Court headnote

R. v. S.J.L.
Collection
Supreme Court Judgments
Date
2009-03-27
Neutral citation
2009 SCC 14
Report
[2009] 1 SCR 426
Case number
32309
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 32309
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426
Date: 20090327
Docket: 32309
Between:
Her Majesty The Queen
Appellant
and
S.J.L.-G. and L.V.-P.
Respondents
‑ and ‑
Attorney General of Ontario, Attorney General
of Manitoba, Director of Public Prosecutions of Canada
and Association des avocats de la défense de Montréal
Interveners
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 77)
Dissenting Reasons:
(paras. 78 to 104)
Deschamps J. (McLachlin C.J. and LeBel, Charron and Rothstein JJ. concurring)
Abella J. (Fish J. concurring)
______________________________
R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426
Her Majesty The Queen Appellant
v.
S.J.L.‑G. and L.V.‑P. Respondents
and
Director of Public Prosecutions of Canada,
Attorney General of Ontario, Attorney General of Manitoba
and Association des avocats de la défense de Montréal Interveners
Indexed as: R. v. S.J.L.
Neutral citation: 2009 SCC 14.
File No.: 32309.
2008: December 16; 2009: March 27.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Criminal law — Youths — Procedure — Direct indictment — Joint trials — Young persons and adults arrested together in relation to drug trafficking activities by criminal organization — Crown preferring direct indictment against all accused, both adults and young persons — Whether Crown may proceed by direct indictment in case of young persons — Whether young persons can be tried jointly with adults — Criminal Code, R.S.C. 1985, c. C-46, ss. 536(4) , 577 — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 67(7) , (9) , 140 .
Two young persons aged 16 and 17 were arrested with adults following a police investigation into drug trafficking activities by a criminal organization. The young persons were charged with numerous offences, including criminal organization offences. The Court of Québec dismissed the prosecution’s motion for a preliminary inquiry in respect of all the accused, both adults and young persons. After this refusal, the Crown preferred a direct indictment against all the accused pursuant to s. 577 of the Criminal Code . The Superior Court granted a motion by the young persons to quash the direct indictment. The Court of Appeal upheld that decision. Since the young persons’ preliminary inquiry took place in September 2007, the issue relating to the direct indictment has become moot, but given its importance, it must be addressed.
Held (Fish and Abella JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and LeBel, Deschamps, Charron and Rothstein JJ.: Preferring a direct indictment is consistent with the Youth Criminal Justice Act (“YCJA ”). Prosecution by way of summary conviction, which does not involve a preliminary inquiry, is the general rule for young persons (s. 142 YCJA ). However, where the charge is murder, or where an adult sentence is possible, the young person may elect a mode of trial. The elected mode of trial may then involve a preliminary inquiry if the Crown or the young person requests one. The YCJA does not limit the Attorney General’s discretion to prefer a direct indictment under s. 577 of the Criminal Code . Section 67(7) of the YCJA — unlike s. 536(4) , the equivalent provision of the Code — does not expressly provide that a preliminary inquiry must be held unless a direct indictment is preferred. It cannot, however, be concluded from the absence of this reservation from s. 67(7) that Parliament did not intend to allow a direct indictment to be preferred. The possibility of preferring a direct indictment clearly existed in Canadian law long before the reference in s. 536(4) came into force in 2004. When the YCJA came into force in 2003, the reservation did not appear in the Code, and the wording of s. 67(7) YCJA was consistent with that of s. 536(4) . Since the addition of this reservation in s. 536(4) had no normative effect on the Code, its absence from s. 67(7) YCJA cannot be regarded as evidence that Parliament intended to preclude the direct indictment in cases under the YCJA . Nor does the wording of s. 67(7) YCJA — “the . . . court . . . shall . . . conduct a preliminary inquiry” — rule out the possibility of proceeding by direct indictment. These words simply state that the court has no discretion to refuse to hold a preliminary inquiry if one is requested. Finally, the general reference to the Criminal Code in s. 140 YCJA is not ousted by the specific reference to modifications that the circumstances require in s. 67(9) YCJA . Section 140 YCJA applies to the entire Act and the requirement of consistency accordingly applies to any provision incorporated by reference, but the direct indictment is not inconsistent with the principles of the YCJA . [7] [10‑12] [18] [20] [26] [77]
There is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry. The preliminary inquiry is a screening mechanism for determining whether the Crown has sufficient evidence to commit the accused to trial. Dispensing with this mechanism does not result in a deprivation of fundamental justice, since the young person continues to be presumed innocent and retains the right to make full answer and defence. Nor does it impair the young person’s right to discovery, which is distinct from the right to a preliminary inquiry. Furthermore, no particular importance is attached in the YCJA to the right of young persons to a preliminary inquiry. Young persons do not generally have a right to a preliminary inquiry, and where, in an exceptional case, the right to one is conferred on a young person, the same principles apply as where it is conferred on an adult: the preliminary inquiry is optional, and it is not available if the Crown prefers a direct indictment. The direct indictment is no less relevant simply because the accused is a young person, and there will even be cases in which it will advance the objectives and principles of the YCJA . [21] [23] [35‑37] [40]
Co‑accused young persons and adults cannot be tried together. The rule that two or more accused persons may be tried together is a common law rule. Although a joint trial of young persons and adults does not present insurmountable difficulties in practical terms, such a proceeding would be inconsistent with the governing principle of the YCJA , which maintains a criminal justice system for young people that is separate from the system for adults. The creation of this separate system was based on recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system. The effect of the objectives of the YCJA is that the courts are asked to favour rehabilitation, reintegration and a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity, whereas the adult criminal justice system places greater emphasis on punishment. To apply the common law rule on joint trials would be inconsistent with the spirit and objectives of the YCJA , those resulting from the abolition of the transfer of young persons to adult court in particular. The transfer to adult court was the only way to try adults and young persons together, and the possibility of doing so disappeared when that procedure was abolished. The consequence of the abolition of the transfer to adult court was to completely seal off the system, which is confirmed by s. 3(1) (b) YCJA . The absence of a procedure in the YCJA for joinder of a trial of adults with a trial of young persons also shows that Parliament’s intention was that the common law rule should not apply. The provisions on joint trials in the YCJA apply only to co‑accused young persons. Moreover, in the course of the preparation and passage of the YCJA , a proposal that would have authorized joint trials of co‑accused adults and young persons was expressly rejected. Thus, Parliament chose to prohibit joint trials of adults and young persons. [48] [52] [56] [63-64] [67] [71-73] [75-76]
Per Fish and Abella JJ. (dissenting): There is agreement with the majority that young persons should not be tried jointly with adults, but not the view that direct indictments are available to the Crown in the youth justice context. Under the YCJA , a young person has a right to a preliminary inquiry when faced with the prospect of an adult sentence. This right should not be extinguished by interpreting the YCJA in a way that imports the possibility of direct indictments into the youth justice process. Doing so is inconsistent with the articulated principles and underlying philosophy of the YCJA , including s. 3(1) (b)(iii), which provides that young persons are entitled to “enhanced procedural protection”. While it is true that there is no constitutional right to a preliminary inquiry, this does not minimize its significance in the context of youth justice. Both the central screening function of a preliminary inquiry and its ancillary benefit as a discovery mechanism are congruent with the YCJA ’s goal of affording young persons enhanced procedural protection. Section 140 of the YCJA provides that the Criminal Code applies “except to the extent that it is inconsistent with” the YCJA ; s. 67(9) of the YCJA states that proceedings in which a preliminary inquiry is contemplated are to be conducted in accordance with Parts XIX and XX of the Criminal Code “with any modifications that the circumstances require”. Part XX includes s. 577 of the Code, which allows the Attorney General to foreclose the holding of a preliminary inquiry by preferring a direct indictment. [78-80] [83-84] [87-90] [102]
Together, ss. 140 and 67(9) are clear statutory directions that the Criminal Code is not to be applied in a way that derogates from the unique conceptual, procedural, and substantive legal terrain inhabited by the YCJA . To interpret the YCJA as allowing the only possible screening mechanism before a young person is subject to an adult sentence to be overridden at the discretion of the Crown is inconsistent with Parliament providing access to that process for the most serious consequences a young offender can face. Furthermore, s. 536(4) of the Criminal Code mandates the holding of a preliminary inquiry in certain circumstances “subject to section 577 ”, but this exception did not find its way into the corresponding provision in the YCJA, s. 67(7) . This is another cogent indicator that Parliament did not intend that the preliminary inquiry for young persons facing an adult sentence be eliminated through direct indictments. If there is any remaining doubt as to the proper interpretation of s. 67(7) , it should be resolved in favour of the young person. [91] [94] [96] [99-103]
Cases Cited
By Deschamps J.
