R. v. Z. (D.A.)

R. v. Z. (D.A.)
Collection
Supreme Court Judgments
Date
1992-09-24
Report
[1992] 2 SCR 1025
Case number
22620
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 22620
Decision Content
R. v. Z. (D.A.), [1992] 2 S.C.R. 1025
D.A.Z. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Z. (D.A.)
File No.: 22620.
1992: April 28.
Rehearing: 1992: June 9; 1992: September 24.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Young offenders ‑‑ Definition of "young person" ‑‑ Accused alleged to have committed offence while under age of 18 ‑‑ Accused making inculpatory statement when over 18 ‑‑ Whether provision governing admissibility of statements made by young persons to persons in authority applies ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 2(1) , 56(2) .
The accused was charged under the Young Offenders Act with theft. He was 17 years old at the time of the alleged offence. He voluntarily made an inculpatory written statement to a person in authority after having been cautioned and advised of his rights under the Canadian Charter of Rights and Freedoms . He was 18 when he made the statement. The police treated him as an adult and did not advise him that he had a right to have an adult person in attendance when he made the impugned statement. Section 56(2) of the Act provides that a statement given by a young person to a person in authority is not admissible unless certain conditions are met, including the requirement that the young person be advised of his right to have an adult person in attendance when making the statement. A young person is defined in s. 2 as a person between the ages of 12 and 18 and, "where the context requires", includes any person charged with having committed an offence while a young person. The trial judge ruled that the accused was entitled to the protection afforded by s. 56(2) and that the statement was therefore inadmissible. Since the only evidence against the accused was this statement, the accused was acquitted. The Court of Appeal allowed the Crown's appeal and ordered a new trial.
Held (Gonthier and Iacobucci JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka and Cory JJ.: Section 56(2) of the Young Offenders Act does not apply to statements made by an accused 18 years of age or older. Both the express words used by Parliament and the overall scheme and purpose of the Act support this conclusion. The term "young person" is defined in s. 2 as a person at least 12 years old but under 18. The definition is further extended to include any person charged under the Act with having committed an offence while between the ages of 12 and 18, but only "where the context requires". The ordinary meaning of the words "where the context requires" must be given due effect as words of limitation in this case. In defining "young person" as it has done, Parliament has expressly left it with the courts to consider whether the context in which the term is used requires that it be interpreted to include an accused over the age of 18. Neither s. 5(1) nor s. 5(3) of the Act mandates that the term "young person" in s. 56(2) be interpreted to include an adult accused.
Interpreting the words "where the context requires" as words of limitation further accords with the very nature and purpose of the Act, which was enacted specifically to provide for a system to deal with youths separate and distinct from that in place for adults. The concern over ensuring that all accused are similarly held accountable for the mistakes of their youth does not dictate that all of the special protections afforded under the Act apply regardless of the age of an accused. In enacting certain of the Act's special protections, Parliament has sought to address concerns specific to a youth rather than an adult.
There is clearly nothing underlying the purpose of s. 56(2) requiring its application to an adult accused. The aim of s. 56 is to protect adolescents who, by virtue of their lack of maturity, are not likely to fully appreciate their legal rights and the consequences of making a statement to the police. These concerns do not arise with respect to an accused over the age of 18. No further protection beyond that already afforded under the Charter and the common law is necessary to ensure that any statement made by an adult accused is truly voluntary. As such, the context of s. 56(2) does not require that the term "young person" therein be interpreted to include a person over the age of 18.
Per Gonthier and Iacobucci JJ. (dissenting): A young person is defined by s. 2 of the Act as a person between the ages of 12 and 18, and, where the context requires, includes any person charged with having committed an offence while a young person. The first part of the definition, the time element, merely refers to numerical age, while the second part, the status element, tells us at what point the time element is to be measured, that is, at what stage of the process a person must be within the parameters of the time element in order to have the status of a young person under the Act. The status element of the definition is preceded by the words "where the context requires". This clearly means that sometimes the words "young person" will be used in the Act in a way that only involves the time element, and sometimes will be used in a way that includes the status element, and it is the context that is to tell us which is which.
