R. v. Z. (D.A.), [1992] 2 SCR 1025

R. v. Z. (D.A.), [1992] 2 S.C.R. 1025

 

D.A.Z.                                                                                                 Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Z. (D.A.)

 

File No.:  22620.

 

1992:  April 28.

 

Rehearing:  1992:  June 9; 1992:  September 24.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.

 

on appeal from the court of appeal for alberta

 

                   Criminal law ‑‑ Young offenders ‑‑ Definition of "young person" ‑‑ Accused alleged to have committed offence while under age of 18 ‑‑ Accused making inculpatory statement when over 18 ‑‑ Whether provision governing admissibility of statements made by young persons to persons in authority applies ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 2(1) , 56(2) .

 

                   The accused was charged under the Young Offenders Act  with theft.  He was 17 years old at the time of the alleged offence.  He voluntarily made an inculpatory written statement to a person in authority after having been cautioned and advised of his rights under the Canadian Charter of Rights and Freedoms .  He was 18 when he made the statement.  The police treated him as an adult and did not advise him that he had a right to have an adult person in attendance when he made the impugned statement.  Section 56(2) of the Act provides that a statement given by a young person to a person in authority is not admissible unless certain conditions are met, including the requirement that the young person be advised of his right to have an adult person in attendance when making the statement.  A young person is defined in s. 2 as a person between the ages of 12 and 18 and, "where the context requires", includes any person charged with having committed an offence while a young person.  The trial judge ruled that the accused was entitled to the protection afforded by s. 56(2) and that the statement was therefore inadmissible.  Since the only evidence against the accused was this statement, the accused was acquitted.  The Court of Appeal allowed the Crown's appeal and ordered a new trial.

 

                   Held (Gonthier and Iacobucci JJ. dissenting):  The appeal should be dismissed.

 

                   Per Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka and Cory JJ.:  Section 56(2)  of the Young Offenders Act  does not apply to statements made by an accused 18 years of age or older.  Both the express words used by Parliament and the overall scheme and purpose of the Act support this conclusion.  The term "young person" is defined in s. 2  as a person at least 12 years old but under 18.  The definition is further extended to include any person charged under the Act with having committed an offence while between the ages of 12 and 18, but only "where the context requires".  The ordinary meaning of the words "where the context requires" must be given due effect as words of limitation in this case.  In defining "young person" as it has done, Parliament has expressly left it with the courts to consider whether the context in which the term is used requires that it be interpreted to include an accused over the age of 18.  Neither s. 5(1)  nor s. 5(3) of the Act mandates that the term "young person" in s. 56(2)  be interpreted to include an adult accused.

 

                   Interpreting the words "where the context requires" as words of limitation further accords with the very nature and purpose of the Act, which was enacted specifically to provide for a system to deal with youths separate and distinct from that in place for adults.  The concern over ensuring that all accused are similarly held accountable for the mistakes of their youth does not dictate that all of the special protections afforded under the Act apply regardless of the age of an accused.  In enacting certain of the Act's special protections, Parliament has sought to address concerns specific to a youth rather than an adult.

 

                   There is clearly nothing underlying the purpose of s. 56(2) requiring its application to an adult accused.  The aim of s. 56 is to protect adolescents who, by virtue of their lack of maturity, are not likely to fully appreciate their legal rights and the consequences of making a statement to the police.  These concerns do not arise with respect to an accused over the age of 18.  No further protection beyond that already afforded under the Charter  and the common law is necessary to ensure that any statement made by an adult accused is truly voluntary.  As such, the context of s. 56(2) does not require that the term "young person" therein be interpreted to include a person over the age of 18.

 

                   Per Gonthier and Iacobucci JJ. (dissenting):  A young person is defined by s. 2 of the Act as a person between the ages of 12 and 18, and, where the context requires, includes any person charged with having committed an offence while a young person.  The first part of the definition, the time element, merely refers to numerical age, while the second part, the status element, tells us at what point the time element is to be measured, that is, at what stage of the process a person must be within the parameters of the time element in order to have the status of a young person under the Act.  The status element of the definition is preceded by the words "where the context requires".  This clearly means that sometimes the words "young person" will be used in the Act in a way that only involves the time element, and sometimes will be used in a way that includes the status element, and it is the context that is to tell us which is which.

 

                   "Context" does not refer to the general purposes of the Act.  The phrase "where the context requires" is really nothing more than a plain language version of an old drafter's tool, "mutatis mutandis".  The relevant context is the technical or grammatical context, as befits a technical aid in drafting.  To rest the whole crux of the policy of the Act with regard to transitional offenders on "where the context requires" puts more weight on those words than they can reasonably bear.  The assumption that Parliament has said nothing concerning the scheme that ought to be applied to transitional offenders and has left the construction of that scheme to the courts is simply wrong.  Section 5 clearly provides that transitional offenders are to receive the full benefit of the provisions of the Act, with only two exceptions, namely the system of military courts and the possibility of transfer to adult court.  Section 5 is a much better guide to the intention of Parliament with regard to transitional offenders than s. 2.  It clearly addresses the policy issue at the heart of this case, which is how to draw the line in giving special protection to young offenders, and clearly offers all the protections of the Act to the transitional offender.

 

                   There is nothing in the grammatical context of s. 56(2) to suggest that its use of "young person" is limited to the time element.  Parliament has decided to extend this protection to transitional offenders.  Subject to the National Defence Act, Parliament has entrusted the youth court with exclusive jurisdiction over anyone who has the status of a young person and that person is entitled to all the benefits of the Act until such time as the matter is disposed of by the youth court or the person is transferred to adult court.

 

Cases Cited

 

By Lamer C.J.

 

                   Not followed:  R. v. P. (J.) (1989), 53 C.C.C. (3d) 24; followed:  R. v. G.R.J. (1986), 26 C.C.C. (3d) 471; referred to:  R. v. Ly (1991), 73 Man. R. (2d) 294; R. v. K.F. (1990), 86 Nfld. & P.E.I.R. 238; R. v. J. (J.T.), [1990] 2 S.C.R. 755; R. v. S. (S.), [1990] 2 S.C.R. 254; R. v. Paré, [1987] 2 S.C.R. 618.

 

By Gonthier J. (dissenting)

 

                   R. v. P. (J.) (1989), 53 C.C.C. (3d) 24; R. v. J. (J.T.), [1990] 2 S.C.R. 755.

 

Statutes and Regulations Cited

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 334 (b).

 

Young Offenders Act , R.S.C., 1985, c. Y‑1 , ss. 2(1)  "young person", 3, 5, 56 [am. c. 24 (2nd Supp.), s. 38].

 

Authors Cited

 

Bala, Nicholas.  "The Young Offenders Act , A Legal Framework".  In Joe Hudson, Joseph P. Hornick and Barbara A. Burrows, eds., Justice and The Young Offender in Canada.  Toronto:  Wall & Thompson, 1988.

 

Bala, Nicholas and Heino Lilles.  Young Offenders Service, vol. 2.  Edited by Priscilla Platt.  Scarborough:  Butterworths, 1984.

 

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 2nd ed.  Cowansville:  Yvon Blais, 1992.

 

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

 

Pearson, John C.  "Section 56(2)  of the Young Offenders Act :  Forever Young?" (1990), 76 C.R. (3d) 389.

 

                   APPEAL from a judgment of the Alberta Court of Appeal (1991), 117 A.R. 75, 2 W.A.C. 75, 82 Alta. L.R. (2d) 193, 66 C.C.C. (3d) 441, setting aside the accused's acquittal by Landerkin Prov. Ct. J. (1990), 114 A.R. 321, 115 A.R. 354, on a charge of theft and ordering a new trial.  Appeal dismissed, Gonthier and Iacobucci JJ. dissenting.