Referred to: McKibbon v. The Queen, [1984] 1 S.C.R. 131; In re Criminal Code (1910), 43 S.C.R. 434; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635; R. v. Ertel (1987), 35 C.C.C. (3d) 398, leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), 26 C.C.C. (3d) 474; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; Skogman v. The Queen, [1984] 2 S.C.R. 93; Re Regina and Arviv (1985), 51 O.R. (2d) 551, leave to appeal refused, [1985] 1 S.C.R. v; R. v. Sterling (1993), 113 Sask. R. 81; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Egger, [1993] 2 S.C.R. 451; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. La, [1997] 2 S.C.R. 680; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; R. v. Khela, [1995] 4 S.C.R. 201; R. v. R.L. (1986), 26 C.C.C. (3d) 417; R. v. K.G. (1986), 31 C.C.C. (3d) 81; R. v. B. (S.) (1989), 50 C.C.C. (3d) 34; R. v. M. (S.H.), [1989] 2 S.C.R. 446; R. v. J.T.J. (1986), 27 C.C.C. (3d) 574; R. v. Kennedy, [1991] B.C.J. No. 3726 (QL); R. v. Pelletier (1998), 129 C.C.C. (3d) 65; R. v. Chan (2003), 172 C.C.C. (3d) 349; R. v. A.S., [1996] O.J. No. 188 (QL); R. v. R.V.B. (1994), 145 A.R. 384; R. v. L. (M.) (1995), 34 C.R.R. (2d) 147; R. v. J.W. (1989), 99 A.R. 257; R. v. Cansanay, Man. Q.B., April 23, 2007; R. v. S., Man. Q.B., June 19, 2007; Phillips v. The Queen, [1983] 2 S.C.R. 161; R. v. Clunas, [1992] 1 S.C.R. 595; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384; R. v. X, 2007 QCCQ 2076, [2007] J.Q. no 2118 (QL); R. v. Grant (1992), 52 O.A.C. 244; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025; R. v. J.M.J. (1999), 120 O.A.C. 294, leave to appeal refused, [1999] 3 S.C.R. xi; R. v. Smith (1975), 28 C.C.C. (2d) 368; R. v. E.S.R. (1985), 49 C.R. (3d) 88; Protection de la jeunesse — 350, [1988] R.J.Q. 2395; R. v. D.M. (1990), 46 O.A.C. 77; R. v. J.E.L. (1987), 4 W.C.B. (2d) 97; R. v. M.T., [1993] Y.J. No. 97 (QL).
By Abella J. (dissenting)
R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; Skogman v. The Queen, [1984] 2 S.C.R. 93; Re Regina and Arviv (1985), 51 O.R. (2d) 551; R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668; R. v. McIntosh, [1995] 1 S.C.R. 686; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739.
Statutes and Regulations Cited
Act respecting municipal courts, R.S.Q., c. C‑72.01, s. 44.
Act to amend the Young Offenders Act and the Criminal Code, S.C. 1995, c. 19, ss. 12(2), 13(3).
Canadian Charter of Rights and Freedoms, s. 11 (f).
Courts of Justice Act, R.S.Q., c. T‑16, ss. 70, 128.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 , Part XVIII, 535, 536(2), (4), (4.2), (4.3), 537(1)(i), 548(1), Part XIX, 556, 565(2), 567, Part XX, 577, 591(1), (3), 675(1.1), 676(1.1), 691 to 693, Part XXVII, 785.
Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, ss. 25 , 27 .
Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, ss. 92(1), 93(2).
Juvenile Delinquents Act, R.S.C. 1970, c. J‑3, ss. 2 “court” or “juvenile court”, “judge”, 4, 9, 38.
Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, Preamble, ss. 2(f), (g), 4, 7, 31.
Young Offenders Act, R.S.C. 1985, c. Y‑1, ss. 16 , 16(1) , (1.1) , (2) , (3) , (7) .
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3 , 14 , 25 , 26 , 27 , 37(10) , 38 , 39 , 64(2) , 67(1) , (2) , (4) , (5) , (7) , (7.1) , (7.2) , (8) , (9) , 71 , 72 , 85(7) , 110 to 125 , 140 , 142 , 146 , 147 , 151 .
Authors Cited
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Canada. Department of Justice. Public Prosecution Service. The Federal Prosecution Service Deskbook, Part V, c. 17, “Direct Indictments”, 2000 (update October 2005) (online: http://www.ppsc‑sppc.gc.ca/eng/fps‑sfp/fpd/ch17.html).
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Elliott, D. W. “Cut Throat Tactics: the freedom of an accused to prejudice a co‑accused”, [1991] Crim. L. Rev. 5.
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MacFarlane, Bruce, and Judith Webster, “Preferred Indictments”. In Vincent M. Del Buono, ed., Criminal Procedure in Canada: Studies. Toronto: Butterworths, 1982, 319.
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Newfoundland and Labrador. Department of Justice. Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, “Direct Indictments”, October 1, 2007 (online: http://www.justice.gov.nl.ca/just/prosect/guidebook/019.pdf).
Ontario. Ministry of the Attorney General. “No‑More‑Free‑Ride for Young Offenders Act”: Protecting the Public and Holding Young Offenders Accountable. Toronto: Ministry of the Attorney General, 2001.
