R. v. C.D.; R. v. C.D.K.

R. v. C.D.; R. v. C.D.K.
Collection
Supreme Court Judgments
Date
2005-12-16
Neutral citation
2005 SCC 78
Report
[2005] 3 SCR 668
Case number
30254, 30314
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 30254, 30314
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. C.D.; R. v. C.D.K., [2005] 3 S.C.R. 668, 2005 SCC 78
Date: 20051216
Docket: 30254, 30314
Between:
C.D., A Young Person Within the Meaning of the Youth
Criminal Justice Act
Appellant
and
Her Majesty the Queen
Respondent
and
Attorney General of Ontario, Attorney General of British
Columbia, Attorney General of Manitoba and Canadian
Foundation for Children, Youth and the Law
Interveners
And between:
C.D.K., A Young Person Within the Meaning of the Youth
Criminal Justice Act
Appellant
and
Her Majesty the Queen
Respondent
and
Attorney General of Ontario, Attorney General of British
Columbia, Attorney General of Manitoba and Canadian
Foundation for Children, Youth and the Law
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 94)
Concurring reasons:
(paras. 95 to 100)
Bastarache J. (McLachlin C.J. and Major, Binnie, Deschamps, Fish, Abella and Charron JJ. concurring)
LeBel J.
______________________________
R. v. C.D.; R. v. C.D.K., [2005] 3 S.C.R. 668, 2005 SCC 78
C.D., a young person within the meaning of the Youth
Criminal Justice Act Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of British
Columbia, Attorney General of Manitoba and Canadian
Foundation for Children, Youth and the Law Interveners
- and -
C.D.K., a young person within the meaning of the Youth
Criminal Justice Act Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of British
Columbia, Attorney General of Manitoba and Canadian
Foundation for Children, Youth and the Law Interveners
Indexed as: R. v. C.D.; R. v. C.D.K.
Neutral citation: 2005 SCC 78.
File Nos.: 30254, 30314.
2005: April 14; 2005: December 16.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for alberta
Criminal law — Sentencing — Young persons — Committal to custody — Whether arson to property, possession of weapon or dangerous driving “violent offences” for purposes of imposing custodial sentences on young persons — Meaning of term “violent offence” in s. 39(1) (a) of Youth Criminal Justice Act, S.C. 2002, c. 1 .
C.D., a young person, pleaded guilty to possession of a weapon for a purpose dangerous to the public peace, arson to property, and breach of a recognizance. In a separate proceeding, C.D.K., also a young person, pleaded guilty to dangerous driving, possession of stolen property and theft under $5,000. They were both sentenced to six months of deferred custody followed by probation. Section 39(1) (a) of the Youth Criminal Justice Act (“YCJA ”), which represents one of the four gateways to a custodial sentence, provides that “[a] youth justice court shall not commit a young person to custody . . . unless (a) the young person has committed a violent offence”. The Court of Appeal, in separate decisions, upheld both sentences, holding that the sentencing judges did not err when they determined that C.D.’s arson to property offence and C.D.K.’s dangerous driving offence were “violent offences” within the meaning of s. 39(1) (a). The court found that, for purposes of s. 39(1) (a), an action is violent if it causes bodily harm, or is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm.
Held: The appeals should be allowed. The custodial sentences should be quashed and the matters remitted to the youth courts.
