R. v. McEwen, [1974] SCR 185

Supreme Court of Canada

R. v. McEwen, [1974] S.C.R. 185

Date: 1972-01-25

Her Majesty The Queen Appellant;

and

Douglas Frederick McEwen Respondent.

1971: December 14; 1972: January 25.

Present: Martland, Judson, Ritchie, Hall, Spence, Pigeon, and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Statutes—Juvenile delinquents—Meaning of “child”—Proclamation of the Governor in Council pursuant to Juvenile Delinquents Act—Whether ultra vires.

The respondent, being seventeen years of age, was charged with theft over fifty dollars and unlawful possession of stolen property. The Provincial judge held that he had no jurisdiction to deal with the respondent on the ground that the latter was a juvenile. The judge accepted the argument that the proclamation of the Governor in Council, dated October 6, 1970, seeking to fix the age of a juvenile in British Columbia as “any boy or girl apparently or actually under the age of seventeen” and revoking a previous proclamation, dated February 8, 1950, which had fixed the age as under eighteen, was ultra vires the Juvenile Delinquents Act, R.S.C. 1952, c. 160. The Crown was granted a mandamus to compel the Provincial judge to proceed with the trial. This order was set aside by the Court of Appeal. The Crown appealed to this Court.

Held (Hall, Spence and Laskin JJ. dissenting): The appeal should be allowed and the judgment directing the writ of mandamus to issue restored.

Per Martland, Judson, Ritchie and Pigeon JJ: The power of the Governor in Council to issue the proclamation of 1970 is well defined by the Juvenile Delinquents Act. It is to be found in s.2 (1) (a): the definition of “child” is twofold, first, a boy or girl under the age of sixteen years, and second, such other age as may be directed in any province pursuant to subsection (2). In making the proclamation of 1970, the Governor in Council was acting within the limits of s.2 (1) (a) of the Act. It follows that the proclamation was intra vires. The lesser power to define “child” one under seventeen is to be implied in the larger power to define “child” to mean one under eighteen.

[Page 186]

Per Hall, Spence, and Laskin JJ, dissenting: The Governor in Council did not have the power, by virtue of the provisions of s.2 (2) of the Juvenile Delinquents Act, to pass the order in council of 1970. The section does not provide an implied power to fix an age other than sixteen or eighteen. It cannot be implied that it was the intention of Parliament to permit a proliferation of the age of juvenile delinquents from province to province at anything up to eighteen years of age.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], reversing a judgment granting a mandamus. Appeal allowed, Hall, Spence and Laskin JJ. dissenting.

W.G. Burke-Robertson, Q.C., for the appellant.

S.F. Sommerfeld, Q.C., for the Attorney General of Canada.

S.D. Jolliff, for the respondent.

The judgment of Martland, Judson, Ritchie and Pigeon JJ. was delivered by

JUDSON J.—The respondent, Douglas Frederick McEwen, was charged with theft over $50 and unlawful possession of stolen property. When he came on for trial before Anderson Provincial Judge, his counsel took the objection that the Court had no jurisdiction to deal with him on the ground that he was seventeen years of age and therefore a juvenile. This argument was founded on the assertion that a proclamation of the Governor in Council, dated 6 October, 1970, was ultra vires. This proclamation sought to fix the age of a juvenile in British Columbia as “any boy or girl apparently or actually under the age of seventeen.” A previous proclamation, dated 8 February, 1950, had fixed the age as under eighteen. Anderson Provincial Judge accepted this argument and declined jurisdiction. The next step was an application for a Writ of Mandamus to compel the provincial judge to proceed with the trial. Macfarlane J. granted this application. On

[Page 187]

Appeal¹, the order of Macfarlane J. was set aside and that of the provincial judge restored. The submission of the Crown on this appeal is that the Court of Appeal was in error in holding that the Order-in-Council dated 6 October, 1970, was ultra vires.

The proclamation reads in part as follows:

And Whereas the Attorney-General of British Columbia has requested that a proclamation be issued directing that in the Province of British Columbia the expression “child” in the said Act means any boy or girl apparently or actually under the age of seventeen years. Now Know Ye that We, by and with the advice of our Privy Council for Canada, do by this Our Proclamation (a) revoke the direction made with respect to the Province of British Columbia by Our Proclamation dated the 8th day of February, 1950; and (b) declare and direct that in the Province of British Columbia the expression “child” in the Juvenile Delinquents Act means any boy or girl apparently or actually under the age of seventeen years.

The appeal turns upon the interpretation of s. 2 of the Juvenile Delinquents Act, R.S.C. 1952, c. 160, and on the two proclamations of the Governor in Council already mentioned.