"Context" does not refer to the general purposes of the Act. The phrase "where the context requires" is really nothing more than a plain language version of an old drafter's tool, "mutatis mutandis". The relevant context is the technical or grammatical context, as befits a technical aid in drafting. To rest the whole crux of the policy of the Act with regard to transitional offenders on "where the context requires" puts more weight on those words than they can reasonably bear. The assumption that Parliament has said nothing concerning the scheme that ought to be applied to transitional offenders and has left the construction of that scheme to the courts is simply wrong. Section 5 clearly provides that transitional offenders are to receive the full benefit of the provisions of the Act, with only two exceptions, namely the system of military courts and the possibility of transfer to adult court. Section 5 is a much better guide to the intention of Parliament with regard to transitional offenders than s. 2. It clearly addresses the policy issue at the heart of this case, which is how to draw the line in giving special protection to young offenders, and clearly offers all the protections of the Act to the transitional offender.
There is nothing in the grammatical context of s. 56(2) to suggest that its use of "young person" is limited to the time element. Parliament has decided to extend this protection to transitional offenders. Subject to the National Defence Act , Parliament has entrusted the youth court with exclusive jurisdiction over anyone who has the status of a young person and that person is entitled to all the benefits of the Act until such time as the matter is disposed of by the youth court or the person is transferred to adult court.
Cases Cited
By Lamer C.J.
Not followed: R. v. P. (J.) (1989), 53 C.C.C. (3d) 24; followed: R. v. G.R.J. (1986), 26 C.C.C. (3d) 471; referred to: R. v. Ly (1991), 73 Man. R. (2d) 294; R. v. K.F. (1990), 86 Nfld. & P.E.I.R. 238; R. v. J. (J.T.), [1990] 2 S.C.R. 755; R. v. S. (S.), [1990] 2 S.C.R. 254; R. v. Paré, [1987] 2 S.C.R. 618.
By Gonthier J. (dissenting)
R. v. P. (J.) (1989), 53 C.C.C. (3d) 24; R. v. J. (J.T.), [1990] 2 S.C.R. 755.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 334 (b).
Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 2(1) "young person", 3, 5, 56 [am. c. 24 (2nd Supp.), s. 38 ].
Authors Cited
Bala, Nicholas. "The Young Offenders Act, A Legal Framework". In Joe Hudson, Joseph P. Hornick and Barbara A. Burrows, eds., Justice and The Young Offender in Canada. Toronto: Wall & Thompson, 1988.
Bala, Nicholas and Heino Lilles. Young Offenders Service, vol. 2. Edited by Priscilla Platt. Scarborough: Butterworths, 1984.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1992.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Pearson, John C. "Section 56(2) of the Young Offenders Act: Forever Young?" (1990), 76 C.R. (3d) 389.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 117 A.R. 75, 2 W.A.C. 75, 82 Alta. L.R. (2d) 193, 66 C.C.C. (3d) 441, setting aside the accused's acquittal by Landerkin Prov. Ct. J. (1990), 114 A.R. 321, 115 A.R. 354, on a charge of theft and ordering a new trial. Appeal dismissed, Gonthier and Iacobucci JJ. dissenting.
James R. Ferguson, for the appellant.
Earl C. Wilson, Q.C., for the respondent.
//Lamer C.J.//
The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka and Cory JJ. was delivered by
Lamer C.J. -- This appeal raises the question of whether s. 56(2) of the Young Offenders Act, R.S.C., 1985, c. Y-1 (the "Act ") applies to an accused alleged to have committed an offence while under the age of 18 but making an inculpatory statement when 18 years of age or older. Subsection 56(2) governs the admissibility of written or oral statements made by a young person to a peace officer or other person who is, in law, a person in authority. This provision essentially provides that such statements are not admissible unless the prerequisite conditions set out in s. 56(2) have been fully satisfied. There are conflicting appellate court decisions from Manitoba and Quebec on the application of this provision to statements made by an adult accused regarding alleged offences committed prior to adulthood.
Facts
The facts in this case are not in dispute. The appellant was charged under the Act with theft under one thousand dollars contrary to s. 334 (b) of the Criminal Code, R.S.C., 1985, c. C-46 . The appellant is alleged to have stolen two lights from a gas station on April 15, 1989. At the time of the alleged offence, the appellant was 17 years old. On February 9, 1990, the appellant voluntarily made an inculpatory written statement to a "person in authority" after having been cautioned and advised of his Charter rights. The appellant was 18 years old when he made the impugned statement and the police treated him as an adult. As such, he was not advised of his right to have an adult person in attendance when making the impugned statement. At the time the statement was made, the appellant was accused of the offence.
