Brown v. Baugh et al., [1984] 1 SCR 192

Supreme Court of Canada

Brown v. Baugh et al., [1984] 1 S.C.R. 192

Date: 1984-04-02

Philip Brown, an infant, by his guardian ad litem, Larry Brown Appellants;

and

Vern R. Baugh and Allan Williams, Attorney General on behalf of Her Majesty The Queen in Right of the Province of British Columbia Respondents.

File No.: 17296.

1984: February 2; 1984: April 2.

Present: Dickson, Beetz, Mclntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Juvenile delinquents—Identification of criminal—Juvenile charged with a delinquency relating to an indictable offence under the Criminal Code—Fingerprinting—Police officer using reasonable force—Whether fingerprinting lawful—Juvenile Delinquents Act, R.S.C. 1970, c. J-3—Identification of Criminals Act, R.S.C. 1970, c. I-1, s. 2.

The issue in this appeal is whether the use of reasonable force by a peace officer to obtain fingerprints from a juvenile charged under the Juvenile Delinquents Act with a delinquency relating to an indictable offence under the Criminal Code is authorized by s. 2 of the Identification of Criminals Act. That section provides that reasonable force may be used to fingerprint “any person in lawful custody, charged with, or under conviction of an indictable offence”. The question was raised as a preliminary question of law in a civil action for assault brought on behalf of the appellant Philip Brown against the respondents. The Supreme Court of British Columbia answered in the negative but the decision was reversed by the Court of Appeal.

Held: The appeal should be dismissed.

Per Dickson, Beetz, Mclntyre and Chouinard JJ.: The question should be answered in the affirmative. The expression “indictable offence” in s. 2(1) of the Identification of Criminals Act clearly includes an indictable offence that is a violation of the Criminal Code when it is punishable under the Code and, in the absence of any expressed legislative intent to the contrary, the same expression does not exclude the same violation when that violation is punishable under the Juvenile Delin-

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quents Act. A finding of delinquency relating to an indictable offence under the Code is a conviction of an indictable offence within the meaning of s. 2(1) of the Act. Therefore, if the appellant could be convicted of an indictable offence within the meaning of that subsection, he could be “charged” with it.

Per Wilson J.: The Juvenile Delinquents Act provides a limited form of immunity for juveniles from criminal prosecution. This does not mean, however, that the acts themselves cease to have a criminal character. Here, the 16-year old appellant was capable of committing an indictable offence and the fact that he was charged with a delinquency rather than with an indictable offence under s. 9 of the Juvenile Delinquents Act did not relieve his act of its character as an indictable offence. For the purposes of s. 2 of the Identification of Criminals Act appellant could be said to be charged with an indictable offence and the respondents were therefore entitled to use reasonable force in securing his fingerprints.

Morris v. The Queen, [1979] 1 S.C.R. 405, applied; R. v. Clark (1977), 35 C.C.C. (2d) 319; R. v. A.N. (1978), 39 C.C.C. (2d) 329 aff’g [1977] 5 W.W.R. 549; R. v. D.G. (1978), 45 C.C.C. (2d) 157, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal, [1982] 5 W.W.R. 644, 70 C.C.C. (2d) 71, 38 B.C.L.R. 1, reversing a ruling of McEachern C.J.S.C., [1982] 2 W.W.R. 126, 64 C.C.C. (2d) 155, 32 B.C.L.R. 55, on a preliminary question of law in an action for damages for assault. Appeal dismissed.

G.J. McDade, for the appellants.

I.G. Whitehall, Q.C., and P. Partridge, for the respondent Baugh.

Richard H. Vogel, Q.C., for the respondent Williams.

The judgment of Dickson, Beetz, Mclntyre and Chouinard JJ. was delivered by

CHOUINARD J.—In issue in this appeal is the following question:

Is a Peace Officer in whose lawful custody is a juvenile charged with a delinquency under the Juvenile Delinquents Act which relates to an indictable offence under

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the Criminal Code authorized by the Identification of Criminals Act or by common law or otherwise to use reasonable force in taking the fingerprints of the said juvenile, where the juvenile does not consent to the taking of fingerprints?

