R. v. M. (S.H.)

R. v. M. (S.H.)
Collection
Supreme Court Judgments
Date
1989-09-28
Report
[1989] 2 SCR 446
Case number
20508
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 20508
Decision Content
R. v. M. (S.H.), [1989] 2 S.C.R. 446
S.H.M. Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. m. (s.h.)
File No.: 20508.
1989: April 27; 1989: September 28.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for alberta
Criminal law -- Young offenders -- Transfer to ordinary court ‑‑ Requirements -- Young offender just under 18 years of age charged with first degree murder -- Crown's application for transfer to ordinary court dismissed by Youth Court judge -- Youth Court's decision affirmed by Court of Queen's Bench but reversed by Court of Appeal -- Nature of burden on the Crown for transfer to ordinary court -- Nature of review on appeal -- Test for transfer -- Whether Court of Appeal erred in ordering youth to be transferred to ordinary court -- Young Offenders Act, S.C. 1980‑81‑82-83, c. 110, ss. 3, 16.
S.H.M. and an another youth, J.E.L., were charged with first degree murder and with possession of stolen property. The Crown brought an application to have them transferred to ordinary court pursuant to s. 16 of the Young Offenders Act. The Crown contended that on April 30, 1986, they accompanied a homosexual male to his home. The man allegedly attempted sexual relations with one of the youth who struck him and rendered him unconscious. The youths then bound the man with electrical wire, strangled him and concealed the body in the basement. They lived in the victim's house some days and tried to dispose of his stereo and computer equipment. S.H.M. was almost 18 years old at the time of the alleged offences. Emotionally he is described as being thirteen or fourteen. He had a prior conviction for two counts of gross indecency involving 9 and 10‑year‑old boys. S.H.M., who had a difficult childhood, claimed that he was also a victim of sexual abuse when he was younger. He was described by psychiatrists and social workers as an extremely self‑conscious, insecure young man. A social history report prepared on S.H.M. indicated that adult prison "will be destructive for this young person" and that "the combination of his immaturity, sexual identity confusion, and exaggerated need for approval by others will be disastrous for him in the prison culture".
The Youth Court judge considered the factors set out in s. 16(2) of the Act and the principles set out in s. 3 and declined to order the transfer. He concluded that there was a "heavy onus" on the Crown to establish why a transfer should be granted. The Court of Queen's Bench upheld the ruling. The Court of Appeal reversed the judgment. The court rejected the Youth Court judge's conclusion that there was a heavy onus on the applicant seeking an order for transfer and found that under s. 16(9) and (10) the provincial appellate courts must apply their own discretion in reviewing the circumstances of the case. After a review of the relevant factors and considerations, the court concluded that it was in "the interests of society, having regard to the needs of S.H.M.", that the youth be transferred to ordinary court. This appeal is to determine (1) whether there was a burden on the Crown to establish that the transfer should be made; (2) whether provincial reviewing tribunals have an independent discretion in deciding the question of transfer; and (3) whether Court of Appeal properly applied the test for transfer.
Held (La Forest and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Lamer, Wilson, Sopinka, Gonthier, Cory and McLachlin JJ.: The Court of Appeal did not err in the view it took of the nature of the burden on the Crown. The party seeking transfer to ordinary court must persuade the court that, having regard to the factors set out in s. 16(2) and (3) of the Act, the case should be transferred. While, in this sense, there is a burden on the party seeking transfer, the burden should not be regarded as a heavy one. Section 16 does not confine the transfer to ordinary court to exceptional cases but is consistent with the conclusion that transfer must appear as the right or proper solution. The question is whether the judge is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court.