Per McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.: The term “violent offence” found in s. 39(1) (a) of the YCJA means an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. [17] [70]
The term “violent offence” is not defined either in the YCJA or in the Criminal Code , and it must be interpreted in the same manner as any undefined term in a statute. It is therefore not appropriate to interpret the term “violent offence” solely by reference to the definition of “serious violent offence” set out in s. 2(1) of the YCJA . Although the meaning of “violent offence” must be connected to the statutory definition of “serious violent offence”, Parliament’s decision not to define the term “violent offence” in the YCJA must be given meaning and must be respected. [20] [23‑26] [86]
Dictionary, ordinary and judicially constructed definitions of the words “violent” and “violence” typically associate these words with either the application of force or the causation of harm or injury, or with both. While it is clear that “violence” has a spectrum of meanings and that it can be applied to property as well as to persons, in the context of the YCJA , the term “violent offence” should be narrowly construed. The object and the scheme of the YCJA , and Parliament’s intention in enacting it, all indicate that the YCJA was designed, in part, to reduce over‑reliance on custodial sentences for young offenders. Moreover, where two interpretations affect the liberty of an accused, the one more favourable to the accused should be adopted. A narrow interpretation of “violent offence” means that the definition must exclude pure property crimes. Otherwise, the gate‑keeping effect of s. 39(1) (a) would be severely diminished. Custodial sentences should be an option for property offences only if the offence meets the criteria for “exceptional cases” under s. 39(1) (d). [19‑52]
A harm‑based definition of “violent offence” is preferable to a force‑based definition because it avoids the flaws associated with a force‑based definition. Since all offences designated by a youth justice court as “serious violent offences”, and all murders, attempted murders and manslaughters, will always involve actual or attempted bodily harm, a harm‑based definition will ensure that all “serious violent offences” are also “violent offences”, and that all murders, attempted murders and manslaughters will be considered “violent offences”. Furthermore, the YCJA already considers offences involving physical or psychological harm to be examples of “violent behaviour” for the purpose of determining an application for the continuation of custody and, on the basis of contextual integrity, it follows that these offences should also be considered “violent offences” for purposes of s. 39(1) (a). Also, a harm‑based definition better accords with the “usual” definition of violence, which tends to focus on the effects of violence rather than on the means employed to produce the effects. Lastly, while a harm‑based definition may exclude assaults committed without causing, attempting to cause or threatening to cause bodily harm, these relatively minor assaults ought not to be considered “violent offences” within the meaning of s. 39(1) (a). [53‑69]
A harm‑based definition of “violent offence” that includes offences in which bodily harm is threatened, as well as caused or attempted, makes the definition sufficiently distinct from the statutory definition of “serious violent offence”, pays adequate attention to Parliament’s decision to leave the term “violent offence” undefined, and ensures that the YCJA operates properly and does not produce absurd results. Including threats of bodily harm in the definition of “violent offence” also accords with the link to be made between “violent behaviour” and threats of violence when determining applications for continuation of custody, and with the commonly held view that a threat to cause bodily harm is an act of violence. [26] [81‑86]
The meaning of “violent offence” should not capture offences where bodily harm is merely intended, because something more than a guilty mind is required before criminal punishment is imposed. Nor should the definition be extended to include offences where bodily harm is merely reasonably foreseeable. Such an extension would be inconsistent with a narrow interpretation of the term “violent offence”. With a reasonable foreseeability of harm standard in place, too many Criminal Code offences will be included in the definition. This definition would also render s. 39(1) c) and (d) redundant. Finally, whether an offence is likely to result in bodily harm is a question of whether the offence is dangerous rather than whether it is violent. Since the Criminal Code differentiates violent conduct from dangerous conduct, so too should the YCJA . [74‑80]
Here, the custodial sentences must be quashed and both matters remitted to the youth courts so that appropriate sentences can be determined. C.D.’s arson offence and his breach of his recognizance order are not “violent offences” under s. 39(1) (a) because he did not cause, attempt to cause or threaten to cause bodily harm when committing these offences. Since it is not clear on the record whether he threatened or attempted to cause bodily harm while committing the offence of possession of a weapon, it cannot be determined whether this was a “violent offence”. Similarly, C.D.K. did not cause, attempt to cause or threaten to cause bodily harm in any of his offences, and the offences were accordingly not “violent offences”. In both cases, no argument was made that the requirements of one of the other gateways to custody set out in s. 39(1) of the YCJA were satisfied. [88‑94]
Per LeBel J.: A “violent offence” should be identified as an offence whereby the offender intends, threatens or attempts to cause harm. A fault‑based approach is more consonant with the nature of the Canada’s criminal law system, which primarily attaches criminal liability and punishment to criminal intent. A focus on intent to apply or use force better catches the nature of violence which may expose a young offender to a custodial sentence whereas a harm‑based approach focuses more on the outcome of the act than on its nature or intent. A fault‑based definition of “violent offence” would not fail to catch culpable homicides. [98‑99]
Cases Cited
By Bastarache J.
