J. Dated: 19980630 Docket: 2622 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise Gerwing JJ.A. and HER MAJESTY THE QUEEN COUNSEL: Mr. S. E. Halyk, Q.C. for the appellant Mr. D.M. Brown, Q.C. for the Crown DISPOSITION: On Appeal From: QBG1608/1996 Appeal Heard: 15 October 1997 Appeal Allowed: 30 June 1998 Written Reasons: 30 June 1998 Reasons By: The Hon. Mr. Justice Vancise In Concurrence: The Hon. Mr. Justice Cameron The Hon. Madam Justice Gerwing VANCISE J.A. Introduction [1] The primary issue on this appeal is whether the youth court has jurisdiction in proceedings which are commenced in youth court where it is alleged that the offences charged occurred when the accused was either a young person or an adult but it is not possible to determine whether at the time the alleged offences were committed the accused person was a young person or an adult. [2] The accused was charged by information dated January 6, 1996, that being a young person within the meaning of the Young Offenders Act,[1] he committed the following offences: (1) between January 1, 1982 and January 3, 1983, he did commit acts of gross indecency against G.W., contrary to s. 271 of the Criminal Code;[2] (2) between January 4, 1982 and December 31, 1989, he did on more than one occasion commit a sexual assault on G.W. contrary to s. 271 of the Criminal Code; and, (3) between January 1, 1983 and December 31, 1989, did have sexual intercourse with G.W. while knowing that G.W. was his sister and did thereby commit incest contrary to s. 155 of the Criminal Code. The Crown stayed an identical information previously laid against the accused alleging that the same offences occurred when he was an adult. [3] The accused was born on […], 1967 and, ignoring for the moment the transition provisions of the Young Offenders Act, became an adult on […], 1985. He was therefore charged with having committed certain offences during period of time, […], 1985 to December 31, 1989, when he was an adult. It is common ground that youth court judge does not have jurisdiction with respect to any offences which occurred after the date he became an adult. [4] Both the Crown and the defence agree that once an information alleges an offence occurred when the accused was young offender, the youth court judge has jurisdiction to embark on the inquiry. They differ on what happens if the youth court, having embarked upon the inquiry, is unable to determine whether the offence occurred when the accused was young offender or an adult. Relevant statutory provisions [5] The relevant portions of the Young Offenders Act 2.(1) Definitions In this Act, “young person” means 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 young person or is found guilty of an offence under this Act. 5.(1) Exclusive Jurisdiction of Youth Court Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by person while he was young person and any such person shall be dealt with as provided in this Act. 16.(1) Transfer to ordinary court Subject to subsection (1.01), at any time after an information is laid against young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 553 of the Criminal Code but prior to adjudication, youth court shall, on application of the young person or the young person’s counsel or the Attorney General or an agent of the Attorney General, determine, in accordance with subsection (1.1), whether the young person should be proceeded against in ordinary court. 16(1.1) Order In making the determination referred to in subsection (1) or (1.03), the youth court, after affording both parties and the parents of the young person an opportunity to be heard, shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court, and (a) if the court is of the opinion that those objectives can be so reconciled, the court shall (i) in the case of an application under subsection (1), refuse to make an order that the young person be proceeded against in ordinary court, and (ii) in the case of an application under subsection (1.01), order that the young person be proceeded against in ordinary court; or (b) if the court is of the opinion that those objectives cannot be so reconciled, protection of the public shall be paramount and the court shall (i) in the case of an application under subsection (1), order that the young person be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence, and (ii) in the case of an application under subsection (1.01), refuse to made an order that the young person be proceeded against in youth court. (2) Considerations by youth court In making the determination referred to in subsection (1) or (1.03) in respect of young person, youth court shall take into account (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. (3) Pre-disposition reports In making the determination referred to in subsection (1) or (1.03) in respect of young person, youth court shall consider pre-disposition report. Judgment of Provincial Court [6] The trial judge dismissed count number one finding that there was no evidence on which he could find the accused guilty. [7] Count number two alleges the offence specified therein occurred over period of time commencing January 4, 1982 to December 31, 1983 and count number three alleges that the offence occurred between January 1, 1982 and December 31, 1989. The trial judge found there were four incidents or episodes where the offences could have been committed: (1) an incident in the family room; (2) an incident in the basement of the house; (3) an incident in the “boys” bedroom; and, (4) an incident in the complainant’s bedroom. [8] The complainant related these incidents