The Court of Appeal was correct in its conclusion that the Act conferred on it the discretion to independently evaluate whether a transfer should be made. Section 16(9) and (10) of the Act empowers the superior court of the province to review the decision of the Youth Court judge and, "in its discretion", to confirm or reverse it. The Court of Appeal has the same mandate in reviewing the decision of the superior court judge. While the reviewing court must base its decision on the findings of fact made by the Youth Court judge and give due deference to that judge's evaluation of the evidence, the Act confers on the provincial reviewing court a discretion to make an independent evaluation and to arrive at an independent conclusion on those facts. This involves evaluation, not only of whether the court below made an error of law or jurisdiction, but of whether its conclusions are correct based on the factors set out in the Act.
The Court of Appeal properly applied the relevant factors for transfer from Youth Court to ordinary court. The court considered the seriousness of the offence, as well as the age of the accused and the inappropriateness of a three‑year sentence under the Act (given the heinous nature of the alleged crimes), to be important factors. But the court also properly bore in mind all the factors which must be considered under s. 16. It is inevitable that, in the course of the review, some factors will assume greater importance than others, depending on the nature of the case and the viewpoint of the tribunal. The Act does not require that all factors be given equal weight, but only that each be considered.
This Court has no power under the Act to substitute its discretion for that of the court below. The jurisdiction of the Court is limited to correction of error in the proceedings below.
Per La Forest and L'Heureux‑Dubé JJ. (dissenting): The transfer of a youth to ordinary court should only be ordered in exceptional cases. In view of the history, purpose and basic philosophy of the legislation as well as the English and French texts of s. 16(1), the transfer of a youth to ordinary court under s. 16 must propose itself to the Youth Court judge's mind as the only appropriate solution. The decision to release a youth to the ordinary criminal enforcement process represents an abdication by the youth system of its exclusive jurisdiction to deal with young offenders and deprives the youth of his entitlement to the rehabilitative philosophy and treatment resources of the system specially designed to meet his needs. Here, the Court of Appeal misconceived the burden of proof required for a transfer. Section 16 sets a threshold more onerous than simply "favouring" transfer. The burden falls squarely on the applicant to persuade the Youth Court that no solution other than transfer is appropriate in the circumstances of a particular case. The Court of Appeal's error pervaded its assessment of the evidence relating to the elements to be considered in s. 16.
Under s. 16(9) and (10) of the Act, a provincial reviewing court is not authorized to substitute its own evaluation of the circumstances for the evaluation of the Youth Court. The scope of the discretion to review a matter properly brought into appeal must be interpreted in light of the general economy of the Act and of the legislative grant of exclusive jurisdiction to a specialized tribunal empowered to make the initial determination at the transfer hearing. The discretion to confirm or reverse the decision of the Youth Court under s. 16(9) and (10) can only be exercised in cases where there is a serious ground for intervention. Errors of fact as well as errors of law would constitute such serious grounds, but the test is intended to allow a somewhat broader basis for review. In some cases, it could allow the discretion to review to be exercised where there is a substantial discrepancy between the reviewing court's and the Youth Court's assessment of the relevant factors. This test recognizes the privileged position of the transfer hearing judge in determining questions of fact in the Youth Court's area of expertise and makes fitting allowance for the judge's familiarity with the resources of the youth care system, while at the same time breathing life into the right of appeal.
In this case, the Court of Appeal erred in proceeding on the basis that it could simply substitute its own appreciation as to whether a transfer should be ordered. The Youth Court judge considered the factors set out in s. 16(2) and was convinced that the Crown had failed on its burden to show why a transfer should be ordered. In the Young Court judge's view, the element of seriousness of the offence and the circumstances surrounding it, which favoured transfer, were outweighed by the other elements, which were either neutral or weighed against transfer. The available treatment facilities and the character of the youth gave rise to a sufficient likelihood that treatment would be successful. As the youth would not be likewise amenable to rehabilitation in the ordinary penal system, the balancing test under s. 16(1) and (2) required that S.H.M. not be transferred. This is a case where the additional expertise of the Youth Court and its privileged situation in assessing the expert testimony should have prevailed over only minor differences of opinion in the Court of Appeal. No error of law or of fact was committed by the Youth Court. In the absence of any serious ground for intervention, this conclusion should have determined the fate of S.H.M. as regards his transfer to the ordinary court system.