A voir dire was held regarding the admissibility of the inculpatory statement. Landerkin Prov. Ct. J. ruled that the appellant was entitled to the protections afforded under s. 56(2) and therefore the inculpatory statement was inadmissible. Following an application, the appellant was acquitted on October 18, 1990: 114 A.R. 321, 115 A.R. 354. The Crown conceded that the only evidence it had against the appellant was the inculpatory statement. The Crown appealed the acquittal on the ground that the trial judge erred in holding that s. 56(2) mandated the exclusion of the statement from evidence. On August 27, 1991, the Court of Appeal for Alberta allowed the appeal and ordered a new trial: 82 Alta. L.R. (2d) 193, 117 A.R. 75, 2 W.A.C. 75, 66 C.C.C. (3d) 441.
Statutory Provisions
Whether s. 56(2) extends to an adult accused is strictly a matter of statutory interpretation. The relevant provisions of the Act , for the purposes of this appeal, are as follows:
2. (1)In this Act ,
. . .
"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act with having committed an offence while he was a young person or is found guilty of an offence under this Act .
3. (1) It is hereby recognized and declared that
. . .
(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;
. . .
(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;
. . .
(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; . . .
(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).
5. (1) Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16 , a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act .
. . .
(3) Proceedings commenced under this Act against a young person may be continued, after he becomes an adult, in all respects as if he remained a young person.
56. (1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.
(2) No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority is admissible against the young person unless
(a) the statement was voluntary;
(b) the person to whom the statement was given has, before the statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that
(i) the young person is under no obligation to give a statement,
(ii) any statement given by him may be used as evidence in proceedings against him,
(iii) the young person has the right to consult another person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult with counsel or a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person; and
(d) where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
(3) The requirements set out in paragraphs (2)(b), (c) and (d) do not apply in respect of oral statements where they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.
(4) A young person may waive his rights under paragraph (2)(c) or (d) but any such waiver shall be made in writing and shall contain a statement signed by the young person that he has been apprised of the right that he is waiving.
(5) A youth court judge may rule inadmissible in any proceedings under this Act a statement given by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was given under duress imposed by any person who is not, in law, a person in authority.
(6) For the purpose of this section, an adult consulted pursuant to paragraph 56(2)(c) shall, in the absence of evidence to the contrary, be deemed not to be a person in authority.
Other Provincial Appellate Decisions
In finding the appellant's written statement inadmissible, the provincial court judge essentially adopted the views of the Quebec Court of Appeal in R. v. P. (J.) (1989), 53 C.C.C. (3d) 24. However, the Alberta Court of Appeal preferred instead the conclusion reached by the Manitoba Court of Appeal in R. v. G.R.J. (1986), 26 C.C.C. (3d) 471. Likewise, the parties in this appeal have fashioned their submissions closely around the stated views of both the Manitoba and Quebec Courts of Appeal. Therefore, before reviewing the reasons of the courts below and my own views on this matter, it will be useful to first summarize the conflicting opinions of the Manitoba and Quebec Courts of Appeal.
(i) R. v. G.R.J. (1986), 26 C.C.C. (3d) 471 (Man. C.A.)
The accused in this case made an inculpatory statement to the police while an adult in relation to an offence that occurred when he was 16 years old. As in the case at hand, the police gave the accused the standard caution and advised him of his right to retain and instruct counsel without delay. However, the police did not comply with all of the conditions set out in s. 56(2) of the Act . The statement was held to be inadmissible by the trial judge. The Crown appealed submitting that the trial judge erred in treating the accused as a "young person" under the Act notwithstanding that the accused was 18 years old when he gave the statement.
Monnin C.J.M., writing for the court, held the statement to be admissible. He held that in defining "young person" as it did, namely in using the words "where the context requires", Parliament did not intend to deem all persons charged or convicted under the Act to be a "young person" for all purposes under the Act . He commented that, "[i]f that had been Parliament's intention, it would have been a simple matter to do so in clear and unequivocal words" (p. 474). Although he found the context of other sections, such as s. 16 (transfer to ordinary court) and s. 20 (dispositions), required an adult accused to be deemed a young person, in his opinion there was nothing in the context of s. 56 requiring the same to be true for the purposes of that section. Monnin C.J.M. observed that the special conditions set out in s. 56(2) are intended to protect youths between the ages of 12 and 18 who are deemed not to be in the same position to make decisions as an adult and, therefore, require the guidance and protection of a parent or other adult person. As such, he concluded at p. 474:
I am of the view that there is nothing in the context of s. 56 that requires an adult to be deemed to be a "young person". There is no apparent justification or need to extend to an adult person the protection that is accorded to a "young person" by the special requirements of s. 56. An adult, even a young adult, does not require the protective interpretation of a parent, an adult relative, or another appropriate adult. A distinction between the admissibility of the statement of an adult charged with an offence committed while he was a "young person" and that of an adult charged with a similar offence committed when he was an adult, is difficult, if not impossible, to rationalize.
