Reference Re Young Offenders Act (P.E.I.), [1991] 1 SCR 252

Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252

 

IN THE MATTER OF a reference to the Supreme

Court of the Province of Prince Edward Island,

Appeal Division, pursuant to the Provisions of

the Supreme Court Act, R.S.P.E.I., 1974, Cap. S‑102,

that the Lieutenant Governor in Council for the

Province of Prince Edward Island has requested

the Supreme Court Appeal Division for the Province

of Prince Edward Island to hear and consider in

accordance with the provisions of s. 18 of the

Supreme Court Act, the questions contained in an

Order of the Lieutenant Governor in Council, being

No. EC364/88, which questions generally concern the

constitutional validity of the Young Offenders Act,

Stats. Can. 1980‑81‑82‑83, Cap. 110 and of the Youth

Court in the Province of Prince Edward Island and the

constitutional validity of the appointment process of

Youth Court Judges

 

D.T.M.                                                                                                    Appellant

 

v.

 

The Attorney General of Prince Edward Island and

the Attorney General of Canada                                                           Respondents

 

and

 

The Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General for New Brunswick and

the Attorney General of Nova Scotia                                                   Interveners

 

indexed as:  reference re young offenders act (p.e.i.)

 

File No.:  21245.

 

1990:  May 31*.

 

Present:  Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.

 

on appeal from the prince edward island supreme court, appeal division

 

                    Constitutional law ‑‑ Courts ‑‑ Jurisdiction ‑‑ Provincially appointed judge presiding over youth court and declining jurisdiction ‑‑ Whether jurisdiction conferred on youth court reserved to superior court judges ‑‑ Whether establishment of youth court within provincial legislative competence ‑‑ Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110 ‑‑ Constitution Act, 1867, ss. 92 , 96 .

 

                    Courts ‑‑ Jurisdiction ‑‑ Provincially appointed judge presiding over youth court and declining jurisdiction ‑‑ Whether jurisdiction conferred on youth court reserved to superior court judges ‑‑ Whether establishment of youth court within provincial legislative competence ‑‑ Whether youth court judges must be appointed by Governor in Council ‑‑ Whether supreme court and provincial court judges can be appointed youth court judges by Lieutenant Governor in Council ‑‑ Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110 ‑‑ Constitution Act, 1867, ss. 92 , 96 .

 

                    Appellant, a young person within the meaning of the Young Offenders Act, was charged with an offence under the Criminal Code  and appeared before a judge of the P.E.I. provincial court sitting as a youth court judge, who declined jurisdiction.  The Lieutenant Governor in Council referred certain questions to the P.E.I.  Supreme Court, Appeal Division, which raised the following issues:  (1) whether the Young Offenders Act is unconstitutional to the extent it does not specifically require that the youth court be presided over by a judge appointed pursuant to s. 96  of the Constitution Act, 1867 ; (2) whether the establishment of a youth court is within provincial legislative competence; (3) whether a youth court judge must be appointed by the Governor in Council; and, if not, (4) whether provincial court judges and supreme court judges can be appointed judges of the youth court by the Lieutenant Governor in Council.  The court found that provincially appointed judges could preside over youth courts without offending s. 96  of the Constitution Act, 1867 , that the establishment of youth courts is within provincial competence, that youth court judges need not be appointed by the Governor in Council, and that provincial court judges and supreme court judges can be appointed youth court judges by the Lieutenant Governor in Council.

 

                    Held:  The appeal should be dismissed.

 

                    Per Lamer C.J. and Gonthier and Cory JJ.:  The jurisdiction conferred on youth courts by the Young Offenders Act is not reserved to superior court judges under s. 96  of the Constitution Act, 1867 .  The first step of the test set out in the Residential Tenancies case for deciding if a power or jurisdiction can be constitutionally given to an inferior court or an administrative tribunal involves determining whether it was exercised exclusively by the superior courts at the time of Confederation.  The characterization of the issue must be sufficiently narrow to avoid large accretions of jurisdiction by inferior courts but not so narrow as to freeze their jurisdiction at what it was in 1867.  The jurisdiction in issue here, which should be characterized as jurisdiction over young persons charged with a criminal offence, did not exist at Confederation but was part of a scheme designed to respond to a novel concern of society.  Although in a limited number of circumstances prior to 1867 some distinction was made between young persons and adults as regards offences, these isolated examples cannot be compared with the comprehensive scheme set up by the Young Offenders Act, which recognizes the special situation and special needs of young offenders, and is primarily oriented towards rehabilitation rather than punishment.  The first step of the Residential Tenancies test has thus been satisfied and inferior courts are competent to exercise the jurisdiction provided for in the Young Offenders Act.  Further, even if such jurisdiction had existed at Confederation, it would have been in the nature of powers exercised by inferior courts, since offences that were less stigmatized and which carried light sentences were already within their jurisdiction in 1867.

 

                    A superior court judge can be appointed a judge of a youth court by the Lieutenant Governor in Council.  Section 96  of the Constitution Act, 1867 , which is not designed to protect a "core" of jurisdiction for inferior courts but operates to protect the core jurisdiction of superior courts, does not preclude any level of government from giving superior court judges jurisdiction which did not exist in 1867.  Superior courts have long been recognized as courts of general competence and it is only if jurisdiction is validly granted to another body that they will be prevented from exercising the power in question.

 

                    Per Wilson and McLachlin JJ.:  While a substantial part of Lamer C.J.'s reasons were agreed with, the three‑part test established in the Residential Tenancies and Sobeys Stores decisions must be applied to cases of this kind.  While inferior courts in the four confederating provinces did in certain cases have limited jurisdiction over young offenders, the vast majority of the offences now covered by the Young Offenders Act were required to be tried before the superior courts of the province.  The jurisdiction of the youth courts thus broadly conforms to that exercised by s. 96 courts at Confederation, and it is necessary to determine whether it is a "judicial power", under the second branch of the Residential Tenancies test.  Unlike the administrative bodies for which this part of the test was designed, the youth courts are just criminal courts with a specialized clientele, and their function is clearly judicial in nature.  It is therefore necessary to go on to determine whether the powers of the youth courts are "necessarily incidental" to broader policy aims set out in the Act or whether they are effectively usurping the role of s. 96 courts.  The aim of the legislation, which focuses on rehabilitation rather than punishment and stigmatization, is both legitimate and desirable and the powers bestowed upon youth courts are necessarily incidental to its attainment.  The powers conferred by the Act on youth courts should therefore be upheld under the third part of the Residential Tenancies test.