Cases Cited
By McLachlin J.
Referred to: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460.
By L'Heureux‑Dubé J. (dissenting)
Attorney General of British Columbia v. Smith, [1967] S.C.R. 702; Kent v. United States, 383 U.S. 541 (1966); R. v. Chamberlain (1974), 15 C.C.C. (2d) 379; R. v. Cole (1975), 25 C.C.C. (2d) 140; R. v. Boisvert (No. 2) (1981), 63 C.C.C. (2d) 362; R. v. Smith (1975), 28 C.C.C. (2d) 368; R. v. R.M.C. (1987), 33 C.C.C. (3d) 136; R. v. N.B. (1985), 21 C.C.C. (3d) 374; R. v. A. (1986), 3 Q.A.C. 16; R. v. W.Y. (1988), 4 W.C.B. (2d) 267; R. v. S.J.H. (1986), 76 N.S.R. (2d) 163; R. v. M. (1985), 23 C.C.C. (3d) 538; R. v. M.A.Z. (1987), 35 C.C.C. (3d) 144; R. v. J.R.D. (1988), 17 Q.A.C. 81; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; Minister of National Revenue v. Wrights' Canadian Ropes, Ltd., [1947] A.C. 109 (P.C.), aff'g [1946] S.C.R. 139; Rowntree Co. v. Paulin Chambers Co., [1968] S.C.R. 134; Canadian Motorways Ltd. v. Laidlaw Motorways Ltd., [1974] S.C.R. 675; R. v. L.A.M. (1986), 33 C.C.C. (3d) 364.
Statutes and Regulations Cited
Act respecting Arrest, Trial and Imprisonment of Youthful Offenders, S.C. 1894, c. 58, preamble, ss. 2, 3.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 157, 218(1) [rep. & sub. 1973‑74, c. 38, s. 3; rep. & sub. 1974‑75‑76, c. 105, s. 5], 246 [am. 1972, c. 13, s. 22; rep. & sub. 1980‑81‑82‑83, c. 125, s. 19], 295 [rep. & sub. 1972, c. 13, s. 23], 313(a) [rep. & sub. 1972, c. 13, s. 28; rep. & sub. 1974‑75‑76, c. 93, s. 30; rep. & sub. 1985, c. 19, s. 50], 609 [am. 1972, c. 13, s. 55; am. 1974‑75‑76, c. 105, s. 17; 1985, c. 19, s. 141].
Juvenile Delinquents Act, R.S.C. 1970, c. J‑3, ss. 4, 9, 26, 37, 38.
Juvenile Delinquents Act, R.S.C. 1952, c. 160, ss. 9, 26, 38.
Juvenile Delinquents Act, R.S.C. 1927, c. 108, ss. 23, 33.
Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, preamble, ss. 7, 22, 31.
Juvenile Delinquents Act, 1929, S.C. 1929, c. 46, ss. 9, 26, 37, 38.
Prisons and Reformatories Act, R.S.C. 1906, c. 148.
Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41 [am. 1974‑75‑76, c. 18, s. 5].
Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 2(1) "ordinary court", "young person", "youth court", 3, 5, 16.
Authors Cited
Béliveau, Pierre and Jacques Bellemare and Jean‑Pierre Lussier. On Criminal Procedure. Translated by Josef Muskatel. Cowansville, Que.: Éditions Yvon Blais Inc., 1982.
Bowker, Marjorie Montgomery. "Waiver of Juveniles to Adult Court Under the Juvenile Delinquents Act: Applicability of Principles to Young Offenders Act" (1987), 29 Crim. L.Q. 368.
Canada. Department of Justice Committee on Juvenile Delinquency. Juvenile Delinquency in Canada. Ottawa: Queen's Printer, 1965.