 

                   James R. Ferguson, for the appellant.

 

                   Earl C. Wilson, Q.C., for the respondent.

 

//Lamer C.J.//

 

                   The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka and Cory JJ. was delivered by

 

                   Lamer C.J. -- This appeal raises the question of whether s. 56(2)  of the Young Offenders Act , R.S.C., 1985, c. Y-1  (the "Act ") applies to an accused alleged to have committed an offence while under the age of 18 but making an inculpatory statement when 18 years of age or older.  Subsection 56(2) governs the admissibility of written or oral statements made by a young person to a peace officer or other person who is, in law, a person in authority.  This provision essentially provides that such statements are not admissible unless the prerequisite conditions set out in s. 56(2) have been fully satisfied.  There are conflicting appellate court decisions from Manitoba and Quebec on the application of this provision to statements made by an adult accused regarding alleged offences committed prior to adulthood.

 

Facts

 

                   The facts in this case are not in dispute.  The appellant was charged under the Act  with theft under one thousand dollars contrary to s. 334 (b) of the Criminal Code , R.S.C., 1985, c. C-46 .  The appellant is alleged to have stolen two lights from a gas station on April 15, 1989.  At the time of the alleged offence, the appellant was 17 years old.  On February 9, 1990, the appellant voluntarily made an inculpatory written statement to a "person in authority" after having been cautioned and advised of his Charter  rights.  The appellant was 18 years old when he made the impugned statement and the police treated him as an adult.  As such, he was not advised of his right to have an adult person in attendance when making the impugned statement.  At the time the statement was made, the appellant was accused of the offence.

 

                   A voir dire was held regarding the admissibility of the inculpatory statement.  Landerkin Prov. Ct. J. ruled that the appellant was entitled to the protections afforded under s. 56(2) and therefore the inculpatory statement was inadmissible.  Following an application, the appellant was acquitted on October 18, 1990:  114 A.R. 321, 115 A.R. 354.  The Crown conceded that the only evidence it had against the appellant was the inculpatory statement.  The Crown appealed the acquittal on the ground that the trial judge erred in holding that s. 56(2) mandated the exclusion of the statement from evidence.  On August 27, 1991, the Court of Appeal for Alberta allowed the appeal and ordered a new trial:  82 Alta. L.R. (2d) 193, 117 A.R. 75, 2 W.A.C. 75, 66 C.C.C. (3d) 441.

 

Statutory Provisions

 

                   Whether s. 56(2) extends to an adult accused is strictly a matter of statutory interpretation.  The relevant provisions of the Act , for the purposes of this appeal, are as follows:

 

                   2. (1)In this Act ,

 

                                                                   . . .

 

"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act  with having committed an offence while he was a young person or is found guilty of an offence under this Act .

 

                   3. (1)  It is hereby recognized and declared that

 

                                                                   . . .

 

(c)  young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

 

                                                                   . . .

 

(e)  young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms  or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;

 

                                                                   . . .

 

(g)  young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act , to be informed as to what those rights and freedoms are; . . .

 

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

 

                   5. (1) Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act .

 

                                                                   . . .

 

                   (3) Proceedings commenced under this Act  against a young person may be continued, after he becomes an adult, in all respects as if he remained a young person.

 

                   56. (1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.

 

                   (2) No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority is admissible against the young person unless

 

(a)  the statement was voluntary;

 

(b)  the person to whom the statement was given has, before the statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that

 

(i)  the young person is under no obligation to give a statement,

 

(ii)  any statement given by him may be used as evidence in proceedings against him,

 

(iii)  the young person has the right to consult another person in accordance with paragraph (c), and

 

(iv)  any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise;

 

(c)  the young person has, before the statement was made, been given a reasonable opportunity to consult with counsel or a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person; and

 

(d)  where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

 

                   (3) The requirements set out in paragraphs (2)(b), (c) and (d) do not apply in respect of oral statements where they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

 

                   (4) A young person may waive his rights under paragraph (2)(c) or (d) but any such waiver shall be made in writing and shall contain a statement signed by the young person that he has been apprised of the right that he is waiving.

 

                   (5) A youth court judge may rule inadmissible in any proceedings under this Act a statement given by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was given under duress imposed by any person who is not, in law, a person in authority.

 

                   (6) For the purpose of this section, an adult consulted pursuant to paragraph 56(2)(c) shall, in the absence of evidence to the contrary, be deemed not to be a person in authority.

 

Other Provincial Appellate Decisions

 

                   In finding the appellant's written statement inadmissible, the provincial court judge essentially adopted the views of the Quebec Court of Appeal in R. v. P. (J.) (1989), 53 C.C.C. (3d) 24.  However, the Alberta Court of Appeal preferred instead the conclusion reached by the Manitoba Court of Appeal in R. v. G.R.J. (1986), 26 C.C.C. (3d) 471.  Likewise, the parties in this appeal have fashioned their submissions closely around the stated views of both the Manitoba and Quebec Courts of Appeal.  Therefore, before reviewing the reasons of the courts below and my own views on this matter, it will be useful to first summarize the conflicting opinions of the Manitoba and Quebec Courts of Appeal.

 

(i)  R. v. G.R.J. (1986), 26 C.C.C. (3d) 471 (Man. C.A.)

 

                   The accused in this case made an inculpatory statement to the police while an adult in relation to an offence that occurred when he was 16 years old.  As in the case at hand, the police gave the accused the standard caution and advised him of his right to retain and instruct counsel without delay.  However, the police did not comply with all of the conditions set out in s. 56(2)  of the Act .  The statement was held to be inadmissible by the trial judge.  The Crown appealed submitting that the trial judge erred in treating the accused as a "young person" under the Act  notwithstanding that the accused was 18 years old when he gave the statement.

 

                   Monnin C.J.M., writing for the court, held the statement to be admissible.  He held that in defining "young person" as it did, namely in using the words "where the context requires", Parliament did not intend to deem all persons charged or convicted under the Act  to be a "young person" for all purposes under the Act .  He commented that, "[i]f that had been Parliament's intention, it would have been a simple matter to do so in clear and unequivocal words" (p. 474).  Although he found the context of other sections, such as s. 16 (transfer to ordinary court) and s. 20 (dispositions), required an adult accused to be deemed a young person, in his opinion there was nothing in the context of s. 56 requiring the same to be true for the purposes of that section.  Monnin C.J.M. observed that the special conditions set out in s. 56(2) are intended to protect youths between the ages of 12 and 18 who are deemed not to be in the same position to make decisions as an adult and, therefore, require the guidance and protection of a parent or other adult person.  As such, he concluded at p. 474:

 

                   I am of the view that there is nothing in the context of s. 56 that requires an adult to be deemed to be a "young person".  There is no apparent justification or need to extend to an adult person the protection that is accorded to a "young person" by the special requirements of s. 56.  An adult, even a young adult, does not require the protective interpretation of a parent, an adult relative, or another appropriate adult.  A distinction between the admissibility of the statement of an adult charged with an offence committed while he was a "young person" and that of an adult charged with a similar offence committed when he was an adult, is difficult, if not impossible, to rationalize.

 

                   Leave to appeal to this Court was denied,  [1986] 1 S.C.R. x.  The decision was recently followed by the Manitoba Court of Appeal in R. v. Ly (1991), 73 Man. R. (2d) 294, to find admissible statements made by an adult accused in relation to offences allegedly committed while the accused was 17 years old.  Leave to appeal in Ly, supra, was granted by this Court on February 6, 1992, [1992] 1 S.C.R. ix.  However, the appeal has yet to be heard.*

 

(ii)  R. v. P. (J.) (1989), 53 C.C.C. (3d) 24 (Que. C.A.)

