because the offender did not use, attempt to use or threaten to use force. Such a situation ought to be avoided if possible.

64                               While a force-based definition would lead to the exclusion of some cases of murder, attempted murder and manslaughter, no such drastic result would follow from the adoption of a harm-based definition. Rather, if a harm-based definition is adopted, the only offence that may occasionally be missed is assault, because a young person may commit an assault without causing, attempting to cause or threatening to cause bodily harm. However, I find this result to be appropriate, because assaults that do not include actual, attempted or threatened bodily harm are, in my opinion, relatively minor assaults and therefore ought not to be considered “violent offences” within the meaning of s. 39(1)(a). The fact that the object and scheme of the YCJA , as well as Parliament’s intention in enacting it, all favour a narrow interpretation of the term “violent offence” also supports the exclusion of these so-called minor assaults — i.e. assaults where the young person does not cause, attempt to cause or threaten to cause bodily harm — from the definition of “violent offence”.

3.2.1.2    Harm-Based Definition

65                               Accordingly, in light of its two fatal flaws discussed above, I am of the view that a force-based definition of “violent offence” ought to be rejected. In its stead, I would prefer a harm-based definition that focuses, at least in part, on the bodily harm caused or attempted by a young offender. I would prefer such a definition because it avoids the two fatal flaws associated with a force-based definition. That is to say, a definition of “violent offence” that at least captures offences in which the young offender causes or attempts to cause bodily harm will ensure, first, that all “serious violent offences” will also be “violent offences”, and, second, that all murders, attempted murders and manslaughters will be considered “violent offences”. This is because all offences designated by a youth justice court as “serious violent offences”, as well as all murders, attempted murders and manslaughters, will always involve actual or attempted bodily harm.

66                               There are also two other reasons to prefer a harm-based definition over a force-based definition. First, ss. 98(4) (a)(i) and 104(3) (a)(i) of the YCJA  provide that, for the purpose of determining an application for the continuation of custody, the youth justice court must take into consideration any factor that is relevant to the case of the young person, including evidence of a pattern of persistent “violent behaviour”. The number of offences committed by the young person that caused physical or psychological harm to any other person is identified as a particular indicator of such behaviour. Since the YCJA  already considers offences involving physical or psychological harm as examples of “violent behaviour”, on the basis of contextual integrity it follows that these offences should also be considered “violent offences” for purposes of s. 39(1)(a). This result will indeed occur if a definition of “violent offence” based on the concept of bodily harm is used, as such a definition would include both physical and psychological harm: see McCraw, at p. 81.  However, if a force-based definition is used, only those harm-causing offences that also involve the use, attempted use or threatened use of force will be caught.

67                               The second reason why I prefer a harm-based definition of “violent offence” over a force-based definition is that, although not determinative, such a definition better accords with what Scassa describes as the “usual” definition of violence, which tends to focus on its effects (i.e. harm) rather than on the means employed to produce the effects (i.e. force). For ease of reference, I shall reproduce Scassa’s discussion of this issue again:

Violence is not an easy term to define. It is usually defined in terms of its effects. For most people, any act producing even a small amount of blood is violent. Sometimes damage to objects is accepted as a violent expression of anger or hostility against a person (as when someone vandalizes another’s car or defaces the walls of a house with slogans).

It is significant that the Criminal Code , which one might assume to be the “bible” of the control of violence in society, offers no definition of violence. It is, surprisingly, perhaps the most “assumed” term within the entire Code. Offences which one might consider the most “violent” of all crimes, such as murder and assault, do not mention violence. Rather, they talk about concrete, measurable things like “death” and “bodily harm”. [p. 816]

While I would agree with Scassa that violence is usually defined in terms of its effects — i.e. bodily harm and/or death — and this supports a harm-based definition of “violent offence”, I would also note that I do not think it is appropriate to include damage to objects in the definition of “violent offence” for purposes of s. 39(1) (a) of the YCJA . As noted above, it is my view that the context of the YCJA  militates in favour of limiting the definition of “violent offence” to offences against persons only (i.e. not property).