Leave to appeal to this Court was denied, [1986] 1 S.C.R. x. The decision was recently followed by the Manitoba Court of Appeal in R. v. Ly (1991), 73 Man. R. (2d) 294, to find admissible statements made by an adult accused in relation to offences allegedly committed while the accused was 17 years old. Leave to appeal in Ly, supra, was granted by this Court on February 6, 1992, [1992] 1 S.C.R. ix. However, the appeal has yet to be heard.*
(ii) R. v. P. (J.) (1989), 53 C.C.C. (3d) 24 (Que. C.A.)
The accused was charged with the commission of an indictable offence before reaching the age of 18. Six days after the accused turned 18, he gave an incriminating statement to the police. In questioning the accused, the police did not comply with s. 56(2) of the Act . The trial judge held the statement to be inadmissible and the accused was acquitted. The Court of Appeal dismissed the appeal. Two concurring reasons were given by Tourigny and Fish JJ.A. Gendreau J.A. concurred with both.
Tourigny J.A. observed that s. 5(1) of the Act confers on an adult, alleged to have committed an offence while between the ages of 12 and 18, the benefit of all of the provisions of the Act . She noted that if Parliament had intended to create exceptions to this rule it would have done so explicitly. As such, in the absence of any clear and specific exceptions excluding the application of s. 56(2) to an adult accused, she held the accused should have the benefit of the safeguards afforded under s. 56 . In support of her conclusion, Tourigny J.A. further noted that s. 3(2) mandates that the Act be liberally construed.
Fish J.A. agreed with the conclusion reached by Tourigny J.A. but offered the following additional reasons. Fish J.A. emphasized that, through s. 5(1) , Parliament has specified that everyone charged with an offence alleged to have been committed before the accused turned 18 shall be dealt with as provided by the Act . He found nothing in the Act to suggest that Parliament intended s. 5(1) to be read other than in accordance with its clear terms. Fish J.A. further noted that, by virtue of s. 3(2) , the Act mandates a liberal interpretation of its provisions so that a young person will be dealt with in accordance with the principles set out in s. 3(1) . He reasoned that since s. 56(2) necessarily embraces those principles, it should be liberally construed to include any person falling within the scope of the definition of "young person". In so doing, he rejected the Crown's argument that a person over the age of 18 should be excluded from the ambit of s. 56(2) on the basis that an adult does not require the same degree of protection as a youth. Fish J.A. stated at p. 34:
To that suggestion, my short and simple reply is that Parliament, by ss. 3(2) and 5(1) , has expressly provided that protection to everyone charged as a young offender and has not, by the definition of young person in s. 2, invited the courts to pronounce on its wisdom in doing so. [Emphasis in original.]
Fish J.A. interpreted the phrase "where the context requires" as simply providing a "necessary syntactical bridge". In his opinion, the phrase does not provide for judicial scrutiny as to the applicability of each of the provisions in the Act . More specifically, he stated at p. 34:
By using the words "where the context requires" Parliament has simply provided a necessary syntactical bridge. It has not launched individual judges on an uncharted odyssey through the various sections of the Act to determine which of its safeguards, in their view, are unnecessary or inappropriate where the alleged offender is over rather than under 18.
Nor has Parliament invited a judicial value judgment regarding the applicability to over-age defendants of s. 56, or of the alternative measures provided in s. 4, or of the special right to counsel created by s. 11, or of the unique dispositions permitted under s. 20, or -- in the name of "context" -- of any other protection or safeguard provided to young persons as part of the general scheme of the Act . [Emphasis in original.]