This question is set out in an order of the Supreme Court of British Columbia which directed that it be determined before trial of the appellant’s action against the respondents in damages for assault.

The facts are not in dispute and are succinctly recited in a statement agreed upon by the parties:

STATEMENT OF FACTS

1. The Plaintiff, Philip Brown, is a male born October 27, 1963, and therefore was 16 years of age and a child pursuant to the Juvenile Delinquents Act on March 19, 1980, the relevant time in this action.

2. The Defendant, Vern R. Baugh, is a member of the Royal Canadian Mounted Police, holding rank of Sargeant, stationed at Kelowna, B.C.

3. The Defendant, Allan Williams, is the Attorney-General of the Province of British Columbia, and as such was charged with the responsibility under the Police Act, R.S.B.C. 1974, Chapter 64, as amended on March 19, 1980.

4. On March 19, 1980, the Plaintiff was properly arrested and charged with a delinquency under the Juvenile Delinquents Act, to wit: unlawfully having in his possession a motor vehicle of a value exceeding $200.00, the property of Inland Gas Company Ltd., knowing that the said motor vehicle was obtained by the commission of an offence punishable by indictment; which relates to an indictable offence under the Criminal Code.

5. Sargeant Baugh requested fingerprints from the Plaintiff, the Plaintiff was allowed legal counsel, after which the juvenile denied his consent to fingerprints.

6. Pursuant to instructions from the Defendant, the Attorney-General of British Columbia, Sargeant Baugh proceeded to take the fingerprints of the Plaintiff, which he so took in good faith and with reasonable care using no more force than was reasonably necessary for that purpose.

7. That at all material times the Plaintiff was in lawful custody.

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The appellant relies on the interpretation of the Identification of Criminals Act, R.S.C. 1970, c. I-1 and the Juvenile Delinquents Act, R.S.C. 1970, c. J-3.

Two points are made by the respondents: the use of reasonable force to obtain fingerprints from a juvenile is authorized by the Identification of Criminals Act; alternatively, such use of reasonable force for that purpose is authorized by the common law.

Subsections (1) and (2) of s. 2 of the Identification of Criminals Act read:

2. (1) Any person in lawful custody, charged with, or under conviction of an indictable offence, or who has been apprehended under the Extradition Act or the Fugitive Offenders Act, may be subjected, by or under the direction of those in whose custody he is, to the measurements, processes and operations practised under the system for the identification of criminals commonly known as the Bertillon Signaletic System, or to any measurements, processes or operations sanctioned by the Governor in Council having the like object in view.

(2) Such force may be used as is necessary to the effectual carrying out and application of such measurements, processes and operations.

Chief Justice McEachern of the Supreme Court of British Columbia held that a juvenile charged with a delinquency under the Juvenile Delinquents Act is not a person charged with an indictable offence within the meaning of s. 2 of the Identification of Criminals Act. To reach that conclusion, Chief Justice McEachern relied on both the judgment of the Supreme Court and that of the Court of Appeal of British Columbia in R. v. A.N., respectively reported at [1977] 5 W.W.R. 549 and (1978), 39 C.C.C. (2d) 329. He also relied on the judgment of the Supreme Court of Prince Edward Island in R. v. D.G. (1978), 45 C.C.C. (2d) 157.

Chief Justice McEachern further held that the common law does not authorize the use of force to take fingerprints. He therefore answered the question in the negative.

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Reversing, the Court of Appeal for British Columbia concluded “…that a juvenile charged with a delinquency which is also an offence punishable by indictment is a person charged with an indictable offence within the meaning and for the purposes of the Identification of Criminals Act”.