68                               As mentioned earlier in these reasons, the French language version of s. 39(1)(a) reads: “l’adolescent a commis une infraction avec violence”.  It could be argued that this favours an interpretation based on the commission of the act rather than its consequences.  But violence is not a synonym of force.  Gérard Cornu writes in his Vocabulaire juridique (8th ed. 2000), at p. 907, that violence [translation] “[i]ncludes not only actual attacks on bodily integrity (without homicidal intent), but acts resulting in psychological distress, even in the absence of contact with the victim (threat to use a weapon, gunshot fired in the air, telephone harassment . . .)”. I would therefore not be dissuaded that my preferred definition is inconsistent with the French language version of the YCJA .  It can be said that a young person who causes, attempts to cause or threatens to cause bodily harm is acting violently.

69                               In summary, for the reasons given above, instead of a force-based definition of “violent offence”, I would prefer a harm-based definition that at least captures offences in the commission of which a young person causes or attempts to cause bodily harm. Nevertheless, it is still necessary to determine if this definition need encompass anything else.

3.2.2    The Scope of the Harm-Based Definition

70                               As noted above, the appellants and the respondent Crown both proposed harm-based definitions of “violent offence”. The appellants argued that the meaning of  “violent offence” should be restricted to those offences where bodily harm is caused or attempted. The Crown supported the Alberta Court of Appeal’s broader definition of “violent offence”, which would capture those offences in which bodily harm is caused, intended or, at least, reasonably foreseeable. As I indicated earlier, I find that both of these definitions are problematic and ought to be rejected. In their stead, I would substitute the following harm-based definition of “violent offence”: an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.

3.2.2.1    Appellants’ Definition: Causes or Attempts to Cause Bodily Harm

71                               I would reject the appellants’ definition because it is merely a replica of the statutory definition of “serious violent offence” with the word “serious” omitted. Earlier in these reasons, I noted that had Parliament intended for “violent offences” to have such a meaning, it could have easily included this definition in the YCJA ; instead, it did not. To me, this suggests that Parliament intended for “violent offence” to have a meaning that is somewhat distinct from that provided for “serious violent offence”. Because the appellants’ definition is simply a copy of the statutory definition of “serious violent offence” without the word “serious”, in my opinion, it fails to heed Parliament’s intent in this regard.

72                               I do acknowledge that, in their written submissions to this Court, the appellants argued that the presumption of consistent expression supports their definition of “violent offence”, since their definition is directly based on the statutory definition of “serious violent offence”. This presumption has been described as follows:

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings.

(R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 162)

With respect, I do not think that this presumption should be relied on here because the terms “serious violent offence” and “violent offence” are found in various places and contexts in the YCJA  and are used for different purposes: see Coca Cola Ltd. v. Deputy Minister of National Revenue for Customs and Excise, [1984] 1 F.C. 447 (C.A.), at pp. 454-56. For instance, as I explained above, if a youth justice court makes a judicial determination that a young person has committed a “serious violent offence”, and it happens to be his or her third such offence, the young person is presumed deserving of an adult sentence and is also liable to a youth sentence of intensive rehabilitative custody and supervision. In contrast, the term “violent offence” performs a different function: it represents one of the four gateways in the YCJA  to a custodial youth sentence. Therefore, it is not appropriate to interpret the term “violent offence” solely by reference to the statutory definition of “serious violent offence”. Accordingly, I would reject the appellants’ consistency of language argument.

73                               In its reasons for judgment in C.D., the Alberta Court of Appeal came to the same conclusion. Specifically, it stated that:

. . . defining a violent offence in reference to the definition of a serious violent offence disregards legislative intent and rules of statutory interpretation. A violent offence is not simply an offence of lesser severity than a serious violent offence; such an interpretation is an oversimplification. While consistency of language is a factor in statutory interpretation, sole reliance on such a factor in defining a violent offence is inappropriate. [para. 39]

I agree. Accordingly, I am of the view that the appellants’ definition of “violent offence” ought to be rejected. The term “violent offence” must encompass something more than just those offences where bodily harm is caused or attempted.

3.2.2.2    Respondent’s Definition: Bodily Harm Is Caused, Intended or Reasonably Foreseeable

74                      Before this Court, the respondent Crown argued in support of the Alberta Court of Appeal’s definition of “violent offence”, which would capture those offences in the commission of which bodily harm is caused, intended or, at least, reasonably foreseeable.