Discussed: R. v. C. (J.J.) (2003), 180 C.C.C. (3d) 137, 2003 PESCAD 26; R. v. D. (T.M.) (2003), 181 C.C.C. (3d) 518, 2003 NSCA 151; R. v. McCraw, [1991] 3 S.C.R. 72; distinguished: R. v. Keegstra, [1990] 3 S.C.R. 697; referred to: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Pitters v. Criminal Injuries Compensation Board (Ont.) (1996), 95 O.A.C. 325; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Lew (1978), 40 C.C.C. (2d) 140; R. v. Oakley (1986), 24 C.C.C. (3d) 351; R. v. Trudel (1984), 12 C.C.C. (3d) 342; R. v. Sayers and McCoy (1983), 8 C.C.C. (3d) 572; R. v. Lecky (2001), 157 C.C.C. (3d) 351; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122; R. v. Colburne (1991), 66 C.C.C. (3d) 235; R. v. Younger (2004), 187 Man. R. (2d) 121, 2004 MBCA 113; R. v. Criminal Injuries Compensation Board, Ex parte Clowes, [1977] 1 W.L.R. 1353; Coca Cola Ltd. v. Deputy Minister of National Revenue for Customs and Excise, [1984] 1 F.C. 447; R. v. N.S.O., [2003] O.J. No. 2251 (QL); R. v. D.L.C., [2003] N.J. No. 94 (QL).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 2 (b).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 “bodily harm”, 24(1), 88, 145(3), 222, 229, 234, 235, 236, 239, 249(1)(a), 264.1(1)(a), 322, 343, 354, 434, 515(10)(b), 745.1, 752.
Juvenile Delinquents Act, R.S.C. 1970, c. J‑3.
Young Offenders Act, R.S.C. 1985, c. Y‑1, s. 24(1) , (1.1) , (4) .
Youth Criminal Justice Act, S.C. 2002, c. 1 , preamble, ss. 2 “presumptive offence”, “serious violent offence”, 3, 4(c), 29(2), 38, 39, 42, 62(a), 94, 98(4)(a), 104(3)(a).
Treaties and Other International Instruments
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 37(b).
Authors Cited
Bala, Nicholas. Young Offenders Law. Concord, Ont.: Irwin Law, 1997.
Bala, Nicholas. Youth Criminal Justice Law. Toronto: Irwin Law, 2003.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st Sess., 37th Parl., February 14, 2001, p. 704.
Cornu, Gérard, dir. Vocabulaire juridique, 8e éd. Paris: Presses universitaires de France, 2000, “violence”.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Markwart, Alan. “Custodial Sanctions Under The Young Offenders Act”, in Raymond R. Corrado et al., eds., Juvenile Justice in Canada: A Theoretical and Analytical Assessment. Toronto: Butterworths, 1992, 229.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “violence”, “violent”.
Scassa, Teresa. “Violence Against Women in Law Schools” (1992), 30 Alta. L. Rev. 809.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the Alberta Court of Appeal (Ritter J.A. and Brooker and Martin JJ. (ad hoc)), [2005] 1 W.W.R. 442 (sub nom. R. v. D. (C)), 30 Alta. L.R. (4th) 226, 346 A.R. 289, 320 W.A.C. 289, 184 C.C.C. (3d) 160, [2004] A.J. No. 179 (QL), 2004 ABCA 14, upholding the custodial sentence imposed on C.D. Appeal allowed.
APPEAL from a judgment of the Alberta Court of Appeal (Ritter J.A. and Bielby and Sanderman JJ. (ad hoc)) (2004), 346 A.R. 393, 320 W.A.C. 393, [2004] A.J. No. 237 (QL), 2004 ABCA 77, upholding the custodial sentence imposed on C.D.K. Appeal allowed.