Ontario. Ministry of the Attorney General, Criminal Law Division. Practice Memorandum, “Direct Indictments”, September 28, 2005, incorporated in Crown Policy Manual, PM [2005] No. 31, March 31, 2006.
Platt, Priscilla. Young Offenders Law in Canada, 2nd ed. Markham, Ont.: Butterworths, 1995.
Pomerant, David, and Glenn Gilmour. Working Document. A Survey of the Preliminary Inquiry in Canada. Ottawa: Department of Justice Canada, 1993.
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APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Bich and Dufresne JJ.A.), 2007 QCCA 1201, [2007] R.J.Q. 2197, [2007] J.Q. no 10607 (QL), 2007 CarswellQue 8533, affirming a decision of Mongeau J. Appeal allowed, Fish and Abella JJ. dissenting.
Robert Rouleau, Sophie Delisle, Antoine Piché and Isabelle Bouchard, for the appellant.
Éric Coulombe, for the respondent S.J.L.‑G.
Catherine Pilon and Marie‑Pierre Blouin, for the respondent L.V.‑P.
Michel F. Denis and Éric Marcoux, for the intervener the Director of Public Prosecutions of Canada.
Christine Bartlett‑Hughes, for the intervener the Attorney General of Ontario.
A. Gerald Bowering, for the intervener the Attorney General of Manitoba.
François Dadour, for the intervener Association des avocats de la défense de Montréal.
English version of the judgment of McLachlin C.J. and LeBel, Deschamps, Charron and Rothstein JJ. delivered by
[1] Deschamps J. — Two questions relating to youth criminal justice are before the Court: (1) May the Crown prefer a direct indictment? (2) Can a young person be tried jointly with an adult? For the reasons that follow, I would answer yes to the first question and no to the second.
[2] On September 20, 2006, the respondents were arrested with 16 adults following a major police investigation into drug trafficking activities by a criminal organization. The investigation lasted over five months and required the interception of more than 100,000 telephone conversations. The respondents were charged with numerous offences, including criminal organization offences. At the beginning of the period in which the events were alleged to have occurred, S.J.L.‑G. and L.V.‑P. were 16 and 17 years old, respectively.
[3] The Crown filed a motion in the Court of Québec, Youth Division, for a preliminary inquiry in respect of all the accused, both adults and young persons, to be held in the Court of Québec, Criminal and Penal Division, pursuant to s. 537(1) (i) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”). Judge Brosseau of the Court of Québec dismissed the motion.
[4] After this refusal, the Crown preferred a direct indictment against all the co‑accused, adults and young persons alike, pursuant to s. 577 Cr. C. One of the adults applied, unsuccessfully, to have the direct indictment quashed for abuse of process. The respondents filed their own motion to quash the direct indictment. The Superior Court granted the respondents’ motion, and the Court of Appeal upheld that decision.
[5] A stay of proceedings was not granted. The respondents’ preliminary inquiry took place from September 18 to 26, 2007. The issue relating to the direct indictment has therefore become moot, but given its importance, it must be addressed.
[6] The main purpose of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA ”), is to lay down special rules for young persons. It is not exhaustive. The YCJA does not set out all the procedures that apply to the prosecution of an accused young person, and it establishes very few offences. The techniques employed by Parliament in this regard are those of reference and exclusion. As is true of most special legislation, the rules provided for in the YCJA interact with the rules of general application. In the case at bar, the YCJA does not provide precise answers to the two questions before the Court. The Court must therefore interpret the general rules and the special rules and determine to what extent the general rules are consistent with the special rules for young persons, and whether the rules for adults must be adapted when being applied to young persons. Although all the provisions to which I will be referring in the course of this exercise of statutory interpretation are reproduced in the Appendix, I have also reproduced certain of them in the body of the text for ease of reference.
1. Direct Indictment
[7] Unlike an adult accused, a young person will ordinarily be prosecuted by way of summary conviction under Part XXVII Cr. C. (that is, without a preliminary inquiry) (s. 142 YCJA ). However, where a young person is charged with murder or is liable to be sentenced as an adult, he or she may elect a mode of trial. The elected mode of trial may then involve a preliminary inquiry if the Crown or the young person requests one. These situations are provided for in s. 67(7) YCJA :
67. . . .
(7) When a young person elects to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a court composed of a judge and jury, the youth justice court referred to in subsection 13(1) shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 17 or 155 or, if there are no such rules, by the youth justice court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be conducted
(a) before a judge without a jury or a court composed of a judge and jury, as the case may be; or
(b) in Nunavut, before a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be.
[8] The YCJA is silent with respect to the direct indictment. Preferring a direct indictment is instead provided for in Part XX of the Cr. C., in s. 577, which reads as follows:
577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if
(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or
(b) in any other case, a judge of the court so orders.
[9] Thus, a direct indictment is preferred only if the accused is or was entitled to a preliminary inquiry. By preferring a direct indictment, the prosecution can terminate or skip the preliminary inquiry stage. It can also put the accused on trial even if he or she was discharged following a preliminary inquiry. Where a direct indictment is preferred, the accused is deemed both to have elected to be tried by a judge and jury, and not to have requested a preliminary inquiry. He or she may nevertheless elect to be tried by a judge without a jury (s. 565(2) Cr. C. — Part XIX).
[10] As can be seen, s. 67(7) of the YCJA does not expressly provide that a preliminary inquiry must be held unless a direct indictment is preferred. The equivalent provision of the Cr. C., s. 536(4) , is worded differently:
536. . . .
(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577 , on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.
This provision expressly states that if the accused or the prosecutor requests that a preliminary inquiry be held, the justice must hold one subject to s. 577 , that is, unless a direct indictment is preferred. According to the Court of Appeal, the absence of this reservation from s. 67(7) shows that Parliament did not intend to allow a direct indictment to be preferred under the YCJA .
[11] In my view, the difference in wording does not have the consequence the Court of Appeal considered it to have. The reservation regarding the direct indictment set out in s. 536(4) Cr. C. was added to the Cr. C. only in the Criminal Law Amendment Act, 2001 (S.C. 2002, c. 13, s. 25(2) ), which came into force on June 1, 2004, SI/2003‑182. The possibility of preferring a direct indictment clearly existed in Canadian law long before the reference to it in s. 536(4) Cr. C. came into force. In fact, the Crown’s power to proceed by direct indictment existed even before the Cr. C. came into force in 1892; at the time of the codification of the rules, this power was limited, but the validity of proceeding by indictment without a preliminary inquiry was recognized: see McKibbon v. The Queen, [1984] 1 S.C.R. 131, at pp. 137‑40, and In re Criminal Code (1910), 43 S.C.R. 434. Over the years, other restrictions were introduced, but the Attorney General’s power to proceed by direct indictment survived: see McKibbon, at pp. 140‑52 and 155. When the YCJA came into force on April 1, 2003, the reservation did not appear in the Cr. C., and the wording of s. 67(7) of the YCJA was consistent with that of the corresponding provision of the Cr. C. Consequently, as the addition of this reference in s. 536(4) Cr. C. had no normative effect on the Cr. C., its absence from s. 67(7) YCJA cannot be regarded as evidence that Parliament intended to preclude the direct indictment in cases under the YCJA .
