R. v. S. (S.)

R. v. S. (S.)
Collection
Supreme Court Judgments
Date
1990-06-28
Report
[1990] 2 SCR 254
Case number
20845
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20845
Decision Content
R. v. S. (S.), [1990] 2 S.C.R. 254
Her Majesty The Queen Appellant
v.
Sheldon S. Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec
and the Attorney General for Saskatchewan Interveners
indexed as: r. v. s. (s.)
File No.: 20845.
1989: March 23; 1990: June 28.
Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for ontario
Criminal law -- Young offenders -- Alternative measures -- Ontario choosing not to implement alternative measures programmes -- Whether s. 4 of Young Offenders Act imposes mandatory obligation on provinces to authorize such programmes -- Whether s. 4 intra vires Parliament -- Whether Ontario's failure to implement alternative measures programmes infringes a young offender's right to equality before the law under s. 15 of Canadian Charter of Rights and Freedoms -- Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 3, 4.
Constitutional law -- Distribution of legislative powers -- Young Offenders Act -- Alternative measures -- Provinces permitted under s. 4 of Young Offenders Act to implement alternative measures programmes for young offenders -- Whether s. 4 intra vires Parliament -- Whether s. 4 encroaches upon provincial jurisdiction over child welfare -- Whether s. 4 is unconstitutional delegation of Parliament's authority over criminal law ‑‑ Constitution Act, 1867, ss. 91(27) , 92(13) -- Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, s. 4.
Constitutional law -- Charter of Rights -- Equality before the law ‑‑ Discrimination on the basis of province of residence -- Ontario failing to implement alternative measures programmes pursuant to s. 4 of the Young Offenders Act -- Whether Ontario's failure to implement such programmes infringes s. 15(1) of Canadian Charter of Rights and Freedoms -- Whether s. 4 of the Act infringes s. 15(1) of the Charter -- Impact of s. 15(1) of Charter on distinctions based upon province of residence in the application of a valid federal law.
The respondent, a young offender, was charged with possession of stolen goods. Before he entered a plea, his counsel brought a motion alleging that Ontario's failure to designate "alternative measures programmes" for the purposes of s. 4 of the Young Offenders Act resulted in a violation of the respondent's right to equality before the law, as guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms . Section 4 provides that "alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if" a number of conditions are met. The judge held that the Attorney General for Ontario was under a positive duty to authorize alternative measures programmes in the province by virtue of s. 3(1)(d) and (f) of the Act, and that the failure to implement such programmes, which were available to young offenders in all the other provinces, infringed the respondent's s. 15(1) right. He concluded that the infringement could not be justified under s. 1 of the Charter and dismissed the charge. Before the Court of Appeal, the appellant submitted that s. 4 of the Act was, in pith and substance, legislation in relation to child welfare, a matter falling within the sphere of provincial legislative competence under s. 92(13) of the Constitution Act, 1867 . The court rejected this argument, upheld the trial judge's decision on the s. 15(1) issue and dismissed the appeal.
Held: The appeal should be allowed.
(1) Section 4 of the Young Offenders Act
Section 4(1) of the Act does not oblige the provinces to implement alternative measures programmes; rather, the legislation leaves the decision to the discretion of each province. The use of the word "may" in s. 4(1) and the absence of an obligation expressed in unequivocally mandatory language lead to that conclusion. The word "should" in s. 3(1)(d) of the Act, which states that "taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences", does not provide evidence of a mandatory duty. In the context of s. 3(1)(d), the word "should" denotes simply a "desire or request" and not a legal obligation. Section 4(1) thus gives to the provincial Attorneys General a power, but not a duty, to develop and implement alternative measures programmes.
(2) Section 91(27) of the Constitution Act, 1867
Section 4 of the Act is intra vires Parliament. The Act as a whole is valid criminal law. It addresses the commission of offences contrary to the Criminal Code and other federal criminal law statutes. While s. 4(1) differs from most criminal law remedial statutes in that the focus is on alternatives to more traditional criminal sanctions, the federal legislative power over criminal law is sufficiently flexible to recognize new developments in methods of dealing with offenders. Indeed, Parliament's jurisdiction under s. 91(27) of the Constitution Act, 1867 extends beyond the confines of creating offences and establishing penalties. The discretion to create an alternative measures programme pursuant to s. 4 represents a legitimate attempt to deter young offenders from continued criminal activity. There is a concern with preventing recidivism and with balancing the interests of the offending `young person' with those of society. Section 4, therefore, was a valid exercise of Parliament's legislative authority under s. 91(27) .