of sexual assault, gross indecency and sexual intercourse in no particular chronological order and she was not sure whether the events or incidents occurred before or after the accused moved out of the family home after graduating from high school. She was certain, however that the offences stopped after she was in Grade 11. The trial judge found that was in 1989. He found that the accused became an adult on […], 1985. [9] The trial judge found the date of only one incident, the one allegedly committed in the family room. In his opinion, it occurred after the family room was added on to the house, 1984, and the year the complainant had her first menstrual period, 1986. He found therefore, that the family room incident occurred after 1986 when the accused was an adult. [10] With respect to all the other incidents, the trial judge stated: [T]he finding must be that one cannot determine when they occurred, but [they occurred] sometime before the end of 1989. And with respect to these therefore, because of that, one cannot determine whether they occurred while the accused was an adult or young offender.[3] In dealing specifically with counts and he stated: With respect to the other two counts, some of the episodes clearly [occurred when] the accused was an adult. With respect to the other, they could have occurred at any time.[4] The youth court judge was not in the circumstances prepared to assume jurisdiction on counts two and three. The Crown appealed to the Court of Queen’s Bench. Judgment of the Court of Queen’s Bench [11] The summary conviction appeal court judge found the provincial court judge erred in declining jurisdiction. He analysed the relevant case law and concluded that the law was as follows: 1. In youth court, proof of the accused’s age by the Crown is not necessary until there is “evidence to the contrary”, as such phrase is used in s. 2(1) of the Young Offenders Act, or something tantamount thereto which suggests that the accused is not “young person”. Thereafter, the Crown bears the legal burden of proving that the accused was more than 12 and less than 18 years of age at the time of the alleged offence. [R. v. M.(S.M.); R. v. T.A.L.; R. v. L.]. 2. Where the accused intends to challenge the jurisdiction of the youth court, the accused bears the evidentiary burden of proving that the youth court lacked jurisdiction because of the accused’s age. 3. Where the youth court judge concludes on the evidence, led by the defence or otherwise, that the accused was an adult at the time of the alleged offence, he or she should decline jurisdiction and transfer the case to “adult court” without commenting on the evidence. 4. Where the youth court judge is uncertain of whether the accused was an adult or young person at the time of the offence, then the youth court judge should apply R. v. A. (E.A.).[5] [12] The summary appeal court judge found the youth court judge should have assumed jurisdiction after he found the alleged offences could have occurred when the accused was young person or when he ceased to be young person under the Young Offenders Act. In his opinion the principles set out in R. v. A.(E.A.)[6] are applicable and because of the uncertainty when the alleged offences occurred, the accused should be tried under the least onerous regime, youth court. [13] The summary conviction appeal court judge then ordered writ of mandamus issue directing the youth court judge to render decision according to law. Issue [14] The primary issue on this appeal is whether the youth court judge was correct in declining jurisdiction on the basis he was unable to determine whether the alleged offences occurred when the accused was a young offender. The secondary issue of whether a writ of mandamus should issue will of necessity follow the result of the determination of the first issue. Analysis [15] The accused was charged with having committed two indictable offences, sexual assault and incest, over a period of seven years commencing January 4, 1983. These offences occurred during the transition from the Juvenile Delinquents Act to the Young Offenders Act and were therefore subject to the transition provisions of the latter Act. This Court considered the effects of the transition provisions in the Act and in particular s.79(4) in R. v. B.(K.)[7] If one applies the ratio of B.(K.) to the facts of this case, the accused’s status changed from young person to adult and then back again to young person during the following time frames: 1. from January 4, 1983 (the start date in the information) until April 2, 1984 (the proclamation date of the Young Offenders Act), the Appellant was “young person”; 2. from April 2, 1984 until April 1, 1985 (the date SOR/84-279 ceased to have effect) the Appellant was an adult; 3. from April 1, 1985 to […], 1985 (when the Appellant turned 18) he was “young person”; 4. from […], 1985 to March 22, 1987 (the date the complainant turned 13 and experienced no further abuse) the Appellant was an adult.[8] [16] The jurisdiction of the youth court is determined by s. 5(1) of the Act. It does not depend on the averments in the information or on proof of age. See: R. v. C.(S. A.)[9]and R. v. R. and C.[10] The youth court has exclusive jurisdiction over the accused person if the alleged offences occurred when he was young person as defined in s.2 of the Act. Neither the Criminal Code nor the Young Offenders Act address the issue of the jurisdiction of the youth court where uncertainty exists as to the accused’s age at the time of the commission of the alleged offence. [17] The Crown contends that where the status of the accused oscillates between that of young person and an adult and where the date of the occurrence of the offence is uncertain, with the result that the offence could have occurred when the accused was young person or an adult, the proper forum is the youth court. The Crown relies on R. v. A.