 

                   The accused was charged with the commission of an indictable offence before reaching the age of 18.  Six days after the accused turned 18, he gave an incriminating statement to the police.  In questioning the accused, the police did not comply with s. 56(2)  of the Act .  The trial judge held the statement to be inadmissible and the accused was acquitted.  The Court of Appeal dismissed the appeal.  Two concurring reasons were given by Tourigny and Fish JJ.A. Gendreau J.A. concurred with both.

 

                   Tourigny J.A. observed that s. 5(1)  of the Act  confers on an adult, alleged to have committed an offence while between the ages of 12 and 18, the benefit of all of the provisions of the Act .  She noted that if Parliament had intended to create exceptions to this rule it would have done so explicitly. As such, in the absence of any clear and specific exceptions excluding the application of s. 56(2) to an adult accused, she held the accused should have the benefit of the safeguards afforded under s. 56.  In support of her conclusion, Tourigny J.A. further noted that s. 3(2) mandates that the Act  be liberally construed.

 

                   Fish J.A. agreed with the conclusion reached by Tourigny J.A. but offered the following additional reasons.  Fish J.A. emphasized that, through s. 5(1), Parliament has specified that everyone charged with an offence alleged to have been committed before the accused turned 18 shall be dealt with as provided by the Act .  He found nothing in the Act  to suggest that Parliament intended s. 5(1) to be read other than in accordance with its clear terms.  Fish J.A. further noted that, by virtue of s. 3(2) , the Act  mandates a liberal interpretation of its provisions so that a young person will be dealt with in accordance with the principles set out in s. 3(1).  He reasoned that since s. 56(2) necessarily embraces those principles, it should be liberally construed to include any person falling within the scope of the definition of "young person".  In so doing, he rejected the Crown's argument that a person over the age of 18 should be excluded from the ambit of s. 56(2) on the basis that an adult does not require the same degree of protection as a youth.  Fish J.A. stated at p. 34:

 

To that suggestion, my short and simple reply is that Parliament, by ss. 3(2) and 5(1), has expressly provided that protection to everyone charged as a young offender and has not, by the definition of young person in s. 2, invited the courts to pronounce on its wisdom in doing so.  [Emphasis in original.]

 

                   Fish J.A. interpreted the phrase "where the context requires" as simply providing a "necessary syntactical bridge".  In his opinion, the phrase does not provide for judicial scrutiny as to the applicability of each of the provisions in the Act .  More specifically, he stated at p. 34:

 

                   By using the words "where the context requires" Parliament has simply provided a necessary syntactical bridge.  It has not launched individual judges on an uncharted odyssey through the various sections of the Act  to determine which of its safeguards, in their view, are unnecessary or inappropriate where the alleged offender is over rather than under 18.

 

                   Nor has Parliament invited a judicial value judgment regarding the applicability to over-age defendants of s. 56, or of the alternative measures provided in s. 4, or of the special right to counsel created by s. 11, or of the unique dispositions permitted under s. 20, or -- in the name of "context" -- of any other protection or safeguard provided to young persons as part of the general scheme of the Act .  [Emphasis in original.]

 

                   Nevertheless, Fish J.A. held that even if one accepts the meaning ascribed to the words "where the context requires" by the Crown, he would still find s. 56(2) applicable to statements made by an adult accused.  In his opinion, the context of s. 56 requires that s. 56(2) be interpreted as applying to an accused both over and under the age of 18.  Fish J.A. reasoned that since "young person" in s. 56(1) must be interpreted as also referring to an adult accused charged under the Act the same must be true for the other subsections of s. 56. Fish J.A. stated at p. 35:

 

                   Does "young persons" in [s. 56(1)] not apply to the respondent?  Surely it does.  On what basis, then, can it be argued that other subsections have a shorter reach?  Is a court to hold that "young person", which from a grammatical point of view applies to all paragraphs in s. 56(2), includes an over-age offender for the purpose of s-s. (2)(a) but not for the purpose of s-s. (2)(b), (c) or (d)?

 

                   The specific subsections to which the Crown refers must be read in the context of s. 56(1), which clearly uses "young persons" in a sense applicable to offenders under and over 18.  That context would thus require that "young person" in s-ss. (2)(c), (2)(d) and (4) be given the same meaning.  The Crown's submission therefore fails even if the definition of "young person" in s. 2 is interpreted as the Crown urges.  [Emphasis in original.]

 

                   Fish J.A. agreed with the Manitoba Court of Appeal that it was difficult to rationalize different rules for the admissibility of statements made by persons of the same age.  However, he noted that it was equally difficult, and counter to common sense, to say that the accused in that case was not entitled to the same protection he had been entitled to just six days earlier.  Fish J.A. observed that while Parliament has drawn a distinction between young and adult offenders, it also has ensured that adults, alleged to have committed an offence while under the age of 18, will be dealt with as a young person.  In this regard, he commented, at p. 35:

 

                   Any line drawn between young and adult offenders, I again acknowledge, is necessarily arbitrary and some anomaly is an inevitable result.  It is one thing, however, to accept an anomalous but inevitable result dictated by clear law; it is quite another to deprive a young defendant of a procedural safeguard which is part of the legal system to which he has been expressly made subject.  [Emphasis in original.]

 

                   Finally, Fish J.A. raised s. 5(3) in support of his position that the Act  creates a single regime applicable to everyone alleged to have committed an offence while under the age of 18.  He interpreted the words "in all respects", found in s. 5(3), as ensuring a person charged while under the age of 18 the protection of s. 56 in respect of any statement he might give after he becomes an adult.  In his opinion, it would make no sense to deny a person the same protection merely because he was charged after he had turned 18.  Moreover, he added that if "young person" is interpreted as suggested by the Manitoba Court of Appeal in R. v. G.R.J., supra,  grammatically, s. 5(3) would not make sense.

 

                   The reasons of the Quebec Court of Appeal were followed in R. v. K.F. (1990), 86 Nfld. & P.E.I.R. 238 (Nfld. Prov. Ct.) to find statements made by an accused over the age of 18 inadmissible.  The judge in that case reasoned that s. 5(1) confers on a young person, who has become an adult, the benefit of all of the provisions within the Act , including s. 56 , except where the Act  itself provides for clear and specific exceptions.

 

Judgments Below

 

(i)  Provincial Court of Alberta, Youth Division (1990), 114 A.R. 321

 

                   Landerkin Prov. Ct. J. examined the contrasting views of the Manitoba and Quebec Courts of Appeal and found the reasoning of Fish J.A. in R. v. P. (J.), supra, to be persuasive.  He highlighted that s. 5(1) provides that any person alleged to have committed an offence while between the ages of 12 and 18 shall "be dealt with as provided in this Act ."  As such, he held that any reference to "young person" in the Act  necessarily includes an adult accused of such an offence.  He further referred to the wording of s. 5(3), particularly the phrase "in all respects", in support of his interpretation of the applicability of the whole of the Act  to an accused over the age of 18.

 

                   Landerkin Prov. Ct. J. agreed with Fish J.A. that the words "where the context requires" merely provide a "syntactical bridge", adding further that these words are necessary because of the very nature of the Act  itself and, in particular, s. 5  of the Act .  In this regard, he commented that Parliament added the words "where the context requires" to take into account the two exceptions to a youth court's exclusive jurisdiction, namely, matters coming under the National Defence Act and transfers under s. 16 of the Act and the fact that the protection afforded under s. 56(2) would not arise in either case.  In so holding, he distinguished this Court's decision in R. v. J. (J.T.), [1990] 2 S.C.R. 755, on the grounds that the issue of the applicability of s. 56 to ordinary court proceedings was merely assumed by this Court, without any argument on the point, thereby leaving the issue open.  In his opinion, s. 16 transfers provide a means by which any "anomalous" results arising from applying s. 56(2) to a now adult accused could be alleviated.