75                      As a preliminary point, I wish to draw attention to the fact that this definition of “violent offence” would capture offences where bodily harm is merely intended rather than actually attempted. In other words, as observed by the appellants in their written submissions, the Alberta Court of Appeal’s definition of “violent offence” would open the gate to custody simply when the young person has guilty thoughts (i.e. about causing bodily harm) and has not taken the extra step to do or omit to do anything for the purpose of giving effect to them, as is required for an “attempt” at criminal law: see Criminal Code , s. 24(1) ; see also C.D.’s factum, at paras. 19-21, and C.D.K.’s factum, at paras. 26-27. This runs counter to the well-established criminal law principle that requires something more than a guilty mind before punishment is imposed. Accordingly, I would reject this particular aspect of the  Court of Appeal’s definition, and, for purposes of analysis, I will replace the word “intended” with “attempted” in the Court of Appeal’s definition, so that it will now capture offences in which bodily harm is caused, attempted or, at least, reasonably foreseeable.

76                      With this modification in place, the question then becomes, should the definition of “violent offence” be extended beyond offences in which bodily harm is caused or attempted to those offences where bodily harm is merely reasonably foreseeable? The Alberta Court of Appeal was of the view that the definition should be extended in this manner because s. 38(3) (b) of the YCJA  requires a youth justice court to take into account “the harm done to victims and whether it was intentional or reasonably foreseeable” (C.D., at para. 57). The court argued that “this provision makes it clear that foreseeability of harm is to be considered when a sentence is imposed” (para. 57 (emphasis in original)).  This is true; however, this fact does not support extending the definition of “violent offence” to capture those offences where bodily harm is merely reasonably foreseeable. This is because s. 38(3) (b) directs a youth justice court to consider whether harm was intended or reasonably foreseeable only in cases where harm is actually caused. Moreover, as noted by the appellant C.D.K., s. 38(3)(b) is qualitatively different from s. 39(1)(a) in that the latter deals with one of four criteria which must be met before custody can be considered as a sentencing option, whereas the former is a factor for a youth justice court to consider in determining a youth sentence generally (see C.D.K.’s factum, at para. 37). Accordingly, I am not persuaded by this argument. Furthermore, I have three specific reasons why I am of the opinion that the definition of “violent offence” should not be extended to capture those offences where bodily harm is merely reasonably foreseeable.

77                      First of all, earlier in these reasons I explained that because the object and scheme of the YCJA , as well as Parliament’s intention in enacting it, all indicate that it was designed, in part, to reduce over-reliance on custody for young offenders, a narrow interpretation of the term “violent offence”, which acts as a gateway to custody, is to be preferred. However, a definition of “violent offence” that includes offences where bodily harm is merely reasonably foreseeable is quite broad, since most Criminal Code  offences may, at some point, lead to harm. This point was well noted by King J. of the Ontario Court of Justice in R. v. N.S.O., [2003] O.J. No. 2251 (QL). In N.S.O., King J. tackled the issue of whether drug trafficking and possession for the purpose of trafficking were “violent offences” within the meaning of s. 39(1) (a) of the YCJA . In coming to the conclusion that, without more, these offences were not “violent offences”, King J. stated that:

I find it hard to imagine that the legislature meant the term “violent offence” to apply to drug trafficking and possession for the purpose of trafficking with nothing more.  True, there may be cases where drug trafficking becomes a violent offence — for example where guns or violence are used.  This is not one of those.  And just because N.S.O. had a large quantity of ecstasy on his possession does not in itself mean the offence is violent.  True, someone somewhere may have become ill or worse after ingesting one of these pills.  So too could one become ill after ingesting cocaine. Does that mean that all possession for the purpose of trafficking in cocaine then must by definition be a violent offence?  If an offence simply with a mere possibility of harm becomes a “violent offence”, the limitation would be meaningless.  Every act in life and every offence may at some point lead to harm.  The examples are endless. [Emphasis added; para. 13.]

I agree. I am also aware that the Alberta Court of Appeal attempted to counter this seemingly unavoidable criticism of their inclusion in the definition of “violent offence” of offences where bodily harm is merely reasonably foreseeable by first acknowledging that “[m]ost property offences can go wrong such that bodily harm results to a victim”, and then arguing that “in many instances that risk will not meet the reasonable foreseeability standard” (C.D., at para. 58). Respectfully, I do not find this counter-argument to be compelling. In my view, even with a reasonable foreseeability of harm standard in place, too many Criminal Code  offences will be caught by the definition of “violent offence”, and this will frustrate Parliament’s goal of restricting the use of custody for young offenders.

