Attorney General (Ontario) and Viking Houses v. Peel, [1979] 2 SCR 1134

Supreme Court of Canada

Attorney General (Ontario) and Viking Houses v. Peel, [1979] 2 S.C.R. 1134

Date: 1979-06-26

The Attorney General for Ontario and Viking Houses, a Division of Marshall Children’s Foundation Appellants;

and

The Regional Municipality of Peel Respondent;

and in the Matter of K.V.B. and in the Matter of David and Derek M. and in the Matter of A.J.T.

between

The Attorney General for Ontario and Viking Houses, a Division of Marshall Children’s Foundation Appellants;

and

The Municipality of Metropolitan Toronto Respondent.

1979: June 25, 26; 1979: June 26.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Juveniles—Orders committing juveniles to group homes—Orders charging cost of care of juveniles to municipalities—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 20(1), (2).

Municipal law—Committal of juveniles to group homes—Whether municipalities obliged to bear cost—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 20(1), (2).

Seven juveniles were found to be delinquent by the Juvenile Court and were committed to the care of Viking Houses, a division of Marshall Children’s Foundation, operators of “group homes”. The committal orders were made pursuant to s. 20(1) of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, and orders were made pursuant to s. 20(2) charging the cost of the care to the respondent municipalities to which the juveniles belonged. The committal orders did not identify the particular home to which each juvenile was to go, it being left to the institution to decide on the actual placement. The orders were challenged by the municipalities, some by certiorari and the others by appeal under s. 37 of the Act, on the basis that the juvenile

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court judges had no power under s. 20(1) to order placement in a group home and that s. 20(2) was ultra vires the Parliament of Canada. John Holland J., before whom the challenges came, concluded that s. 20(1) did not authorize the order made but held that s. 20(2) was intra vires. The Court of Appeal agreed.

Held: The appeals should be dismissed.

As decided in the Courts below the placement or committal order in question cannot be brought within the terms of s. 20(1). Viking Houses, as a division of Marshall Children’s Foundation, is a business enterprise, indeed a private enterprise which did not have the approval of the provincial government required to bring it within the terms of s. 20(1)(h) or (i). The provisions of paras. (d), (f) and (g) of s. 20(1), on which the appellants relied, did not authorize the making of the orders in question. No adjudication was made in respect of the constitutionality of s. 20(2).

In re T.J.N., The Regional Municipality of Peel v. Thomas MacKenzie and Viking Houses, unreported; Ramsey v. Provincial Treasurer, [1939] 1 W.W.R. 725; Dodge v. Boston and Providence Railroad Corp. (1891), 154 Mass. 299; McMahon v. Amityville Union Free School District (1976), 368 N.Y.S. 2d 534; R. v. Strahl (1967), 60 W.W.R. 765; R. v. Dapic, [1977] 5 W.W.R. 447, referred to.

APPEALS from a judgment of the Court of Appeal for Ontario[1] dismissing appeals from a judgment of John Holland J.[2] in the matter of applications in the nature of certiorari and appeals under s. 37 of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, and quashing orders committing juveniles to group homes. Appeals dismissed.

T.H. Wickett, Q.C., and Mrs. R.J. McCully, for the Attorney General for Ontario, appellant.

J.J. Robinette, Q.C., and Philip Spencer, for Viking Houses, appellant.

J.E. Sexton, Q.C., and B. Morgan, for the Regional Municipality of Peel, respondent.

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R.M. Parker and E.P. Polten, for the Municipality of Metropolitan Toronto, respondent.

E.G. Ewaschuk and G.R. Garton, for the Attorney General of Canada.

Odette Laverdiere, for the Attorney General for Quebec.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This case, which is here by leave of this Court, arises out of six orders of Juvenile Court Judges affecting seven juveniles. They were found to be delinquents and were committed to the care of Viking Houses, a division of Marshall Children’s Foundation, operators of so-called “group homes”, pursuant to s. 20(1) of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3. In addition, orders were made, pursuant to s. 20(2) of the Act, charging the cost of the care of the juveniles to the Regional Municipality of Peel and to the Regional Municipality of Metropolitan Toronto, as being the two municipalities to each of which the juveniles belonged. Three were found to belong to Peel and four to Metropolitan Toronto. The cost of care imposed upon the municipalities was either $37.25 or $43 per day, payable to Viking Houses.