 

                   Landerkin Prov. Ct. J. concluded that the Act  required that the appellant be dealt with, in all respects, as provided within the Act .  As such, since the impugned statement was taken contrary to certain of the conditions set out in s. 56(2), the statement was held to be inadmissible.  The appellant was acquitted of the charge.

 

(ii)  Court of Appeal of Alberta (1991), 66 C.C.C. (3d) 441

 

                   Kerans J.A., writing for the court, also examined the contrasting views of the Manitoba and Quebec Courts of Appeal and expressed his preference for the conclusion drawn by the Manitoba Court of Appeal.  Kerans J.A. noted that s. 5(1)  of the Act  was not determinative of the issue since it merely required that an accused be dealt with "as provided" in the Act .  Therefore, in determining what was provided in the Act  for an adult accused, one was left to consider the other provisions within the Act  including the definition of the term "young person".  Kerans J.A. dismissed the argument that the words "where the context requires" merely serve as a "syntactical bridge".  Rather, he interpreted these words to be equivalent to the expression "mutatis mutandis" and further noted that the presence of these words indicates that the deeming provision cannot sensibly work in some circumstances.  In failing to expressly specify those exact circumstances within the Act , Kerans J.A. observed that Parliament left it to the courts to determine whether the deeming provision should apply to s. 56.

 

                   Kerans J.A. expressed the view that, in interpreting a statute, words should be interpreted in a manner that best fits the object of the statute provided that the words are capable of reasonably bearing that construction.  Kerans J.A. noted that the mischief s. 56 was intended to address was the immaturity of young persons and their vulnerability during questioning.  In determining at what age one could assume that a person was mature enough not to need this special protection,  Kerans J.A. observed that the debate in Parliament centred on whether the age of adulthood, for purposes of the Act , should be lower than 18 and not whether it extended beyond that age.  Moreover, he drew from this Court's decision in R. v. J. (J.T.), supra, the view that Parliament had accepted 18 as the cut-off age for deemed immaturity.

 

                   Kerans J.A. returned to s. 5(1) of the Act and held that provision was largely directed towards dealing with the possibility that the authorities might attempt to defeat the scheme of the Act  by delaying charging an accused until he reached the age of 18.  However, he held that it did not necessarily follow that s. 5(1) was also intended to ensure the continued application of all of the special protections provided under the Act .  Kerans J.A. stated at pp. 446-47:

 

                   I therefore conclude that s. 5(1) assures those nearing the age of 18 that, if by chance or design they slip across that line before charge, they nevertheless can benefit from the special rules about disposition in the Act .

 

                   It does not follow that they also can expect all the special protection in the Act . P. Platt, in Young Offenders Law in Canada (Toronto: Butterworths, 1989) at p. 2-1, suggests that one can classify the operating principles of the Act , and it seems to me also its special protection rules, into two groups: accountability and due process.  The accountability aspect leads to special rules about dispositions for young offenders, and the due process side leads to special rules to assure due process for the immature.  Just because the Act  applies itself to one does not mean that it applies itself to the other.

 

                   This analysis reconciles ss. 5 and 56:  The first extends the jurisdiction of the youth court to adults who committed crimes as youths with a view to offering young adults the approach to accountability they would have received if they had been charged as youths.  The second extends special protection to the immature in the investigation process.  I therefore conclude that nothing in s. 5 offends the purposive interpretation I propose for s. 56.

 

                   Finally, Kerans J.A. disagreed with the position taken by the Quebec Court of Appeal that by virtue of s. 5  the Act  creates a unified system applicable in all respects to an adult accused except where there is a transfer to military court or to adult court.  He noted that under the Quebec Court of Appeal's analysis, an accused would lose his s. 56 rights once the youth court lost its jurisdiction on a transfer, even if the accused was under the age of 18.  In his opinion, this not only offended the purpose of s. 56 but was also  counter to the implicit reasons of this Court in R. v. J. (J.T.), supra, which applied s. 56(2) to exclude statements made by a 17-year-old accused transferred to adult court.

 

                   Therefore, the Court of Appeal concluded that the application of s. 56 was not governed by s. 5 but stood on its own, limited only by its special purpose.  The Court found that purpose would not be served by according the appellant, after the law presumes him to be mature, those rights intended to protect persons under the age of 18 deemed in law to be immature and in need of special protection.  As such, the Court allowed the appeal and ordered a new trial.

 

Analysis

 

                   The specific question before this Court is whether the Court of Appeal erred in holding that the written confession given by the appellant was admissible notwithstanding that some of the conditions set out in s. 56(2) had not been complied with.  In answering this question, this appeal affords this Court an opportunity to resolve the more general question of whether s. 56(2) applies to statements made by a person 18 years of age or older. It is not disputed that the appellant was 18 years old when he gave the statement.  Nor is it disputed that the appellant was not advised of his right to have an adult person present when making the impugned statement. Counsel for the appellant essentially adopted the views of the Quebec Court of Appeal in R. v. P. (J), supra, in submitting that this Court should find the appellant entitled to all of the safeguards set out in the Act , including those contained in s. 56.  The position advanced by the Crown was largely akin to that taken by the Manitoba Court of Appeal in R. v. G.R.J., supra, and the Alberta Court of Appeal in the case at hand.  I find myself in complete agreement with the conclusion reached by both the Alberta and Manitoba Courts of Appeal as to the inapplicability of s. 56(2) to statements made by an accused 18 years of age or older.

 

                   Whether s. 56(2) extends to an adult accused is strictly a matter of statutory interpretation.  In interpreting the relevant provisions of an Act , the express words used by Parliament must be interpreted not only in their ordinary sense but also in the context of the scheme and purpose of the legislation: R. v. S. (S), [1990] 2 S.C.R. 254, at p. 275; R. v. Paré, [1987] 2 S.C.R. 618, at p. 626; Côté, The Interpretation of Legislation in Canada (2nd ed. 1992), at pp. 323-24; and Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.  I am of the view that the Court of Appeal properly proceeded on this basis when it stated that the best approach to the interpretation of words in a statute is to place upon them the meaning that best fits the object of the statute, provided that the words themselves can reasonably bear that construction.  In my opinion, both the express words used by Parliament and the overall scheme and purpose of the Act  support the conclusion that Parliament did not intend s. 56(2) to apply to statements made by an adult accused.

 

                   Section 56(2) mandates that no oral or written statement given by a young person to a peace officer or other person in authority be held admissible unless the enumerated conditions set out therein have been fully met.  As is evident from the express words of the provision, s. 56(2) only applies with respect to statements made by a "young person".  The question then becomes whether a person over the age of 18, at the time the impugned statement is made, is a "young person".  Young person is a statutorily defined term within the Act .  Normally, this would end the need for any further inquiry.  Unfortunately, this is not the case given the manner in which Parliament has chosen to define the term.  For convenience, it is worth repeating this definition:

 

"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act  with having committed an offence while he was a young person or is found guilty of an offence under this Act .  [Emphasis added.]

 

                   As is evident, the definition of "young person" has two components.  The principal component of the definition defines a young person as a person who is or appears to be at least 12 years old but under 18 years of age.  The definition is further extended to include any person charged under the Act  with having committed an offence while between the ages of 12 and 18 or found guilty of an offence under the Act .  This latter component reflects the fact that, by virtue of s. 5(1), a person who is over the age of 18 can nevertheless be charged under the Act  for offences occurring while he or she was between the ages of 12 and 18.  However, Parliament has made it clear that the term "young person" should be extended to include someone over the age of 18 only "where the context requires" that that person be deemed to be in the same position as a youth between the ages of 12 and 18.  As one would expect, most of the conflict over the applicability of s. 56(2) turns on what effect should be given to the words "where the context requires".