 

                    Per La Forest and L'Heureux‑Dubé JJ.:  Only the first stage of the Residential Tenancies test, i.e. whether the impugned power came within the core functions of a superior court at Confederation, need be considered.  The second and third stages of that test are of no relevance to the question of whether an ordinary court is exercising a function historically assigned to superior courts; they apply only to administrative tribunals.  The sole question then is the proper characterization of the power.  For the reasons given by Lamer C.J., the Young Offenders Act constitutes a jurisdiction over young persons offending the criminal law that did not exist at Confederation but is part of a general scheme designed to respond to a novel concern of society and is not part of the core jurisdiction protected by s. 96  of the Constitution Act, 1867 .

 

Cases Cited

 

By Lamer C.J.

 

                    Applied:  Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; considered:  Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; referred to:  Reference re Adoption Act, [1938] S.C.R. 398; Attorney General of British Columbia v. Smith [1967] S.C.R. 702; Attorney General of Quebec v. Attorney General of Canada, [1945] S.C.R. 600; Ministre du Revenu National v. Lafleur, [1964] S.C.R. 412; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. M.(S.H.), [1989] 2 S.C.R. 446; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134.

 

By Wilson J.

 

                    Applied:  Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; referred to:  R. v. M.(S.H.), [1989] 2 S.C.R. 446.

 

By La Forest J.

 

                    Considered:  Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; referred to:  Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238.

 

Statutes and Regulations Cited

 

Act for the more speedy trial and punishment of juvenile offenders, S. Prov. C. 1857, 20 Vict., c. 29.

 

Act to abolish the right of Courts of Quarter Sessions and Recorders' Courts to try Treasons and Capital Felonies, S. Prov. C. 1861, 24 Vict., c. 14.

 

Act to Re‑unite the Provinces of Upper and Lower Canada, and for the Government of Canada (U.K.), 3 & 4 Vict., c. 35.

 

Constitution Act, 1867 , ss. 91 , 92 , 96 .

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 469 .

 

Juvenile Delinquents Act, 1908, S.C. 1908, c. 40.

 

Juvenile Delinquents Act, 1929, S.C. 1929, c. 46.

 

Of petty offences, trespasses, and assaults, R.S.N.S. 1864, c. 147.

 

State Children Act, 1895 (S. Austl.), 58 & 59 Vict., No. 641.

 

Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 2, 5 [am. 1986, c. 32, s. 3], 20.

 

                    APPEAL from an opinion pronounced by the Prince Edward Island Supreme Court, Appeal Division (1988), 73 Nfld. & P.E.I.R. 115, 229 A.P.R. 115, 55 D.L.R. (4th) 539, 45 C.C.C (3d) 264, on a reference to determine the constitutional validity of the Young Offenders Act, the establishment by the province of Youth Courts and the appointment by the province of Youth Court judges.  Appeal dismissed.

 

                    J. McEvoy and J.L. MacDougall, for the appellant.

                    R. B. Hubley, Q.C., and Agnes MacDonald, for the respondent the Attorney General of Prince Edward Island.

 

                    John R. Power, Q.C., James Mabbutt, Q.C., and James Bissell, for the respondent the Attorney General of Canada.

 

                    John Cavarzan, Q.C., and Timothy Macklem, for the intervener the Attorney General for Ontario.

 

                    Jean Bouchard and Jean Turmel, for the intervener the Attorney General of Quebec.

 

                    Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

                    Robert E. Lutes and Louise Walsh Poirier, for the intervener the Attorney General of Nova Scotia.

 

//Lamer C.J.//

 

                    The reasons of Lamer C.J. and Gonthier and Cory JJ. were delivered by

 

                     Lamer C.J. -- This case involves the issue of whether s. 96  of the Constitution Act, 1867  precludes the appointment of inferior court judges to sit on Youth Courts pursuant to the Young Offenders Act, S.C. 1980-81-82-83, c. 110.  In other words, can provincially appointed judges preside over Youth Courts in view of the jurisdiction conferred upon Youth Courts by the Young Offenders Act or is that jurisdiction reserved by virtue of s. 96  of the Constitution Act, 1867  to superior court judges?

 

Facts

 

                    Pursuant to the provisions of the Young Offenders Act, the province of Prince Edward Island had designated the Provincial Court of Prince Edward Island as a Youth Court.  The appellant, a young person within the meaning of the Young Offenders Act, had been charged with an offence under the Criminal Code  and had appeared before a judge of the Provincial Court who was sitting as a judge of the Youth Court.  Thompson Prov. Ct. J. declined jurisdiction.  Subsequently, the Lieutenant Governor in Council referred the issues raised by this case to the Supreme Court of Prince Edward Island, Appeal Division.  Three questions concerning the constitutional validity of the Young Offenders Act, the establishment by the Province of Youth Courts and the appointment by the Province of the judges sitting in these courts, were the object of the reference.  The questions were framed in the same way as the constitutional questions stated by Dickson C.J. for the appeal to this Court and are set out below.

 

Issues

 

                    The following constitutional questions were stated by Dickson C.J. on May 15, 1989:

 

1.Is the Young Offenders Act, S.C. 1980-81-82-83, c. 110, unconstitutional on the basis and to the extent that it does not specifically require that the Youth Court be presided over by a Judge appointed pursuant to s. 96  of the Constitution Act, 1867 ?

 

2.Is the establishment by a Province of a Youth Court as defined by s. 2 of the Young Offenders Act within the legislative competence of the Province pursuant to s. 92  of the Constitution Act, 1867 ?

 

3.(a)Is the appointment of a Youth Court Judge an appointment which must be made by the Governor in Council pursuant to s. 96  of the Constitution Act, 1867 ?

 

(b)  If the answer to (a) is no,

 

(i)Can a Provincial Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?

 

(ii)Can a Supreme Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?

 

Relevant Statutory Provisions

 

Young Offenders Act

 

                    2.  (1) ...