(E.A.) in support of that position. In R. v. A.(E.A.) the alleged offence occurred between p.m. on day one and a.m. on day two. The accused turned 18 at midnight. The trial judge was unable to decide whether the offence occurred before or after midnight and could not find that it occurred when the accused was young offender. He therefore declined jurisdiction. The Crown appealed and Dubin C.J.O. speaking for the court said: If it had been shown that the offence was committed after midnight and when the appellant was then 18 years of age, the Youth Court would not have jurisdiction to try him, and he would have to be tried in adult court. But, in this case, there is no proof as to the exact time at which the offence was committed. On the premise that the appellant was in fact guilty of sexually assaulting the victim, and, in the absence of proof as to the exact time of the offence, which is normally not material averment, then the facts should be viewed in manner most favourable to the appellant. Under such circumstances, it would be most favourable to the appellant to conclude that the time of the commission of the offence was when he was young person since the disposition and the alternative remedies available under the Young Offenders Act are more favourable to the appellant than if he were tried in an adult court.[11] [18] In this case, the information alleges on its face that the offences charged could have occurred when the accused was young person or an adult. There is “evidence to the contrary” that the accused was not young person when at least some of the offences occurred. [19] The question is not whether the accused should be tried but rather which court should assume jurisdiction. If the reason for declining jurisdiction is because of the absence of proof of exactly when the offences occurred, which is not normally material averment, it follows that the accused could not be tried in either youth court or ordinary court by reason that the same uncertainty as to when the offence or offences occurred would apply whether the charges were brought in youth court or ordinary court. That result is untenable and in such circumstances choice of jurisdiction between youth court or ordinary court must be made. There are two ways to determine which of the two courts should assume jurisdiction: (1) view the facts in manner most favourable to the accused, deem that the offence was committed when the accused was young person and that the youth court has jurisdiction; (2) order transfer hearing under s. 16(1) of the Act to determine whether the offences should be heard in youth court or ordinary court. [20] Before deciding which of the two alternatives should be employed it would be useful to set out the principles applicable to transfer hearing under s.16 of the Act. (A) Nature of the hearing [21] The issue before the youth court on transfer hearing is not whether the particular offence occurred but rather in which court, youth court or ordinary court, the matter should proceed. Canadian courts have traditionally characterized the transfer proceeding as an “administrative” as opposed to “judicial” hearing, justifying substantial departures from the rules governing the conduct of criminal trial. The focus of the hearing is not on guilt or innocence and at this stage of the proceedings the rules of evidence applicable to criminal proceedings are not strictly applied. See R. v. W.Y..[12] The provisions of ss. 16(1.1), (2) and (3) which outline number of factors that cannot be assessed within the normal criminal context of guilt or innocence, including such things as the availability of treatment or correctional facilities, the age and maturity of the offender and the seriousness of the alleged offence reinforce the conclusion that the transfer proceeding is an informal procedure. Notwithstanding that the transfer hearing must proceed in an impartial fashion in accordance with the principles of natural justice and s. of the Charter of Rights.[13] [22] Section 16(1) provides that an application for transfer hearing must be made prior to “adjudication”. The Act provides that application may be brought by the young person or his counsel and by the Attorney General or his agent. youth court judge cannot make an application on his or her own initiative. This is contrasted with the provisions of the former Juvenile Delinquents Act which permitted judges to initiate transfer applications of their own motion. Section 19(3) does, however, provide that youth court judge must inquire of the parties whether any of them wishes to make transfer application before accepting guilty plea.[14] (B) Pre-requisites [23] There are certain number of pre-requisites which must be satisfied before youth court judge can order transfer. For example, the accused must be at least 14 (not consideration in this case) and the offence must be an indictable offence other than an offence referred to in s. 553 (the absolute jurisdiction offences) of the Criminal Code. young person can be transferred with respect to hybrid offence, that is an offence for which the Crown has an election to proceed summarily or by way of indictment, because of s. 27(1)(a) of the Interpretation Act. See R. v. K.J.H.