 

                   The Court of Appeal in this case interpreted these words as limiting the applicability of certain parts of the Act  to an accused over the age of 18.  More specifically, Kerans J.A. reasoned that the presence of these words indicated Parliament's recognition that the extension of the definition of "young person" to an adult accused cannot sensibly work in some circumstances.  Likewise, the Manitoba Court of Appeal in R. v. G.R.J., supra, held that, in so defining the term "young person", Parliament did not intend to deem an adult charged under the Act  to be a "young person" for all purposes under the Act .  The Crown urged this Court to adopt this position.

 

                   The appellant took issue with this interpretation.  He submitted that the definition of "young person" should be interpreted as deeming any person charged under the Act a "young person" for all purposes of the Act .  Adopting the view of Fish J.A. in R. v. P. (J.), supra, the appellant submitted that the words "where the context requires" merely serve as a "syntactic bridge" allowing for the insertion of either of the disjunctively defined categories of "young person" wherever that term is used in the Act  (i.e. (a) a person between 12 and 18 years of age; or (b) a person charged with having committed an offence when between the ages of 12 and 18).  As such, he submitted that Kerans J.A. incorrectly used the words "where the context requires" as a means to import the need for judicial review of the applicability of the individual provisions of the Act and therefore to engage in unwarranted judicial interference with the protections afforded under the Act .

 

                   In my opinion, the interpretation sought to be given to the words "where the context requires" by the appellant cannot be accepted.  The argument that Parliament intended the term "young person" to include an accused over the age of 18 wherever that term appears in the Act  ignores the reality that in various provisions of the Act  "young person" can only be understood to mean a person between the ages of 12 and 18.  One need go no further than the definition of "young person" itself to demonstrate this point.  Reference to the term "young person" in the latter component of the definition clearly speaks only of a person at least 12 years of age but under 18.  The same interpretation must be given to the term as it is used in s. 5(1) and (3).  Therefore, it is evident that Parliament did not intend "young person" to always include an adult accused wherever that term appears in the Act .

 

                   Moreover, the interpretation proposed by the appellant would render "where the context requires" superfluous. If Parliament had intended to define "young person" in the manner suggested by the appellant, there would have been no need for Parliament to have inserted the words "where the context requires" to effect this result.  "Where the context requires" clearly carries a broader connotation than that of a mere disjunctive.  The interpretation proposed by the appellant would have this Court essentially ignore the words "where the context requires" found in the definition of "young person".

 

                   It is trite to say that, in interpreting a statute, due regard must be given to the ordinary meaning of words used by Parliament; in this case the words "where the context requires".  In defining "young person" in this manner, Parliament has expressly left it with the courts to consider whether the context in which the term "young person" is used requires that it be interpreted to include an accused over the age of 18.  In this regard, contrary to the views of Fish J.A. of the Quebec Court of Appeal,  Parliament has indeed launched the courts on an "odyssey" through the various sections of the Act  to determine their applicability to an alleged offender who is over 18 years of age.  The ordinary meaning of the words "where the context requires" cannot be ignored and must be given due effect as words of limitation in this case.

 

                   Both the Quebec Court of Appeal in R. v. P. (J), supra, and the trial judge in this case placed a great deal of emphasis on s. 5(1)  and (3)  of the Act  as mandating the application of s. 56(2) to an adult accused.  The appellant likewise emphasized that s. 5(1)  of the Act  provides that any person alleged to have committed an offence while between the ages of 12 and 18 shall be dealt with as provided in the Act  regardless of their current age.  The appellant adopted the view of Fish J.A. in R. v. P. (J.), supra, that the Act  creates a "system unto itself" in which all of the strictness of the Act 's procedures and benefits of its safeguards extend to every person charged under the Act .  This interpretation of the effect of s. 5  of the Act  has also been advanced by Bala and Lilles, in Young Offenders Service, vol. 2 (1984), who state at p. 5:6 (Issue 29, March 92):

 

                   Any adult who is being dealt with by a youth court for an offence committed while he or she was a young person shall, in the language of subs. 5(1), "be dealt with as provided in this Act ."  This means that any references to "young person" throughout the Y.O.A. should be read as if they applied to this adult.  Similarly, under subs. 5(3) of the Y.O.A., a youth who becomes an adult in the course of a youth court proceeding or disposition is to be treated "in all respects as if he remained a young person."  In R. v. Gary J., (1986), 39 Man. R. (2d) 5 (C.A.), however, the Manitoba Court of Appeal, apparently without having regard to these words in s. 5, ruled that the evidentiary protections in s. 56 of the Y.O.A. did not extend to an adult who was being charged in youth court for an offence allegedly committed while he was a young person.  [Emphasis in original.]

 

                   I agree entirely with Kerans J.A. that s. 5(1)  of the Act  is not dispositive of the issue.  Subsection 5(1) merely provides that a person alleged to have committed an offence while a young person shall be dealt with "as provided in this Act ".  As such, s. 5(1) requires a court to go back to the Act  to determine what, in fact, is provided within the Act  for an adult accused.  Due regard therefore must be given to any words of limitation found elsewhere in the Act  restricting the applicability of certain of the Act 's provisions to an adult accused.  The same is true even if one adopts the French text of s. 5(1) which provides that "cette personne bénéficie des dispositions de la présente loi."  As such, I am of the view that the Quebec Court of Appeal in R. v. P. (J.), supra, and the trial judge erred in placing too great an emphasis on s. 5(1) and ignoring the express words of limitation found within the definition of "young person".

 

                   I further do not consider s. 5(3) to dictate the application of s. 56 to statements made by an adult accused.  Section 5(3) provides that proceedings commenced against a young person may be continued, after he becomes an adult, in all respects as if he remained a young person.  The Quebec Court of Appeal and the trial judge placed considerable emphasis on the fact that this provision provides for the continuation of proceedings "in all respects" should an accused, in the course of the proceedings, reach adulthood.  The fact that this provision allows for the continued application of the procedures surrounding a youth court trial is of no real import to the applicability of s. 56.  The applicability of these special evidentiary rules does not turn on whether the accused remains within the youth court system but rather the age of the accused when the statement was made.  This point is evident from R. v. J. (J.T.), supra, in which this Court applied s. 56(2) to exclude various statements made by a youth subsequently transferred to ordinary court. As such, I agree with Kerans J.A. that the application of s. 56 is not governed by s. 5 but stands on its own.

 

                   In my opinion, interpreting "where the context requires" in its ordinary sense, as words of limitation, accords with the very nature and purpose of the Act .  To state the obvious, the Act  was enacted specifically to provide for a system to deal with youths separate and distinct from that in place for adults.  In so doing, the Act  establishes a code of unique procedural and evidentiary requirements as well as substantive provisions providing for special dispositions different from the sentencing provisions under the Criminal Code .  In enacting s. 5(1) and (3), Parliament recognized the possibility that an accused might not be charged or tried until after reaching adulthood.  By making the relevant point of reference the age of the accused at the time of the alleged offence, it has guarded against an accused being subjected to a different standard of accountability merely because of the time at which he or she was charged or ultimately tried.  No doubt Parliament was concerned, as Kerans J.A. identified, that if jurisdiction turned on the age of an accused on the date of being charged the substantive provisions of the Act  pertaining to accountability could easily be evaded by deliberate delays in charging an accused.  In this regard, Parliament has sought, through provisions such as s. 5(1) and (3), to ensure that systemic or deliberate delays in the charging or prosecution of youths do not undermine the principle that a person should not, in all instances, be held accountable in the same manner and suffer the same consequences as an adult for acts committed while still a youth.  It would be unjust to subject a person to a higher standard of accountability merely because of his or her age at the time of the trial.  The fact that an accused is now an adult cannot take away from the fact that he or she is being held accountable to society for the acts committed while still a youth.  On this point, however, I wish to pause to express, with respect, my disagreement with the suggestion put forward by Kerans J.A. that the older the accused the less persuasive is the claim to the special dispositions set out in the Act .  It is the age of an accused at the time of the offence which must determine the appropriate measure of accountability and not his or her age at the time of being charged or tried.