Section 4 of the Act is not an unconstitutional delegation of Parliament's authority over criminal law and procedure. There is no limitation imposed by the Constitution Act, 1867 on Parliament's ability to leave the implementation of alternative measures programmes to the discretion of the provincial Attorneys General. The provinces have accepted a delegation of responsibility from Parliament in respect of prosecutions, including the prosecution of young offenders (s. 2 of the Criminal Code and s. 2(4) of the Act). The discretion to establish alternative measures programmes is clearly incidental to that legitimate delegation.
(3) Section 15 of the Charter
Since s. 4 of the Act does not impose a mandatory duty on the province to establish alternative measures programmes, the Attorney General for Ontario's decision not to authorize such programmes cannot contravene the respondent's equality rights under s. 15(1) of the Charter . His decision was made in accordance with the permissive terms of s. 4. That section, and not the discretionary determination made by the Attorney General pursuant to its provisions, constitutes "the law" for the purposes of a s. 15 challenge. Further, once it is determined that there is no duty on the Attorney General for Ontario to implement alternative measures programmes, the non‑exercise of discretion cannot be constitutionally attacked simply because it creates differences among provinces. To find otherwise would potentially open to Charter scrutiny every jurisdictionally permissible exercise of power by a province, solely on the basis that it creates a distinction in how individuals are treated in different provinces. The constitutionality of s. 4, in terms of compliance with the Charter , was not in issue in this appeal.
The outcome of this appeal would be no different had s. 4 been challenged directly. As a result of the discretion granted by Parliament to the provincial Attorneys General, alternative measures programmes were available to young offenders in all the provinces of Canada except Ontario. The absence of this benefit in that province must be considered a legal disadvantage imposed upon young offenders resident in Ontario. However, while the respondent has established that he was not receiving equal treatment before and under the law or that the law has a differential impact on him in the protection or benefit accorded by law, he did not establish that s. 4 was discriminatory. In a federal system of government, the values underlying s. 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. Unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based upon province of residence. A case‑by‑case approach is appropriate to determine whether province-based distinctions which arise from the application of federal law contravene s. 15(1) . Here, the legislation does not amount to a distinction which is based upon a "personal characteristic" for the purposes of s. 15(1) of the Charter . Differential application of federal law can be a legitimate means of forwarding the values of a federal system, especially in the context of the administration of the criminal law, where differential application is constitutionally fostered by ss. 91(27) and 92(14) of the Constitution Act, 1867 . The area of criminal law and its application is one in which the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal‑provincial cooperation. Further, although s. 4 of the Act is valid federal law, it is not wholly unconnected to child welfare -- a matter of provincial jurisdiction. Differential application of the law through federal‑provincial cooperation is a legitimate means whereby governments can overcome the rigidity of the "watertight compartments" of the distribution of powers with respect to matters that are not easily categorized or dealt with by one level of government alone.
Cases Cited
Applied: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; Attorney General of British Columbia v. Smith, [1967] S.C.R. 702; considered: Julius v. Bishop of Oxford (1880), 5 App. Cas. 214; distinguished: Regional Municipality of Peel v. MacKenzie, [1982] 2 S.C.R. 9; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310; R. v. M. (S.H.), [1989] 2 S.C.R. 446; R. v. Zelensky, [1978] 2 S.C.R. 940; Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303; Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Fredericton v. The Queen (1880), 3 S.C.R. 505; R. v. Burnshine, [1975] 1 S.C.R. 693; R. v. Cornell, [1988] 1 S.C.R. 461.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 15 , 24 .
Constitution Act, 1867, ss. 91(27) , 92(13) , (14) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 2 "Attorney General" [rep. & sub. 1985, c. 19, s. 2].
Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 2(1) "alternative measures", (4) [now 2(2)], 3, 4.
Authors Cited
Bala, Nicholas and Heino Lilles, The Young Offenders Act Annotated. Don Mills, Ont.: Richard De Boo, 1984.
Côté, Pierre‑André. The Interpretation of Legislation in Canada. Translated by Katherine Lippel, John Philpot and Bill Schabas. Cowansville, Qué.: Yvon Blais, Inc., 1984.
Debates of the Houses of Commons, 1st Sess., 32rd Parl., 30 Eliz. II, 1981, vol. VIII, p. 9309.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hudson, Joe and Joseph P. Hornick and Barbara A. Burrows, eds. Justice and the Young Offender in Canada. Toronto: Wall & Thompson, 1988.
Oxford English Dictionary, vol. IX, 2nd ed. Oxford: Clarendon Press, 1989, "may".
Rabinovitch, Paul. "Diversion Under Section 4: Is There a Future for It in Ontario?". In Nicholas Bala and Heino Lilles, Young Offenders Service, vol. 1. Edited by Roman N. Komar and Priscilla Platt. Toronto: Butterworths, 1984.
Swinton, Katherine E. "Competing Visions of Constitutionalism: Of Federalism and Rights". In Katherine E. Swinton and Carol J. Rogerson, eds., Competing Constitutional Visions: The Meech Lake Accord. Toronto: Carswells, 1988.
APPEAL from a judgment of the Ontario Court of Appeal (1988), 26 O.A.C. 285, 63 C.R. (3d) 64, 35 C.R.R. 247, 42 C.C.C. (3d) 41, dismissing the appeal of the Attorney General for Ontario from a judgment of Bean Prov. Ct. J., [1986] W.D.F.L. 2598, 17 W.C.B. 399, 9 C.R.D. 350.45‑01, dismissing a charge of possession of stolen goods against a young offender. Appeal allowed.
Brian J. Gover, for the appellant.
Brian Weagant and Michael Anne MacDonald, for the respondent.
Douglas J. A. Rutherford, Q.C., and D. J. Avison, for the intervener the Attorney General of Canada.
Yves de Montigny and Jean Turmel, for the intervener the Attorney General of Quebec.
Robert G. Richards and Ross Macnab, for the intervener the Attorney General for Saskatchewan.
//The Chief Justice//
The judgment of the Court was delivered by
THE CHIEF JUSTICE -- This appeal concerns the failure of the Attorney General for Ontario to implement a program of "alternative measures" within that province pursuant to s. 4 of the Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110 (now R.S.C., 1985, c. Y‑1 ).
The Legislation
Young Offenders Act
The provisions of the Young Offenders Act relevant to this appeal, as they stood at the time of the events in issue, are as follows:
INTERPRETATION
2. (1) In this Act,
. . .
"alternative measures" means measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence;
. . .
(4) Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code .
DECLARATION OF PRINCIPLE
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 rights, 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 of 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).
ALTERNATIVE MEASURES
4. (1) Alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if
(a) the measures are part of a program of alternative measures authorized by the Attorney General or his delegate or authorized by a person, or a person within a class of persons, designated by the Lieutenant Governor in Council of a province;
(b) the person who is considering whether to use such measures is satisfied that they would be appropriate, having regard to the needs of the young person and the interests of society;
(c) the young person, having been informed of the alternative measures, fully and freely consents to participate therein;
(d) the young person has, before consenting to participate in the alternative measures, been advised of his right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
(e) the young person accepts responsibility for the act or omission that forms the basis of the offence that he is alleged to have committed;
(f) there is, in the opinion of the Attorney General or his agent, sufficient evidence to proceed with the prosecution of the offence; and
(g) the prosecution of the offence is not in any way barred at law.
Constitution Act, 1867
The provisions of the Constitution Act, 1867 , relevant to this appeal are as follows:
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,--
. . .
27.The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
. . .
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, --
. . .
13.Property and Civil Rights in the Province.
