Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
motion to quash an appeal
Criminal law ‑‑ Young offenders ‑‑ Appeal to Supreme Court of Canada ‑‑ Young offender found guilty of two indictable offences ‑‑ Court of Appeal dismissing young offender's appeal with one judge dissenting ‑‑ Young offender appealing to Supreme Court as of right ‑‑ Whether appeal as of right lies to Supreme Court ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, s. 27(1) , (5) .
In proceedings by way of indictment, a young offender was found guilty in youth court of common assault and of having in his possession a weapon or imitation thereof for a purpose dangerous to the public peace. The Court of Appeal dismissed the young offender's appeal, one judge dissenting on a question of law. The young offender then appealed to the Supreme Court as of right pursuant to s. 691(1) (a) of the Criminal Code and s. 27(1) of the Young Offenders Act . The Crown brought a motion to quash the appeal on the ground that, pursuant to s. 27(5) of the Young Offenders Act , such an appeal could not proceed unless leave to appeal had been granted by the Court.
Held: The motion should be granted and the appeal quashed.
The clear and unambiguous wording of s. 27(5) precludes appeals as of right, whether brought by the Crown or the young offender, in matters involving persons tried for indictable offences under the Young Offenders Act . In light of the fundamental differences between the treatment of young offenders and adults who commit criminal offences, it is not anomalous that a young offender enjoys more restricted rights of appeal than an adult offender. Further, in the young offender cases in which this Court has proceeded as if there was an appeal as of right, there is no reference to s. 27(5) and no indication that the jurisdiction to proceed as of right was ever challenged. Those cases are therefore of little assistance in determining the proper interpretation of s. 27(5). Finally, it would be inappropriate for this Court in the present proceedings to entertain a challenge of s. 27(5) under s. 15(1) of the Canadian Charter of Rights and Freedoms .
Cases Cited
Referred to: Kienapple v. The Queen, [1975] 1 S.C.R. 729.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 15(1) .
Criminal Code , R.S.C., 1985, c. C‑46 , s. 691(1) (a).
Juvenile Delinquents Act, R.S.C. 1970, c. J‑3, s. 37.
Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41 [am. 1974‑75‑76, c. 18, s. 5].
Young Offenders Act , R.S.C., 1985, c. Y‑1 , s. 27(1) [rep. & sub. c. 24 (2nd Supp.), s. 20], (5) [idem].
MOTION to quash an appeal as of right from a judgment of the British Columbia Court of Appeal (1994), 40 B.C.A.C. 60, 65 W.A.C. 60, 87 C.C.C. (3d) 314, upholding the youth's convictions for assault and possession of a weapon for a purpose dangerous to the public peace. Motion granted.
William F. Ehrcke, for the applicant.
Henry S. Brown, Q.C., for the respondent.
The judgment of the Court was delivered by
Sopinka J. -- This motion raises the issue of whether an appeal as of right lies to this Court in matters governed by the Young Offenders Act , R.S.C., 1985, c. Y-1 . At the conclusion of oral argument, the motion was granted and the appeal quashed with reasons to follow. Hence these reasons.
Facts
In proceedings by way of indictment, the young offender was found guilty in youth court of common assault and of having in his possession a weapon or imitation thereof for a purpose dangerous to the public peace. The young offender's appeal to the Court of Appeal for British Columbia was dismissed: (1994), 40 B.C.A.C. 60, 65 W.A.C. 60, 87 C.C.C. (3d) 314. Rowles J.A. dissented on the question of whether in the circumstances of this case the conviction for both these offences was barred by the rule against multiple convictions for the same delict as set out in Kienapple v. The Queen, [1975] 1 S.C.R. 729.
Counsel for the Crown wrote to counsel for the young offender reminding her of the time limit within which she could apply for leave to appeal and quoted from s. 27(5) of the Young Offenders Act . Subsequently, the young offender filed a notice of appeal indicating an intention to appeal to this Court as of right pursuant to s. 691(1) (a) of the Criminal Code , R.S.C., 1985, c. C-46 , and s. 27(1) of the Young Offenders Act . Counsel for the Crown informed counsel for the young offender that the Crown would take the position that the appeal could not proceed in the absence of leave to appeal having been granted. The Crown now brings a motion to quash the appeal on this ground.
Relevant Statutory Provisions
Young Offenders Act , R.S.C., 1985, c. Y-1
27. (1) An appeal lies under this Act in respect of an indictable offence or an offence that the Attorney General or his agent elects to proceed with as an indictable offence in accordance with Part XXI of the Criminal Code , which Part applies with such modifications as the circumstances require.