The Court of Appeal consequently answered the question in the affirmative on that basis. As a result it became unnecessary to deal with the common law point and the Court did not “comment on any common law right to fingerprint without the consent of the juvenile suspect”.

On the statutory point, the Court of Appeal had this to say:

We are supported in our conclusion by consideration of the intent of the Parliament of Canada. In enacting the Identification of Criminals Act, the criterion established by Parliament for determining the applicability of this statutory power was not the age of the accused but the seriousness of the crime allegedly committed—indictable offences and offences under certain specified statutes. That Parliament was concerned primarily with the nature of the crime rather than the age of the accused is consistent with the limitation of s. 44(1) of the Young Offenders Act, Bill C-61, 1980-81, that no fingerprints of a young person who is accused of committing an offence shall be taken except in circumstances in which an adult may, under the Identification of Criminals Act, be fingerprinted. In other words age, as a test of applicability, defers to the magnitude of the crime.

The Court of Appeal also relied on the unanimous judgment of the Court of Appeal for Ontario in R. v. Clark (1977), 35 C.C.C. (2d) 319 and on the majority judgment of this Court in Morris v. The Queen, [1979] 1 S.C.R. 405. This latter judgment on which both respondents relied heavily in their argument on the statutory point is, in my view, determinative of the issue in this case.

The facts in Morris are summarized in the headnote as follows:

Appellant, aged 19, was found guilty by the Court of Queen’s Bench, Criminal Side, for the district of Montreal, consisting of a judge and jury, on a charge of breaking and entering with intent (s. 306 Cr.C.). He appealed to the Court of Appeal on the ground that the trial judge erred by allowing evidence of the cross-

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examination of appellant, in which he contradicted the evidence he had given in chief and admitted having been found guilty, under the Juvenile Delinquents Act, of offences, under the Criminal Code. The Court of Appeal affirmed the conviction; hence the appeal to this Court.

The main issue is stated by Pratte J. who wrote the majority judgment of this Court, at p. 425:

Such being the case, I now come to consider the main issue in the appeal which is as to whether the cross-examination of the appellant upon his record as a juvenile was admissible in evidence under s. 12 of the Canada Evidence Act or under s. 593 Cr.C. The trial judge allowed the cross-examination under both provisions and his decision was affirmed by the Court of Appeal.

The majority in that case confirmed the judgment of the Court of Appeal with respect to both s. 12 of the Canada Evidence Act and s. 593 of the Criminal Code.

The majority reasons with respect to s. 593 Cr.C. are of no assistance here. We are not concerned with the adducing of evidence of previous convictions or of other evidence in answer to evidence of his good character adduced by the accused, nor with the question whether the evidence adduced by the accused constituted evidence of his good character, on which the s. 593 issue turned in Morris. For the purposes of this appeal, it will therefore be sufficient to consider the judgment of this Court in Morris only as it relates to s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E-10.

Subsection (1) of this section reads:

12. (1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.

In Morris, two grounds were relied upon in support of the proposition that s. 12 did not authorize the questioning of an accused as to his previous delinquencies, namely (i) a delinquency is not an offence within the meaning of this expression as used in s. 12; and (ii) a finding of delin-

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quency is not to be construed as a conviction for the purposes of s. 12.

With respect to the meaning of the word “offence” Pratte J., for the majority, made the following comments at pp. 425 to 427:

As to the first ground, it should first be observed that the word “delinquency” which is described as an offence in ss. 3 and 22(1) of the Juvenile Delinquents Act embraces within its meaning two categories of acts; the first category includes acts that are in violation of “any provision of the Criminal Code or of any federal or provincial statute, or of any by-law or ordinance of any municipality” (Juvenile Delinquents Act, s. 2(1)), or as Fauteux J. put it in Attorney General of British Columbia v. Smith, [1967] S.C.R. 702, at p. 710, that are “punishable breaches of the public law, whether defined by Parliament or the Legislatures”; the second category includes sexual immorality or other similar form of vice which, while not illegal in the case of adults, should be repressed in the case of juveniles.