78                      The second reason why I am of the view that the definition of “violent offence” should not be extended to capture those offences where bodily harm is merely reasonably foreseeable involves two of the other gateways to custody set out in s. 39(1), specifically, the gateways provided by s. 39(1)(c) and (d). In the previous paragraph, I characterized the Alberta Court of Appeal’s definition of “violent offence”, with its inclusion of offences where it is reasonably foreseeable that the action may cause bodily harm, as being quite broad, since most Criminal Code  offences may, at some point, lead to harm. This is especially true for indictable offences, as they are the most serious category of offences. Therefore, if most indictable offences are caught by the Court of Appeal’s definition of “violent offence”, then the gateways to custody in s. 39(1)(c) and (d), which, as I explained earlier in these reasons, require something in addition to the commission of an indictable offence before they will open, would become redundant. This result should be avoided.

79                      Third, I do not support the inclusion of a “reasonable foreseeability of bodily harm” aspect in the definition of “violent offence” because, in my view, whether an offence is likely to result in bodily harm is really a question of whether the offence is dangerous rather than whether it is violent, and these two concepts are quite distinct from one another. The fact that violent conduct is different from dangerous conduct is made quite clear in the Criminal Code  definition of “serious personal injury offence”, which is found in s. 752 of the Code. The definition provides as follows:

“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

It is to be noted that this definition clearly contrasts “the use or attempted use of violence against another person” with “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person”. Since the Criminal Code  treats an offence involving violence as something different from an offence involving dangerous conduct, so too should the YCJA , in my opinion.

80                      Accordingly, for the three reasons discussed above, I am of the view that the definition of “violent offence” should not be extended to capture those offences where bodily harm is merely reasonably foreseeable. Consequently, I would reject the Alberta Court of Appeal’s definition of this term, which was supported by the respondent before this Court.

3.2.2.3    Preferred Definition: Causes, Attempts to Cause or Threatens to Cause Bodily Harm

81                               Although I do not favour extending the definition of “violent offence” to those offences where bodily harm is merely reasonably foreseeable, in general, I still support extending this definition beyond those offences in which bodily harm is caused or attempted, in order to make the definition of “violent offence” something more than simply a replica of the definition of “serious violent offence” with the word “serious” omitted. Specifically, as indicated above, I support extending the definition  to capture those offences in which bodily harm is threatened. This would make the definition of “violent offence” an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.

82                               Before I discuss the reasons why I support incorporating threats of bodily harm into the definition of “violent offence”, I wish to note that I am aware that in Keegstra, Dickson C.J., for the majority of the Court, distinguished threats of violence from violence itself. Specifically, in his reasons for judgment, he stated that violence is a form of expression communicated directly through physical harm that is excepted from s. 2(b) protection, whereas threats of violence are still covered by s. 2( b )  of the Charter  because threats of violence “can only be so classified by reference to the content of their meaning” (p. 733 (emphasis added)). Even though Dickson C.J. did not liken threats of violence to violence itself in Keegstra, in my opinion this does not preclude this Court from doing so here because Keegstra was a freedom of expression case and the difference between violence as a form of expression and threats of violence as expression with a specific content was therefore important. However, in this case, this distinction between form and content is not as relevant. Accordingly, I am of the view that this Court is not bound by Dickson C.J.’s comments in Keegstra regarding threats of violence.

83                               With that preliminary issue resolved, I will now explain why I am in favour of incorporating threats of bodily harm into the definition of “violent offence”.

84                               First, including threats of bodily harm in the definition of “violent offence” accords with ss. 98(4) (a)(iv) and 104(3) (a)(iv) of the YCJA . These sections both provide that for the purpose of determining whether the test for continuation of custody is met

the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including

(a) evidence of a pattern of persistent violent behaviour and, in particular,

. . .

(iv) explicit threats of violence,

. . .

Although the term “violent behaviour” is used in a context that is somewhat different than that associated with s. 39(1)(a), the fact that in ss. 98 and 104 this term is linked with threats and not simply actions strongly supports the inclusion of threats of bodily harm in the definition of “violent offence”.