In s. 2 (1) (a) of the Act, “child” is defined in the following terms:

“child” means any boy or girl apparently or actually under the age of sixteen years, or such other age as may be directed in any province pursuant to subsection (2);

Section 2(2) of the Act sets out the powers of the Governor in Council with respect to direction of the age limits. It reads:

2. (2) The Governor in Council may from time to time by proclamation

(a) direct that in any province the expression “child” in this Act means any boy or girl apparently or actually under the age of eighteen years, and any such proclamation may apply either to boys only or to girls only or to both boys and girls, and

[Page 188]

(b) revoke any direction made with respect to any province by a proclamation under this section, and thereupon the expression “child” in this Act in that province means any boy or girl apparently or actually under the age of sixteen years.

The operative part of the 1950 proclamation is in the following terms:

Now Therefore Know Ye that by and with the advice of our Privy Council for Canada we do hereby proclaim and direct that for the purposes of the said Act in the said Province of British Columbia the term “child” shall mean any boy or girl apparently or actually under the age of eighteen years.

In my opinion, the power of the Governor in Council to issue the proclamation of 1970 is well defined by the Act. It is to be found in s. 2 (1) (a) above-quoted—the definition of “child” is twofold, first, a boy or girl under the age of sixteen years, and second, such other age as may be directed in any province pursuant to subs. (2).

What the Governor in Council did in the 1970 proclamation was to revoke the old designation of under eighteen and substitute one of under seventeen. The judgment under appeal holds that he could not do this, that by the section he was limited to making a designation of under eighteen, which had already been done by the 1950 proclamation. It further held that the revocation of the 1950 proclamation fell with the new designation and that consequently, the designated age remained at under eighteen.

I do not think that the section limits the power of the Governor in Council in this tight way. Even according to the judgment under appeal, he could have revoked the designation of 1950 of under eighteen. This would have left the age at under sixteen. These are the limits, under eighteen and under sixteen. If the proclamation goes on to act within these limits, as it did in this case, it is, in my opinion, intra vires. The lesser power to define “child” one under

[Page 189]

seventeen is to be implied in the larger power to define “child” to mean one under eighteen.

I am strengthened in this conclusion by s. 3 (2) of the Act, which provides that a delinquent child “shall be dealt with, not as an offender, but as one in a condition of delinquency and therefore requiring help and guidance and proper supervision”, and also by the observations of this Court in Attorney-General of British Columbia v. Smith[2] on the direction in s. 38 of the Act, which is in the following terms:

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

I would set aside the direction of the Court of Appeal that the proclamation of 1970 is ultra vires, and restore the judgment of Mr. Justice Macfarlane directing the Writ of Mandamus to issue.

The judgment of Hall, Spence and Laskin JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for British Columbia[3] pronounced on June 21, 1971. By that judgment, the Court of Appeal for British Columbia allowed an appeal from the judgment of Mr. Justice Macfarlane pronounced on April 5, 1971, whereby he had granted a mandamus directed to His Honour J.J. Anderson, the Judge of the Provincial Court, directing the latter to proceed with the trial of an information.

[Page 190]

I have had the opportunity of reading the reasons for judgment herein prepared by my brother Judson and I therefore need not repeat the facts which are outlined in those reasons. It will be seen that the sole question for determination in this appeal is whether or not the Governor in Council had power, by virtue of the provisions of s. 2 (2) of the Juvenile Delinquents Act, R.S.C. 1952, c. 160, now R.S.C. 1970, c. J-3, to pass the Order in Council dated October 6, 1970, and if the Governor in Council did not have such power to pass that Order in Council what was the effect of such lack thereof.

Robertson J.A., giving reasons for the Court of Appeal for British Columbia, came to the conclusion that the Governor in Council did not possess the power to enact that Order in Council in so far as it purported to reduce the age of the person defined as a “child” under the provisions of the Juvenile Delinquents Act from that fixed by a previous Order in Council, i.e., a boy or girl apparently or actually under the age of eighteen years, to that fixed in the Order in Council in question, i.e., a boy or girl apparently or actually under the age of seventeen years, and further concluded that the Order in Council being ultra vires to such an extent there should not be a severance of that paragraph of the Order in Council from the paragraph which revoked the previous declaration so that the Order in Council was held to be ultra vires in total and the matter governed by the previous Order in Council fixing the age of a child within the provisions of the statute at being apparently or actually under the age of eighteen not seventeen years. I agree with the conclusions reached by Robertson J.A. and I have but little to add to the reasons wherein he set out with such clarity his conclusions.

As did Robertson J.A., I have come to the conclusion that the sole power to make the Order in Council in question must be found in s. 2 (2) of the Juvenile Delinquents Act. That subsection provides:

(2) The Governor in Council may from time to time by proclamation

[Page 191]

(a) direct that in any province the expression “child” in this Act means any boy or girl apparently or actually under the age of eighteen years, and any such proclamation may apply either to boys only or to girls only or to both boys and girls; and

(b) revoke any direction made with respect to any province by a proclamation under this section, and thereupon the expression “child” in this Act in that province means any boy or girl apparently or actually under the age of sixteen years.