Leaving aside the delinquencies of the second category that I have mentioned above, the Juvenile Delinquents Act does not prescribe any special rule of human conduct for juveniles; the Criminal Code and the other statutes referred to above are applicable to juveniles and non-juveniles alike. Essentially, the Juvenile Delinquents Act does not create any offence; the offence results from the violation of another statute which, in the case at bar, is the Criminal Code. But, when the offence is committed by a juvenile, a particular method of enforcement is prescribed: the usual type of penalty imposed in criminal matters, i.e. imprisonment or fine, intended to act as a deterrent of wrongful action, is generally replaced by various courses of action left at the discretion of the Court and designed to provide the child with such care, education and protection as he requires in order to rehabilitate himself and mature into a law-abiding citizen. The Act “provides a special procedure for the discipline and treatment of children outside of the ordinary criminal courts, although their delinquencies may be offences under the Criminal Code” (per Laskin J.A., as he then was, in R. v. Horsburgh, [1966] 1 O.R. 739, at pp. 756 and 757). In Attorney General of British Columbia v. Smith, supra, Fauteux J., as he then was, speaking for the Court, rightly pointed out at p. 708 that: “The primary legal effect of the Juvenile Delinquents Act,…, is the effective substitution, in the case of juveniles, of the provisions of the Act to the enforcement provisions of the Criminal Code or” of any other relevant statute.

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In Morris, the delinquencies adjudged against the accused all consisted in violations of the Criminal Code, some of which at least were indictable offences.

Stating the question to be answered, Pratte J. wrote, at p. 428:

The question that stands up for determination is therefore quite narrow: it is whether the word “offence” as used in s. 12(1) of the Canada Evidence Act includes a delinquency consisting in a violation of the Criminal Code which is enforceable under the Juvenile Delinquents Act rather than the Code itself.

And, on the same page, he concluded:

In brief, the expression “any offence” in s. 12(1) clearly includes an offence that is a violation of the Criminal Code when it is punishable under the Code; in the absence of any expressed legislative intent to the contrary, I cannot logically bring myself to the view that the same expression excludes the same violation when it is punishable under the Juvenile Delinquents Act which, like the Code, is “genuine legislation in relation to criminal law”.

The question as to whether the word “offence” included delinquencies other than violations of the Criminal Code was left open. Pratte J. wrote at p. 428:

I express no opinion as to whether the meaning of the word “offence” as used in s. 12(1) of the Canada Evidence Act should otherwise be restricted so as to exclude certain kinds of delinquencies.

But the Court clearly decided that “offence” included delinquencies consisting in violations of the Criminal Code.

As was held in Morris and is equally applicable here “…the Juvenile Delinquents Act does not create any offence; the offence results from the violation of another statute which, in the case at bar, is the Criminal Code”. The mere fact that because the appellant is a juvenile the special procedure provided for by the Juvenile Delinquents Act is substituted to the enforcement provisions of the Criminal Code, does not alter the nature of the offence. To paraphrase the reasons of Pratte J. in Morris, the expression “indictable offence” in s. 2(1) of the Identification of Criminals Act clearly includes an indictable offence that is a violation of the Criminal Code when it is

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punishable under the Code; in the absence of any expressed legislative intent to the contrary, I cannot logically bring myself to the view that the same expression excludes the same violation when it is punishable under the Juvenile Delinquents Act which, like the Code, is “genuine legislation in relation to criminal law”.

There remains the question whether a juvenile charged with a delinquency consisting in an indictable offence can be said to be a person “charged” with an indictable offence within the meaning of s. 2(1) of the Identification of Criminals Act. The disposition by this Court of the second ground in Morris is, in my view, decisive. As put by Pratte J. at p. 429:

The second ground advanced by the appellant is that a finding of delinquency under the Juvenile Delinquents Act is not to be construed as a conviction for the purposes of s. 12 of the Canada Evidence Act; therefore, a person who has been found guilty of delinquency could not be said to have been “convicted”. This submission of the appellant is based on the fact that a Juvenile Court is, under the Act, empowered to adjudge a child to have committed a delinquency and not to convict a child of having committed a delinquency.