Patricia Yuzwenko and Charles Seto, for the appellants.
James C. Robb, Q.C., for the respondent.
Miriam Bloomenfeld and Geoff Chesney, for the intervener the Attorney General of Ontario.
Kathleen M. Ker, for the intervener the Attorney General of British Columbia.
Dale Tesarowski and Jo‑Ann Natuik, for the intervener the Attorney General of Manitoba.
Cheryl Milne and Emily Chan, for the intervener the Canadian Foundation for Children, Youth and the Law.
The judgment of McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ. was delivered by
Bastarache J. —
1. Introduction
1 In these appeals, this Court is being asked to define the term “violent offence” for purposes of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA ” or the “Act ”). This term is found in s. 39(1) of the Act , and it represents one of only four gateways to a custodial youth sentence. Specifically, s. 39(1) provides that a youth justice court shall not commit a young person to custody under s. 42 (youth sentences) unless:
(a) the young person has committed a violent offence;
(b) the young person has failed to comply with non-custodial sentences;
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y‑1 of the Revised Statutes of Canada, 1985; or
(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non‑custodial sentence would be inconsistent with the purpose and principles set out in section 38.
2 The definition of “violent offence” is at issue in these appeals because the appellants, who are young persons within the meaning of the YCJA , were both found to be eligible for the custodial sentence they ultimately received on the basis that they had committed a “violent offence” under s. 39(1) (a) of the YCJA .
3 With regard to the appellant C.D., he pleaded guilty to three offences: possession of a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Criminal Code, R.S.C. 1985, c. C‑46 , arson to property contrary to s. 434 of the Code, and breach of a recognizance contrary to s. 145(3) of the Code. The sentencing judge determined that the arson to property offence, which came about when the appellant and an adult offender set fire to a truck at the direction of its owner, was a “violent offence”, explaining that “[v]iolence to property is a violent offence and it fits 39(1)(a)” (2003 CarswellAlta 1909, at para. 6). He sentenced C.D. to six months of deferred custody to be followed by nine months of probation. Deferred custody is a type of custodial sentence that “allows the youth to serve what would otherwise be a custodial sentence in the community but subject to strict conditions and with the possibility of immediate apprehension and placement in a custody facility if the youth is believed to ‘have breached or to be about to breach’ any of the conditions”: see N. Bala, Youth Criminal Justice Law (2003), at p. 457.
4 As for the appellant C.D.K., he pleaded guilty to three offences as well: dangerous driving contrary to s. 249(1) (a) of the Criminal Code , possession of stolen property contrary to s. 354 of the Code, and theft under $5,000 contrary to s. 322 of the Code. Although the guilty plea on the theft charge was entered on a later date than the pleas on the dangerous driving and possession of stolen property charges, sentencing on all three charges occurred on the same date (C.D.K.’s factum, at para. 2). The sentencing judge determined that the dangerous driving offence before the court, which involved a high speed police chase through city streets, was a “violent offence” within the meaning of s. 39(1) (a) of the YCJA . She explained that “[t]he potential for serious damage, injury to the public, to the police and to the people in the chase is beyond question. And the violence of a car speeding through the city chased by police is, by anyone’s definition, violent” (2003 CarswellAlta 1924, at para. 7). The sentencing judge sentenced C.D.K. to six months of deferred custody followed by twelve months of probation.
5 Both appellants appealed their sentences to the Court of Appeal for Alberta. Prior to argument before the court, C.D. and C.D.K. both breached their deferred custody sentences and were returned to actual custody until the Crown agreed to their release on bail pending their appeals.