Viking Houses operates some thirteen houses in Ontario, known as group homes. The factum of the appellant, the Attorney General of Ontario, describes these homes as follows:

Each of these group homes is run by professional staff, none of whom actually resides in the individual homes. The aim and goal of the group home is to provide “the least institutional and impersonal alternative” to the traditional or biological family unit, for children who either lack a traditional family, or who for one reason or another are unable to adapt to and to cope with the conditions in their traditional family unit. The ideal which the group homes strives for is to preserve at least some of the informality and intimacy of the traditional family unit, in circumstances where the children can develop human relationships which are intimate and informal, rather than highly structured and formalized, and where the children may be recognized and may develop as individuals, rather than as mere roles. A

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group home is, in a sense, a blend of a family and of a peer group.

I should note that the various orders committing the juveniles to Viking Houses did not identify the particular residence to which each of them was to go but was, so to speak, a general committal to 247 Coxwell Avenue, Toronto, which is the head office of the Viking Houses, and it was thus left to the institution to decide on the actual placement.

The orders committing the juveniles and charging the cost of their care to the appellant municipalities were challenged by the latter by certiorari in respect of some of the orders and by appeal under s. 37 of the Juvenile Delinquents Act in respect of others. The grounds of challenge were that the Juvenile Court Judges had no power under s. 20(1) to order the juveniles to go to a group home and that, in any event, s. 20(2), authorizing the making of orders requiring a municipality to which a juvenile belongs to contribute to his or her support where an order has been made under s. 20(1), is ultra vires the Parliament of Canada. John Holland J., before whom the challenges to the six orders came, concluded that s. 20(1) of the Act did not authorize a Juvenile Court Judge to direct that a delinquent juvenile be placed in a group home but he did go on to hold that s. 20(2) of the Act was intra vires. His judgment was, in both respects, affirmed on appeal to the Ontario Court of Appeal in reasons delivered on behalf of that Court by Arnup J.A.

The Attorney General of Ontario and Viking Houses were given leave to appeal to this Court, their immediate interest being to set aside the disqualification of group homes. The two municipalities raised the constitutionality of s. 20(2), whether or not s. 20(1) authorized placement in group homes. The required notices of the constitutional issue were given to the Attorney General of Canada and to the Attorneys General of the Provinces and interventions were sought and allowed by the Attorney General of Canada and by the Attorney General of Quebec.

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At the conclusion of the hearing on the main appeal, the Court announced that the appeals of the Attorney General of Ontario and of Viking Houses failed. This affirmed the relief sought and obtained by the respondent municipalities in the Courts below. In the result, this Court, in accordance with its general practice not to embark upon the decision of a constitutional issue unless necessary for the disposition of the case before it, advised the parties and interveners that it would not adjudicate upon the constitutional issue and the parties and interveners would not be heard on it. However, it also advised that written reasons would be given for the disposition of the main appeal and these now follow.

The Juvenile Delinquents Act is an old statute, being still in substantially the same form and carrying the same approach to juvenile delinquency and crime as when first enacted by 1908 (Can.), c. 40. It is unnecessary in this case to detail the efforts made through governmental and non-governmental agencies, both federal and provincial, to replace the Act with one more contemporary in its thrust. They have not yet succeeded. None the less, there are guiding considerations in the present Act which are intended to establish a regime and associated sanctions emphasizing rehabilitative objects. They enjoin the Courts to a liberal construction of the Act and a socially-oriented approach to juvenile delinquency under which a balance would be achieved between the interests of a delinquent juvenile and the interests of the community to which the juvenile belongs. I refer to three such provisions, much relied on by the appellants in urging this Court, as they urged the Courts below, to give the relevant provisions of s. 20(1) (to which I will come shortly) a wide enough interpretation to support the authority of a Juvenile Court Judge to order committal to a group home. They are ss. 3(2), 20(5) and 38 and they read as follows:

3. (2) Where a child is adjudged to have committed a delinquency he 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.

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20. (5) The action taken shall, in every case, be that which the court is of opinion the child’s own good and the best interests of the community require.

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 have no difficulty in accepting these quoted provisions as being more positive in their direction than the general direction of s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23 that statutes shall be deemed remedial and be given such fair, large and liberal construction and interpretation as best ensures the attainment of their objects. That does not, however, carry the consequence that the defined powers of a Junevile Court Judge may be enlarged beyond what the language in which they are couched may bear on the widest reading, so as to enable him to make dispositions which may better accord with a more modern view of treatment of junevile delinquents. Courts cannot turn their role of construction into one of naked legislating, however well-disposed they may be to solutions proposed for problems which arise under deficient legislation. The proper recourse in such situations is to the legislature to repair the deficiencies in its statute.