 

                   This concern over ensuring that all accused are similarly held accountable for the mistakes of their youth does not dictate that all of the special protections afforded under the Act  apply regardless of the age of an accused.  In enacting certain of the special protections set out in the Act , Parliament has sought to address concerns specific to the very fact that the accused being brought through our judicial system is a youth rather than an adult.  As such, special rules and procedures were enacted to take into account the unique needs and problems associated with dealing with a youth.  It would be illogical to extend the application of these rules and procedures to an adult accused.  One need only think of the requirement in the Act  that a young person be detained separate from any adult.  It would be absurd to hold that this requirement applies to a 35-year-old accused who absconded while a youth.  It is clear that the concerns underlying some of the special procedures and rules within the Act  no longer arise once an accused reaches adulthood.  Therefore, in my opinion, interpreting Parliament's use of the words "where the context requires" as imposing the need for reasoned consideration into the appropriateness of applying the Act 's special evidentiary rules to an adult accused accords with the very nature of the Act .

 

                   In making the above comments, I do not mean to suggest that only those provisions governing the dispositions available to an accused will continue to apply to an adult accused and not the other special protections afforded under the Act .  In this regard, I do not believe that the distinction drawn by Kerans J.A. between accountability and due process should be interpreted as suggesting that all of the special procedural provisions in the Act  should be found inapplicable to an adult accused.  The applicability of the various special protections set out in the Act  to an adult accused will have to be considered over time on an individual basis by the courts. Certainly, various of the other special provisions in the Act  going to procedural matters may also be found to remain applicable to an adult accused.  An obvious example is the prohibition set out in s. 38  of the Act  against the publication of information serving to identify a young person.  The concern underlying this provision of minimizing the stigma associated with the mistakes of a person's youth continues to apply notwithstanding the accused is no longer under the age of 18.

 

                   Having accepted that "where the context requires" should be interpreted as words of limitation, I am left to consider whether the actual context of s. 56 requires the term "young person" in s. 56(2) to be held to apply to a person over the age of 18.  In R. v. P. (J.), supra, Fish J.A. reasoned that since "young person" in s. 56(1) must be interpreted to include both an accused under and over the age of 18, that term also must be given a similar interpretation throughout the other subsections of s. 56.  I do not agree.  Fish J.A.'s argument rests on the initial premise that "young person" in s. 56(1) must also refer to a person over the age of 18.  With respect, this argument ignores the fact that s. 56 was enacted specifically to provide for special evidentiary rules for persons under the age of 18.  The general law relating to the admissibility of statements will apply to an adult as a matter of course and is not dependent upon s. 56(1).  The need to clarify the applicability of this body of law arises only because of the existence of the special requirements in s. 56(2).  Accordingly, it seems more appropriate to find that the meaning of "young person" in s. 56(1) is governed by the meaning attributable to that term in s. 56(2) rather than the other way around.  Moreover, Fish J.A. chose to interpret "context" in too narrow a manner.  He failed, in my respectful view, to appreciate that a crucial part of any contextual analysis involves consideration of the specific purpose underlying the impugned statutory provision.

 

                   The purpose of s. 56 has been noted by several commentators. For example, Nicholas Bala, in "The Young Offenders Act :  A Legal Framework", in Hudson, Hornick and Burrows, eds., Justice and The Young Offender in Canada (1988), at p. 17, has characterized the objective of s. 56 in the following manner:

 

                   Section 56 is based on the recognition that young persons may lack the sophistication and maturity to fully appreciate the legal consequences of making a statement, and so require special protection when being questioned by police.  It is also premised on the notion that some youths are easily intimidated by adult authority figures, and may make statements that they believe those authority figures expect to hear, even if the statements are false.  It is hoped that consultation with a parent or lawyer will preclude the making of such false statements.

 

                   This view was echoed by John C. Pearson, "Section 56(2)  of the Young Offenders Act : Forever Young?" (1990) , 76 C.R. (3d) 389, who states at pp. 390-91:

 

                   In determining how broad a reach s. 56(2) of the Y.O.A. should have, it must be remembered that the subsection codifies principles articulated in a substantial body of pre-Y.O.A. case law dealing with the confessions of juveniles.  This case law recognizes that most minors do not possess the capability to understand their rights as well as adults and have reduced capacity to protect themselves in contacts with authority figures.  From this recognition sprang the requirements in s. 56(2) for enhanced explanations and expanded consultation opportunities.  The rationale for these additional obligations disappears when the statement is taken from an adult.

 

                   In R. v. J. (J.T.), supra, this Court expressly considered the purpose of s. 56.  One of the issues in that case was whether statements made by a 17-year-old were admissible.  At the time the statements were made, several of the requirements set out in s. 56(2) had not been complied with by the police.  A majority of this Court found s. 56(2) to mandate the exclusion of these statements from evidence.  The majority decision emphasized that s. 56 exists to protect all young persons and that principles of fairness require that the section be applied uniformly without regard to the characteristics of the particular young person.  However, it is important to realize that, in that case, this Court was only concerned with the applicability of s. 56 to statements made by an accused under the age of 18 and did not consider whether this provision applied to an adult accused given the definition of "young person" in the Act .

 

                   Cory J., writing for the majority of this Court, acknowledged that the aim of s. 56 is to protect adolescents who, by virtue of their lack of maturity, are not likely to fully appreciate their legal rights and the consequences of making a statement to the police.  Cory J. stated, at pp. 766-67:

 

                   By its enactment of s. 56, Parliament has recognized the problems and difficulties that beset young people when confronted with authority.  It may seem unnecessary and frustrating to the police and society that a worldly wise, smug 17-year-old with apparent anti-social tendencies should receive the benefit of this section.  Yet it must be remembered that the section is to protect all young people of 17 years or less.  A young person is usually far more easily impressed and influenced by authoritarian figures.  No matter what the bravado and braggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority; certainly they would not appreciate the nature of their rights to the same extent as would most adults.  Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority.  A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure.  It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure.  [Emphasis in original.]

 

                   This same objective was further highlighted by L'Heureux-Dubé J., writing in dissent, who wrote, at p. 777:

 

                   The importance of the dispositions of the Young Offenders Act  cannot be overemphasized.  Police must be particularly vigilant to observe the rights of suspected young offenders, recognizing their tender years and susceptibility to influence.  Furthermore, young persons are characteristically more prone to intimidation when facing police interrogators.  Their restraint and abilities to preserve and act in their own best interest are somewhat attenuated.  It is the responsibility of the police and other authority figures to appreciate this discrepancy, and conduct themselves accordingly.

 

                   The Young Offenders Act  serves a dual role in this regard.  It establishes critical guidelines and principles that direct police behaviour and gives practical meaning to youth protection from potential transgressions in the evidence gathering process.  The Act  also formulates its own exclusionary rules -- clearly delineating what standards must be complied with in addition to the existing constitutional controls.  These directives acknowledge that young persons are not adults; their naivety and relative lack of experience mandate that their rights be preserved with an extra measure of protection.