85                               Second, a definition of “violent offence” that includes offences in which the young person threatens bodily harm is to be preferred because it accords with the commonly held view that a threat to cause bodily harm is, at base, an act of violence.  For example, Scassa argues that:

Threats of violence are violence itself. Those who are threatened know that the violence they fear has already begun with the threat. The threat is a taste of violence and a promise of more. It is the slap that foreshadows the beating. [p. 818]

Similarly, in his treatise Youth Criminal Justice Law, Bala argues that “a spoken threat to do physical harm is the offence of ‘uttering threats’ contrary to section 264.1  of the Criminal Code  and is also likely to be regarded as a violent offence [within the meaning of s. 39(1) (a) of the YCJA ], even if there is no proof of intent to cause actual physical injury” (p. 448, citing McCraw in support).  This is also the view expressed by Professor Cornu quoted in these reasons at para. 68.  Additionally, in his reasons for judgment in R. v. D.L.C., [2003] N.J. No. 94 (QL), Gorman Prov. Ct. J. opined that a threat to commit rape could be considered a “violent offence”:

It is not necessary for the Court in this case to provide a definitive definition of what will and will not constitute a violent offence within the meaning of subsection 39(1) (a) of the Act .  It is suffice to say that it does not require that the offence involve the application or attempted application of physical force.  Such a definition would be overly narrow.  For instance, uttering a threat to rape someone could constitute a violent offence (see R. v. McCraw (1991), 66 C.C.C. (3d) 517 (S.C.C.) and R. v. Young (1998), 159 Nfld. & P.E.I.R. 136 (N.L.C.A.)). [para. 61]

The view that threats of bodily harm are essentially acts of violence is likely based on the fact that threatening to cause bodily harm can often perform the same function as actually causing it, in that both can instill the level of fear in the victim that is needed to achieve the offender’s goal: see McCraw, at pp. 81-82. In this sense, it can be said that irrespective of whether an offender threatens to cause bodily harm or actually causes bodily harm, in both cases he or she is “wielding violence” to satisfy his or her object(s).

86                               The final reason why I am in favour of incorporating threats of bodily harm into the definition of “violent offence” is that, as noted above, it will make the definition sufficiently distinct from the statutory definition of “serious violent offence”, since it will no longer be a simple copy of the statutory definition with the word “serious” omitted. However, the inclusion of threats of bodily harm will not make the definition of “violent offence” so distinct that it creates a situation where a “serious violent offence” might not also be considered a “violent offence”. Accordingly, it can be said that a definition of “violent offence” that includes offences in which bodily harm is threatened, as well caused or attempted, pays adequate attention to Parliament’s decision to leave the term “violent offence” undefined, while also ensuring that the YCJA  operates properly and does not produce absurd results.

87                               For all these reasons, I support extending the definition of “violent offence”  to capture those offences in which bodily harm is threatened. Accordingly, I am of the view that, for purposes of s. 39(1) (a) of the YCJA , the term “violent offence” must be defined as an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. Since the Alberta Court of Appeal defined this term differently, I must respectfully conclude that it erred in law in doing so.

4.         Disposition

4.1       The Appellant C.D.

88                               As noted previously, C.D. pleaded guilty to three offences: possession of a weapon for a purpose dangerous to the public peace contrary to s. 88  of the Criminal Code , arson to property contrary to s. 434 of the Code, and breach of a recognizance contrary to s. 145(3) of the Code. It is clear from the facts read into the record at the time the guilty pleas were entered that in neither the arson to property offence nor the breach of a recognizance offence did C.D. cause, attempt to cause or threaten to cause bodily harm. Therefore, I conclude that these two offences are not “violent offences” and cannot open the gate to custody provided by s. 39(1) (a) of the YCJA .

89                               As for the weapons offence committed by C.D., the facts read into the record indicate that, in committing this offence, C.D. raised a metal table leg over his head during an altercation with the complainant. While this act could constitute a threat, it is not clear on the record whether in doing so C.D. was actually threatening or attempting to cause bodily harm to the complainant. Accordingly, this Court cannot determine whether this weapons offence was a “violent offence” within the meaning of s. 39(1)(a).

90                               Furthermore, no argument was made before this Court that the other gateways to custody set out in s. 39(1), in particular the “exceptional cases” gateway provided by s. 39(1)(d), might apply in the circumstances. In the absence of any such argument, I would prefer not to decide this issue.