On that ground, Pratte J. concluded at p. 431:

In my opinion, therefore, the power of the juvenile court to adjudge guilt is equivalent to the power of an ordinary criminal court to convict and I cannot see any essential difference between the power to adjudge a person guilty of an offence and the power to convict a person of the same offence. With respect, I find no merit in the submission of the appellant that a finding of delinquency should not be construed as a conviction for the purposes of s. 12 of the Canada Evidence Act.

For the same reasons, it must be concluded in the case at bar that a finding of delinquency which relates to an indictable offence under the Criminal Code is, within the meaning of s. 2(1) of the Identification of Criminals Act, a conviction of an indictable offence. It necessarily follows that if the appellant could be convicted of an indictable offence within the meaning of that subsection, he could be “charged” with it.

The appellant has sought to distinguish Morris as regards both the interpretation of the expression

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“any offence” and the interpretation of the word “conviction” in s. 12(1) of the Canada Evidence Act.

As to the expression “any offence” the appellant submitted:

This Court in Morris was concerned with the interpretation of section 12(1) of the Canada Evidence Act, and therefore, the Court was primarily concerned with the expression “any offence” in section 12(1). It is not contended in the case at bar that a delinquency is not an “offence”; the words in section 3 of the Juvenile Delinquents Act make it clear that a delinquency is an offence. The question for this Court is whether the delinquency is an “indictable offence”, as the words are used in the Identification of Criminals Act, and whether a child charged with a delinquency is “charged with an indictable offence”.

This submission might have merit if the basis for the decision in Morris were as suggested by the appellant. But, with respect, such is not the case. The expression “any offence” was interpreted in that case as it relates to violations of the Criminal Code and only to such violations. The question whether it would, under the Canada Evidence Act, include other categories of delinquencies was expressly left open. It is perhaps not inconceivable that the Court could have held that the expression, without more, was broad enough to include a delinquency which is an “offence” within the meaning of the Juvenile Delinquents Act. But that is not what the Court did. It held that it includes a delinquency which consists in a violation of the Criminal Code. A violation of the Criminal Code necessarily includes indictable offences as well as summary conviction offences. Indeed some of the violations of the Criminal Code of which the accused in Morris had been previously convicted consisted in indictable offences. Hence the applicability of the interpretation of the expression “any offence” in Morris to the expression “indictable offence” in the Identification of Criminals Act.

As to the word “conviction” the appellant submitted:

The other question considered by the Supreme Court of Canada in Morris is the meaning of the word “con-

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viction” in section 12 of the Canada Evidence Act, and the Court held that the power to adjudge guilt under the Juvenile Delinquents Act was “equivalent” to the power of an ordinary Court to convict, and held that the meaning of the word “conviction” within the Canada Evidence Act could be expanded to include an adjudgment under the Juvenile Delinquents Act. In assessing the bearing that Morris should have on the question at bar, it must be remembered that the question arose in Morris as a question of credibility, and hence not one to be decided on technical interpretations. It is also of critical importance that in Morris, the Court was concerned with interpretation of evidentiary statutes which should be interpreted more widely than a statute such as the Identification of Criminals Act. It is perhaps of interest that Mr. Justice Pratte states at p. 429:

The word “conviction” is not a term of art that is applicable only to Criminal Code offences punishable in the manner provided in the Code. When used in a statute, its meaning varies depending on the context in which it is found; it may or may not include the imposition of a penalty.