 

                   None of these concerns, however, arise with respect to an accused over the age of 18.  No further protection beyond that already afforded under the Charter  and the common law is necessary to ensure that any statement made by an adult accused is truly voluntary.  It is evident from the absence of similar provisions in the Criminal Code  that Parliament has not deemed it necessary to afford an adult accused the right to consult with an adult relative prior to being questioned by police nor the right to have that relative present during questioning.  Persons over the age of 18 have long been deemed to possess sufficient maturity and control over the situation they may find themselves in to no long require the watchful eye of a parent or adult relative to ensure any statement made is voluntary and made with full knowledge of their legal rights.  It would be absurd to say that a statement made by a 25-year-old accused, for example, cannot be deemed to be made by a person having sufficient maturity because it was in regard to an offence he or she allegedly committed at a time when the law deemed him or her not to possess such maturity. There is clearly nothing underlying the purpose of s. 56(2) requiring its application to an adult accused.  As such, I am in complete agreement with both the Manitoba and Alberta Courts of Appeal that the context of s. 56(2) does not require that the term "young person" therein be interpreted to include a person, such as the appellant, who is over the age of 18.

 

                   Finally, it was submitted by the appellant that s. 3(2) supports interpreting s. 56(2) as equally applying to an adult accused.  Section 3(2) provides that the Act  shall be liberally construed to the end that young persons will be dealt with in accordance with the guiding principles set out in s. 3(1).  This argument fails to appreciate that the s. 3(1) principles underlying the special protection afforded under s. 56(2), namely those set out in s. 3(1)(c), (e), and (g), respond to concerns arising out of the fact that the accused is still a youth.  As already noted, persons over the age of 18 are deemed to possess a sufficient level of maturity and knowledge so as to no longer evoke these same concerns.  Moreover, as this Court has noted in the past, s. 3(2) does not preclude resort to normal principles of statutory interpretation nor to the ordinary meaning of words in interpreting the Act :  R. v. S. (S.), supra, at p. 274.  In other words, s. 3(2) cannot be used as a basis for ignoring the clear words of limitation found in the definition of the term "young person".

 

Conclusion

 

                   In my opinion, the Court of Appeal in this case correctly found s. 56 not to apply to the appellant.  The special protections afforded a young person under s. 56(2) bear no application to a person 18 years of age or older.  The admissibility of any statement made by such a person should be determined according to the law governing statements made by adults and not by s. 56(2).  Accordingly, I agree with the Court of Appeal that the trial judge erred in finding the impugned statement made by the appellant inadmissible by reason of s. 56(2)  of the Act .  The appeal is dismissed.

 

//Gonthier J.//

 

                   The reasons of Gonthier and Iacobucci JJ. were delivered by

 

                   Gonthier J. (dissenting) -- This case concerns the definition of "young person" in the Young Offenders Act , R.S.C., 1985, c. Y-1  (the "Act "), in the particular context of the special protection given by s. 56(2) of that Act  with regard to the statements of young persons.  I need not repeat the facts and procedural history of this case, as they have been stated by the Chief Justice.  However, I have reached a different conclusion as to the interpretation of the legislation and would allow the appeal.

 

                   The Young Offenders Act  sets up a special scheme with which to deal with offences committed by young persons.  To this end, the Act  gives jurisdiction over young offenders to the youth court, provides special rules of procedure and evidence, special forms of disposition and rights and procedures after disposition, and in general sets up an entire system applicable to young offenders.

 

                   Each section of the Act  contributes in some manner to the overall structure by which young offenders are to be dealt with, with each section outlining some specific procedure or right or jurisdiction.  Virtually every section of the Act  uses the words "young person" as defining the ambit of the section.  Therefore, only persons who are "young persons" may take advantage of each of the special provisions of the Act .

 

                   A young person is defined by s. 2  of the Act  as a person between the ages of 12 and 18, and, where the context requires, includes any person charged with having committed an offence while a young person.

 

                   2. (1)  In this Act ,

 

                                                                   . . .

 

"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act  with having committed an offence while he was a young person or is found guilty of an offence under this Act .

 

                   This definition of "young person" has two elements, which I will refer to as the "time" element and the "status" element.  The first part of the definition, the time element, refers merely to numerical age.  The second part, the status element, tells us at what point the time element is to be measured, that is, at what stage of the process a person must be within the parameters of the time element in order to have the status of a young person under the Act .

 

                   In order to understand the function of the "status" element better, it is useful to discuss what would happen if it were removed from the definition.  Each of the references to "young person' in the Act  is made in the context of some specific right, procedure or jurisdiction.  For instance, some sections deal with the trial of young persons, others deal with the rights of young persons after a disposition has been made, some with procedures before trial and so on.  If there were no status element to the definition of young person, then the application of each of these sections would be controlled by the age of the offender at the time the sections would be applied.

 

                   Such a situation would cause difficulties in the case of persons who age past the time boundary while the Act  is being applied to them.  I will refer to such persons as "transitional" offenders.  Suppose an offender is 17 at the time the offence is committed, but 18 when the trial takes place, and turns 19 while in custody due to the eventual disposition of the case.  If the status of such a transitional offender is determined anew at each stage of the process, and in the context of each particular section of the Act  that governs that part of the process, then the transitional offender could lose his status partway through.

 

                   The "status" element of the definition prevents these difficulties by fixing the status of the offender according to the offender's age at the time of the offence.  If this age is within the time element, then the offender is within the scheme of the Act  despite any delays which may occur.

 

                   Of course, the matter is not quite that simple, as the "status" element of the definition is preceded by the words "where the context requires".  This clearly means that sometimes the words "young person" will be used in the Act  in a way that only involves the "time" element, and sometimes will be used in a way that includes the "status" element, and it is the context that is to tell us which is which.

 

                   It is argued that "context" refers to the general purposes of the Young Offenders Act , and that this context requires that the protections of the Act  be available to the transitional offender where the purposes of the Act  are served by doing so.

 

                   I find myself unable to agree with this argument.  I begin with the observation that the logical consequences of this interpretation are startling, to say the least.  As I pointed out above, the words "young person" occur in virtually every section of the Act .  Therefore, it would be the responsibility of the courts to examine virtually every provision of the Act  in order to determine on a general policy basis whether it is suitable to being applied to transitional offenders or not.  In this way, the courts are to construct whatever scheme to deal with transitional offenders seems best to them, by picking and choosing amongst the various procedures, jurisdictions and protections of the Act .

 

                   This consequence was recognized by Fish J.A. in R. v. P. (J.) (1989), 53 C.C.C. (3d) 24 (Que. C.A.), at p. 34.  He thought that Parliament could not have intended such a consequence:

 

It [Parliament] has not launched individual judges on an uncharted odyssey through the various sections of the Act  to determine which of its safeguards, in their view, are unnecessary or inappropriate where the alleged offender is over rather than under 18.

 

                   Nor has Parliament invited a judicial value judgment regarding the applicability to over-age defendants of s. 56, or of the alternative measures provided in s. 4, or of the special right to counsel created by s. 11, or of the unique dispositions permitted under s. 20, or -- in the name of "context" -- of any other protection or safeguard provided to young persons as part of the general scheme of the Act .  [Emphasis in original.]

 

                   I suppose that if Parliament had truly entrusted the courts with such a task, it would not be impossible to undertake the legal odyssey that this would entail.  However, it seems rather strange that Parliament would have absolutely nothing to say about the scheme that ought to be applied to transitional offenders, and would leave the construction of such a scheme to whatever the courts thought best.