Canada. Solicitor General's Committee on Proposals for new legislation to replace the Juvenile Delinquents Act. Young Persons in Conflict with the Law. Ottawa: Ministry of the Solicitor General, 1975.
Grand Robert de la langue française, 2e éd. Paris: Robert, 1986, "exiger", "imposer".
Morley, Jane. "Transfer of Children to the Ordinary Criminal Courts: A Case of Legislative Limbo" (1979), 5 Queen's L.J. 288.
Reid, Robert F. and Hillel David. Administrative Law and Practice, 2nd ed. Toronto: Butterworths, 1978.
APPEAL from a judgment of the Alberta Court of Appeal (1987), 35 C.C.C. (3d) 515, 78 A.R. 309, [1987] 5 W.W.R. 136, setting aside a judgment of Miller A.C.J.Q.B. rendered January 9, 1987, affirming a judgment of a Youth Court Judge (1986), 17 W.C.B. 322, dismissing the Crown's application for transfer to ordinary court pursuant to s. 16 of the Young Offenders Act. Appeal dismissed, La Forest and L'Heureux‑Dubé JJ. dissenting.
Richard A. Stroppel, for the appellant.
Jack Watson, for the respondent.
//McLachlin J.//
The judgment of Dickson C.J. and Lamer, Wilson, Sopinka, Gonthier, Cory and McLachlin JJ. was delivered by
MCLACHLIN J. -- This appeal concerns the requirements for transfer of young offenders from Youth Court to ordinary court under the Young Offenders Act, S.C. 1980-81-82-83, c. 110.
The appellant, a youth as defined by the Young Offenders Act, was charged with another youth, J.E.L, with the offence of first degree murder, contrary to s. 218(1) of the Criminal Code, R.S.C. 1970, c. C-34, and possession of stolen property of a value exceeding $1000, contrary to s. 313 (a) of the Criminal Code . The proceedings against the two youths proceeded separately until the appeal to this Court. In each case, the Crown applied to have S.H.M. and J.E.L., respectively, transferred to ordinary court for trial pursuant to s. 16 of the Young Offenders Act. Each of the youths successfully resisted the applications in Youth Court and in the Alberta Court of Queen's Bench on review. The Crown then appealed each case to the Alberta Court of Appeal. In separate judgments the Court of Appeal ordered that both youths should be transferred to adult court. This Court granted S.H.M. leave to appeal the order of the Court of Appeal pursuant to s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19, on October 2, 1987, [1987] 2 S.C.R. x, and granted J.E.L. leave to appeal on April 25, 1988, [1988] 1 S.C.R. x. The appeals were heard together before this Court on April 27, 1989.
The Facts
The Crown alleges that on April 30, 1986 S.H.M. and J.E.L. accompanied a wealthy male of about fifty years of age to a store to rent two "adult" movies and then to his home. The man, a homosexual, was known to the youths. There is some evidence the man may have attempted sexual relations with J.E.L., whereupon J.E.L. struck the man in the head and stomach, rendering him unconscious. It is alleged that the youths then bound the man with electrical wire and strangled him with such force that a bone in his neck was broken. He died from asphyxiation by strangulation. The youths are alleged to have then taken the body to the basement of the house where they attempted to conceal it in a piece of carpet. They continued to reside in the victim's house at least until May 2, 1986 whilst commencing the wholesale disposition of the victim's stereo and computer equipment. The body was not found until two weeks later as a consequence of attempts by the owner of the video store to find out why the deceased had not returned the videos. A coroner placed the death on or about May 1, 1986.