6 Before the Court of Appeal, the appellant C.D. advanced three grounds of appeal. First, C.D. argued that the sentencing judge erred in principle when he found that arson was a “violent offence” under s. 39(1) (a) of the YCJA , because, in C.D.’s view, a property offence, such as arson, could not be a “violent offence” without either actual or attempted bodily harm. Second, C.D. argued that the sentencing judge failed to consider alternatives to custody, as required by s. 39(2) of the Act , when he decided that a community sentence without a “lever” (i.e. something to promote compliance) would not work for the appellant. Third, C.D. contended that the sentencing judge failed to properly consider the provisions of s. 38 of the YCJA and thus imposed a sentence that was unfit. Since the Court of Appeal was of the view that the appellant also regarded the sentence imposed as demonstrably unfit, it considered this issue in its analysis as well.
7 Prior to the Court of Appeal rendering its decision, C.D. was arrested for breaching his release order. He was then re-released.
8 The Court of Appeal released its decision in C.D.’s appeal on March 2, 2004 ((2004), 346 A.R. 289, 2004 ABCA 14 (hereinafter “C.D.”)). With regard to the appellant’s first ground of appeal, it held that “if an action causes bodily harm, is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm, then it is violent” (para. 57). Applying this definition to the circumstances of the arson offence committed by C.D., the court concluded that the offence was a violent one, since “[t]he totality of the circumstances indicates that a reasonable person would have foreseen a risk of bodily harm” (para. 66). By way of explanation, the court noted that although the fire occurred on a deserted street late at night, firefighters were called to the scene within minutes after it began. The court also noted that C.D. and the adult offender used gasoline and propane, two well-known accelerants, to start the fire in the truck, and this increased “the risk to anyone who happened to use the street that night and anyone charged with controlling the fire” (para. 67). Furthermore, the court stated that since the propane used in the fire was housed in a closed bottle and since the truck had to have had a fuel tank, “[t]here was a reasonably foreseeable risk that the burning truck might explode at any time” (para. 67).
9 As for the other grounds of appeal, the Court of Appeal held that the sentencing judge did not err when he decided that community sentence without a lever would not work for the appellant; nor did he err in his interpretation of s. 38 of the YCJA . The court also concluded that the appellant was unable to show that the sentence imposed was demonstrably unfit. In fact, the court was of the view that the sentence imposed was the appropriate one having regard to the offender, the offence and the sentencing principles and factors set out in the YCJA . Accordingly, the Court of Appeal dismissed C.D.’s appeal.
10 Like C.D., C.D.K. challenged the deferred custody sentence imposed on the basis that (i) it was not an available sentence because he did not commit a “violent offence” within the meaning of s. 39(1) (a), and (ii) even if it was an available sentence, it was an unfit one.
11 The Court of Appeal released its decision with regard to the first ground of C.D.K.’s appeal on March 10, 2004 ((2004), 346 A.R. 393, 2004 ABCA 77), eight days after it released its decision in C.D.’s appeal. The court noted that in C.D.’s appeal, it concluded that “if it is reasonably foreseeable that criminal conduct may result in bodily harm that is more than merely trifling or transitory, the offence is violent for the purposes of s. 39(1) (a) of the Act ” (para. 7). Applying this definition to the dangerous driving offence committed by C.D.K., the court concluded that “[i]n this instance the potential for harm is obvious. High speed chases are very dangerous and can easily result in serious injury or death” (para. 7). Accordingly, the court held that “the sentencing judge did not err when she determined that the offence was violent and that a custodial sentence was available” (para. 7).
12 As for C.D.K.’s second ground of appeal, which centred on the fitness of the sentence imposed, the Court of Appeal noted that at the appeal hearing it had granted the parties’ request to defer its decision on this issue in order to give counsel an opportunity to propose alternatives to the custodial sentence imposed. The parties made this joint request because, at the time of the appeal hearing, C.D.K. was on judicial interim release and appeared to be doing well. Unfortunately, after the hearing but before the release of the Court of Appeal’s reasons for judgment, C.D.K. was charged with another offence, which resulted in the revocation of his bail. Although the Court of Appeal stated in its reasons that this conduct may have jeopardized the Crown’s willingness to consider alternatives to the custodial sentence imposed, it nonetheless directed that the matter of the fitness of the sentence imposed on C.D.K. be returned to the panel at a date to be determined. However, after the release of the court’s ruling on the interpretation of “violent offence”, C.D.K. formally abandoned the fitness of sentence ground of appeal. In his written submissions to this Court, C.D.K. stated that he abandoned this ground of appeal because he wanted to seek leave to appeal the issue of the proper interpretation of “violent offence” concurrently with C.D. (see C.D.K.’s factum, at para. 6). Following the abandonment, the Court of Appeal issued a final judgment, dismissing C.D.K.’s appeal.