[12] I also reject the respondents’ textual argument, which the Court of Appeal endorsed, that the wording of s. 67(7) YCJA , “the . . . court . . . shall . . . conduct a preliminary inquiry”, is mandatory. These words do not rule out the possibility of proceeding by direct indictment. They simply state that the court has no discretion to refuse to hold a preliminary inquiry if one is requested. There is nothing in them that would, in a case involving young persons, cast doubt on the Attorney General’s discretion in this respect under s. 577 Cr. C.
[13] Moreover, there are two references to the Cr. C. that suggest that the direct indictment has been incorporated into the YCJA : a general one in s. 140 YCJA and a specific one in s. 67(9) YCJA . These provisions read as follows:
140. Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons.
67. . . .
(9) Proceedings under this Act before a judge without a jury or a court composed of a judge and jury or, in Nunavut, a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be, shall be conducted in accordance with the provisions of Parts XIX (indictable offences — trial without jury) and XX (procedure in jury trials and general provisions [which is where s. 577 Cr. C. is found]) of the Criminal Code , with any modifications that the circumstances require, except that
(a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code ; and
(b) the young person is entitled to be represented in court by counsel if the young person is removed from court in accordance with subsection 650(2) of the Criminal Code .
[14] Owing to the generality of these references, the direct indictment is, at first glance, available. The question is whether the effect of the wording of s. 67(7) YCJA or the reservations provided for in the specific and general references in ss. 67(9) and 140 YCJA — according to which the provisions of the Cr. C. apply “with any modifications that the circumstances require” and except where they are inconsistent — is that the direct indictment has been excluded from the procedure applicable to young persons.
[15] The Court of Appeal found that the direct indictment was inconsistent with the underlying principles of the YCJA , because it eliminated or short‑circuited the preliminary inquiry. The court held that as a result of the requirement of modifications that the circumstances require in s. 67(9) YCJA and that of consistency set out in the general reference in s. 140 YCJA , s. 577 Cr. C. did not apply: [translation] “[T]he principle of protection of young persons means that young persons should not be made to stand trial, and should not even be exposed to a risk of standing trial, unnecessarily” (2007 QCCA 1201, [2007] R.J.Q. 2197, at para. 40) and that the defence should not be deprived of the opportunity to take cognizance of the Crown’s evidence. The Court of Appeal concluded that if s. 577 Cr. C. were applied, this would neutralize s. 67 YCJA , and it questioned the constitutional validity of applying s. 577 Cr. C. in a case involving young persons, although it did not answer the question, which had not been argued by the parties. The constitutional question is not before this Court.
[16] The respondents support the Court of Appeal’s position, adding that any ambiguity must be resolved in favour of the young person and of conformity with the principles set out in s. 3 YCJA . According to the respondents, the preliminary inquiry is a supplementary procedural guarantee in favour of young persons who are liable to a youth sentence for murder or to an adult sentence.
[17] The appellant submits that as a result of the specific reference in s. 67(9) YCJA , the general reference in s. 140 YCJA , including its requirement of consistency, is inapplicable. In the alternative, she argues that the procedure provided for in s. 577 Cr. C. is not inconsistent with the provisions of the YCJA , that s. 577 Cr. C. has been held to be constitutional on several occasions and that the preliminary inquiry is not mandatory under the YCJA .
[18] I cannot endorse the argument that the general reference in s. 140 YCJA is ousted by the specific reference in s. 67(9) YCJA . I agree with the Court of Appeal that the general reference is applicable. It is impossible to conclude that all the provisions in Parts XIX and XX Cr. C. apply regardless of the requirement of consistency. Indeed, it is clear from their very wording that several of the provisions in those parts are quite simply inapplicable, either because specific equivalent provisions have been included in the YCJA (for example, s. 67(5) YCJA , which is the counterpart of s. 567 Cr. C. regarding the procedure applicable where two or more young persons are charged with the same offence or charged jointly) or, in some cases, because of their nature (for example, s. 556 Cr. C., which sets out the procedure for appearances and preliminary inquiries for accused organizations, is not relevant to the YCJA , since the youth justice court’s jurisdiction is limited to young persons (s. 14 YCJA )). These are not measures to which “modifications that the circumstances require” could be made so that they would become applicable to young persons. Rather, they are measures that are inapplicable pursuant to the clause on inconsistency.
[19] It seems to me that an interpretation involving a review of consistency is more consonant with the inherent philosophy of the scheme applicable to young offenders. The scheme’s specificity must not be undermined by importing procedures that are inconsistent with it under the cover of technical arguments.
[20] Thus, it is my view that the rule in s. 140 YCJA applies to the entire Act and that the requirement of consistency accordingly applies to any provision incorporated by reference. I disagree, however, with the Court of Appeal’s view that the direct indictment is inconsistent with the principles of the YCJA .
[21] It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30, and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14‑16. However, there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), 26 C.C.C. (3d) 474 (Man. C.A.). The principle of fundamental justice recognized by this Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, according to which young persons are entitled to a presumption of diminished moral blameworthiness has no bearing on the right to a preliminary inquiry. That is not the stage at which the guilt of the accused or the appropriate sanction is determined. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence: Ertel.
[22] Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate the Crown’s evidence (Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105), such incidental benefits do not give rise to a constitutional right to this proceeding: Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.), leave to appeal refused, [1985] 1 S.C.R. v; Ertel and R. v. Sterling (1993), 113 Sask. R. 81 (C.A.).
[23] Moreover, since R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. Egger, [1993] 2 S.C.R. 451, R. v. O’Connor, [1995] 4 S.C.R. 411, R. v. La, [1997] 2 S.C.R. 680, R. v. Dixon, [1998] 1 S.C.R. 244, and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown’s duty in this respect does not extend to producing a witness for discovery: R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: Department of Justice of Canada, working document prepared by D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. ix and 35‑36, and G. A. Martin and J. W. Irving, G. Arthur Martin: Essays on Aspects of Criminal Practice (1997), at p. 78.
[24] The reforms effected by Parliament in 2002 — which made the preliminary inquiry optional, authorized agreements to limit the scope of the preliminary inquiry and authorized the holding of a pre‑hearing conference, inter alia to promote a fair and expeditious inquiry — also tend to reduce the number of preliminary inquiries and their length (S.C. 2002, c. 13 , particularly ss. 25 and 27 , which came into force on June l, 2004). These amendments show clearly that the trend is toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures. Furthermore, they do not affect the direct indictment. Whether a direct indictment should be preferred is at the Attorney General’s discretion, and the courts will intervene in such a case only if there is an abuse of process. In the case at bar, one of the adults implicated in the same events as the respondents attempted unsuccessfully to quash the direct indictment, and no argument on that subject is raised in this Court.