14.The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
Canadian Charter of Rights and Freedoms
The provisions of the Canadian Charter of Rights and Freedoms relevant to this appeal are as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Facts
On February 24, 1986, the respondent Sheldon S., who was then 14 years of age, appeared before Judge D. A. Bean of the Ontario Provincial Court (Family Division) at Toronto and was arraigned on a charge which alleged that he:
. . . on or about the 23rd day of September in the year 1985 at the Municipality of Metropolitan Toronto in the Judicial District of York unlawfully did have in his possession property to wit: four shirts and two sweaters, of a value exceeding two hundred dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to the Criminal Code .
Before a plea was entered, counsel for the respondent indicated that he wished to bring a motion alleging that the failure of the Lieutenant Governor in Council for the province of Ontario to designate "alternative measures programs" for the purposes of s. 4 of the Young Offenders Act resulted in a violation of the respondent's equality rights, as guaranteed by s. 15 of the Charter . Counsel for the respondent indicated that the remedy sought was an order pursuant to s. 24(1) of the Charter staying the proceedings or dismissing the charge.
The Judgments Below
The Judgment at First Instance
The motion was heard on April 18, 1986. It was agreed that the respondent had not been considered for an alternative measures program. On August 11, 1986, Judge Bean delivered his reasons and ordered that the charge be dismissed. He defined the issue in this manner:
. . . are the young person's rights in accordance with Section 15 infringed or denied, because the Attorney General for Ontario or Lieutenant Governor in Council for Ontario has not authorized alternative measures pursuant to Section 4(1)(a) of the Young Offenders Act, and therefore this young person cannot be considered for alternative measures under Section 3(1)(d) of the Young Offenders Act.
The judge held that no programs of alternative measures were in operation for which the respondent could be considered. Had the Attorney General for Ontario or the Lieutenant Governor in Council authorized such a program, the judge found on the evidence that the respondent could have been considered for alternative measures. Furthermore, it was found that the failure to implement an alternative measures program could be traced to two factors:
. . . I further find on the evidence before me that the reasons why the Attorney General has not authorized programs in Ontario are; firstly, that the philosophy of the Attorney General and his Ministry, with regard to the dispositions and procedures of the Young Offenders Act, is in conflict with that of the Federal Government, and in particular the Federal Ministry of Justice, and; secondly, that the Attorney General does not wish to either expend the public funds for or to cope with the administrative difficulties inherent in setting up alternative measures in the Province of Ontario.
Judge Bean held that s. 3(1)(d) of the Young Offenders Act gave to the young person a positive right to be considered for alternative measures; the denial of that right, when such alternative measures are available in provinces other than Ontario, denied the young person the equal protection and equal benefit of the Young Offenders Act based on place of residence, and this constituted discrimination under s. 15 of the Charter . Furthermore, the judge held that the Attorney General for Ontario was under a positive duty to authorize a program of alternative measures in Ontario by virtue of s. 3(1)(d) and (f) of the Act. He found, from the context of the Act as a whole and, in particular, from the wording of s. 4(1)(a) that:
. . . the intention of Parliament was to give the Attorney General the right to authorize parts of a program, and by inference, not to authorize other parts of a program. I think, on the wording of Section 4(1)(a), the Attorney General was not given a right by law to not authorize all parts, or to not authorize a program at all.
Because the judge found that the failure of the Attorney General for Ontario to implement alternative measures pursuant to his duty under the statute violated the respondent's right under s. 15(1) of the Charter , it was then necessary to determine whether the infringement could be justified under s. 1 of the Charter . First, Judge Bean determined that the limitation on the respondent's rights was not "prescribed by law" within the meaning of s. 1 :
The non‑authorization is not proscribed [sic] by law; the authorization is prescribed by law. And, I quite frankly, do not see how one can, taking the Act as a whole and Section 4(1)(a) in particular, come to the conclusion that by the mere empowering of the Attorney General to authorize measures which are a part of a program of alternative measures, parliament has given the Attorney General the right, by law, to also not authorize any program.