S.H.M. was l7 years and 11 months old at the time of the alleged offence. He had a prior conviction for two counts of gross indecency involving two male children aged 9 and 10 years respectively, for which he had received a suspended sentence with three years' probation. His childhood appears to have been a difficult one. His father was a chronic alcoholic who left home when S.H.M. was 7 or 8 years old. S.H.M. claims that he had been the victim of sexual abuse by an older brother over a three-year period when he was 7 to l0 years old. A pre-disposition report prepared in 1984 when he faced the charges of gross indecency suggests that this experience severely traumatized S.H.M. and may have contributed to the acts which gave rise to his conviction. S.H.M. left home at a relatively early age, although there is some dispute between the appellant and his mother as to exactly when he did leave; he claims he was thrown out when he was 11 years old, while she states that he left of his own volition when he was 15. Part of the difficulty in obtaining an accurate history of his early years stems from his having a "tendency to deceit or exaggeration" related to attempts to gain sympathy. S.H.M.'s pre-disposition report quotes his mother as stating that S.H.M. is no longer welcome in the family home and she is not prepared to support him emotionally or financially in the future.
S.H.M. has been the subject of several studies and reports by psychiatrists, social workers and psychologists. The general picture that emerges is that of an extremely self-conscious, insecure young man. Laycraft C.J.A. in the Alberta Court of Appeal described him thus: "He is shy, introverted, self conscious, easily hurt and perceives himself to be isolated and disliked by his teachers and his peers". He has also been described as "passive", and "more a follower than a leader". Testing reveals his IQ to be at 84 which is "low average" or "dull normal". While his physical age at the time of the offence was almost eighteen, emotionally he is described as being thirteen or fourteen. The report prepared by the defence psychiatrist found that S.H.M. had a "predominantly neurotic personality, having feelings of inferiority, being insecure and unassertive, and hiding his feelings"; he is also seen as "pessimistic and possibly suicidal". A social history prepared by the Edmonton John Howard Society stated that adult prison "will be destructive for this young person" and that "[t]he combination of his immaturity, sexual identity confusion, and exaggerated need for approval by others will be disastrous for him in the prison culture".
Relevant Statutory Provisions
The Young Offenders Act specifies that a young person charged with a criminal offence is to be tried in Youth Court, rather than in ordinary court in accordance with the law applicable to an adult offender. The procedures in Youth Court differ from those in ordinary court in a number of respects. They are less formal, and are before a judge alone rather than before judge and jury. Moreover, the consequences of conviction in Youth Court are also much less severe than in ordinary court; the minimum disposition under the Criminal Code for the offence of first degree murder is life imprisonment in a federal penitentiary without eligibility for parole for 25 years, while the maximum disposition under the Young Offenders Act for any offence, including first degree murder, is three years in a youth detention centre.
The Young Offenders Act provides that in appropriate circumstances a young person may be transferred from Youth Court to ordinary court and tried in accordance with the law ordinarily applicable to an adult charged with the offence. Section 16(1) and (2) sets out the factors which the Youth Court judge shall consider in deciding whether or not to transfer a youth to adult court. These subsections provide:
16. (1) At any time after an information is laid against a young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 483 of the Criminal Code but prior to adjudication, a youth court may, on application of the young person or his counsel, or the Attorney General or his agent, after affording both parties and the parents of the young person an opportunity to be heard, if the court is of the opinion that, in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in ordinary court, order that the young person be so proceeded against in accordance with the law ordinarily applicable to an adult charged with the offence.
(2) In considering an application under subsection (1) in respect of a young person, a youth court shall take into account
(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed;
(b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act [c. J-3 of the Revised Statutes of Canada, 1970] or previous findings of guilt under this or any other Act of Parliament or any regulation made thereunder;
(c) the adequacy of this Act, and the adequacy of the Criminal Code or other Act of Parliament that would apply in respect of the young person if an order were made under subsection (1), to meet the circumstances of the case;
(d) the availability of treatment or correctional resources;
(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and
(f) any other factors that the court considers relevant.
In addition to considering the factors enumerated in s. 16, s. 3(2) of the Young Offenders Act requires that the Youth Court judge also consider the principles set out in s. 3(1) in deciding whether or not to transfer a youth to ordinary court. Section 3 provides:
3. (1) It is hereby recognized and declared that
(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;
(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;
(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;
(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;
(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;
(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;
(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and
(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.