[25] Moreover, I am not persuaded that Parliament could have considered the right to a preliminary inquiry to be a benefit in the particular case of young persons.
[26] First of all, it is revealing that prosecution by way of summary conviction, which does not involve a preliminary inquiry, is the general rule for young persons (s. 142 YCJA ). If Parliament had regarded the preliminary inquiry as an additional and special procedural guarantee that benefited young persons, it would surely not have provided, as a general rule, in both the Young Offenders Act, R.S.C. 1985, c. Y‑1 (“YOA ”), and the YCJA , for a procedure that does not include this “benefit”. What is more, the summary conviction procedure, which does not include the option of electing a jury trial preceded by a preliminary inquiry, has been held to be constitutional on several occasions: R. v. R.L. (1986), 26 C.C.C. (3d) 417 (Ont. C.A.); R. v. K.G. (1986), 31 C.C.C. (3d) 81 (Alta. C.A.); R. v. B. (S.) (1989), 50 C.C.C. (3d) 34 (Sask. C.A.).
[27] It can also be seen from the provisions of the YOA and the YCJA that establish exceptional cases in which a young person may opt for a preliminary inquiry that the same rules apply to the preliminary inquiry as in the criminal justice system for adults; this is an indication that the direct indictment is compatible with the system for young persons.
[28] Under the YOA , there were two situations in which a young person was entitled to a preliminary inquiry. The first was on being transferred to adult court. “[T]ransfer is based on the assumption that there are cases in which the general intent of the Juvenile Delinquents Act must be overridden because some aspect of the case demands an exception to the philosophy or practices of the juvenile court” (Report of the Solicitor General’s

Court headnote

R. v. S.J.L. Collection Supreme Court Judgments Date 2009-03-27 Neutral citation 2009 SCC 14 Report [2009] 1 SCR 426 Case number 32309 Judges McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall On appeal from Quebec Subjects Criminal law Notes SCC Case Information: 32309 Decision Content SUPREME COURT OF CANADA Citation: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426 Date: 20090327 Docket: 32309 Between: Her Majesty The Queen Appellant and S.J.L.-G. and L.V.-P. Respondents ‑ and ‑ Attorney General of Ontario, Attorney General of Manitoba, Director of Public Prosecutions of Canada and Association des avocats de la défense de Montréal Interveners Official English Translation: Reasons of Deschamps J. Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. Reasons for Judgment: (paras. 1 to 77) Dissenting Reasons: (paras. 78 to 104) Deschamps J. (McLachlin C.J. and LeBel, Charron and Rothstein JJ. concurring) Abella J. (Fish J. concurring) ______________________________ R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426 Her Majesty The Queen Appellant v. S.J.L.‑G. and L.V.‑P. Respondents and Director of Public Prosecutions of Canada, Attorney General of Ontario, Attorney General of Manitoba and Association des avocats de la défense de Montréal Interveners Indexed as: R. v. S.J.L. Neutral citation: 2009 SCC 14. File No.: 32309. 2008: December 16; 2009: March 27. Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. on appeal from the court of appeal for quebec Criminal law — Youths — Procedure — Direct indictment — Joint trials — Young persons and adults arrested together in relation to drug trafficking activities by criminal organization — Crown preferring direct indictment against all accused, both adults and young persons — Whether Crown may proceed by direct indictment in case of young persons — Whether young persons can be tried jointly with adults — Criminal Code, R.S.C. 1985, c. C-46, ss. 536(4) , 577 — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 67(7) , (9) , 140 . Two young persons aged 16 and 17 were arrested with adults following a police investigation into drug trafficking activities by a criminal organization. The young persons were charged with numerous offences, including criminal organization offences. The Court of Québec dismissed the prosecution’s motion for a preliminary inquiry in respect of all the accused, both adults and young persons. After this refusal, the Crown preferred a direct indictment against all the accused pursuant to s. 577 of the Criminal Code . The Superior Court granted a motion by the young persons to quash the direct indictment. The Court of Appeal upheld that decision. Since the young persons’ preliminary inquiry took place in September 2007, the issue relating to the direct indictment has become moot, but given its importance, it must be addressed. Held (Fish and Abella JJ. dissenting): The appeal should be allowed. Per McLachlin C.J. and LeBel, Deschamps, Charron and Rothstein JJ.: Preferring a direct indictment is consistent with the Youth Criminal Justice Act (“YCJA ”). Prosecution by way of summary conviction, which does not involve a preliminary inquiry, is the general rule for young persons (s. 142 YCJA ). However, where the charge is murder, or where an adult sentence is possible, the young person may elect a mode of trial. The elected mode of trial may then involve a preliminary inquiry if the Crown or the young person requests one. The YCJA does not limit the Attorney General’s discretion to prefer a direct indictment under s. 577 of the Criminal Code . Section 67(7) of the YCJA — unlike s. 536(4) , the equivalent provision of the Code — does not expressly provide that a preliminary inquiry must be held unless a direct indictment is preferred. It cannot, however, be concluded from the absence of this reservation from s. 67(7) that Parliament did not intend to allow a direct indictment to be preferred. The possibility of preferring a direct indictment clearly existed in Canadian law long before the reference in s. 536(4) came into force in 2004. When the YCJA came into force in 2003, the reservation did not appear in the Code, and the wording of s. 67(7) YCJA was consistent with that of s. 536(4) . Since the addition of this reservation in s. 536(4) had no normative effect on the Code, its absence from s. 67(7) YCJA cannot be regarded as evidence that Parliament intended to preclude the direct indictment in cases under the YCJA . Nor does the wording of s. 67(7) YCJA — “the . . . court . . . shall . . . conduct a preliminary inquiry” — rule out the possibility of proceeding by direct indictment. These words simply state that the court has no discretion to refuse to hold a preliminary inquiry if one is requested. Finally, the general reference to the Criminal Code in s. 140 YCJA is not ousted by the specific reference to modifications that the circumstances require in s. 67(9) YCJA . Section 140 YCJA applies to the entire Act and the requirement of consistency accordingly applies to any provision incorporated by reference, but the direct indictment is not inconsistent with the principles of the YCJA . [7] [10‑12] [18] [20] [26] [77] There is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry. The preliminary inquiry is a screening mechanism for determining whether the Crown has sufficient evidence to commit the accused to trial. Dispensing with this mechanism does not result in a deprivation of fundamental justice, since the young person continues to be presumed innocent and retains the right to make full answer and defence. Nor does it impair the young person’s right to discovery, which is distinct from the right to a preliminary inquiry. Furthermore, no particular importance is attached in the YCJA to the right of young persons to a preliminary inquiry. Young persons do not generally have a right to a preliminary inquiry, and where, in an exceptional case, the right to one is conferred on a young person, the same principles apply as where it is conferred on an adult: the preliminary inquiry is optional, and it is not available if the Crown prefers a direct indictment. The direct indictment is no less relevant simply because the accused is a young person, and there will even be cases in which it will advance the objectives and principles of the YCJA . [21] [23] [35‑37] [40] Co‑accused young persons and adults cannot be tried together. The rule that two or more accused persons may be tried together is a common law rule. Although