I come now to s. 20(1) of the Juvenile Delinquents Act, and especially to clauses (d), (f) and (g), which were the provisions relied upon by the appellants to support the committals in this case to Viking Houses. The present s. 20(1) is the third form in which committal authority was vested in the Juvenile Court Judge. In the original Act, the provision was s. 16(1) reading as follows:

16. In the case of a child proved to be a juvenile delinquent the court may adjourn the hearing from time to time for any definite or indefinite period; and may impose a fine not exceeding ten dollars, or may commit the child to the care or custody of a probation officer or of any other suitable person; or may allow the child to remain in its home, subject to the visitation of a proba-

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tion officer, such child to report to the court or to the probation officer as often as may be required; or may cause the child to be placed in a suitable family home as a foster home, subject to the friendly supervision of a probation officer and the further order of the court; or may commit the child to the charge of any children’s aid society, duly organized under an Act of the legislature of the province and approved by the Lieutenant Governor in Council, or, in any municipality in which there is no children’s aid society, to the charge of the superintendent of neglected and dependent children for the province, if one there be, duly appointed under the authority of any such Act; or may commit the child, if a boy, to an industrial school for boys, or, if a girl, to an industrial school or refuge for girls, duly approved by the Lieutenant Governor in Council.

An amendment in 1924 (1924 (Can.), c. 53, ss. 2, 3) revised the section, introducing what is now clause (g), and it was in the following terms, as s. 17(1) of the Juvenile Delinquents Act, R.S.C. 1927, c. 108:

17. In the case of a child proved to be a juvenile delinquent the court may

(a) adjourn the hearing or disposition of the case from time to time for any definite or indefinite period; and

(b) impose a fine not exceeding twenty-five dollars, or commit the child to the care or custody of a probation officer or of any other suitable person; or

(c) allow the child to remain in its home, subject to the visitation of a probation officer, such child to report to the court or to the probation officer as often as may be required; or

(d) cause the child to be placed in a suitable family home as a foster home, subject to the friendly supervision of a probation officer and the further order of the court; and

(e) impose upon the delinquent such further or other conditions as may be deemed advisable; or

(f) commit the child to the charge of any children’s aid society, duly organized under an Act of the legislature of the province and approved by the Lieutenant-Governor in Council, or, in any municipality in which there is no children’s aid society, to the charge of the superintendent of neglected and dependent children for the province, if one there be, duly appointed under the authority of any such Act; or

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(g) commit the child, if a boy, to an industrial school for boys, or, if a girl, to an industrial school or refuge for girls, duly approved by the Lieutenant-Governor in Council.

It was in this revision that the Court was empowered to order the parents or the municipality to which a delinquent juvenile belongs to contribute to its support.

Further slight revisions were made by 1929 (Can.), c. 46, s. 20, giving the subsection a form and wording which passed into R.S.C. 1952, c. 160 as s. 20(1) and which is still its form and wording in the present statute. The only change that need be noted here is the splitting of clause (b) in s. 17(1) of the previous Act into two clauses which became (c) and (d) of the provision as it now stands. The present s. 20(1) reads as follows:

20. (1) In the case of a child adjudged to be a juvenile delinquent the court may, in its discretion, take either one or more of the several courses of action hereinafter in this section set out, as it may in its judgment deem proper in the circumstances of the case:

(a) suspend final disposition;

(b) adjourn the hearing or disposition of the case from time to time for any definite or indefinite period;

(c) impose a fine not exceeding twenty-five dollars, which may be paid in periodical amounts or otherwise;

(d) commit the child to the care or custody of a probation officer or of any other suitable person;

(e) allow the child to remain in its home, subject to the visitation of a probation officer, such child to report to the court or to the probation officer as often as may be required;

(f) cause the child to be placed in a suitable family home as a foster home, subject to the friendly supervision of a probation officer and the further order of the court;

(g) impose upon the delinquent such further or other conditions as may be deemed advisable;

(h) commit the child to the charge of any children’s aid society, duly organized under an Act of the legislature of the province and approved by the Lieutenant‑Governor in Council, or, in any municipality in which there is no children’s aid society, to the charge of the superintendent, if one there be; or

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(i) commit the child to an industrial school duly approved by the Lieutenant‑Governor in Council.