13 On October 7, 2004, this Court granted C.D. and C.D.K.’s applications for leave to appeal and determined that their appeals would be heard together.
14 Argument before this Court centred on the definition of “violent offence”. The appellants noted that the Alberta Court of Appeal’s conclusion on this point is in conflict with appellate-level decisions from Prince Edward Island and Nova Scotia. In these decisions, the courts defined the term “violent offence” by reference to the statutory definition of “serious violent offence” in s. 2 of the YCJA , which, as noted above, provides that a “serious violent offence” is an offence in the commission of which a young person causes or attempts to cause serious bodily harm. In R. v. C. (J.J.) (2003), 180 C.C.C. (3d) 137, 2003 PESCAD 26, Webber J.A. for the Prince Edward Island Supreme Court, Appeal Division, held that “[a] reasonable analogy can therefore be made that ‘violent offence’ refers to one in which bodily harm has been caused to the victim albeit not serious bodily harm” (para. 21). Fichaud J.A., for the Nova Scotia Court of Appeal in R. v. D. (T.M.) (2003), 181 C.C.C. (3d) 518, 2003 NSCA 151, agreed with Webber J.A.’s deductive approach, subject to her conclusion that a “violent offence” should also include an attempt to cause bodily harm, since the YCJA defines “serious violent offence” as including an attempt to cause serious bodily harm (para. 23).
15 Before this Court, the appellants advocated for the acceptance of the Nova Scotia Court of Appeal’s interpretation of the term “violent offence”. In their view, this term ought to be defined by reference to the definition of “serious violent offence” found in s. 2 of the YCJA , such that an offence is “violent” if: (1) bodily harm is caused; or (2) bodily harm is attempted (see C.D.’s factum, at para. 16; C.D.K.’s factum, at para. 10). The respondent supported the Alberta Court of Appeal’s interpretation of this term, according to which, for purposes of s. 39(1) (a), an action is “violent” if it “causes bodily harm, is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm” (C.D., at para. 57).
16 At the hearing of this appeal, one of the members of this Court invited counsel for the respondent to comment on a definition of “violent offence” that utilized a force-based touchstone rather than a harm-based one. Specifically, counsel for the respondent was asked if he agreed that a reasonable interpretation of “violent offence” was one where the offender illegally (1) used, (2) attempted to use, or (3) threatened to use force on a person in the commission or attempted commission of a crime. Counsel replied by stating that this definition would capture what would be commonly understood as violent offences (see transcript, at pp. 45-46).
17 For the reasons given below, it is my view that the definition of “violent offence” ought to have a harm-based touchstone rather than a force-based one. As for the harm-based definitions originally offered by the parties, I am of the view that the appellants’ definition, which is drawn from the Nova Scotia Court of Appeal’s decision in D. (T.M.), and the respondent’s definition, which is, in reality, the definition crafted by the Alberta Court of Appeal, are both problematic and ought not to be endorsed by this Court. In their stead, I would substitute the following harm-based definition of “violent offence”: an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.
2. Issues
18 Before this Court, the appellants advanced three grounds of appeal:
(1) that the Alberta Court of Appeal erred in law in its expansive interpretation of “violent offence” in s. 39(1) (a) of the YCJA ;
(2) that the Alberta Court of Appeal erred in law in its interpretation of the sentencing principles set out in ss. 3 and 38 of the YCJA ;
(3) that the Alberta Court of Appeal erred in law in basing a sentence on facts which were not proven or admitted at the sentencing hearing in Youth Justice Court.