a joint trial of young persons and adults does not present insurmountable difficulties in practical terms, such a proceeding would be inconsistent with the governing principle of the YCJA , which maintains a criminal justice system for young people that is separate from the system for adults. The creation of this separate system was based on recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system. The effect of the objectives of the YCJA is that the courts are asked to favour rehabilitation, reintegration and a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity, whereas the adult criminal justice system places greater emphasis on punishment. To apply the common law rule on joint trials would be inconsistent with the spirit and objectives of the YCJA , those resulting from the abolition of the transfer of young persons to adult court in particular. The transfer to adult court was the only way to try adults and young persons together, and the possibility of doing so disappeared when that procedure was abolished. The consequence of the abolition of the transfer to adult court was to completely seal off the system, which is confirmed by s. 3(1) (b) YCJA . The absence of a procedure in the YCJA for joinder of a trial of adults with a trial of young persons also shows that Parliament’s intention was that the common law rule should not apply. The provisions on joint trials in the YCJA apply only to co‑accused young persons. Moreover, in the course of the preparation and passage of the YCJA , a proposal that would have authorized joint trials of co‑accused adults and young persons was expressly rejected. Thus, Parliament chose to prohibit joint trials of adults and young persons. [48] [52] [56] [63-64] [67] [71-73] [75-76] Per Fish and Abella JJ. (dissenting): There is agreement with the majority that young persons should not be tried jointly with adults, but not the view that direct indictments are available to the Crown in the youth justice context. Under the YCJA , a young person has a right to a preliminary inquiry when faced with the prospect of an adult sentence. This right should not be extinguished by interpreting the YCJA in a way that imports the possibility of direct indictments into the youth justice process. Doing so is inconsistent with the articulated principles and underlying philosophy of the YCJA , including s. 3(1) (b)(iii), which provides that young persons are entitled to “enhanced procedural protection”. While it is true that there is no constitutional right to a preliminary inquiry, this does not minimize its significance in the context of youth justice. Both the central screening function of a preliminary inquiry and its ancillary benefit as a discovery mechanism are congruent with the YCJA ’s goal of affording young persons enhanced procedural protection. Section 140 of the YCJA provides that the Criminal Code applies “except to the extent that it is inconsistent with” the YCJA ; s. 67(9) of the YCJA states that proceedings in which a preliminary inquiry is contemplated are to be conducted in accordance with Parts XIX and XX of the Criminal Code “with any modifications that the circumstances require”. Part XX includes s. 577 of the Code, which allows the Attorney General to foreclose the holding of a preliminary inquiry by preferring a direct indictment. [78-80] [83-84] [87-90] [102] Together, ss. 140 and 67(9) are clear statutory directions that the Criminal Code is not to be applied in a way that derogates from the unique conceptual, procedural, and substantive legal terrain inhabited by the YCJA . To interpret the YCJA as allowing the only possible screening mechanism before a young person is subject to an adult sentence to be overridden at the discretion of the Crown is inconsistent with Parliament providing access to that process for the most serious consequences a young offender can face. Furthermore, s. 536(4) of the Criminal Code mandates the holding of a preliminary inquiry in certain circumstances “subject to section 577 ”, but this exception did not find its way into the corresponding provision in the YCJA, s. 67(7) . This is another cogent indicator that Parliament did not intend that the preliminary inquiry for young persons facing an adult sentence be eliminated through direct indictments. If there is any remaining doubt as to the proper interpretation of s. 67(7) , it should be resolved in favour of the young person. [91] [94] [96] [99-103] Cases Cited By Deschamps J. Referred to: McKibbon v. The Queen, [1984] 1 S.C.R. 131; In re Criminal Code (1910), 43 S.C.R. 434; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635; R. v. Ertel (1987), 35 C.C.C. (3d) 398, leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), 26 C.C.C. (3d) 474; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; Skogman v. The Queen, [1984] 2 S.C.R. 93; Re Regina and Arviv (1985), 51 O.R. (2d) 551, leave to appeal refused, [1985] 1 S.C.R. v; R. v. Sterling (1993), 113 Sask. R. 81; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Egger, [1993] 2 S.C.R. 451; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. La, [1997] 2 S.C.R. 680; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; R. v. Khela, [1995] 4 S.C.R. 201; R. v. R.L. (1986), 26 C.C.C. (3d) 417; R. v. K.G. (1986), 31 C.C.C. (3d) 81; R. v. B. (S.) (1989), 50 C.C.C. (3d) 34; R. v. M. (S.H.), [1989] 2 S.C.R. 446; R. v. J.T.J. (1986), 27 C.C.C. (3d) 574; R. v. Kennedy, [1991] B.C.J. 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Practice Memorandum, “Direct Indictments”, September 28, 2005, incorporated in Crown Policy Manual, PM [2005] No. 31, March 31, 2006. Platt, Priscilla. Young Offenders Law in Canada, 2nd ed. Markham, Ont.: Butterworths, 1995. Pomerant, David, and Glenn Gilmour. Working Document. A Survey of the Preliminary Inquiry in Canada. Ottawa: Department of Justice Canada, 1993. Québec. Directeur des poursuites criminelles et pénales. Directive no ACC‑2, “Accusation — Acte d’accusation direct et nouvelle dénonciation”, 1987 (actualisée mars 2007) (en ligne: http://www.justice.gouv.qc.ca/ FRANCAIS/themes/prof/juristes/pdf/ACC‑2.pdf). Quigley, Tim. Procedure in Canadian Criminal Law, 2nd ed. Toronto: Thomson Carswell, 2005 (loose-leaf updated 2008, release 2). Saskatchewan. Department of Justice, Public Prosecutions. Policy Manual, Policy and Practice Directive DIR1, “Direct Indictments”, June 1994. Tustin, Lee, and Robert E. Lutes. A Guide to the Youth Criminal Justice Act, 2006 ed. Markham, Ont.: LexisNexis Butterworths, 2005. APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Bich and Dufresne JJ.A.), 2007 QCCA 1201, [2007] R.J.Q. 2197, [2007] J.Q. no 10607 (QL), 2007 CarswellQue 8533, affirming a decision of Mongeau J. Appeal allowed, Fish and Abella JJ. dissenting. Robert Rouleau, Sophie Delisle, Antoine Piché and Isabelle Bouchard, for the appellant. Éric Coulombe, for the respondent S.J.L.‑G. Catherine Pilon and Marie‑Pierre Blouin, for the respondent L.V.‑P. Michel F. Denis and Éric Marcoux, for the intervener the Director of Public Prosecutions of Canada. Christine Bartlett‑Hughes, for the intervener the Attorney General of Ontario. A. Gerald Bowering, for the intervener the Attorney General of Manitoba. François Dadour, for the intervener Association des avocats de la défense de Montréal. English version of the judgment of McLachlin C.J. and LeBel, Deschamps, Charron and Rothstein JJ. delivered by [1] Deschamps J. — Two questions relating to youth criminal justice are before the Court: (1) May the Crown prefer a direct indictment? (2) Can a young person be tried jointly with an adult? For the reasons that follow, I would answer yes to the first question and no to the second. [2] On September 20, 2006, the respondents were arrested with 16 adults following a major police investigation into drug trafficking activities by a criminal organization. The investigation lasted over five months and required the interception of more than 100,000 telephone conversations. The respondents were charged with numerous offences, including criminal organization offences. At the beginning of the period in which the events were alleged to have occurred, S.J.L.‑G. and L.V.