I preface consideration of clauses (d), (f) and (g) of s. 20(1) by noting that Viking Houses, as a division of Marshall Children’s Foundation, is, as John Holland J. expressed it in examining its organization, “obviously a business enterprise” and, indeed, a private enterprise which does not have the approval of the provincial government to bring it within the class of institutions mentioned in clauses (h) and (i) of s. 20(1). The fact that there are qualified institutions under clauses (h) and (i) is of some significance in determining whether Viking Houses can be brought within clause (d), providing for committal “to the care or custody of a probation officer or of any other suitable person”. The context persuades me, as it persuaded the Courts below, that a corporation (and Viking Houses is, in fact, a corporate enterprise) is not within the words “any other suitable person”. Counsel for Viking Houses did not base any argument in his factum on clause (d), but did seek to rely on it in oral argument in support of the submissions made on behalf of the Attorney General of Ontario. He would have this Court look behind the corporate entity to the persons to be charged with the care or custody of the committed juveniles. However, no persons are named in the orders under review.

The Court was directed to a recent, as yet unreported, judgment of Van Camp J., in the case of In re T.J.N., The Regional Municipality of Peel v. Thomas MacKenzie and Viking Houses, decided on July 10, 1978, in which an order committing the juvenile to the care of one Thomas MacKenzie, on condition that he keep the juvenile in the Viking program, was upheld. Thomas MacKenzie was a supervisor with Viking Houses, and Van Camp J. held that he was within the words “any other suitable person” under clause (d). It was pointed out by counsel for Peel in this case, who also appeared in the case before Madame Justice Van Camp, that it was not argued before her that a corporation could qualify under clause (d) but only that “other suitable persons” referred to public officials, a contention that she rejected. I do

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not pass upon the correctness of Van Camp J.’s decision. It will be time enough to do so when it or a like case comes before this Court. The present case is not of that kind.

It is worth observing that probation officers (who are defined in s. 2(1) as meaning “any probation officer for juvenile delinquents duly appointed under any provincial statute or this Act”) do not have any physical accommodation at their disposal in which the care or custody of a juvenile, given under clause (d), is maintained. There is a contrast here with clauses (e) and (f), where the probation officer has a role when the juvenile is allowed to remain in his or her own home or is placed in a “suitable family home as a foster home”. I do not say that committal under clause (d) to the care or custody of “any other suitable person” necessarily excludes maintenance of the juvenile in some home setting, but it does, it seems to me, envisage primarily the kind of personal supervision that a probation officer gives, or that might be given, say, by a member of the Big Brother movement. “Care” or “custody”, in my opinion, has the connotation of personal care or custody in the context of clause (d) and of the whole of s. 20(1). The orders under review here are far removed from that in committing the juveniles to a corporate institution with an unidentified and changing staff.

Reliance by the appellants on clause (f) is also misconceived. I note that none of the orders in issue here make any reference to supervision by a probation officer (which is a requirement under clause (f)), but I do not eliminate resort to clause (f) on that ground alone, since it would be possible to remit the orders for proper amendment. What I find to be insuperable is the attempted equating of a committal to faceless Viking Houses with placement “in a suitable family home as a foster home”. It seems to me that there is merit in the contentions of the respondents that, unless the word “family” is given a meaning envisaging a home which is that of persons with blood or marital ties or the like, the word “family” would be redundant if a group home operated by Viking Houses were

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regarded as falling under clause (f). The staff of Viking Houses, as noted by John Holland J. in his reasons, has no permanency and does not generally live in the group home. Nor does Viking Houses purport to maintain its group homes for juveniles who are related. Holland J. also observed in his reasons that no one seriously argued before him that Viking Houses could qualify under clause (f).

Counsel for the appellants sought to draw comfort for an expanded meaning of the word “family” from a trio of cases, namely, Ramsey v. Provincial Treasurer[3], Dodge v. Boston and Providence Railroad Corp.[4], and McMahon v. Amityville Union Free School District[5]. None of these has an applicable context for ascribing to the words “suitable family home” a meaning that would embrace the group homes of Viking Houses.

The Ramsey case concerned the taxability of a personal corporation under an Alberta Income Tax Act, the definition of a “personal corporation” covering control “directly or indirectly by one person who resides in Alberta or by one such person and his wife or any members of his family or any combination of them...”. A father and son held the controlling shares in a company and it was held, on appeal, that the son, who was married and lived with his wife and children in a house of his own apart from his father, was not a member of the father’s family within the definition in the Act. The Court adopted the meaning of “family” stated in the Dodge case, supra, which declared that the primary meaning was “the collective body of persons who live in one house and under one head or management”. However, as the Court pointed out, the word may be used in different senses; and, certainly, even in the sense adopted from the Dodge case to be applied to a taxing statute, the meaning is hardly apt for importation into s. 20(1) and clause (f) thereof.