 

                   Indeed, the words chosen by Parliament are hardly conducive to the conclusion that Parliament meant to delegate such an enterprise to the courts.  As Kerans J.A. pointed out in his judgment in the Court of Appeal, the phrase "where the context requires" is really nothing more than a plain language version of an old drafter's tool, mutatis mutandis.  Often, a particular kind of definition will be convenient from a drafting point of view, though in certain cases the context will indicate that something else is meant.  It is expedient in such cases to include a general definition, acknowledging that the context will indicate certain exceptions, without the need to indicate each one.

 

                   However, the relevant context is the technical or grammatical context, as befits a technical aid in drafting.  If the context is to be a matter of substantive policy, then we have moved far from drafting and are instead addressing the central policy of the Act .  To rest the whole crux of the policy of the Act  with regard to transitional offenders on "where the context requires" simply puts more weight on those words than they can reasonably bear.

 

                   Despite one's surprise that Parliament would have delegated the construction of a scheme with regard to transitional offenders to the courts, and despite the inadequacy of the language said to achieve this result, such a conclusion might be inescapable if one could find in the Act  no specific decision by Parliament as to how transitional offenders should be treated.  However, when one examines the rest of the Act , one discovers that the assumption that Parliament has said nothing concerning the scheme that ought to be applied to transitional offenders and has left the construction of that scheme to the courts is, in my view, simply wrong.

 

                   Section 5  of the Act  clearly provides that transitional offenders are to receive the full benefit of the provisions of the Act , with only two exceptions, which are the system of military courts and the possibility of transfer to adult court.  The French text clearly refers to the benefits of the Act , and since it is more favourable to the accused than the English text (which says that the transitional offender shall be "dealt with" according to the Act ), it should be followed.

 

                   5. (1)  Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act .

 

                                                                   . . .

 

                   (3)  Proceedings commenced under this Act  against a young person may be continued, after he becomes an adult, in all respects as if he remained a young person.

 

                   In the Court of Appeal, Kerans J.A. argued that the statement in s. 5 that the transitional offender shall receive the benefits of the Act  does not literally dispose of the issue, since one must look at the Act  to see what its benefits are, and the definition of "young person" is itself part of the Act .  Therefore, if in the application of the definition a transitional offender is not a young person with regard to a particular benefit, then that benefit is not a benefit of the Act  for such a person.

 

                   If this argument is accepted, then the exception for s. 16 is superfluous.  Section 16, like the definition of young person, would simply be part of the Act  to which the offender was subject, and would require no specific exception.  Indeed, the fact that there are two specific exceptions gives some indication that Parliament put its mind to the question of transitional offenders, and decided that they should have all the benefits of the Act , save those specifically mentioned.

 

                   In any event, s. 5 is a much better guide to the intention of Parliament with regard to transitional offenders than is s. 2.  Section 5 clearly addresses the policy issue at the heart of this case, which is how to draw the line in giving special protection to young offenders, and clearly offers all the protections of the Act  to the transitional offender.  The flexibility inherent in the language of the definition in s. 2 is best understood not as a question of policy, but as an aid in drafting.

 

                   In holding that "where the context requires" is merely a drafting aid, rather than a tool of policy, I do not mean to accept the argument of the appellant that those words are merely a syntactical bridge, equivalent to the word "or".  To accept such an argument would make the words "where the context requires" themselves superfluous.  Instead, there are some examples in the Act  where it is clear as a matter of drafting, rather than policy, that "young person" does not include the status element of the definition.  This is apparent in s. 2 itself.  It says, and I repeat it for convenience:

 

"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act  with having committed an offence while he was a young person or is found guilty of an offence under this Act .

 

                   When this section refers to "any person who is charged under this Act  with having committed an offence while he was a young person", it is clear that the reference to young person is to the "time" element only, not the "status" element.  That is, when the definition refers to an offence being committed while the person was a young person, it means only that the offence was committed when the person was between 12 and 17, and not an offence that was committed while the person was charged with committing an offence when between 12 and 17.

 

                   Section 5 is a second example.  It reads:

 

                   5. (1)  Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act .

 

                                                                   . . .

 

                   (3)  Proceedings commenced under this Act  against a young person may be continued, after he becomes an adult, in all respects as if he remained a young person.

 

                   In s. 5(1), the exclusive jurisdiction in respect of an offence committed by a person while a young person must refer only to the time element.  This is even more obvious in s. 5(3).  Subsection 3 deals with a young person who becomes an adult after proceedings have been commenced.  If young person in this section included a person charged with having committed an offence under the Act , then such a young person could never become an adult after proceedings had been commenced, since adult is defined as someone who is neither a young person nor a child.  Thus, young person must only refer to the time element here.

 

                   There are other examples in the Act  where as a grammatical matter it is clear that "young person" cannot include a person charged with having committed an offence while between 12 and 17.  This is not a matter of policy, however, and has nothing to do with any substantive rights under the Act .  It instead is merely a grammatical aid which, perhaps, it was thought would simplify the drafting of the Act  (though it would appear not to have simplified its understanding).

 

                   Having settled upon this interpretation of the definition of "young person", it remains only to apply it to the section at hand in this case, which is s. 56(2), and reads as follows:

 

                   56.  . . .

 

                   (2)  No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority is admissible against the young person unless

 

(a)the statement was voluntary;

 

(b)               the person to whom the statement was given has, before the statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that

 

(i)  the young person is under no obligation to give a statement,

 

(ii)  any statement given by him may be used as evidence in proceedings against him,

 

(iii)  the young person has the right to consult another person in accordance with paragraph (c), and

 

(iv)  any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise;

 

(c)  the young person has, before the statement was made, been given a reasonable opportunity to consult with counsel or a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person; and

 

(d)  where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

 

                   I can certainly see that there is a policy argument concerning whether transitional offenders require the protection of s. 56(2) after turning 18.  However, I need not say anything on either side of such an argument, for in my view it has been settled by the choice made by Parliament in s. 5  of the Act .  There is nothing in the grammatical context of s. 56(2) to suggest that its use of "young person" is limited to the time element.  Parliament has decided to extend this protection to transitional offenders.

 

                   Subject to the National Defence Act, Parliament has entrusted the youth court with exclusive jurisdiction over anyone who has the status of a young person and that person is entitled to all the benefits of the Act  until such time as the matter is disposed of by the youth court or the person is transferred to adult court.  (This does not contradict the assumption in R. v. J. (J.T.), [1990] 2 S.C.R. 755, that the protection of s. 56(2) survives a transfer to adult court, since the statement in that case was taken at a time when the accused was under the jurisdiction of the youth court.)  The latter alternative is likewise under the control of the youth court and is available whenever the provisions of the Young Offenders Act  are found inappropriate for dealing with the circumstances of the young person, having regard to the factors stated in the Act , which include the age, maturity, character and background of the young person, the adequacy of the Young Offenders Act  and the Criminal Code  that would apply to the young person in the event of a transfer and any factor the court considers relevant.

 

                   In this way, Parliament has placed persons charged with an offence under the Act  under the protection of the youth court and attributed to that judicial authority rather than police or prosecutorial authorities the responsibility of determining, having regard to the factors and circumstances referred to, whether the accused should continue to benefit from the provisions of the Act  or be transferred to adult court.  The Act  makes no distinction between provisions dealing with accountability and those dealing with due process.  The scope of the protection afforded by the Act  is all encompassing but whether it is to be continued in any given case is to be determined by the judicial authority of the youth court.

 

                   I would therefore allow the appeal and restore the acquittal entered by the trial judge.

 

                   Appeal dismissed, Gonthier and Iacobucci JJ. dissenting.

 

                   Solicitors for the appellant:  Code Hunter, Calgary.

 

                   Solicitor for the respondent:  The Attorney General for Alberta, Calgary.