‑P. were 16 and 17 years old, respectively. [3] The Crown filed a motion in the Court of Québec, Youth Division, for a preliminary inquiry in respect of all the accused, both adults and young persons, to be held in the Court of Québec, Criminal and Penal Division, pursuant to s. 537(1) (i) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”). Judge Brosseau of the Court of Québec dismissed the motion. [4] After this refusal, the Crown preferred a direct indictment against all the co‑accused, adults and young persons alike, pursuant to s. 577 Cr. C. One of the adults applied, unsuccessfully, to have the direct indictment quashed for abuse of process. The respondents filed their own motion to quash the direct indictment. The Superior Court granted the respondents’ motion, and the Court of Appeal upheld that decision. [5] A stay of proceedings was not granted. The respondents’ preliminary inquiry took place from September 18 to 26, 2007. The issue relating to the direct indictment has therefore become moot, but given its importance, it must be addressed. [6] The main purpose of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA ”), is to lay down special rules for young persons. It is not exhaustive. The YCJA does not set out all the procedures that apply to the prosecution of an accused young person, and it establishes very few offences. The techniques employed by Parliament in this regard are those of reference and exclusion. As is true of most special legislation, the rules provided for in the YCJA interact with the rules of general application. In the case at bar, the YCJA does not provide precise answers to the two questions before the Court. The Court must therefore interpret the general rules and the special rules and determine to what extent the general rules are consistent with the special rules for young persons, and whether the rules for adults must be adapted when being applied to young persons. Although all the provisions to which I will be referring in the course of this exercise of statutory interpretation are reproduced in the Appendix, I have also reproduced certain of them in the body of the text for ease of reference. 1. Direct Indictment [7] Unlike an adult accused, a young person will ordinarily be prosecuted by way of summary conviction under Part XXVII Cr. C. (that is, without a preliminary inquiry) (s. 142 YCJA ). However, where a young person is charged with murder or is liable to be sentenced as an adult, he or she may elect a mode of trial. The elected mode of trial may then involve a preliminary inquiry if the Crown or the young person requests one. These situations are provided for in s. 67(7) YCJA : 67. . . . (7) When a young person elects to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a court composed of a judge and jury, the youth justice court referred to in subsection 13(1) shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 17 or 155 or, if there are no such rules, by the youth justice court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be conducted (a) before a judge without a jury or a court composed of a judge and jury, as the case may be; or (b) in Nunavut, before a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be. [8] The YCJA is silent with respect to the direct indictment. Preferring a direct indictment is instead provided for in Part XX of the Cr. C., in s. 577, which reads as follows: 577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if (a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or (b) in any other case, a judge of the court so orders. [9] Thus, a direct indictment is preferred only if the accused is or was entitled to a preliminary inquiry. By preferring a direct indictment, the prosecution can terminate or skip the preliminary inquiry stage. It can also put the accused on trial even if he or she was discharged following a preliminary inquiry. Where a direct indictment is preferred, the accused is deemed both to have elected to be tried by a judge and jury, and not to have requested a preliminary inquiry. He or she may nevertheless elect to be tried by a judge without a jury (s. 565(2) Cr. C. — Part XIX). [10] As can be seen, s. 67(7) of the YCJA does not expressly provide that a preliminary inquiry must be held unless a direct indictment is preferred. The equivalent provision of the Cr. C., s. 536(4) , is worded differently: 536. . . . (4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577 , on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. This provision expressly states that if the accused or the prosecutor requests that a preliminary inquiry be held, the justice must hold one subject to s. 577 , that is, unless a direct indictment is preferred. According to the Court of Appeal, the absence of this reservation from s. 67(7) shows that Parliament did not intend to allow a direct indictment to be preferred under the YCJA . [11] In my view, the difference in wording does not have the consequence the Court of Appeal considered it to have. The reservation regarding the direct indictment set out in s. 536(4) Cr. C. was added to the Cr. C. only in the Criminal Law Amendment Act, 2001 (S.C. 2002, c. 13, s. 25(2) ), which came into force on June 1, 2004, SI/2003‑182. The possibility of preferring a direct indictment clearly existed in Canadian law long before the reference to it in s. 536(4) Cr. C. came into force. In fact, the Crown’s power to proceed by direct indictment existed even before the Cr. C. came into force in 1892; at the time of the codification of the rules, this power was limited, but the validity of proceeding by indictment without a preliminary inquiry was recognized: see McKibbon v. The Queen, [1984] 1 S.C.R. 131, at pp. 137‑40, and In re Criminal Code (1910), 43 S.C.R. 434. Over the years, other restrictions were introduced, but the Attorney General’s power to proceed by direct indictment survived: see McKibbon, at pp. 140‑52 and 155. When the YCJA came into force on April 1, 2003, the reservation did not appear in the Cr. C., and the wording of s. 67(7) of the YCJA was consistent with that of the corresponding provision of the Cr. C. Consequently, as the addition of this reference in s. 536(4) Cr. C. had no normative effect on the Cr. C., its absence from s. 67(7) YCJA cannot be regarded as evidence that Parliament intended to preclude the direct indictment in cases under the YCJA . [12] I also reject the respondents’ textual argument, which the Court of Appeal endorsed, that the wording of s. 67(7) YCJA , “the . . . court . . . shall . . . conduct a preliminary inquiry”, is mandatory. These words do not rule out the possibility of proceeding by direct indictment. They simply state that the court has no discretion to refuse to hold a preliminary inquiry if one is requested. There is nothing in them that would, in a case involving young persons, cast doubt on the Attorney General’s discretion in this respect under s. 577 Cr. C. [13] Moreover, there are two references to the Cr. C. that suggest that the direct indictment has been incorporated into the YCJA : a general one in s. 140 YCJA and a specific one in s. 67(9) YCJA . These provisions read as follows: 140. Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons. 67. . . . (9) Proceedings under this Act before a judge without a jury or a court composed of a judge and jury or, in Nunavut, a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be, shall be conducted in accordance with the provisions of Parts XIX (indictable offences — trial without jury) and XX (procedure in jury trials and general provisions [which is where s. 577 Cr. C. is found]) of the Criminal Code , with any modifications that the circumstances require, except that (a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code ; and (b) the young person is entitled to be represented in court by counsel if the young person is removed from court in accordance with subsection 650(2) of the Criminal Code . [14] Owing to the generality of these references, the direct indictment is, at first glance, available. The question is whether the effect of the wording of s. 67(7) YCJA or the reservations provided for in the specific and general references in ss. 67(9) and 140 YCJA — according to which the provisions of the Cr. C. apply “with any modifications that the circumstances require” and except where they are inconsistent — is that the direct indictment has been excluded from the procedure applicable to young persons. [15] The