I do not find this submission persuasive. I fail to see how interpreting the same provisions of the Juvenile Delinquents Act, this Court could determine that a juvenile can be “convicted” of violations of the Criminal Code, including indictable offences, when the Canada Evidence Act is being considered and could no longer be “convicted” of the same violations when the statute being considered is the Identification of Criminals Act. In either case, it is the Juvenile Delinquents Act which is being interpreted, the same adjudgment of delinquency which is said to be a “conviction”.

The appellant further submitted with regard to the word “conviction”:

It is also to be noted that the majority decision in Morris relies also upon an alternative ground that the cross-examination in that case was admissible pursuant to section 593 of the Criminal Code and a general right of cross-examination, and that therefore the majority decision in Morris may not be determinative of this issue.

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That the majority decision did consider the alternative ground based on s. 593 Cr.C. does not alter its conclusion on the ground based on s. 12 of the Canada Evidence Act. It is to be noted further that in view of its conclusion on s. 12 of the Canada Evidence Act, it was unnecessary for the Court to consider s. 593 of the Criminal Code and the majority judgment so indicates at p. 437.

In view of my conclusion on the statutory point it is unnecessary to express any opinion on the common law point.

For these reasons I would answer the question in the affirmative.

I would accordingly dismiss the appeal with costs.

The following are the reasons delivered by

WILSON J.—It seems to me that the underlying issue which must be addressed in this appeal is whether the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, merely prescribes a different procedure for dealing with juvenile offenders or whether it in fact changes the character of the act so that it is no longer an indictable offence but only a delinquency.

This issue was addressed in the very context we have before us, namely in connection with the right of the police to fingerprint juveniles, in the case of R. v. D.G. (1978), 45 C.C.C. (2d) 157. McQuaid J. in that case approached the issue on the basis of a purely grammatical interpretation of the Juvenile Delinquents Act. He found that a juvenile could not be “charged with” or “convicted of” an “indictable offence” unless the Crown took steps under s. 9 of the Act to have the juvenile tried as an adult. He reinforced his conclusion with three lines of argument. First, since s. 5(1) of the Juvenile Delinquents Act provides that trials under the Act are to be summary proceedings and s. 27(1)(a) of the Interpretation Act, R.S.C. 1970, c. I-23, defines indictable offences as offences which may be prosecuted by indictment, a “delinquency” does not fit into the definition of an indictable offence found in the Interpretation Act. Secondly, since s. 3(2) of the Juvenile Delinquents Act states that a child adjudged to have committed a

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delinquency “shall be dealt with, not as an offender, but as one in a condition of delinquency”, he cannot be considered to have been convicted of a crime. And third, the Juvenile Delinquents Act, and particularly s. 3, is not merely a mechanism by which a different form of procedure is adopted in the prosecution of children for criminal offences, but is legislation which characterizes what would, if committed by an adult, be a criminal offence as a mere delinquency when committed by a child.

The problem, it seems to me, with the interpretive approach taken by McQuaid J. is that he is dealing with two statutes as if they addressed each other when in fact they do not. What he was called upon to do was interpret the words “charged with or under conviction of an indictable offence” in s. 2(1) of the Identification of Criminals Act, R.S.C. 1970, c. I-1. This Act was passed by Parliament in 1898 (1898 (Can.), c. 54) and the relevant wording has remained unchanged since that time. The Juvenile Delinquents Act dates back to 1908 (1908 (Can.), c. 40) and, while it has been amended from time to time, the provisions with which we are concerned have been in existence, albeit in somewhat different form, since the original Act was passed. I think it is fair to say that when Parliament originally passed the Identification of Criminals Act it did not contemplate a distinction between juvenile and adult offenders. There is nothing in the Juvenile Delinquents Act which speaks directly to the relationship between it and the Identification of Criminals Act and the relationship is one which must be determined therefore by inference from the words of the two pieces of legislation. In such circumstances it seems to me that the Court should take a broad rather than a narrow view of both pieces of legislation and not refine too much on the use of certain expressions at the expense of the policy reflected in the legislation as a whole. I believe that the third issue addressed by McQuaid J. is the crucial one. Does the Juvenile Delinquents Act change the character

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of the act when committed by a juvenile so that it is no longer an indictable offence but only a delinquency?