91                               Since it is unclear whether C.D. is even eligible for a custodial sentence, I would allow his appeal, quash the custodial sentence imposed, and send this matter back to the sentencing judge so that an appropriate sentence can be determined. In light of this disposition, there is no need to address the appellant’s other two grounds of appeal.

4.2       The Appellant C.D.K.

92                               The appellant C.D.K. pleaded guilty to three offences as well: dangerous driving contrary to s. 249(1)(a) of the Code, possession of stolen property contrary to s. 354 of the Code and theft under $5,000 contrary to s. 322 of the Code. It is clear from the facts read into the record at the time the guilty pleas were entered that in none of these offences did C.D.K. cause, attempt to cause or threaten to cause bodily harm. Therefore, I conclude that these three offences are not “violent offences” and cannot open the gate to custody provided by s. 39(1) (a) of the YCJA .

93                               As it was with the appellant C.D., no argument was made before this Court  that C.D.K.’s criminal conduct satisfied the requirements of one of the other gateways to custody set out in s. 39(1), including the “exceptional cases” gateway provided by s. 39(1)(d). In the absence of any such argument, I would prefer not to decide this issue.

94                               Since it is unclear whether a custodial sentence is even available for C.D.K., I would allow his appeal, quash the custodial sentence imposed, and send this matter back to the sentencing judge so that an appropriate sentence, be it custodial or non-custodial, can be determined. In light of this disposition, it is not necessary to address C.D.K.’s other two grounds of appeal.

The following are the reasons delivered by

95                            LeBel J. — Clarity in the law is to be hoped for.  Given the sometime uncertain relationship between language and perceived reality, the hope may remain a moving horizon.  Interpretation, it is said, fills the gaps.  As members of courts, we have the duty to find, divine or create meaning when none is readily apparent.  The issue in the present appeal is about discovering the meaning and proper scope of application of a rather obscure section, s. 39(1)  of the Youth Criminal Justice Act , S.C. 2002, c. 1 .  The task has challenged the learning of counsel and the wisdom of judges.

96                            The question at stake in the present appeals is of limited scope.  It does not concern guilt or innocence.  It is about the interpretation of a gateway provision in the Act  which determines eligibility for custodial sentences in respect of young offenders, but not whether a custodial sentence should actually be imposed.

97                            As the reasons of my colleague Bastarache J. and the history of these cases amply demonstrate, the drafting of s. 39(1)(a) is anything but felicitous.  To say the least, a challenging exercise in the arts of legal interpretation is required to make some sense of it.  In the end, although I agree with the disposition proposed by my colleague, I am of the opinion that our conclusion should have flowed from a different interpretive approach.

98                            The reasons of my colleague adopt a harm-based approach, of an objective nature, which focuses more on the outcome of the act than on its nature and even less on the underlying intent of the young offender.  The drafting of the provision would have allowed a different approach, more consonant with the nature of the criminal law system of Canada, which primarily attaches criminal liability and punishment to the relevant form of criminal intent.  It would have been focused on the search for the fault of the offender.  More than the result of the act, the intent to apply or use force better catches the nature of violence which may expose the young offender to a custodial sentence.  For this purpose, a violent offence would have been defined as an offence whereby the offender intends, threatens or attempts to cause harm.

99                            Such an approach would not have failed to catch culpable homicides.  Indeed, in order to determine what is a criminal homicide, our law does not look only to the act itself but also to the nature and existence of the criminal intent.  Death is an event.  The criminal act, known to the law and punishable by it, which brings it about, is something else.  In this respect, once the intent or fault is there, whatever the means used, a criminal homicide is established.  In the case of murder, the proof of the specific, subjective intent required by the law is key to the characterization of the act.  Whichever way it is committed, it is punished because it represents the most violent act that may be carried out against a human being, the deprivation of life.  Such an act is violent in itself and would have been caught by a fault-based definition.

100                        Subject to these comments, on the facts of the two appeals, I agree with the disposition suggested by my colleague.

Appeals allowed.

Solicitor for the appellants:  Youth Criminal Defence Office, Edmonton.

Solicitor for the respondent:  Alberta Justice, Edmonton.

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

Solicitor for the intervener the Attorney General of British Columbia:  Attorney General of British Columbia, Vancouver.

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

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