 

"offence" means an offence created by an Act of Parliament or by any regulation, rule, order, by-law or ordinance made thereunder other than an ordinance of the Yukon Territory or the Northwest Territories;

 

                                                                          ...

 

"youth court" means a court established or designated by or under an Act of the legislature of a province, or designated by the Governor in Council or the Lieutenant Governor in Council of a province, as a youth court for the purposes of this Act;

 

                    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.

 

                                                                          ...

 

                    (4)  A youth court judge, for the purpose of carrying out the provisions of this Act, is a justice and a provincial court judge and has the jurisdiction and powers of a summary conviction court under the Criminal Code .

 

Constitution Act, 1867 

 

                    91.  It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, --

 

                                                                          ...

 

                    27.  The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

 

                    92.  In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,  --

 

                                                                         . . .

 

                    14.  The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

 

                    96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

 

Judgment of the Prince Edward Island Supreme Court, Appeal Division (1988), 73 Nfld. & P.E.I.R. 115

 

Mitchell J.A., Carruthers C.J. concurring

 

                    Mitchell J.A. concluded that provincially appointed judges could preside over Youth Courts without offending s. 96  of the Constitution Act, 1867 .  He was of the opinion that Provincial Courts, as Youth Courts, did not exercise any power reserved exclusively for s. 96 judges in view of the fact that under the Young Offenders Act they only have the power to try offences carrying limited penalties compared to an adult charged under the same section of the Criminal Code . 

 

                    He further concluded that the jurisdiction of the superior courts is not obliterated under the Young Offenders Act scheme because the Provincial Court as a Youth Court remains subject to the supervision of the superior court.

 

McQuaid J.A.

 

                    McQuaid J.A. found that the legislation was constitutionally valid, as he concluded that the Young Offenders Act is a new and distinct legal regime which could be administered by a provincial court judge.  In reaching this decision, McQuaid J.A. considered at length the issues of the territorial scope and the date of reference of the historical inquiry necessary to discover whether a power is exclusively reserved, via s. 96, to superior court judges.  After McQuaid J.A. wrote his opinion, this Court decided in Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238, that the historical inquiry should focus on the situation in the four confederating provinces, with possible reference to the situation in England, at the time of Confederation.  Therefore, most of McQuaid J.A.'s concerns have been decisively settled and are no longer in issue before this Court.

 

Analysis

 

                    This Court, in Reference re Adoption Act, [1938] S.C.R. 398, addressed the issue of the constitutionality of the Juvenile Courts created under the authority of The Juvenile Delinquents Act, 1929, S.C. 1929, c. 46.  The Juvenile Delinquents Act and the courts created under it can clearly be regarded as the ancestors of the Young Offenders Act and of the Youth Courts.  Duff C.J. expressed his opinion that such courts could validly exercise the jurisdiction conferred upon them in the following way, at p. 422:

 

                    Now, the Juvenile Court is recognized and, to my mind, properly beyond all doubt recognized as a properly constituted court for the purpose of dealing with offences under the Dominion Juvenile Delinquents' Act, 1929 (19-20 Geo. V, ch. 46) and the amendments of 1935 and 1936 (25-26 Geo. V, ch. 41, and 1 Edw. VIII, ch. 40).

 

                    Jurisdiction under the old law of the Province of Canada in respect of offences by juvenile delinquents was exercisable by two justices of the peace, by a recorder, or by a stipendiary magistrate.  A Juvenile Court constituted for exercising this jurisdiction in respect of juvenile offenders is plainly to my mind a court not within s. 96 and it does not become so by virtue of the fact that the officers presiding over it are invested with further jurisdiction of the same character as is validly given to magistrates and justices of the peace.

 

                    The scheme created under the Juvenile Delinquents Act is undoubtedly similar enough to that created under the Young Offenders Act to strongly support the position that the constitutional validity of a separate inferior court system to deal with young offenders has already been decided by this Court in Reference re Adoption Act.  However, given that the jurisprudence of this Court with respect to s. 96 has provided some refinements to the test applicable to decide the constitutional validity of the power of inferior courts, I think it appropriate to expand on the reasons given by Duff C.J. in Reference re Adoption Act.  Furthermore, it appears that the jurisdiction of the Juvenile Courts was not in issue in that case.  Therefore, I think it necessary to review the issue of the constitutionality of the Young Offenders Act in light of the test developed by this Court in recent years.

 

                    The Young Offenders Act was enacted pursuant to Parliament's competence over criminal law and procedure (s. 91(27) of the Constitution Act, 1867 :  see Attorney General of British Columbia v. Smith, [1967] S.C.R. 702, which supports the constitutional validity of the Juvenile Delinquents Act under that head of power).  It was enacted in response to the criticisms which had been made of the Juvenile Delinquents Act over the years.  The nexus between the Young Offenders Act and the criminal law is even clearer as the Young Offenders Act puts more emphasis than the Juvenile Delinquents Act did on the responsibility towards society that young persons should bear for their acts.

 

                    Parliament's power over criminal law and procedure enables it not only to create the substantive law relating to crimes but also to grant jurisdiction over the offences it creates to specific courts.  With regard to the institutional aspect of the administration of the Young Offenders Act, the power lies with the provincial legislatures under s. 92(14) to constitute, maintain and organize the courts required for the application of the Act.  In short, Parliament can attribute criminal jurisdiction to courts constituted by the provinces. This Court in Attorney General of Quebec v. Attorney General of Canada, [1945] S.C.R. 600 (per Taschereau J., as he then was) held, at p. 602:

 

                    It is also well established that, although a court may be provincially organized and maintained, its jurisdiction and the procedure to be followed for the application of laws enacted by the Parliament of Canada, in relation to matters confided to that  Parliament, are within its exclusive jurisdiction.

 

Fauteux J., as he then was, in Ministre du revenu national v. Lafleur, [1964] S.C.R. 412, made a similar pronouncement, at p. 418:

 

[translation] The constitution, maintenance and organization of provincial courts of criminal jurisdiction are within the exclusive jurisdiction of the Legislature (s. 92(14)), but only Parliament may grant these provincial courts a criminal jurisdiction.

 

                    The only problematic aspect of the Young Offenders Act is whether, given the scope of the jurisdiction it grants Youth Courts, s. 96 of the Constitution Act, 1867  requires that those courts be superior courts, that is, courts presided over by judges appointed by the Governor General.