Nevertheless, Fish J.A. held that even if one accepts the meaning ascribed to the words "where the context requires" by the Crown, he would still find s. 56(2) applicable to statements made by an adult accused. In his opinion, the context of s. 56 requires that s. 56(2) be interpreted as applying to an accused both over and under the age of 18. Fish J.A. reasoned that since "young person" in s. 56(1) must be interpreted as also referring to an adult accused charged under the Act the same must be true for the other subsections of s. 56 . Fish J.A. stated at p. 35:
Does "young persons" in [s. 56(1)] not apply to the respondent? Surely it does. On what basis, then, can it be argued that other subsections have a shorter reach? Is a court to hold that "young person", which from a grammatical point of view applies to all paragraphs in s. 56(2) , includes an over-age offender for the purpose of s-s. (2)(a) but not for the purpose of s-s. (2)(b), (c) or (d)?
The specific subsections to which the Crown refers must be read in the context of s. 56(1), which clearly uses "young persons" in a sense applicable to offenders under and over 18. That context would thus require that "young person" in s-ss. (2)(c), (2)(d) and (4) be given the same meaning. The Crown's submission therefore fails even if the definition of "young person" in s. 2 is interpreted as the Crown urges. [Emphasis in original.]
Fish J.A. agreed with the Manitoba Court of Appeal that it was difficult to rationalize different rules for the admissibility of statements made by persons of the same age. However, he noted that it was equally difficult, and counter to common sense, to say that the accused in that case was not entitled to the same protection he had been entitled to just six days earlier. Fish J.A. observed that while Parliament has drawn a distinction between young and adult offenders, it also has ensured that adults, alleged to have committed an offence while under the age of 18, will be dealt with as a young person. In this regard, he commented, at p. 35:
Any line drawn between young and adult offenders, I again acknowledge, is necessarily arbitrary and some anomaly is an inevitable result. It is one thing, however, to accept an anomalous but inevitable result dictated by clear law; it is quite another to deprive a young defendant of a procedural safeguard which is part of the legal system to which he has been expressly made subject. [Emphasis in original.]
Finally, Fish J.A. raised s. 5(3) in support of his position that the Act creates a single regime applicable to everyone alleged to have committed an offence while under the age of 18. He interpreted the words "in all respects", found in s. 5(3) , as ensuring a person charged while under the age of 18 the protection of s. 56 in respect of any statement he might give after he becomes an adult. In his opinion, it would make no sense to deny a person the same protection merely because he was charged after he had turned 18. Moreover, he added that if "young person" is interpreted as suggested by the Manitoba Court of Appeal in R. v. G.R.J., supra, grammatically, s. 5(3) would not make sense.
The reasons of the Quebec Court of Appeal were followed in R. v. K.F. (1990), 86 Nfld. & P.E.I.R. 238 (Nfld. Prov. Ct.) to find statements made by an accused over the age of 18 inadmissible. The judge in that case reasoned that s. 5(1) confers on a young person, who has become an adult, the benefit of all of the provisions within the Act , including s. 56 , except where the Act itself provides for clear and specific exceptions.
Judgments Below
(i) Provincial Court of Alberta, Youth Division (1990), 114 A.R. 321
Landerkin Prov. Ct. J. examined the contrasting views of the Manitoba and Quebec Courts of Appeal and found the reasoning of Fish J.A. in R. v. P. (J.), supra, to be persuasive. He highlighted that s. 5(1) provides that any person alleged to have committed an offence while between the ages of 12 and 18 shall "be dealt with as provided in this Act ." As such, he held that any reference to "young person" in the Act necessarily includes an adult accused of such an offence. He further referred to the wording of s. 5(3) , particularly the phrase "in all respects", in support of his interpretation of the applicability of the whole of the Act to an accused over the age of 18.
Landerkin Prov. Ct. J. agreed with Fish J.A. that the words "where the context requires" merely provide a "syntactical bridge", adding further that these words are necessary because of the very nature of the Act itself and, in particular, s. 5 of the Act . In this regard, he commented that Parliament added the words "where the context requires" to take into account the two exceptions to a youth court's exclusive jurisdiction, namely, matters coming under the National Defence Act and transfers under s. 16 of the Act and the fact that the protection afforded under s. 56(2) would not arise in either case. In so holding, he distinguished this Court's decision in R. v. J. (J.T.), [1990] 2 S.C.R. 755, on the grounds that the issue of the applicability of s. 56 to ordinary court proceedings was merely assumed by this Court, without any argument on the point, thereby leaving the issue open. In his opinion, s. 16 transfers provide a means by which any "anomalous" results arising from applying s. 56(2) to a now adult accused could be alleviated.