(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).
Section 16 of the Act provides for review of the decision of the Youth Court judge; s. 16(9) provides for an appeal as of right to a judge of the provincial superior court; and s. 16(10) provides that the decision of the superior court may in turn be reviewed, with leave, by the Court of Appeal of the province. In each case the reviewing court is empowered not only to review the decision in question but to confirm or reverse it in its discretion. Section 16(9) and (10) reads as follows:
(9) Subject to subsection (11), an order made in respect of a young person under subsection (1) or a refusal to make such an order shall, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the youth court, be reviewed by the superior court and that court may, in its discretion, confirm or reverse the decision of the youth court.
(10) A decision made in respect of a young person by a superior court under subsection (9) may, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the superior court, with the leave of the court of appeal, by reviewed by that court, and the court of appeal may, in its discretion, confirm or reverse the decision of the superior court.
The Act makes no provision for the exercise of an independent discretion by this Court. In the absence of a special statutory jurisdiction, the usual rules governing this Court's interference with the exercise of judicial discretion by intermediate appellate courts apply. Interference with the exercise of such discretion is premised on error of law or jurisdiction in the court below. Moreover, this Court will interfere with the exercise of discretion by an intermediate court of appeal only "on those rare occasions when it perceives legal principles of national, and more particularly constitutional, significance to be at stake": MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, at p. 510, per Wilson J. (in dissent, but not on this point). If these requirements are not met, this Court will not interfere with the exercise of judicial discretion conferred by statute on the court from which the appeal is brought. Thus, the scope for review by this Court is narrow.
Judgments
It is necessary to examine the decisions of the Youth Court judge and the justice of the Queen's Bench who reviewed that decision in some detail, in order to put in proper perspective the decision of the Court of Appeal which is under appeal.
Youth Court: Judge Gerhart
The Youth Court judge stated that in considering whether or not to transfer the appellant to adult court under s. 16(1) he was to take into consideration: the factors listed in s. 16(2) of the Young Offenders Act; the principles set out in s. 3; and a pre-disposition report pursuant to s. 16(3).
Relying on the Crown assertions, the Youth Court judge stated that the "seriousness of the alleged offences and the circumstances alleged surrounding their commission, without more, would seem to weigh in favor of a transfer". In his opinion, however, other factors indicated a contrary conclusion: "[o]n the whole, the evidence submitted with respect to the age, maturity, character, background, and record of the young person have not persuaded the Court that it is essential that S.H.M. be transferred to adult court". He stated that there was no evidence before the court with respect to the necessity for confinement for treatment longer than available under the Young Offenders Act, and that S.H.M. would be adequately treated in either the young offender or adult systems.
Having considered the factors relevant to determining if a transfer should be made, the Youth Court judge turned to the question of the onus upon the Crown to justify the transfer of the appellant from Youth Court to adult court. He concluded that there was a "heavy onus" on the Crown to establish why a transfer should be granted. In the result, he dismissed the application.
Alberta Court of Queen's Bench: Miller A.C.J.
Miller A.C.J. felt that the Provincial Court judge had canvassed the relevant considerations, and had addressed his mind to the appropriate legal principles. He detected no error of law and concluded that the Provincial Court judge had properly exercised his discretion. He confirmed the decision of the Youth Court judge.
Alberta Court of Appeal: Laycraft C.J.A., Hetherington and Irving JJ.A.
Laycraft C.J.A. delivered the judgment of the Court of Appeal, reversing the decision below and ordering that the charges be transferred to ordinary court: (1987), 78 A.R. 309. He reviewed the salient provisions of the Young Offenders Act and noted that the legislation was designed to balance the interests of society with the interests of the young offender, which often conflict.