In the alternative, the judge held that even if the limitation was prescribed by law, it did not meet the reasonableness test of s. 1 . This determination was based on a number of factors:
In my view, on the evidence before me, it is simply not reasonable. The Attorney General of Ontario has disregarded; firstly, the will of Parliament as clearly expressed in the legislation; secondly, the experience of eight other provinces with regard to alternative measures under this Act; thirdly, the experience of the Province of Ontario with regard to alternative measures prior to the introduction of the Young Offenders Act, and; fourthly, the opinion of the Ministry of Community and Social Services of the Province . . . .
The issue of the power of Parliament to enact s. 4 of the Young Offenders Act was not raised at trial.
The Court of Appeal
The Attorney General for Ontario appealed the decision of Judge Bean to the Ontario Court of Appeal. The Attorney General of Canada intervened in support of the respondent. Before the Ontario Court of Appeal, the Attorney General for Ontario submitted that s. 4 of the Young Offenders Act was, in pith and substance, legislation in relation to child welfare, a matter falling within the sphere of provincial legislative competence under s. 92(13) of the Constitution Act, 1867 .
The Majority
The reasons of the majority of the Ontario Court of Appeal were delivered by Tarnopolsky J.A., Krever J.A. concurring: (1988), 63 C.R. (3d) 64, 26 O.A.C. 285, 42 C.C.C. (3d) 41, 35 C.R.R. 247 (hereinafter cited to C.R.R.); leave to appeal to this Court granted September 30, 1988, [1988] 2 S.C.R. ix. Tarnopolsky J.A. referred extensively to the reasons of Fauteux J., writing for a unanimous Supreme Court of Canada, in Attorney General of British Columbia v. Smith, [1967] S.C.R. 702. He found the reasons in Smith to be applicable to the Young Offenders Act and rejected the argument of the appellant that the Court's decision in Regional Municipality of Peel v. MacKenzie, [1982] 2 S.C.R. 9, governed the facts of the instant case. Tarnopolsky J.A. saw no merit in the argument that s. 4 of the Young Offenders Act was in pith and substance in relation to child welfare. Instead, he held that s. 4 of the Young Offenders Act is valid criminal law and, therefore, intra vires the Parliament of Canada.
On the Charter issue raised by the respondent, and accepted by the trial judge, Tarnopolsky J.A. applied a three‑step analysis to determine whether there had been a contravention of s. 15(1) of the Charter (at p. 271):
(1)an identification of the class of individuals who are alleged to be treated differently;
(2)a consideration of whether the class purported to be treated differently from another class is similarly situated to that other class in relation to the purpose of the law; and
(3)a determination as to whether the difference in treatment is "discriminatory" in the sense of a pejorative or invidious or disadvantageous purpose or effect of the law or action impugned.
In applying the first step, Tarnopolsky J.A. had little difficulty in finding a class of individuals alleged to have been treated differently since "[t]he class of individuals at issue are the young persons defined in s. 2 of the Act" (p. 271). With respect to the second, he found the classes of individuals identically situated but for their province of residence. With respect to the third step, Tarnopolsky J.A. analyzed the disadvantage to the class of individuals identified in order to determine whether it was "so unfair as to be discriminatory having regard to the purpose and effect of the legislation". He found the fact that the legislation was federal to be decisive in his determination that the treatment was discriminatory in nature (at p. 275):
This is . . . a case arising out of what the federal government clearly thought was a reform in favour of young offenders. Considerable time was spent trying to convince provincial governments that diversion by way of alternative measures was desirable both from the point of view of young persons and of society generally. In the final analysis, we are concerned with federal legislation and the federal Attorney‑General has submitted a long list of arguments which lead one to conclude that non‑implementation by any province of the scheme set out in the Act, according to the principles declared, would be invidious or pejorative to the extent of being discriminatory. [Emphasis in original.]