 

Applicability of s. 96 to the Jurisdiction of the Youth Courts

 

A.  Introduction

 

                    Section 96  of the Constitution Act, 1867  is regarded as a means of protecting the "core" jurisdiction of the superior courts so as to provide for some uniformity throughout the country in the judicial system.  The case law has developed principles to ensure that s. 96 would not be rendered meaningless through the use of the provincial competence to constitute, maintain and organize provincial courts staffed with provincially appointed judges having the same jurisdiction and powers as superior courts.  (See to this effect, Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, and Sobeys Stores Ltd. v. Yeomans, supra, which have already reviewed in depth the case law relating to this issue.)

 

                    In McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704, this Court also made it clear that s. 96 can operate to limit not only the competence of the Legislatures but also that of Parliament.  The constitutional deal embodied in s. 96 binds Parliament as much as it binds the provincial legislatures.  In other words, if the jurisdiction conferred on Youth Courts by Parliament is within the core of jurisdiction of superior courts, Parliament cannot confer such jurisdiction on courts presided over by judges not appointed in accordance with s. 96.

 

                    The test for determining if a power can be constitutionally given to an inferior court or an administrative tribunal was set out in Re Residential Tenancies, supra, by Dickson J., as he then was, at pp. 734-36:

 

                    The jurisprudence since John East [Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134] leads one to conclude that the test must now be formulated in three steps. The first involves consideration, in the light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal.  The question here is whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation ....

 

                    If the historical inquiry leads to the conclusion that the power or jurisdiction is not broadly conformable to jurisdiction formerly exercised by s. 96 courts, that is the end of the matter....  If, however, the historical evidence indicates that the impugned power is identical or analogous to a power exercised by s. 96 courts at Confederation, then one must proceed to the second step of the inquiry.

 

                    Step two involves consideration of the function within its institutional setting to determine whether the function itself is different when viewed in that setting.  In particular, can the function still be considered to be a `judicial' function?  In addressing the issue, it is important to keep in mind the further statement by Rand J. in Dupont v. Inglis that  "... it is the subject-matter rather than the apparatus of adjudication that is determinative".  Thus the question of whether any particular function is `judicial' is not to be determined simply on the basis of procedural trappings.  The primary issue is the nature of the question which the tribunal is called upon to decide.  Where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then, normally, it is acting in a `judicial capacity'....

 

... if the power or jurisdiction is exercised in a judicial manner, then it becomes necessary to proceed to the third and final step in the analysis and review the tribunal's function as a whole in order to appraise the impugned function in its entire institutional context....  The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal so that the tribunal can be said to be operating `like a s. 96 court'.

 

                    In order to proceed to step one of this test, the power or jurisdiction in issue must first be properly characterized.

 

B.  Characterization

 

                    Sobeys underlined the great importance of the preliminary question of characterization.  As Wilson J., writing for the majority, said at p. 253:

 

In general, those challenging legislation will probably favour the narrower view as more likely to bring success through the historical test. Those supporting the legislation will no doubt advocate a more expansive view on the assumption that the broader the characterization the more likely it will be that at least some aspects of the jurisdiction will have been within the purview of inferior courts at Confederation.

 

For example, if the power under scrutiny is defined as the power to adjudicate over murder, it would be more likely that the conclusion be that only superior courts were competent than if the power is defined in terms of power to adjudicate over criminal offences, those including the less serious offences as well as the most serious ones.  It was then stated in Sobeys that the characterization of the issue must be sufficiently narrow to avoid large accretions of jurisdiction by inferior courts at the expense of superior courts, but not so narrow as to freeze the jurisdiction of inferior courts at what it was in 1867.  This Court also stated that the focus of the characterization exercise should be on the type of dispute and not on the particular remedy sought.

 

                    In the present case, the appellant characterizes the power in issue as the jurisdiction over the types of offences that were within the exclusive jurisdiction of superior courts at Confederation.  He even proposes that the inquiry be limited to the jurisdiction to adjudicate over the offences contemplated by s. 469  of the Criminal Code , R.S.C., 1985, c. C-46 , and, in particular, to murder.  The historical inquiry would therefore be limited to the question of whether superior courts had exclusive jurisdiction over these offences at the time of Confederation.

 

                    On the other hand, the respondent, the Attorney General of Prince Edward Island, characterizes the issue as being the jurisdiction over juveniles.  The other Attorneys General have proposed various formulations of the way in which the power in issue should be characterized but which are all related.  The Attorney General for Ontario submits that the jurisdiction in issue should be defined as the jurisdiction to deal with the diminished responsibility attached to young persons who have committed criminal acts, including murder.  The Attorney General of Nova Scotia suggests "crimes by juveniles", this characterization acknowledging the less severe punishment imposed on young persons who breach the law.  The Attorney General of Canada adopts a slightly wider characterization by suggesting that the jurisdiction in issue is "jurisdiction in respect to offences by juveniles", that including breaches of federal statutes other than the Criminal Code .

 

                    The appellant's position falls afoul of the principles set out by Wilson J. speaking for the majority in Sobeys, because it limits the inquiry to the offences that were within the exclusive jurisdiction of superior courts at Confederation.  Characterizing the jurisdiction as jurisdiction over the offences which were within the exclusive jurisdiction of superior courts calls for a foregone conclusion at least with respect to the result of the historical inquiry.  Furthermore, such a characterization should be discarded because it ignores the raison d'être of the Young Offenders Act.  The Act is not meant to be a replica of the Criminal Code .  It sets up a complete and comprehensive scheme specially designed for an age group and it is in my view important that this be recognized when characterizing the issue here.

 

                    While in Sobeys it is granted that this Court said that we should not focus on remedies, this must be read in context, that is, in civil proceedings.  This statement cannot be imported into the sphere of the criminal law because of the nature of the inquiry involved in a criminal trial.  A criminal trial is mainly an inquiry as to whether a subject's liberty and security of the person can be restricted by society as a result of conduct that is criminal.  The traditional right and remedy distinction that is occasionally made in other fields of law, when characterizing for constitutional purposes, as was made in Sobeys, is inapplicable or, at the least, inappropriate in criminal law.  Criminal law is primarily stigmatization of offenders and restriction of their liberty.  In fact, in criminal law, the determination and the imposition of the sentence are essentially more important than the nature of the conduct leading to it.  That is why, as a matter of policy, even sometimes one of constitutionality, the sentence available or to be imposed is indicative of the mens rea required for a conviction.  (See to that effect, among other things, Wilson J. in R. v. Tutton, [1989] 1 S.C.R. 1392, at p. 1402.)