3. Analysis
3.1 Interpretation of “Violent Offence”
3.1.1 “Violent Offence” Not Defined in the YCJA
19 Although the appellants raise three grounds of appeal, the resolution of this appeal really turns on the interpretation of the term “violent offence”. As noted above, this term is found in s. 39(1) of the YCJA , and it represents one of only four gateways to a custodial youth sentence. For ease of reference, I shall reproduce this section again:
39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless
(a) the young person has committed a violent offence;
(b) the young person has failed to comply with non-custodial sentences;
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y‑1 of the Revised Statutes of Canada, 1985; or
(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non‑custodial sentence would be inconsistent with the purpose and principles set out in section 38 .
20 The term “violent offence” is not defined in the YCJA or in the Criminal Code ; however, there is a definition of “serious violent offence” in s. 2(1) of the YCJA . This definition reads as follows:
“serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm.
Although the concept of “bodily harm” is not defined in the YCJA , s. 2(2) of this Act states that “[u]nless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code .” Section 2 of the Criminal Code defines “bodily harm” as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. In R. v. McCraw, [1991] 3 S.C.R. 72, Cory J., writing for a unanimous Court, relied on this definition of “bodily harm”, as well as the dictionary definition of “serious”, to interpret the meaning of “serious bodily harm” for purposes of s. 264.1(1) (a) of the Criminal Code as it was worded before February 15, 1995. Specifically, Cory J. held that “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant” (p. 81). I see no reason why this definition of “serious bodily harm” should not also be used for purposes of the YCJA , and, in particular, for purposes of the definition of “serious violent offence” that is found in s. 2(1) of the Act .
21 Although the definition of “serious violent offence” is relatively straightforward, even if a young person’s actions would appear to satisfy it — i.e. even if a young person causes or attempts to cause serious bodily harm in the course of committing an offence — it does not automatically follow that he or she has committed a “serious violent offence”. Instead, pursuant to s. 42(9) of the YCJA , the Crown must apply to have an offence designated as a “serious violent offence”, and the youth justice court to which the application is made is required to hold a hearing before it makes its decision: see Bala, Youth Criminal Justice Law, at p. 493. Additionally, s. 42(10) of the YCJA allows for an appeal of the determination that a criminal act was or was not a “serious violent offence”. Much is involved in deciding whether an offence is a “serious violent offence” because the consequences of such a designation are quite severe. For instance, if a youth justice court determines that a young person has committed a third “serious violent offence”, the young person may presumptively be sentenced as an adult: see ss. 2(1) and 62 (a) of the YCJA . In addition to being presumed deserving of an adult sentence, a young person convicted of his or her third “serious violent offence” is also liable under s. 42(2) (r) to a youth sentence of intensive rehabilitative custody and supervision: see also Bala, Youth Criminal Justice Law, at p. 491. I would like to emphasize however that s. 39(1) only addresses a young person’s eligibility for a custodial sentence and not the appropriateness of custody in any given case. Indeed, s. 39(2) states that even if custody is an option, the court shall not impose custody unless alternatives have been considered that are reasonable in the circumstances, in accordance with s. 38 of the YCJA .
22 For purposes of interpreting the term “violent offence”, two conclusions can immediately be drawn from this definition of “serious violent offence”. More specifically, these two conclusions will be important considerations in deciding whether a force-based or harm-based definition of “violent offence” better complements the definition of “serious violent offence” in the YCJA , and how this eventual definition should be constructed. I will address the precise definition of “violent offence” in paras. 53-87 below.
23 First, the terms “violent offence” and “serious violent offence” must have connected meanings. Otherwise, if their meanings are not connected, then it would be possible for an offence to be a “serious violent offence” without also being a “violent offence”. Not only would this result be absurd, it would also interfere with the proper operation of the YCJA . Let me explain.