Court of Appeal found that the direct indictment was inconsistent with the underlying principles of the YCJA , because it eliminated or short‑circuited the preliminary inquiry. The court held that as a result of the requirement of modifications that the circumstances require in s. 67(9) YCJA and that of consistency set out in the general reference in s. 140 YCJA , s. 577 Cr. C. did not apply: [translation] “[T]he principle of protection of young persons means that young persons should not be made to stand trial, and should not even be exposed to a risk of standing trial, unnecessarily” (2007 QCCA 1201, [2007] R.J.Q. 2197, at para. 40) and that the defence should not be deprived of the opportunity to take cognizance of the Crown’s evidence. The Court of Appeal concluded that if s. 577 Cr. C. were applied, this would neutralize s. 67 YCJA , and it questioned the constitutional validity of applying s. 577 Cr. C. in a case involving young persons, although it did not answer the question, which had not been argued by the parties. The constitutional question is not before this Court. [16] The respondents support the Court of Appeal’s position, adding that any ambiguity must be resolved in favour of the young person and of conformity with the principles set out in s. 3 YCJA . According to the respondents, the preliminary inquiry is a supplementary procedural guarantee in favour of young persons who are liable to a youth sentence for murder or to an adult sentence. [17] The appellant submits that as a result of the specific reference in s. 67(9) YCJA , the general reference in s. 140 YCJA , including its requirement of consistency, is inapplicable. In the alternative, she argues that the procedure provided for in s. 577 Cr. C. is not inconsistent with the provisions of the YCJA , that s. 577 Cr. C. has been held to be constitutional on several occasions and that the preliminary inquiry is not mandatory under the YCJA . [18] I cannot endorse the argument that the general reference in s. 140 YCJA is ousted by the specific reference in s. 67(9) YCJA . I agree with the Court of Appeal that the general reference is applicable. It is impossible to conclude that all the provisions in Parts XIX and XX Cr. C. apply regardless of the requirement of consistency. Indeed, it is clear from their very wording that several of the provisions in those parts are quite simply inapplicable, either because specific equivalent provisions have been included in the YCJA (for example, s. 67(5) YCJA , which is the counterpart of s. 567 Cr. C. regarding the procedure applicable where two or more young persons are charged with the same offence or charged jointly) or, in some cases, because of their nature (for example, s. 556 Cr. C., which sets out the procedure for appearances and preliminary inquiries for accused organizations, is not relevant to the YCJA , since the youth justice court’s jurisdiction is limited to young persons (s. 14 YCJA )). These are not measures to which “modifications that the circumstances require” could be made so that they would become applicable to young persons. Rather, they are measures that are inapplicable pursuant to the clause on inconsistency. [19] It seems to me that an interpretation involving a review of consistency is more consonant with the inherent philosophy of the scheme applicable to young offenders. The scheme’s specificity must not be undermined by importing procedures that are inconsistent with it under the cover of technical arguments. [20] Thus, it is my view that the rule in s. 140 YCJA applies to the entire Act and that the requirement of consistency accordingly applies to any provision incorporated by reference. I disagree, however, with the Court of Appeal’s view that the direct indictment is inconsistent with the principles of the YCJA . [21] It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30, and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14‑16. However, there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), 26 C.C.C. (3d) 474 (Man. C.A.). The principle of fundamental justice recognized by this Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, according to which young persons are entitled to a presumption of diminished moral blameworthiness has no bearing on the right to a preliminary inquiry. That is not the stage at which the guilt of the accused or the appropriate sanction is determined. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence: Ertel. [22] Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate the Crown’s evidence (Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105), such incidental benefits do not give rise to a constitutional right to this proceeding: Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.), leave to appeal refused, [1985] 1 S.C.R. v; Ertel and R. v. Sterling (1993), 113 Sask. R. 81 (C.A.). [23] Moreover, since R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. Egger, [1993] 2 S.C.R. 451, R. v. O’Connor, [1995] 4 S.C.R. 411, R. v. La, [1997] 2 S.C.R. 680, R. v. Dixon, [1998] 1 S.C.R. 244, and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown’s duty in this respect does not extend to producing a witness for discovery: R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: Department of Justice of Canada, working document prepared by D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. ix and 35‑36, and G. A. Martin and J. W. Irving, G. Arthur Martin: Essays on Aspects of Criminal Practice (1997), at p. 78. [24] The reforms effected by Parliament in 2002 — which made the preliminary inquiry optional, authorized agreements to limit the scope of the preliminary inquiry and authorized the holding of a pre‑hearing conference, inter alia to promote a fair and expeditious inquiry — also tend to reduce the number of preliminary inquiries and their length (S.C. 2002, c. 13 , particularly ss. 25 and 27 , which came into force on June l, 2004). These amendments show clearly that the trend is toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures. Furthermore, they do not affect the direct indictment. Whether a direct indictment should be preferred is at the Attorney General’s discretion, and the courts will intervene in such a case only if there is an abuse of process. In the case at bar, one of the adults implicated in the same events as the respondents attempted unsuccessfully to quash the direct indictment, and no argument on that subject is raised in this Court. [25] Moreover, I am not persuaded that Parliament could have considered the right to a preliminary inquiry to be a benefit in the particular case of young persons. [26] First of all, it is revealing that prosecution by way of summary conviction, which does not involve a preliminary inquiry, is the general rule for young persons (s. 142 YCJA ). If Parliament had regarded the preliminary inquiry as an additional and special procedural guarantee that benefited young persons, it would surely not have provided, as a general rule, in both the Young Offenders Act, R.S.C. 1985, c. Y‑1 (“YOA ”), and the YCJA , for a procedure that does not include this “benefit”. What is more, the summary conviction procedure, which does not include the option of electing a jury trial preceded by a preliminary inquiry, has been held to be constitutional on several occasions: R. v. R.L. (1986), 26 C.C.C. (3d) 417 (Ont. C.A.); R. v. K.G. (1986), 31 C.C.C. (3d) 81 (Alta. C.A.); R. v. B. (S.) (1989), 50 C.C.C. (3d) 34 (Sask. C.A.). [27] It can also be seen from the provisions of the YOA and the YCJA that establish exceptional cases in which a young person may opt for a preliminary inquiry that the same rules apply to the preliminary inquiry as in the criminal justice system for adults; this is an indication that the direct indictment is compatible with the system for young persons. [28] Under the YOA , there were two situations in which a young person was entitled to a preliminary inquiry. The first was on being transferred to adult court. “[T]ransfer is based on the assumption that there are cases in which the general intent of the Juvenile Delinquents Act must be overridden because some aspect of the case demands an exception to the philosophy or practices of the juvenile court” (Report of the Solicitor General’s

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