 

                    I am of the view that the jurisdiction in issue here should be characterized as jurisdiction over young persons charged with a criminal offence.  I do not mean to say that Youth Courts' jurisdiction is limited to criminal offences but I think it appropriate to limit the inquiry of this Court to the facts of this case.  The Court has not had the benefit of hearing arguments on the jurisdiction of the superior and inferior courts on matters other than criminal offences, nor has the issue been examined in the factums. 

                    Characterizing the jurisdiction as jurisdiction over young persons charged with a criminal offence acknowledges that what distinguishes this legislation from the Criminal Code  is the fact that it creates a special regime for young persons.  The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction.  Having characterized the jurisdiction in issue, we now proceed to the first step of the test set out in  Re Residential Tenancies, that is, the historical inquiry.

 

C.  The Historical Inquiry

 

                    The historical inquiry aims at determining whether the jurisdiction or power in issue was exercised exclusively by the superior courts at the time of Confederation.  In Sobeys, this Court held that, in answering this question, the courts must consider the jurisdiction exercised by the superior courts in the four confederating provinces in 1867.  Should there happen to be a tie, that is, should the jurisdiction have been exclusively reserved to superior courts in two confederating provinces whereas it was not in the two others, the situation in England would then have to be considered.

 

                    Jurisdiction over young persons charged with a criminal offence was not significantly exercised by any judicial body at Confederation.  Legislation concerning juvenile delinquents was the consequence of a concern that appeared in the legal world after 1867 and involved the creation of a new scheme including new powers.  Because these adjudicative powers were created after Confederation, they could constitutionally be entrusted to inferior courts.  This, in my view, is dispositive of this appeal.  As a further ground to confirm the constitutional validity of the jurisdiction confided to the Youth Courts, I am of the opinion that, had this jurisdiction existed before Confederation, it would have been entrusted to inferior courts.

 

(i)                 The novelty of the jurisdiction in issue

 

                    The respondents and the interveners propose that the law in 1867 did not in any significant way recognize a distinction between adults and young persons with regard to criminal offences.  Although in a limited number of circumstances prior to 1867 some distinction was made between young persons and adults as regards offences, in no way can these isolated examples be compared with the comprehensive scheme set up by the Juvenile Delinquents Act or the Young Offenders Act to deal with young persons involved with the criminal justice system.

 

 

                    Legislation in relation to young offenders was the result of a new interest and approach of society to the criminality and illegal conduct of its younger members.  Parliament responded to a reform movement that grew at the end of the nineteenth century which regarded young offenders as persons in need of help and guidance who could be rescued from following the path of criminality.  In the case of young offenders, punishment was seen as an element of secondary importance.  L'Heureux-Dubé J., in R. v. M.(S.H.), [1989] 2 S.C.R. 446, reviewed the history of the Young Offenders Act in her dissenting opinion (her dissent not being on this point), and concluded, at pp. 474-75:

 

                    This brief legislative history of the provisions of the Young Offenders Act amply demonstrates that for nearly one hundred years Parliament has committed itself to the separate treatment and rehabilitation of young persons involved in the criminal process.  The underlying philosophy has been from the beginning that it is in society's interest to assist young offenders "to strengthen their better instincts".  An attempt is made through the legislation to "prevent these juveniles to become prospective criminals and to assist them to be law-abiding citizens" (Attorney General of British Columbia v. Smith, [1967] S.C.R. 702, at p. 710).  For the effective pursuit of this general objective, Parliament and the legislatures have joined in an effort to establish specialized tribunals and provide funding for facilities such as detention centers and rehabilitation programs.  While in 1982 the legislation was revised, the fundamental values remained and permeate the provisions of the Act.

 

                    I agree.  The first comprehensive legislative scheme in common law jurisdictions which embodied this new approach and made a distinction as regards society's response to adult and juvenile criminality was enacted in South Australia in 1895 (State Children Act, 1895, No. 641).  The Juvenile Delinquents Act was enacted in Canada in 1908. It created a new offence of "juvenile delinquency" that was a substitute, among other things, for the particular criminal offences found in the Criminal Code .  Although the new scheme under the Young Offenders Act emphasizes more the accountability of young offenders for their criminal acts and although it has done away with the single offence of "juvenile delinquency", the same philosophy animates this statute.  Section 20 of the Young Offenders Act provides for a series of possible dispositions in the case where a young offender is found guilty of an offence.  All the measures therein enumerated, ranging from absolute discharge to custody, are generally available at the sentencing stage irrespective of the actual gravity of the act for which the young offender was convicted.  The only distinction made as regards the rules that should guide sentencing concerns the maximum period of custody.  It is two years, except for offences that are punishable by life imprisonment under the Criminal Code , for which the maximum period of custody is raised to three years.  It is clear therefore that the Young Offenders Act does not generally recognize any proportionality between the gravity of the offence and the range of sanctions.  It rather recognizes the special situation and the special needs of young offenders and gives to the judges different sentencing options that are not available for adults.  It is still primarily oriented towards rehabilitation rather than punishment or neutralization.

 

                    This new social philosophy as regards young offenders found its way into the statute books after Confederation and, as Lord Simonds stated in John East, supra, at pp. 145-46:

 

Herein its purpose [i.e. the purpose of the Trade Union Act, 1944 of Saskatchewan] is apparent, a purpose, it may be observed, that would have sounded strange to the ears of the legislature of 1867.

 

                    Therefore, I conclude that the jurisdiction over young persons offending the criminal law is jurisdiction that did not exist at Confederation but was part and parcel of a scheme designed to respond to what was a novel concern of society.  As new powers or jurisdiction are not part of the core of jurisdiction protected via s. 96  of the Constitution Act, 1867 , this finding is dispositive of the matter.  I should however add the following.