[15] (C) Standard of Proof [24] On transfer hearing the Crown is not required to prove that the offence occurred beyond reasonable doubt. This is consistent with the basic purpose of the hearing which is to determine the appropriate forum for the trial of the charge which the accused is facing. See R. v. S.J.H.[16] and R. v. S.(G.).[17] transfer hearing is not trial. (D) Test for Transfer [25] Section 16(1) of the Act provides that on transfer hearing the youth court is required to consider the interest of society, which includes the competing “objective of affording protection to the public and rehabilitation of the young person”. Section 16(2) provides that the youth court shall take into account the following factors in determining the competing interests of the youth and the public: (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act or Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. The applicant (usually the Crown) bears the onus of establishing sufficient conflict between the competing interests, rehabilitation of the youth and public interest, such that the court will give precedence to the public interest. [26] If the competing interests cannot be reconciled, the protection of the public is paramount and the youth court shall order that the charges against the young person be proceeded within ordinary court with the law ordinarily applicable to an adult charged with the offence. Effects of transfer to ordinary court [27] What then are the consequences of transfer to ordinary court and does such an order adversely affect the rights of the accused? Section 16(7) provides that where an order is made under s.16 the proceedings under the Act shall be discontinued and the young person shall be taken before the ordinary court. The jurisdiction of the ordinary court is, by virtue of s.16(8), limited to the offences in respect of which the transfer order was made. That is an important factor in circumstances where the date of the commission of the offence is in doubt or cannot be fixed with any degree of precision. [28] young person transferred to ordinary court has the same elections with respect to the mode of trial as an adult offender charged with the same offence. It would appear there are no adverse consequences which flow from making such an order. At the conclusion of the transfer hearing, whether the trial judge orders transfer to ordinary court or not, s. 15 of the Act generally prohibits the further involvement of the judge who conducted the transfer proceedings. The purpose of the section is to ensure that the judge is not biased in deciding the specific charge as result of information the judge may have received during the transfer proceeding. [29] What then is youth court judge to do when faced with the question of whether to assume jurisdiction where he or she is unable to determine whether the alleged offence occurred when the accused was young person or an adult? The precise issue is whether the position articulated by the Ontario Court of Appeal in R. v. A.(E.A.) should be followed or whether more appropriate response is for the Crown or the defence to apply for transfer hearing pursuant to s.16 of the Act to determine the proper jurisdiction. [30] Let us examine the first alternative. In my opinion R. v. A. (E.A.) is distinguishable from the facts in this case and should be confined to its particular facts. In R. v. A.(E.A.) the court was faced with case of determining jurisdiction where the alleged offence occurred on one side of midnight or the other and the decision by the court, in the absence of proof as to when the offence actually occurred, was young person was both rational and defensible. That is, however, not the situation which we are confronted with here. In this case, as we have seen, the status of the accused changes from young offender to adult and back again to young offender. The alleged offences occurred over long period of time and the youth court judge was unable to determine in what year or years they occurred. In my opinion, the position adopted by the Ontario Court of Appeal does not lend itself to universal application. [31] What of the second alternative? The fundamental issue on transfer hearing is jurisdiction and not the guilt or innocence of the accused. The youth court judge can hear the evidence at transfer proceeding and make determination unburdened by the necessity to determine guilt or innocence of the accused. [32] The court is required to “take into account” the enumerated factors. It is not, however, required to consider each factor singly in order to determine the issue set out in s.16(1.1). This point was made by White A.C.J. in R. v. B.R.C.[18] when describing the relationship between the former s.16(1) of the original Act and s. 16(2). He stated: Since s. 16(2) has an enumerated list of considerations, and since each of the items in subsection (2) may to some degree apply to either the interests of society or the needs of the young person, can it be said that it was the legislative intention to weigh each of the considerations in subsection (2) in favour of either of the interests of society or the needs of the young person? The conclusion, it seems to me, is that each of the considerations on s. 16(2) are to be considered by judge as whole. Once the picture has been painted with all of the colours in s. 16(2), the judge looks at the finished painting and decides where to hang it in s. 16(1).[19] [33] In R. v. M.(A.J.)