It seems to me that where the courts have addressed this question they have concluded that for the purposes of the application of other statutes the acts of juveniles who offend the Criminal Code are indeed criminal offences. The two leading cases are the majority decision of this Court in Morris v. The Queen, [1979] 1 S.C.R. 405, and the decision of the Ontario Court of Appeal in R. v. Clark (1977), 35 C.C.C. (2d) 319.

In Morris the issue was the relationship between the Juvenile Delinquents Act and the Canada Evidence Act and, in particular, whether adjudications of delinquency could be characterized as “convictions” or “offences” within the meaning of s. 12 of the latter Act. Spence J., in dissent, adopted the view that they were not, relying principally on ss. 3, 20 and 38 of the Juvenile Delinquents Act. Writing for the majority Pratte J. came to the opposite conclusion. For him the fact that no specific inclusion of “delinquencies” was made in s. 12 of the Canada Evidence Act was not conclusive of whether delinquencies arising out of violations of the Criminal Code were covered by the term “offences” in that Act. Pratte J. appears to have considered both the purposes of the two pieces of legislation and the breadth of meaning which could be ascribed to the words used in each Act. Having decided that the words “offences” and “convictions” in s. 12 of the Canada Evidence Act were sufficiently broad to encompass adjudications of delinquency and that it was consonant with the purpose of each Act that a broad meaning of the words be adopted, he proceeded to do so.

With respect I do not find the decision in Morris particularly helpful on the essential issue as I have stated it. That issue is, however, specifically addressed in Clark, supra. In that case the question was whether the appellant, who had been convicted of possession of stolen goods knowing that the goods were obtained from the commission of an offence punishable by indictment under

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s. 312(1)(a) of the Criminal Code, could succeed on the ground that his 15-year old brother, who had stolen the goods in question, had not committed “an offence punishable by indictment”. Arnup J.A. drew a distinction between the capacity to commit an offence and an immunity from prosecution for the offence. He reasoned that the Juvenile Delinquents Act provided a limited form of immunity from criminal prosecution of juveniles. This did not, however, mean that the acts themselves ceased to have a criminal character.

Arnup J.A. also rejected the argument that since s. 5 of the Juvenile Delinquents Act mandated summary procedure in the case of a juvenile offender, an offence committed by him could not be an offence “punishable by indictment”. He drew no distinction between “an indictable offence” and “an offence punishable by indictment” and he noted that the character of the offence was not changed by the method in which the Crown elected to proceed on it. In other words, where the Crown has an option to proceed summarily or by way of indictment and it chooses the former course, the offence is still one “punishable by indictment”. Thus it appeared to him that the fact that the Crown did not elect to proceed against a juvenile delinquent under the provisions of s. 9(1) of the Juvenile Delinquents Act did not mean that the delinquency lost its character as an indictable offence.

Applying the reasoning of Arnup J.A. to this case, it appears to me that the 16-year old appellant was capable of committing an indictable offence. The fact that he was charged with a delinquency rather than with an indictable offence under s. 9 of the Juvenile Delinquents Act did not relieve his act of its character as an indictable offence. For purposes of s. 2 of the Identification of Criminals Act therefore it could be said that the appellant was charged with an indictable offence. Since the other prerequisites of the Act were met the respondents were entitled pursuant to the Act to use reasonable force in securing the appellant’s fingerprints.

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For these reasons I agree with my colleague, Mr. Justice Chouinard, that the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Peyton & McDade, Kelowna.

Solicitor for the respondent Baugh: The Department of Justice, Vancouver.

Solicitor for the respondent Williams: The Ministry of the Attorney General for the Province of British Columbia, Victoria.