 

(ii)  Competence of inferior courts over offences of that nature in 1867

 

                    Apart from the fact that the jurisdiction in issue is jurisdiction that did not exist in 1867, I am of the view that the nature of the offences for which young offenders are made responsible under the Young Offenders Act is such that, had such a scheme been in existence prior to Confederation, inferior courts would have been responsible for its application.

 

                    What distinguishes a criminal offence from any other type of negative response of society towards an individual's behaviour is the stigma attached to a criminal conviction.  Usually, the more asocial or offensive society perceives a behaviour to be, the greater the stigma attached to it.  In turn, this stigma is reflected in the sentence or range of sentences that will be available as a punishment.

 

                    Under the Young Offenders Act, the stigma attached to the commission of an offence is reduced to a minimum since only a limited number of persons will normally ever become aware that a young person has committed a criminal act. A whole series of measures are designed to restrict as much as possible the public knowledge of the commission of the offence.  As a general rule under s. 38 of the Act, no person shall publish by any means any report of an offence committed by a young person, of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence in which the name of the young person is disclosed.  Section 40 carefully sets out the persons who can have access to records of cases arising under the Act and under what conditions.  Police records and government records can similarly be disclosed only to a limited category of persons.  Section 45(2) provides for the automatic destruction of all records two years after completion of the dispositions relating to a young person found guilty of an offence punishable on summary conviction if he or she was never found guilty of an indictable offence as long as within that period the young person was not charged or found guilty of an offence under the Young Offenders Act or any other Act of Parliament.  The records of a young person convicted of one or more indictable offences will be destroyed five years after completion of the dispositions relating to him or her, as long as he or she has not been charged or convicted of an offence under the Young Offenders Act or any other Act of Parliament within these five years.  This demonstrates that the Act aims at circumscribing public knowledge to a very substantial extent.  Apart from that, it is interesting to note that a young offender who accepts responsibility for the offence that he is alleged to have committed may not even have to be subject to judicial proceedings.  In fact, s. 4 sets out the conditions under which such a young offender can be dealt with by resorting to alternative measures rather than judicial proceedings.

 

                    With regard to sentencing, as I have explained earlier, the most severe disposition that a Youth Court can order is three years in custody, and that is only possible with respect to an offence for which the punishment provided by the Criminal Code  or any other Act of Parliament is imprisonment for life.  For all other offences, the maximum period of custody is limited to two years.  A young offender can therefore, at worst, only be held in custody for three years.

 

                    Offences that were less stigmatized and which carried light sentences were already within the jurisdiction of inferior courts in 1867.  Obviously, an offence that would normally carry a maximum sentence of two years imprisonment or, in a limited number of circumstances, three years, is a minor offence, of the kind dealt with at Confederation by inferior courts.

 

 

                    Therefore, applying the historical test, I conclude that:

 

(1)  The jurisdiction over young persons charged with a criminal offence did not exist at Confederation.  Step one of the test set out in Re Residential Tenancies is satisfied with the consequence that inferior courts are constitutionally competent to exercise this jurisdiction.  This suffices to defeat the challenge to the constitutionality of entrusting to an inferior court the jurisdiction provided for in the Young Offenders Act.

 

(2)  In addition, had such jurisdiction existed at Confederation, it would have been in the nature of powers that were exercised by inferior courts.  This finding also puts an end to the matter.

 

Step one of the test set out in Re Residential Tenancies being satisfied, it is unnecessary to proceed to the other steps.

 

(iii)  The possibility for s. 96 judges to sit on Youth Courts

 

                    The only remaining issue before this Court is whether a Supreme Court judge can be appointed a judge of a Youth Court by the Lieutenant Governor in Council.  The majority of the Prince Edward Island Supreme Court, Appeal Division, ruled that a superior court judge could be appointed a judge of the Youth Court subject to the condition that "doing so would not erode or interfere with his function as a superior court judge" (p. 119).  McQuaid J.A. was also of the opinion that a superior court judge could be thus appointed but made that finding subject to "consent".  None of these qualifications were expanded upon in their reasons for judgment. 

 

                    I am of the view that s. 96's role is not to protect in any way a "core" of jurisdiction for inferior courts.  Rather, it operates to protect the core jurisdiction of superior courts.  Section 96 does not preclude any level of government from giving superior court judges jurisdiction which did not exist in 1867.  Superior courts have long been recognized as courts of general competence and it is only if jurisdiction is validly granted to another body that they will be prevented from exercising the power in question.  Therefore, I agree with the respondents and the interveners that the superior court judges could validly be appointed Youth Court judges, this answer not being qualified in any way.

 

Conclusion

 

                    I would accordingly dismiss the appeal and answer the constitutional questions as follows:

 

1.Is the Young Offenders Act, S.C. 1980-81-82-83, c. 110, unconstitutional on the basis and to the extent that it does not specifically require that the Youth Court be presided over by a Judge appointed pursuant to s. 96  of the Constitution Act, 1867 ?

 

Answer:  No.

 

2.Is the establishment by a Province of a Youth Court as defined by s. 2 of the Young Offenders Act within the legislative competence of the Province pursuant to s. 92  of the Constitution Act, 1867 ?

 

Answer:  Yes.

 

3.(a)Is the appointment of a Youth Court Judge an appointment which must be made by the Governor in Council pursuant to s. 96  of the Constitution Act, 1867 ?

 

Answer:No, the appointment need not be made by the Governor General.  The Governor in Council is not mentioned in s. 96  of the Constitution Act, 1867 , therefore the question of whether the appointment must be made by the Governor in Council does not arise.

 

(b)  If the answer to (a) is no,

 

(i)Can a Provincial Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?

 

 

Answer:  Yes.

 

(ii)Can a Supreme Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?

 

Answer: Yes.

 

//Wilson J.//

 

                    The reasons of Wilson and McLachlin JJ. were delivered by

 

                    Wilson J. -- I have had the benefit of reading the reasons of the Chief Justice Lamer and agree with his proposed disposition of the appeal and with a substantial part of his reasons.  There is, however, one aspect of his reasons which I find problematic in light of earlier decisions of this Court.  Specifically, I think that Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, and Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238, establish a three-part test which we are obliged to apply in cases of this kind.  It is necessary, in my view, to consider where jurisdiction over young offenders lay at Confederation.