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The Dodge case itself shows how much context and purpose relate to meaning. There, the defendant railway had covenanted with the grantor to it of a right of way that “the said grantor and his family” should enjoy free travel on the railway. A grandchild of the grantor claimed this right at a time when she no longer lived with her grandfather (as she once did). The Court limited the word “family” to membership in the household and thus the grandchild was excluded notwithstanding the blood tie. The issue in the McMahon case was, inter alia, whether eight black children, who resided in a group home (to which they had been committed) in a certain school district, were entitled to be enrolled in a school of the district as being members of a “family home” under the New York Education Law. They were in the care of a husband and wife who had no children of their own and lived in, acting as foster parents. It was held that they were entitled to enrolment. Again, I see no parallel with the issue arising under clause (f) of s. 20(1).

There was, finally, reliance by the appellants on clause (g) of s. 20(1), introduced, as previously mentioned, in 1924. It was the contention of the appellants that the power given to the Court “to impose upon the delinquent such further or other conditions as may be deemed advisable” was an independent authority to make an order of committal, if that be thought advisable. Its independence was said to flow from the opening words of s. 20(1), empowering the Court to take “either one or more of the several courses of action hereinafter in this section set out”. I do not think that these words add any force to clause (g) or to any of the other clauses of s. 20(1) which they do not inherently possess under their particular formulations. Not all the “courses of action” involve placement or committal and the phrase is simply addressed to the Court to empower it to act under any one or more of the clauses of s. 20(1). Nothing, in my opinion, turns on the place of clause (g) in the specification of the clauses of s. 20(1).

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John Holland J. was of the view that clause (g) did not give authority to make any placement or committal order but, rather, was introduced to enable the Court to impose conditions (or, I would say, terms) on a juvenile delinquent in association with a placement or committal order made under other provisions of s. 20(1). This view was endorsed by the Ontario Court of Appeal and reinforced by Arnup J.A. in noting that the word “further” connoted the imposition of conditions in addition to any imposed pursuant to other provisions of s. 20(1) and that, moreover, the placement of a delinquent in a group home was not the imposition of a “condition” as envisaged by clause (g).

It is enough, for the purposes of the present case, to agree with the Courts below that clause (g) does not authorize a placement or committal order. It would be a strange reading of the clause, not only grammatically but functionally, to hold that it embraces placement or committal orders—without limitation of where or to whom—in the face of specific provisions to those ends in clauses (d), (e), (f), (h) and (i).

An application of clause (g) is seen in R. v. Stral[6] where, in the case of a juvenile found to be delinquent, he was required to deliver his driver’s licence to the Court, the licence to be accordingly suspended for four months. It does not appear from the report of the case whether the Juvenile Court Judge put the delinquent under the care of a probation officer pursuant to either clause (d) or clause (e) or whether he suspended disposition for the four‑month period pursuant to clause (a) or clause (b). In short, it is not clear whether the licence suspension pursuant to clause (g) was related to one of such courses of action. I should think that would be necessary.

Another illustration of the application of clause (g) is found in R. v. Dapic,[7] where a juvenile adjudged to be delinquent was put on probation and under a condition that he attend a certain wilderness camp for approximately a five-week period. Although this could be regarded as a form

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of temporary detention, it does not support the contention of the appellants that clause (g) may be used to order committal to a group home.

I should add, in concluding these reasons, that the dismissal of the appeals announced at the conclusion of the hearing was without any order as to costs.

Appeals dismissed, no order as to costs.

Solicitors for the Attorney General of Ontario: Ministry of the Attorney General, Toronto.

Solicitors for Viking Houses, appellant: Thomson, Spencer & Stewart, Toronto.

Solicitors for the Regional Municipality of Peel: Osler, Hoskin & Harcourt, Toronto.

Solicitors for the Municipality of Metropolitan Toronto: City Solicitor, Toronto.

Solicitor for the Attorney General of Canada: R. Tassé, Ottawa.

Solicitors for the Attorney General of Quebec: Ministry of the Attorney General, Quebec.

Solicitors for the Attorney General of Newfoundland: Ministry of the Attorney General,St. John’s.