The operative words in para. (a) are “means any boy or girl apparently or actually under the age of eighteen years”. The power, therefore, is most limited in its extent and the circumstance that in s. 2 (1) “child” is defined in the words “means any boy or girl apparently or actually under the age of sixteen years or such other age as may be directed in any province pursuant to subsection (2)” (the underlining is my own) does not add to the power granted to the Governor in Council in subs. (2), although I agree that those underlined words in subs. (1) may be used to interpret the meaning of the words in the power granting subs. (2). It was argued that the words in this power-granting subs. (2) should not be interpreted as being limited to a power to fix the age at under eighteen and not an age between sixteen and eighteen because that was the sole power granted in the proviso to s. 2 (a) of the Juvenile Delinquents Act as originally enacted in Statutes of Canada, 1929, c. 46, and that had it not been intended to vary such a provision then the section would simply have been continued in the form in which it appeared in the original statute. And further, that the intention to vary the power and to extend it so that an intervening age might be chosen was indicated in the provisions of s. 1 (a) of the present statute. The interpretation must be of the statute as it exists today and it must be noted that the new section, for the first time, contained a power of revocation of the previous Order in Council and that, therefore, this rearrangement was necessary. Again, emphasis is placed on the words “such other age” and it is argued that if the “other age” could only be that of being

[Page 192]

under eighteen years then it would have been much simpler to have said so exactly. On the other hand, the statute plainly provides for the proclamation of different ages as to boys and girls, so it would be quite possible to have a proclamation made under the statute fixing the age of a juvenile delinquent girl at sixteen years of age and that of a juvenile delinquent boy at eighteen years of age or vice versa, and, therefore, the word “other” is an appropriate word in s.2 (1) in the definition of “child”.

It was also argued in this Court that the greater includes the lesser and that when the Governor in Council was empowered to fix the maximum age at which a person should be considered a child within the Act at “apparently or actually under the age of eighteen years” there was implied the power to fix at a lower age. I am of the view that that simply is not what s. 2 (2) of the Juvenile Delinquents Act provides and that, on the other hand, such section simply provides that the Governor in Council may declare any boy or girl “apparently or actually under the age of eighteen years” to be a juvenile delinquent. I cannot imply that it was the intention of Parliament to permit a proliferation of the age of juvenile delinquents from province to province at anything up to eighteen years of age for it should be noted that if the power in subs. (2) (a) of the Juvenile Delinquents Act is interpreted to permit designation of an age of less than eighteen years then there is nothing in the subsection which will limit that power to the designation of a child at some age between sixteen and eighteen years and it would seem that on the argument advanced as to the interpretation of the section a province might well request a proclamation of fourteen years. Surely it was the intention of Parliament that there should be two ages alone which would apply to the fixation of who was and who was not a juvenile and that those two ages were under sixteen years and under eighteen years.

[Page 193]

I have not been assisted in my consideration of this appeal by the provisions of either s. 3 (2) or of s. 38 of the Juvenile Delinquents Act. It is true that s. 3 (2) directs that a child shall not be dealt with as an offender but one in a condition of delinquency and therefore requiring help and guidance and proper supervision but that section does not direct, and I do not think can be taken to have implied, that a child is any person other than a person falling within the definition or the strict powers of proclamation given to the Governor in Council by s. 2 (2) of the statute. Again, that the direction in s. 38 of the statute that the Act shall be liberally construed in order that its purpose may be carried out would not seem to require a construction which would permit the Governor in Council to reduce the number of persons who may be within the classification of “juvenile delinquent” from those who are apparently or actually under the age of eighteen years to those who are apparently or actually under the age of seventeen years.

I am also in agreement with the conclusion of Robertson J.A. that the provisions of the Order in Council enacted in 1970 purporting to revoke the Order in Council first made in 1950 should also be found to be ultra vires as being inseverable from the provisions of the Order in Council of 1970 purporting to lower the age of the child to seventeen years. The preamble to the Order in Council plainly shows that it was enacted at the request of the Attorney General of British Columbia for the fixation of the age of seventeen years and if the revocation of the earlier Order in Council is held to be an effective revocation, despite the lack of effect of the provision fixing the purported new age at seventeen years, then the effect will be, under subs. (2)(b) of the Juvenile Delinquents Act, to lower the age at which a child may be considered a juvenile delinquent to under sixteen years of age. Certainly the Attorney General of British Columbia evidenced no such intent in his request.

For these reasons, I would dismiss the appeal.

[Page 194]

Appeal allowed, Hall, Spence and Laskin JJ. dissenting.

Solicitors for the appellant: Burke-Robertson, Urie, Butler, Weller & Chadwick, Ottawa.

Solicitor for the respondent: S. Douglas Jolliff, Vancouver.