24 Section 42(5) (a) of the YCJA provides that:
The court may make a deferred custody and supervision order under paragraph (2)(p) if
(a) the young person is found guilty of an offence that is not a serious violent offence;
Since this statutory provision prohibits a youth justice court from imposing deferred custody for serious violent offences, this suggests that Parliament intended that young persons who commit serious violent offences should generally receive actual — i.e. not deferred — custodial sentences. However, if the meanings of “serious violent offence” and “violent offence” are not connected, such that a “serious violent offence” is not also a “violent offence”, then custody will not even be available as a sentencing option unless the other gates to custody set out in s. 39(1) (b) to (d) apply. The problem is that these other gates to custody will only open in particular circumstances. For instance, the s. 39(1) (b) gate will only open when “[a] young person has failed to comply with non-custodial sentences”. What if the young person who commits a “serious violent offence” is a first-time offender? Likewise, the s. 39(1) (c) gate requires that the young person commit an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and have a history that indicates a pattern of findings of guilt under the YCJA or the Young Offenders Act, R.S.C. 1985, c. Y-1 (“YOA ”). What if the young person does not have such a history? Finally, the s. 39(1) (d) gate will only open in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of which are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38 . What if the circumstances of the particular offence do not make it exceptional? If none of these other gates to custody apply, then a sentencing judge will be placed in the unenviable position of being faced with s. 42(5) (a), which suggests that Parliament intended that an actual custodial sentence should be imposed when a young person commits a “serious violent offence”, and then being prevented from ordering a sentence of this type because none of the gates to custody set out in s. 39(1) are open.
25 Accordingly, in order to avoid absurdity and problems like the one discussed above, it is necessary for the terms “violent offence” and “serious violent offence” to have connected meanings.
26 The second conclusion that can be drawn from the existence of the definition of “serious violent offence” is a relatively simple one: Parliament chose to define this term while leaving the term “violent offence” undefined, and this choice must mean something. In other words, although the meaning this Court ultimately ascribes to “violent offence” must be connected to the meaning of “serious violent offence” in order to avoid absurd and problematic results, it need not and, as I will explain below, should not be a mere replica of this definition with the word “serious” omitted. Had Parliament intended for “violent offence” to have such a meaning, it could have easily included this definition in the YCJA . Instead, it did not. This decision to leave the term “violent offence” undefined must be respected. Therefore, this Court must approach its task of interpreting the term “violent offence” just as it would if it were dealing with any other undefined term in a statute.
27 In order to determine the meaning of an undefined term in a statute, it is now well established that a court is to read the words making up the term “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament”: see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.
3.1.2 Grammatical and Ordinary Sense
28 In accordance with this approach to statutory interpretation, I will first consider the words making up the term “violent offence” in their grammatical and ordinary sense. In particular, I will consider the dictionary, ordinary and judicially constructed definitions of the words “violent” and “violence”. I intend to examine the word “violence”, first, because its meaning is intertwined with that of the word “violent”, and, second, because it is used in the French language version of s. 39(1) (a), which reads as follows: “l’adolescent a commis une infraction avec violence”.
29 Turning first to dictionary definitions, according to the Oxford English Dictionary (2nd ed. 1989), at p. 656, when the word “violent” is used to describe actions, it means that the actions are “[c]haracterized by the doing of harm or injury” or are “accompanied by the exercise of violence”. The primary meaning of “violence”, according to this dictionary, is “[t]he exercise of physical force so as to inflict injury on, or cause damage to, persons or property” (p. 654).
30 While the dictionary definition of “violence” focuses on the means employed to produce injury or damage (i.e. the exercise of physical force), one author argues that, ordinarily, the term “violence” is understood just in terms of its effects:
Violence is not an easy term to define. It is usually defined in terms of its effects. For most people, any act producing even a small amount of blood is violent. Sometimes damage to objects is accepted as a violent expression of anger or hostility against a person (as when someone vandalizes another’s car or defaces the walls of a house with slogans).
It is significant that the Criminal Code , which one might assume to be the “bible” of the control of violence in society, offers no definition of violence. It is, surprisingly, perhaps the most “assumed” term within the entire Code. Offences which one might consider the most “violent” of all crimes, such as murder and assault, do not mention violence. Rather, they talk about concrete, measurable things