 

                    Section 96  of the Constitution Act, 1867  operates in general to limit the bestowal on inferior courts of jurisdiction that was reserved to superior courts at Confederation.  The jurisdiction of inferior courts and tribunals is not, however, frozen at the limits in existence in 1867.  The question of under what conditions that jurisdiction can be expanded was given a thorough treatment in Re Residential Tenancies Act, 1979.  Although that case concerned a challenge to the powers of a provincially appointed administrative tribunal, the jurisdictional considerations are also relevant to the establishment of inferior courts such as the provincially administered youth court system at issue in this case.  Dickson J. (as he then was) concluded his survey of the jurisprudence by stating at p. 732:

 

In general terms it may be said that it is now open to the provinces to invest administrative bodies with "judicial functions" as part of a broader policy scheme.

 

                    Dickson J. insisted, however, that the courts adopt a three-step approach for adjudicating jurisdictional challenges to the powers of administrative tribunals and inferior courts.  I affirmed this approach in Sobeys Stores and, accordingly, am of the view that it should be applied here.

 

                    The first step in the Residential Tenancies test involves considering the specific power or jurisdiction conferred on the inferior court in light of the historical conditions that existed at the time of Confederation.  Only if the power was broadly conformable to the powers formerly exercised by s. 96 courts does one proceed to the second step, which requires a determination of whether the power of the administrative tribunal or court was a "judicial power".  The third step, reached only if the second step is answered in the affirmative, requires the courts to review the functioning of the challenged body in its institutional context.  Of this third step Dickson J. said, at p. 736:

 

It may be that the impugned `judicial powers' are merely subsidiary or ancillary to general administrative functions assigned to the tribunal ... or the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature.... In such a situation, the grant of judicial power to provincial appointees is valid.

 

For simplicity, I will refer to these three steps as I did in Sobeys Stores as "The Historical Inquiry", "Judicial Function" and "The Institutional Setting".

 

A.  The Historical Inquiry

 

                    In my view, it is unnecessary to review the three issues that are necessary forerunners to this inquiry that were raised in Sobeys Stores (at pp. 251-52).  In this appeal Lamer C.J. characterizes the jurisdiction over young persons conferred upon youth courts by the Young Offenders Act, S.C. 1980-81-82-83, c. 110 (the "Act") as "jurisdiction over young persons charged with a criminal offence."  This characterization is sufficiently narrow and focused on the matter in dispute.  The majority in Sobeys Stores held that the courts should concentrate their historical inquiry on the four original confederating provinces (Ontario, Quebec, Nova Scotia and New Brunswick).  Only where there was a "tie" should reference be had to the United Kingdom.

 

                    The parties and interveners on this appeal have provided detailed submissions on the application of the historical test and it is possible to form a reasonable assessment as to the way jurisdiction over criminal offences committed by young people was dealt with in 1867 in the four original confederating provinces and, if necessary, in the United Kingdom.

 

Upper and Lower Canada

 

                    From 1840 until their separation into provinces at Confederation, Ontario and Quebec shared a common legislature and substantive criminal law: see An Act to Re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada (U.K.), 3 & 4 Vict., c. 35 (1840).  In 1857, legislation was passed that vested jurisdiction with respect to persons under 16 in two or more justices of the peace where the offence was simple larceny (or any offence punishable in the same way as simple larceny) and that provided for the imposition of reduced sentences: see An Act for the more speedy trial and punishment of juvenile offenders, S. Prov. C. 1857, 20 Vict., c. 29.  The maximum sentence was three months imprisonment or a $20 fine.

 

                    In 1861, however, jurisdiction to try the more serious felonies committed by persons of any age was removed from the Sessions and Recorders' Courts: see An Act to abolish the right of Courts of Quarter Sessions and Recorders' Courts to try Treasons and Capital Felonies, S. Prov. C. 1861, 24 Vict., c. 14.  At that time the punishment for most felonies was relatively severe compared with today.  Indeed, many were punishable by death.  By 1867, then, there was some shared jurisdiction over young offenders between superior and inferior courts, although the inferior courts were limited to trying cases involving offences to which a relatively light punishment was attached.  We would call these "petty offences" today.  If the accused was convicted, the courts made distinctions with respect to punishment on the basis of the age of the offender only in the case of the more minor offences.

 

 New Brunswick

 

                    The parties are agreed that prior to Confederation there was no legislation in New Brunswick that dealt specifically with young offenders or juveniles.  Moreover, they agree that in 1867 inferior courts in New Brunswick only had jurisdiction with respect to so-called petty offences.

 

Nova Scotia

 

                    In 1841, legislation was passed that removed jurisdiction over indictable offences from the Court of General Sessions in 17 of 18 counties and that vested it exclusively in the Supreme Court.  Thus, the jurisdiction of inferior courts was restricted to less serious offences.  While Halifax County's inferior courts retained jurisdiction over indictable offences, only 14 per cent of the province's population had access to the Court of Sessions in Halifax County. 

 

                    In 1864, the General Sessions Court was given specialized jurisdiction over young people under 14.  This enabled it to impose reduced sentences when dealing with petty offences, assaults and trespasses.  For these young offenders punishment was restricted to incarceration not exceeding six months or a fine: see Of petty offences, trespasses, and assaults, R.S.N.S. 1864, c. 147.  At Confederation, then, it appears that the General Sessions Court, an inferior court, exercised jurisdiction over non-indictable offences and that a distinction with respect to punishment on the basis of the age of the accused was made in connection with some of these non-indictable offences.  Superior courts tried the more serious offences regardless of the age of the accused.

 

                    The general picture that emerges from this historical survey of the four confederating provinces is that while inferior courts did in certain cases have limited jurisdiction over young offenders, this never extended beyond petty offences.  The vast majority of offences now covered by the Act were required to be tried before the superior courts of the province.

 

 

                    I conclude, therefore, that the jurisdiction of the youth courts at issue in this appeal broadly conforms to that exercised by s. 96 courts  at Confederation and it is necessary to proceed to the second branch of the test.