Laycraft C.J.A. rejected the Youth Court judge's conclusion that there is a heavy onus on the applicant seeking an order for transfer to ordinary court (at p. 316):
In my view it is not useful (and, indeed, not correct) to consider these basic conflicts in terms of onus as did Judge Gerhart. Unless a transfer order is made the case will remain in Youth Court; in this sense the Crown, which seeks to change the status quo, will not succeed unless it persuades the court that the balancing of the factors favours transfer. But I respectfully disagree with Judge Gerhart's view that the Crown was required "to discharge a heavy onus" or that it was helpful to consider whether the transfer order was "essential". That term connotes some sort of emergency to which a transfer to adult court was the only possible answer.
Laycraft C.J.A. was also of the opinion that the Queen's Bench judge had erred in concluding that the appeal should be dismissed because the Provincial Court judge had applied the proper principles. In his opinion, the provincial appellate court under s. 16(9) and (10) must apply its own discretion in reviewing the circumstances of the case. He stated (at p. 316):
Sections 16(9) and 16(10), in my opinion, establish different rules for the appellate tribunal than would usually apply. In each case the proceeding is a review rather than an appeal and in each case the appellate tribunal is specifically empowered "in its discretion" to confirm or reverse the decision brought before it. Each appellate tribunal has a new discretion to exercise. Of course, the appellate tribunals do not hear the evidence, de novo, and the usual rules will apply to pay deference to the advantage enjoyed by the trial judge in seeing and hearing the witnesses. I respectfully disagree, however, with the approach that this case could be answered, on the review in Court of Queen's Bench, by determining whether the Youth Court Judge had correctly stated the principles or the governing sections to be applied. The appellate judge had, himself, to exercise a discretion.
Turning to the factors required to be considered under s. 16 and s. 3 of the Act, Laycraft C.J.A. stated (at p. 316):
The "interest of society" to which the section refers includes the protection of society, itself, from the offender, as well as the enforcement of the standard of penalty which Parliament has seen fit to fix for first degree murder. That crime attracts the most serious sanction in our criminal law. The sanction sets forth the reaction of Canadian society to the crime, as seen by the enactment of its elected representatives. By contrast the three year maximum penalty prescribed by the Young Offenders Act may be seen, in some cases, as an absurdly inadequate response.
Nevertheless the needs of the young person must also be weighed in this balance. To a greater or lesser degree, depending on age and maturity, the young person is, as s. 3(d) [sic] reminds us, in a state of dependency and has special needs which require guidance and assistance and (as stated in s. 3(f)) the least possible interference with his freedom. In addition, s. 16(2) specifically commands the court to take into account the adequacy of the Young Offender's Act, or of the Criminal Code to deal with the young person in the circumstances of the case. Each of the other factors mentioned in s. 16 and in s. 3 must similarly be put in the balance.
Laycraft C.J.A. concluded with an acknowledgment of the difficulties inherent in the question of transfer (at p. 316):
In the end the question, easy to state but profoundly difficult to answer is: do all of the circumstances considered, taking into account the declarations of principle in s. 3 and the factors in s. 16, bring the court to the conclusion that it is in the interests of society, having regard to the needs of the young person, to make the transfer?
Having reviewed the relevant factors and considerations, Laycraft C.J.A. concluded that it was in "the interests of society, having regard to the needs of S.H.M." (p. 317), that the youth be transferred to ordinary court.
Issues
This appeal raises three issues. The first concerns the burden, if any, which the Crown must discharge to permit an order for transfer. The second concerns the nature of the review process prescribed by the Act -- namely, whether a court of review under s. 16(9) and (10) of the Act is confined to correction of error, or whether it exercises an independent discretion in deciding the question of transfer. The third issue is whether the Court of Appeal failed to properly apply the test for transfer established by s. 16 and s. 3 of the Act.
I propose to consider each question in turn.
Discussion
1. The Burden or Onus on the Applicant
Two questions are subsumed in this issue. The first question is whether the decision process under s. l6 is merely one of balancing the different factors listed in s. 16(2), or whether there is a burden on the applicant (usually the Crown) to establish that the transfer should be made? If the applicant must discharge such a burden, the second question arises as to the standard of proof, to be discharged. Is it the criminal standard, the civil standard, or some other variant?