Landerkin Prov. Ct. J. concluded that the Act required that the appellant be dealt with, in all respects, as provided within the Act . As such, since the impugned statement was taken contrary to certain of the conditions set out in s. 56(2) , the statement was held to be inadmissible. The appellant was acquitted of the charge.
(ii) Court of Appeal of Alberta (1991), 66 C.C.C. (3d) 441
Kerans J.A., writing for the court, also examined the contrasting views of the Manitoba and Quebec Courts of Appeal and expressed his preference for the conclusion drawn by the Manitoba Court of Appeal. Kerans J.A. noted that s. 5(1) of the Act was not determinative of the issue since it merely required that an accused be dealt with "as provided" in the Act . Therefore, in determining what was provided in the Act for an adult accused, one was left to consider the other provisions within the Act including the definition of the term "young person". Kerans J.A. dismissed the argument that the words "where the context requires" merely serve as a "syntactical bridge". Rather, he interpreted these words to be equivalent to the expression "mutatis mutandis" and further noted that the presence of these words indicates that the deeming provision cannot sensibly work in some circumstances. In failing to expressly specify those exact circumstances within the Act , Kerans J.A. observed that Parliament left it to the courts to determine whether the deeming provision should apply to s. 56 .
Kerans J.A. expressed the view that, in interpreting a statute, words should be interpreted in a manner that best fits the object of the statute provided that the words are capable of reasonably bearing that construction. Kerans J.A. noted that the mischief s. 56 was intended to address was the immaturity of young persons and their vulnerability during questioning. In determining at what age one could assume that a person was mature enough not to need this special protection, Kerans J.A. observed that the debate in Parliament centred on whether the age of adulthood, for purposes of the Act , should be lower than 18 and not whether it extended beyond that age. Moreover, he drew from this Court's decision in R. v. J. (J.T.), supra, the view that Parliament had accepted 18 as the cut-off age for deemed immaturity.
Kerans J.A. returned to s. 5(1) of the Act and held that provision was largely directed towards dealing with the possibility that the authorities might attempt to defeat the scheme of the Act by delaying charging an accused until he reached the age of 18. However, he held that it did not necessarily follow that s. 5(1) was also intended to ensure the continued application of all of the special protections provided under the Act . Kerans J.A. stated at pp. 446-47:
I therefore conclude that s. 5(1) assures those nearing the age of 18 that, if by chance or design they slip across that line before charge, they nevertheless can benefit from the special rules about disposition in the Act .
It does not follow that they also can expect all the special protection in the Act . P. Platt, in Young Offenders Law in Canada (Toronto: Butterworths, 1989) at p. 2-1, suggests that one can classify the operating principles of the Act , and it seems to me also its special protection rules, into two groups: accountability and due process. The accountability aspect leads to special rules about dispositions for young offenders, and the due process side leads to special rules to assure due process for the immature. Just because the Act applies itself to one does not mean that it applies itself to the other.
This analysis reconciles ss. 5 and 56 : The first extends the jurisdiction of the youth court to adults who committed crimes as youths with a view to offering young adults the approach to accountability they would have received if they had been charged as youths. The second extends special protection to the immature in the investigation process. I therefore conclude that nothing in s. 5 offends the purposive interpretation I propose for s. 56 .
Finally, Kerans J.A. disagreed with the position taken by the Quebec Court of Appeal that by virtue of s. 5 the Act creates a unified system applicable in all respects to an adult accused except where there is a transfer to military court or to adult court. He noted that under the Quebec Court of Appeal's analysis, an accused would lose his s. 56 rights once the youth court lost its jurisdiction on a transfer, even if the accused was under the age of 18. In his opinion, this not only offended the purpose of s. 56 but was also counter to the implicit reasons of this Court in R. v. J. (J.T.), supra, which applied s. 56(2) to exclude statements made by a 17-year-old accused transferred to adult court.
Therefore, the Court of Appeal concluded that the application of s. 56 was not governed by s. 5 but stood on its own, limited only by its special purpose. The Court found that purpose would not be served by according the appellant, after the law presumes him to be mature, those rights intended to protect persons under the age of 18 deemed in law to be immature and in need of special protection. As such, the Court allowed the appeal and ordered a new trial.