Tarnopolsky J.A. next dealt with the question of whether the reference to designation in s. 4 of the Young Offenders Act was mandatory or permissive. This analysis was undertaken in the context of the issue of what the "law" is that results in a denial of equal benefit to young persons in Ontario. After examining the relevant statutory provisions, he found that the discretion granted in the opening paragraph of s. 4(1) was in respect of each individual young person and that s. 4 "is not the basis of either a mandatory or a permissive delegation of power" (p. 278). However, upon examining the Act as a whole, and in particular, ss. 3(1)(d), 3(1)(f) and 3(2), Tarnopolsky J.A. found that without provincial designation of alternative measures the purpose of the Act would be undermined (at p. 279):
There is no way that young persons can be dealt with "in accordance with the principles set out in (sub‑s. 3(1))" which is the "Policy for Canada with respect to young offenders", unless there are alternative measures programs designated under s. 4(1)(a), for which a young person can be considered. The learned trial judge was correct in holding that s. 3 imposes a positive duty to authorize such programs. A failure to implement a legislative mandate, which results in the kind of discriminatory or invidious inequality discussed earlier herein, constitutes a contravention of Charter s. 15(1) .
Consequently, Tarnopolsky J.A. held that the failure of the Attorney General for Ontario to designate alternative measures programs resulted in the respondent being denied the equal benefit of the law as protected by s. 15(1) .
The final step in the Charter analysis engaged in by Tarnopolsky J.A. was a determination of whether the denial of the equal benefit of the law amounted to a reasonable limit under s. 1 of the Charter . Applying the test set out by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, Tarnopolsky J.A. found that the first requirement, that the objective of the limit must be of sufficient importance to justify overriding a constitutionally protected right, had not been met. Alternatively, he held that even if the objectives provided by the Attorney General for Ontario were accepted as sufficient to justify overriding the s. 15(1) right, the appellant failed to meet the proportionality requirement in Oakes.
On the basis of the s. 15(1) infringement, the majority of the Ontario Court of Appeal held that the appropriate remedy was a declaration that until programs of alternative measures within ss. 3 and 4 of the Act were instituted in Ontario, action against any young person who might have qualified and so claims, may have to be stayed. In the instant case, the majority of the court upheld the disposition of the trial judge that the charges against the respondent be dismissed. The alternative remedy of a stay of proceedings until alternative measures were introduced in the province would violate the respondent's right under s. 11 (b) of the Charter .
The Minority
Robins J.A., in dissent, defined the issue, at p. 250, as being:
. . . whether or not a young offender residing in Ontario is denied the right to the equal protection and benefit of the law, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms , because the Attorney‑General for Ontario, unlike eight of his provincial counterparts, has not authorized a program of alternative measures within Ontario pursuant to s. 4 of the Young Offenders Act.
He held, first, that the Young Offenders Act does not obligate the Attorney General for Ontario to authorize alternative measures, but rather the legislation leaves the decision to the discretion of each province. He reached this conclusion on the basis of the wording of s. 4 of the Act (at p. 255):
The wording used in s. 4(1)(a) of the Act indicates that alternative measures may be used in Ontario to deal with a young person alleged to have committed an offence only if they are part of a provincially authorized program. The section does not impose or purport to impose a positive obligation on the provinces to authorize such a program. Read in its grammatical or ordinary sense, s. 4(1)(a) is a permissive enabling enactment granting powers whose exercise is optional. [Emphasis in original.]
He referred to s. 28 of the Interpretation Act, R.S.C. 1970, c. I‑23, which stated that the word "may" is to be construed as permissive, and he concluded that the words "only if" signify that provincial authorization is a precondition to the use of alternative measures. In the opinion of Robins J.A., s. 3(1) and (2) provided no aid in interpreting s. 4(1) (at p. 256):
The words of s. 4 in question are, however, plain and unambiguous; they empower the provinces of Canada to implement alternative measures programs within federally stipulated safeguards only if they so desire; they do not create any obligation on the provinces to establish such programs. If, as stated earlier, Parliament had intended that alternative measures be made available across Canada, it can be assumed that s. 4 would have been framed in mandatory and not permissive terms.
Robins J.A. also examined the purpose of the Act, and found no indication that the legislation was predicated on the universality of alternative measures programs (at pp. 256‑57):
In not forcing the provinces to implement programmes and in not establishing criteria (other than minimum safeguards) as to their nature, content and scope, Parliament recognized that diverse conditions exist from province to province and within the provinces themselves, and that legislation of this nature cannot be universal in its application across Canada but must be tailored to take regional differences into account. The approach Parliament has adopted to this area of the new juvenile justice system, in my opinion, is intended to accommodate both federal and provincial interests and values as they relate to the use of measures alternative to court proceedings in dealing with young offenders.