 

B.  Judicial Function

 

                    In my view, there can be no doubt that the function of the youth courts is judicial in nature.  Unlike the administrative bodies for which this part of the test was designed, the youth courts are clearly just criminal courts with a specialized clientele.  Many of the substantive and procedural protections afforded the accused under the Criminal Code  are reproduced in the Act and form the procedural basis for conducting the trials of young offenders. 

 

                    Indeed, I note that s. 16 of the Act allows for the transfer to the ordinary criminal court system of trials of persons over the age of 14 who are accused of more serious offences.  To my mind, this is further evidence that the youth courts are a parallel judicial regime carrying out largely identical adjudicative functions for a certain subset of offenders.  It is therefore necessary to pass to the third branch of the Residential Tenancies test.

 

C  The Institutional Setting

 

                    At this stage of the test the courts must determine whether the impugned judicial powers of the youth courts, as exercised within the context of the legislative purpose for which they were created, are "necessarily incidental" to broader policy aims set out in the Act or, alternatively, whether they are effectively usurping the role of s. 96 courts.

 

                    On this issue I would respectfully adopt the views of Lamer C.J. concerning the innovative and comprehensive social philosophy towards young offenders which the Act embodies.  It is indeed a new and different approach which focuses on rehabilitation rather than punishment and stigmatization.  The differential sentencing provisions in the Act are but one example of Parliament's novel approach to the problem of young people who become involved in criminal activity. As this Court has remarked before, the Act reflects a recognition that it is in society's interest "to assist young offenders "to strengthen their better instincts"": see R. v. M.(S.H.), [1989] 2 S.C.R. 446, per L'Heureux-Dubé J., at p. 475.  In my view, this legislative aim is both legitimate and desirable and the powers bestowed upon youth courts are necessarily incidental to its attainment.

 

                    For the above reasons, I would uphold the powers conferred by the Act on youth courts under the third part of the Residential Tenancies test.  These powers constitute a novel jurisdiction that forms an essential part of the government's new philosophical approach to young offenders.

 

                    I would accordingly dismiss the appeal and answer the constitutional questions in the same manner as Lamer C.J.

 

//La Forest J.//

 

                    The reasons of La Forest and L'Heureux-Dubé JJ. were delivered by

 

                    La Forest J. -- I have had the advantage of reading the reasons of my colleagues Chief Justice Lamer and Justice Wilson.  With respect, I differ from both my colleagues in that I do not believe that the test enunciated in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, is fully applicable to the case at bar.  One must of course start with the question which forms the first stage of that test which, in the words of Dickson J. (as he then was) in Residential Tenancies, requires the court to ask whether the impugned power or jurisdiction "conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation"; see p. 734, though it would appear more accurate to speak of the power and jurisdiction then exclusively exercised by such courts or, as Lamer C.J. puts it, their "core functions"; see Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364.  But the second and third stages of the Residential Tenancies test, recently applied in Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238, are of no relevance to the question of whether an ordinary court is or is not exercising a function which was historically assigned to superior courts.  Both cases concerned the application of s. 96 to administrative tribunals that exercised powers or jurisdiction that were alleged to be powers or jurisdiction exercised by superior courts in 1867, and the content of the second and third stages of the test they apply reflects this factual context.  The second test is directed at determining whether the relevant power or jurisdiction is exercised as a "judicial power", while the third is aimed at determining whether this judicial power is the sole or central function of the body that exercises it.  They are, therefore, inapplicable to an ordinary court.  A power or jurisdiction exercised by an ordinary court will obviously be a "judicial power" that is the sole or central function of the body that exercises it.  This means that in the context of a case concerned with the constitutionality of the powers or jurisdiction of an ordinary court, reliance on Residential Tenancies will simply amount to the imposition of a foreordained conclusion.

 

                    The foregoing is fully consistent with the decision in Residential Tenancies.  Throughout his reasons in that case, Dickson J. made it clear that the problem he was addressing was that which arose when a province sought to vest judicial powers in an administrative tribunal.  Thus at p. 733 he said, in summarizing s. 96 jurisprudence, that "s. 96 can no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary `judicial' powers formerly exercised by s. 96 courts".  [The emphasis and that which follows is added.]  Again, in setting out the first part of his three-part test, Dickson J. said that it involved the "consideration, in the light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal" (p. 734).  It would have been easy for him to add the words "or court" if he had intended to create a test applicable to inferior courts as well as administrative tribunals.  A similar comment can be made with respect to the language he uses in setting out the second and third parts of his test.  At page 735 he says, in relation to the second part of the test, that the "primary issue is the nature of the question which the tribunal is called upon to decide".  At page 736, he concludes his description of the third part of the test by saying the "scheme is only invalid when the adjudicative function is a sole or central function of the tribunal (Farrah) so that the tribunal can be said to be operating `like a s. 96 court'".  These extracts make it clear that the only problem Dickson J. had in mind in setting out his three-part test was the usurpation of s. 96 jurisdiction by provincially established administrative tribunals.

 

                    Viewing the matter as I do, this case must, as I see it, simply turn on the proper characterization of the jurisdiction accorded to the provincial Youth Courts under the Young Offenders Act, S.C. 1980-81-82-83, c. 110.  As to this, it is sufficient to say that I agree with Lamer C.J. that the Act constitutes a jurisdiction over young persons offending the criminal law that did not exist at Confederation but is part and parcel of a general scheme designed to respond to what is a novel concern of society and is not part of the core of jurisdiction protected by s. 96  of the Constitution Act, 1867 .

 

                    I would, therefore, dispose of the appeal in the same manner as Lamer C.J.

 

                    Appeal dismissed.

 

                    Solicitors for the appellant:  MacLeod & MacDougall, Charlottetown.

 

                    Solicitor for the respondent the Attorney General of Prince Edward Island:  Deputy Attorney General of Prince Edward Island, Charlottetown.

 

                    Solicitor for the respondent the Attorney General of Canada:  John R. Power, Ottawa.

 

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

 

                    Solicitor for the intervener the Attorney General of Quebec:  Jean Bouchard, Québec.

 

                    Solicitor for the intervener the Attorney General for New Brunswick:  Deputy Attorney General of New Brunswick, Fredericton.

 

                    Solicitor for the intervener the Attorney General of Nova Scotia:  The Department of Attorney General, Halifax.