Analysis
The specific question before this Court is whether the Court of Appeal erred in holding that the written confession given by the appellant was admissible notwithstanding that some of the conditions set out in s. 56(2) had not been complied with. In answering this question, this appeal affords this Court an opportunity to resolve the more general question of whether s. 56(2) applies to statements made by a person 18 years of age or older. It is not disputed that the appellant was 18 years old when he gave the statement. Nor is it disputed that the appellant was not advised of his right to have an adult person present when making the impugned statement. Counsel for the appellant essentially adopted the views of the Quebec Court of Appeal in R. v. P. (J), supra, in submitting that this Court should find the appellant entitled to all of the safeguards set out in the Act , including those contained in s. 56 . The position advanced by the Crown was largely akin to that taken by the Manitoba Court of Appeal in R. v. G.R.J., supra, and the Alberta Court of Appeal in the case at hand. I find myself in complete agreement with the conclusion reached by both the Alberta and Manitoba Courts of Appeal as to the inapplicability of s. 56(2) to statements made by an accused 18 years of age or older.
Whether s. 56(2) extends to an adult accused is strictly a matter of statutory interpretation. In interpreting the relevant provisions of an Act , the express words used by Parliament must be interpreted not only in their ordinary sense but also in the context of the scheme and purpose of the legislation: R. v. S. (S), [1990] 2 S.C.R. 254, at p. 275; R. v. Paré, [1987] 2 S.C.R. 618, at p. 626; Côté, The Interpretation of Legislation in Canada (2nd ed. 1992), at pp. 323-24; and Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. I am of the view that the Court of Appeal properly proceeded on this basis when it stated that the best approach to the interpretation of words in a statute is to place upon them the meaning that best fits the object of the statute, provided that the words themselves can reasonably bear that construction. In my opinion, both the express words used by Parliament and the overall scheme and purpose of the Act support the conclusion that Parliament did not intend s. 56(2) to apply to statements made by an adult accused.
Section 56(2) mandates that no oral or written statement given by a young person to a peace officer or other person in authority be held admissible unless the enumerated conditions set out therein have been fully met. As is evident from the express words of the provision, s. 56(2) only applies with respect to statements made by a "young person". The question then becomes whether a person over the age of 18, at the time the impugned statement is made, is a "young person". Young person is a statutorily defined term within the Act . Normally, this would end the need for any further inquiry. Unfortunately, this is not the case given the manner in which Parliament has chosen to define the term. For convenience, it is worth repeating this definition:
"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act with having committed an offence while he was a young person or is found guilty of an offence under this Act . [Emphasis added.]
As is evident, the definition of "young person" has two components. The principal component of the definition defines a young person as a person who is or appears to be at least 12 years old but under 18 years of age. The definition is further extended to include any person charged under the Act with having committed an offence while between the ages of 12 and 18 or found guilty of an offence under the Act . This latter component reflects the fact that, by virtue of s. 5(1) , a person who is over the age of 18 can nevertheless be charged under the Act for offences occurring while he or she was between the ages of 12 and 18. However, Parliament has made it clear that the term "young person" should be extended to include someone over the age of 18 only "where the context requires" that that person be deemed to be in the same position as a youth between the ages of 12 and 18. As one would expect, most of the conflict over the applicability of s. 56(2) turns on what effect should be given to the words "where the context requires".
The Court of Appeal in this case interpreted these words as limiting the applicability of certain parts of the Act to an accused over the age of 18. More specifically, Kerans J.A. reasoned that the presence of these words indicated Parliament's recognition that the extension of the definition of "young person" to an adult accused cannot sensibly work in some circumstances. Likewise, the Manitoba Court of Appeal in R. v. G.R.J., supra, held that, in so defining the term "young person", Parliament did not intend to deem an adult charged under the Act to be a "young person" for all purposes under the Act . The Crown urged this Court to adopt this position.
The appellant took issue with this interpretation. He submitted that the definition of "young person" should be interpreted as deeming any person charged under the Act a "young person" for all purposes of the Act . Adopting the view of Fish J.A. in R. v. P. (J.), supra, the appellant submitted that the words "where the context requires" merely serve as a "syntactic bridge" allowing for the insertion of either of the disjunctively defined categories of "young person" wherever that term is used in the Act (i.e. (a) a person between 12 and 18 years of age; or (b) a person charged with having committed an offen