. . .
(5) No appeal lies pursuant to subsection (1) from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information to the Supreme Court of Canada unless leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment of the court of appeal is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.
Analysis
The literal interpretation of s. 27(5) clearly favours the position taken by the Crown. Section 27(1) of the Young Offenders Act is a general provision incorporating by reference the provisions of the Criminal Code with respect to appeals in indictable offences. Those provisions provide for appeals to the Court of Appeal of a province and to this Court. Section 27(5) is a section dealing specifically with appeals to this Court. It provides that with respect to the appeals authorized by s. 27(1) and which are to this Court leave to appeal is required. I cannot accept the submission of the young offender that s. 27(5) only dictates the time in which leave to appeal must be sought without affecting the cases in which appeals lie as of right pursuant to s. 27(1) and the provisions of the Criminal Code . In my view this argument is untenable given that s. 27(5) states, "[n]o appeal lies pursuant to subsection (1) . . . to the Supreme Court of Canada unless leave to appeal is granted . . .". Acceptance of this argument would require that the subsection be rewritten as follows: "No appeal, in respect of which leave to appeal is required, lies pursuant to subsection (1). . .to the Supreme Court of Canada unless leave to appeal is granted . . .".
Notwithstanding what appears to be the clear literal interpretation of the subsection, it is suggested that it is anomalous that a young person found guilty of an offence should enjoy more restricted rights of appeal than an adult who is convicted of an offence. A brief history of these provisions shows that there is no anomaly.
The Juvenile Delinquents Act, R.S.C. 1970, c. J-3, was the precursor of the Young Offenders Act . Section 37 provided no appeal to either the Superior Court or the Court of Appeal of the province unless special leave was obtained. No provision was made for an appeal to the Supreme Court of Canada although leave to appeal could be sought under s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19 (now s. 40). The justification for less ample rights of appeal being accorded to young offenders lay in the fundamental difference in the nature of the proceedings. The purpose of the proceedings was rehabilitation rather than punishment. Special summary procedures before juvenile courts tended to make the proceedings less formal and less protracted. No conviction resulted from a finding of guilt and the stigma attaching to the proceedings and their result was minimal in comparison to proceedings in adult criminal courts.
The Young Offenders Act broadened the rights of appeal to the Court of Appeal by eliminating the requirement of leave in indictable offences in those cases in which an adult would have an appeal as of right. This did not mean that all avenues of appeal would be extended to parallel those available to adults. The policy favouring the early resolution of the adjudicative stage in order to facilitate commencement of rehabilitation would explain why Parliament did not extend appeals as of right to this Court. This policy and the protection of the rights of young offenders would be served by specifically providing for an appeal to this court with leave. Section 27(5) accomplishes these purposes.
There are a number of cases in which this Court has proceeded as if there was an appeal as of right based either on a dissenting judgment in the Court of Appeal or on the fact that there had been acquittal at trial which was overturned by the Court of Appeal. There is no indication in any of those cases that the jurisdiction to proceed as of right was ever challenged. None of those cases contain any reference to s. 27(5) or any explanation of how its plain meaning was avoided. The matter was per incuriam. Therefore those cases are of little assistance in determining the proper interpretation of s. 27(5). Now that the question has been raised the Court is bound to give effect to the clear and unambiguous wording of s. 27(5) which precludes appeals as of right, whether brought by the Crown or the accused, in matters involving persons tried for indictable offences under the Young Offenders Act . Cases in which the Court accepted jurisdiction to hear the appeals must be treated as appeals in respect of which leave to appeal was thereby granted.
The young offender submitted orally and in his factum that if we accepted the Crown's interpretation of the subsection then we should find that it violates s. 15(1) of the Canadian Charter of Rights and Freedoms in that it discriminates against young persons by withholding rights of appeal, an advantage available to adults. As pointed out above, there are fundamental differences between the treatment of young offenders and adults who commit criminal offences. Given these differences, I find it difficult to accept that a young offender can select one aspect of the scheme and claim entitlement to the equal benefit of it with adults without taking into account the many related benefits accorded to young persons which are denied to adults. Nonetheless I would not foreclose the opportunity to advance this submission in appropriate proceedings. In this case the point is raised only in response to a motion to quash. No notice has been given to the Attorney General of Canada nor to other provincial Attorneys General. It follows that there has been no opportunity to present evidence with respect to s. 1 of the Charter . In these circumstances it would be inappropriate for this Court to entertain a challenge to the subsection.
In accordance with the oral judgment delivered at the conclusion of argument the application is granted and the appeal is quashed.
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