Robins J.A. drew support for his interpretation of s. 4 from extrinsic evidence introduced by the parties. He found the comments of the then Solicitor General of Canada, the Honourable Robert Kaplan, in the House of Commons Debates on Second Reading of the Young Offenders Act, April 15, 1981, at p. 9309, to be of particular relevance (at p. 258):
One of the criticisms of the new law has been to the effect that the federal government should have made diversion mandatory and more explicit. But the proponents of such arguments fail to recognize the importance to the young person of having the right to plead not guilty and the role of the provinces in the exercise of prosecutorial discretion. The use of alternative measures, in my opinion, is better left to the discretion of provinces which can develop programs to suit their particular circumstances. [Emphasis added by Robins J.A.]
He also relied upon the following passage from Nicholas Bala and Heino Lilles, The Young Offenders Act Annotated (1984), at p. 257:
Alternative measures must be part of an authorized program. The Act does not set out guidelines for establishing the programs; it merely provides legislative authority for them and legislates minimum standards to safeguard the young person's rights. The Act permits each province to determine whether it wishes to implement alternative measures programs, and provides flexibility for the development of different types of programs in response to local needs, interests and resources. [Emphasis added by Robins J.A.]
He referred to a similar observation made by Paul Rabinovitch in his paper "Diversion Under Section 4: Is There a Future for It in Ontario?", published in the Young Offenders Service (1984), at p. 257:
With the proclamation of the Young Offenders Act in April of 1984 and the official recognition of diversion under the Alternative Measures Provision, s. 4, it was hoped that diversion would finally become a permanent part of the juvenile justice system for all of Canada. The result would be that the obstacles in the way of the growth of diversion in provinces such as Ontario would be permanently removed. The Young Offenders Act appeared to do just that, as it formally recognized diversion and gave it official status. The key to s. 4, however, was that it was up to the individual provinces to take the initiative and respond to the legislation. The Y.O.A. itself did not officially establish diversion programs but merely gave the provinces the ability to do so. The Act encouraged the provinces to review their policies on diversion, and it gave them the incentive to formulate long range plans. As an added impetus to the provinces, a cost‑sharing scheme was put into the Y.O.A. in s. 70. This provision allowed individual provinces to enter into a cost‑sharing agreement with the federal Ministry of the Solicitor‑General. [Emphasis added by Robins J.A.]
Having concluded that s. 4 did not impose a mandatory duty on the Attorney General for Ontario, Robins J.A. did not feel obliged to pursue the s. 15(1) Charter analysis. In his determination of the case, once it is found that s. 4 is permissive with respect to the provinces, then the provincial Attorneys General cannot be faulted for failing to implement an alternative measures program. Section 4 constitutes "the law" for the purposes of a s. 15 challenge, but the legislation itself was not in issue with respect to its compatibility with s. 15 of the Charter .
Robins J.A. would allow the appeal, set aside the acquittal and order a new trial.
Constitutional Questions
The following constitutional questions were stated:
1.Is s. 4 of the Young Offenders Act ultra vires the Parliament of Canada because it is, in pith and substance, legislation dealing with a matter outside Parliament's jurisdiction over criminal law and procedure as conferred by s. 91(27) of the Constitution Act, namely, child welfare?
2.Does the decision of the Attorney General for Ontario not to authorize diversion programs as alternative measures under s. 4 of the Young Offenders Act violate the equality rights of the young persons accused of committing offences within Ontario, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms ?
3.If the answer to question number 2 is yes, is the decision of the Attorney General for Ontario not to authorize diversion programs as alternative measures justified under s. 1 of the Canadian Charter of Rights and Freedoms ?
The Issues
This appeal involves three issues: (i) whether s. 4(1)(a) of the Young Offenders Act imposes a legal obligation on the provinces to authorize programs of alternative measures; (ii) whether s. 4 is intra vires the Parliament of Canada pursuant to its jurisdiction over criminal law in s. 91(27) of the Constitution Act, 1867 ; and (iii) whether, if the legislation is intra vires, the failure of the Attorney Gen