[20] Cavanagh J. stated the fact that there is list of factors to take into consideration does not mean that in each and every case each of the factors will have identical or equal value. In any one case, one factor may outweigh all the others. Those factors are broad enough to permit youth court judge on transfer proceeding to determine the proper forum. [34] In my opinion s.16 is the ideal vehicle for the youth court to make determination of the proper jurisdiction to hear the charges. If the Crown, after a complete investigation, is unable to particularize the time when the offence or offences occurred and as a result alleges that it or they occurred over a period of time which includes when the accused was a young offender and an adult, the preferable approach is the following: (1) the Crown should commence the proceedings in youth court, because some of the offences were alleged to have occurred when the accused was a young person; and, (2) the Crown should then apply to the youth court judge for a transfer hearing under s. 16 to determine the proper forum to hear the charges. At that transfer hearing the entire issue of when the offences occurred can be examined and the choice of the proper jurisdiction to hear the charges can be made in the absence of the requirement to determine the guilt or innocence of the accused. Disposition [35] The decision of the summary conviction appeal court judge is therefore set aside and the matter remitted to youth court to be heard according to law. In the circumstances either party may apply to a youth court judge for an order under s. 16 of the Act to decide the proper forum to hear the charges against the accused. DATED at the City of Regina, in the Province of Saskatchewan, this 30th day of JUNE, A.D. 1998. VANCISE J.A. CAMERON J.A. GERWING J.A. [1]R.S.C. 1985, c.Y-1. [2]R.S.C. 1985, c.C-46. [3]Appeal Book, p. 20a. [4]Appeal Book, p. 24a [5]Appeal Book, 10a-11a. [6](1987), 22 O.A.C. 83 (Ont. C.A.). [7]Unreported judgment dated May 1,1997.(Sask C.A.). [8]Factum of the Respondent p. 2. [9](1989), 1989 ABCA 17 (CanLII), 47 C.C.C. (3d) 76 (Alta. C.A.). [10](1985), 1985 CanLII 655 (BC CA), 49 C.R. (3d) 93 (B.C.C.A.) [11]Supra, Note at p. 84. [12](1988), W.C.B. (2nd) 267 (B.C.C.A.). [13]Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule of the Canada Act 1982 (U.K.), 1982, c. 11. [14]For complete discussion of the nature of the transfer proceedings and the principles applicable see Transfer to Adult Court and Bill C-12: The Most Serious Disposition; Bala, Nicholas, and Lilles, Heino; Service Issue 33: Mar 93, p. 75. [15](1980), 1980 CanLII 2826 (MB QB), 54 C.C.C. (2d) 238. (Man. Q.B.); 1980 CanLII 3091 (MB QB), Man. R. (2d) 14. [16](1986), 76 N.S.R. (2d) 163 (N.S.S.C.). [17](1991), 1991 CanLII 7079 (ON CA), O.R. (3d) 97 at p. 112 (Ont. C.A.). [18](1984) Y.O.S. 84-034 (Alta. Prov. Ct. Yth. Div.); (1985) 13 W.C.B. 193. [19]Supra, Note 14 ar p. C&A: 106. [20]1986 CanLII 1720 (AB QB), [1986] W.W.R. 175.
The primary issue was whether the youth court has jurisdiction in proceedings which are commenced in youth court where it was not possible to determine whether at the time the alleged offences were committed the accused was a young person or an adult. The secondary issue was whether a writ of mandamus should issue. The accused was charged with two indictable offences, sexual assault and incest, as well as acts of gross indecency. The Crown stayed an identical information previously laid against the accused alleging the same offences occurred when he was an adult. The accused became an adult in October 1985 and was charged with certain offences which occurred between 1985 and 1989. The summary conviction appeal court judge found the provincial court judge erred in declining jurisdiction and that because of the uncertainty when the alleged offences occurred, the accused should be tried under the least onerous regime, youth court. The appeal judge then ordered a writ of mandamus directing the youth court judge to render a decision. It was common ground that a youth court judge does not have jurisdiction with respect to offences committed while he was an adult. HELD: The decision of the summary conviction appeal court was set aside and the matter remitted to youth court. Either party may apply for an order under s16 to decide the proper forum to hear the charges.  1)Section 16 is the ideal vehicle for the youth court to make a proper determination of the proper jurisdiction to hear the charges. If the Crown after a complete investigation is unable to particularize the time when the offence(s) occurred and alleges that it (they) occurred over a period of time which included when the accused was a young offender and an adult, the preferable approach is to have the Crown commence the proceedings in youth court because some of the offences occurred while he was a youth. The Crown should then apply to a youth court judge for a transfer hearing under s16 to determine the proper forum to hear the charges.  2)There are two ways to determine which of the two courts should assume jurisdiction: view the facts in a manner most favorable to the accused and deem the offence was committed when the accused was a young person; or order a transfer hearing under s16(1) of the Young Offenders Act to determine whether the offences should be heard in youth court or ordinary court. 3)The transfer hearing must proceed in an impartial fashion in accordance with the principles of natural justice and s7 of the Charter. 4)Section 16(2) provides the factors to be taken into account in determining the competing interests of the youth and the public. 5)The position taken in the Ontario Court of Appeal in R.v. A(EA) does not lend itself to universal application. R. v. A(EA) is distinguishable and should be confined to its particular facts.