The Youth Court judge held that the Crown bore the burden of establishing that the youth should be transferred to ordinary court, and that the onus was a heavy one. The Court of Appeal, on the other hand, took the view that it is neither useful nor correct to consider the matter in terms of onus. However, having so stated, Laycraft C.J.A. went on to assert that the Crown, which seeks to change the status quo, will not succeed unless it persuades the court that the balancing of factors favours transfer.
I share the view that application of the concepts of burden and onus to the transfer provisions of the Young Offenders Act may not be helpful. The question is basically one of statutory interpretation. Parliament has declared that unless otherwise ordered, young offenders will be tried in Youth Court. That is the status quo. The party seeking transfer to ordinary court must persuade the court that, having regard to the factors set out in s. 16(2) and (3) of the Act, the case should be transferred. In this sense there is a burden on the party seeking transfer.
What then is the standard of proof which the applicant must meet? The Court of Appeal rejected the view of the judge below that there was a "heavy onus" on the party seeking transfer. I agree that it would be wrong as a matter of law to say that the applicant must meet a heavy onus. That term carries with it the connotation that only in exceptional or very clear cases should an order for transfer be made. But Parliament did not say that. Parliament set out in detail the factors which must be weighed and balanced, and stipulated that if after considering them the court was satisfied that it was in the interests of society and the needs of the young person that he or she should be transferred, the order should be made. The requirement of the French version of s. 16 that the transfer to adult court "s'impose", while arguably stricter than the wording of the English version, does not, when read together with the English text, support the view that transfer must be confined to exceptional cases. Rather, it is consistent with the conclusion that transfer must appear as the right or proper solution. This language does not require that the case for transfer be exceptional or unusually clear. On the contrary, it has been pointed out that the language in the 1982 Act appears less stringent in terms of proof for transfer than under the previous Act: M. M. Bowker, "Waiver of Juveniles to Adult Court Under the Juvenile Delinquents Act: Applicability of Principles to Young Offenders Act" (1987), 29 Crim. L.Q. 368, at pp. 379-80. Parliament having failed to so stipulate that the case for transfer must be "exceptional", or "clear" or necessary", it is not for this Court to do so. That is not to say that the transfer of a case from Youth Court to ordinary court is not a matter of the utmost seriousness. The declaration of principle in s. 3 of the Act, the emphasis throughout the Act on the interests of the young person and the need to foster rehabilitation, the establishment of a separate corrections system for young offenders -- all these speak unmistakably of Parliament's awareness of the special needs and considerations appropriate to young offenders. But at the same time, Parliament has recognized that in some cases, young offenders should be tried in ordinary court. The judge charged with the task of making this decision must consider the factors set out in s. 16(1) and (2) in the context of the philosophy of the Act toward young offenders to the end of determining whether the applicant has satisfied him that a transfer should be ordered. The task, involving as it does the balancing of conflicting factors, is not easy. But it will not be rendered lighter, in my opinion, by imposing on the scheme set out in the Act an overlay of concepts such as "heavy onus" or "very heavy onus".
Nor do I find it helpful to cast the issue in terms of a civil or criminal standard of proof. Those concepts are typically concerned with establishing whether something took place. It makes sense to speak of negligence being established "on a balance of probabilities", or to talk of the commission of a crime being proved "beyond a reasonable doubt". But it is less helpful to ask oneself whether a young person should be tried in ordinary court "on a balance of probabilities". One is not talking about something which is probable or improbable when one enters into the exercise of balancing the factors and considerations set out in s. 16(1) and (2) of the Young Offenders Act. The question rather is whether one is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court.
In my opinion, the Court of Appeal did not err in the view it took of the nature of the burden on the Crown in this case.
2. The Nature of the Review Process
The Act empowers the superior court of the pr