J. 2004 SKQB 101 Q.B. A.D. 2004 No. 121 J.C. P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: HER MAJESTY THE QUEEN E. W. C. L. Alexander for the Crown P. A. Abrametz for the accused ORAL JUDGMENT MAHER J. March 12, 2004 [1] E.W. is a young person, born December 25, 1985, who is charged with murder. The hearing on his interim judicial release was held before the Provincial Court. The learned Provincial Court judge declined the accused’s application for interim judicial release on the grounds that the accused’s presence in the community awaiting trial would erode the public’s confidence in the administration of justice. [2] The accused has now made an application to this court under s. 515 of the Criminal Code, R.S.C. 1985, c.C-46 and ss. 33 (8) and 13(2) of The Youth Criminal Justice Act, S.C. 2002, C.-1, for interim judicial release of the accused pending his preliminary inquiry. [3] The Crown has asked for a determination of two preliminary issues:a) Whether the Youth Court judge in Provincial Court had jurisdiction to hear and determine the accused’s application for judicial interim release; b) Whether this honourable court has jurisdiction to conduct review of the Youth Court judge’s decision. Issue #1 [4] Whether the Youth Court judge in Provincial Court had jurisdiction to hear and determine the accused’s application for judicial interim release. [5] The Criminal Code of Canada provides the following on interim judicial release where person is charged with murder: 522.(1) Interim release by judge only where an accused is charged with an offence listed in s. 469, no court, judge or justice, other than judge of or judge presiding in superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial. [6] The accused is charged with second degree murder which is an offence listed in s. 469 of the Criminal Code. Therefore, the jurisdiction for judicial interim release on an offence of this nature is limited exclusively to the superior court unless another act of the parliament of Canada was to limit that jurisdiction. [7] The matter of jurisdiction under the old Young Offender’s Act, R.S.C. 1985, c.Y-1 for interim judicial release on the charge of murder was dealt with by Madam Justice Pardu in R. v. M.R. [2001] O.J. No. 2598. She held that the Superior Court did not have jurisdiction in the case of murder when she said the following at paragraphs and 3: 2. S. 8(8) of the Young Offenders Act provides, "that where young person against whom proceedings have been taken under this Act is charged with an offence referred to in s. 522 of the Criminal Code, Youth Court judge, but no other court judge or justice may release the young person from custody under that section. 3. Homicide falls within the offences referred to in s. 522 of the Criminal Code. [8] The Youth Criminal Justice Act, S.C. 2002, c.1, has now replaced the Young Offender’s Act. The issue must resolve is whether the Youth Criminal Justice Act has now changed the matter of jurisdiction on the issue of interim judicial release, from the Provincial Court to the superior court, when young person is charged with murder. [9] Section 33(8) of the Youth Criminal Justice Act provides the following: (8) If young person against whom proceedings have been taken under this Act is charged with an offence referred to in s. 522 of the Criminal Code, youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section. [10] This section is for all practical purposes identical to s. 8(8) of the Young Offender’s Act which Pardu J. relied upon in R. v. M.R. when she held that the superior court had no jurisdiction on interim judicial release on the charge of murder. [11] The Young Offender’s Act in s. 2(1) defined Youth Court judge as follows, “A Youth Court judge means person appointed to be judge of Youth Court”. [12] The Young Offender’s Act then goes on to define Youth Court as “a Youth Court means court established or designated by, or under an Act of the Legislature of province or designated by the Governor in Council or the Lieutenant Governor in Council of province, as Youth Court for the purpose of this Act.” These sections clearly gave the Provincial Court exclusive jurisdiction on the matter of interim judicial release on charge of murder. It is necessary for me now to review the provisions of the Youth Criminal Justice Act which has replaced the Young Offender’s Act. [13] The Youth Criminal Justice Act provides the following in s. 13(2): 13(2) When young person elects to be tried by judge without jury, the judge shall be judge as defined in section 552 of the Criminal Code, or if it is an offence set out in section 469 of that Act, the judge shall be judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be youth justice court judge and the court is deemed to be youth justice court for the purpose of the proceeding. [14] The Youth Criminal Justice Act provides the following on the matter of interim judicial release for charge of murder: 33 (8) If young person against whom proceedings have been taken under this Act is charged with an offence referred to in section 522 of the Criminal Code, youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section. reference must be made to s. 28 of the Youth Criminal Justice Act which provides as follows: 28. Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act. [15] The issue then becomes for young person charged with an offence set out in s. 522 of the Criminal Code what is the definition of Youth Justice Court judge? Section 13(2) of the Youth Criminal Justice Act provides, “if it is an offence set out in s. 469 of that Act, Criminal Code of Canada) the judge shall be judge of the superior court of criminal jurisdiction in the province in which the election is made.” [16] There was no similar provision in the Young Offender’s Act. am satisfied that the Parliament of Canada when it enacted the Youth Criminal Justice Act made change in jurisdiction for an offence of this nature from that as provided in the Young Offender’s Act. I find that the jurisdiction for determination of interim judicial release of a young person charged with murder under the Youth Criminal Justice Act rests solely with the superior court of criminal jurisdiction which in the Province of Saskatchewan is the Court of Queen’s Bench. [17] Whether this honourable court has jurisdiction to conduct review of the Youth Court judge’s decision. [18] Having found that the learned Provincial Court judge under s. 13(2) was not Youth Justice Court judge for an offence as set out in s.469 of the Criminal Code am satisfied that the provisions of s. 33 (1) of the Act apply which say the following: (1) If an order is made under section 515 (judicial interim release) of the Criminal Code in respect of young person by justice who is not youth justice court judge, an application may, at any time after the order is made, be made to youth justice court for the release from or detention in custody of the young person, as the case may be, and the youth justice court shall hear the matter as an original application. [19] Therefore will proceed to hear this matter as an original application.
The accused made an application to the Court of Queen's Bench under s. 515 of the Criminal Code and s. 33(8) and s. 13(2) of The Youth Criminal Justice Act for interim judicial release of the accused pending his preliminary inquiry on a charge of murder. The accused had previously applied to a Provincial Court judge, who had declined the accused's application. The issue was whether the Youth Court judge in Provincial Court had the jurisdiction to hear and determine the accused's application for judicial interim release. HELD: The jurisdiction for determination of interim judicial release of a young person charged with murder under the Youth Criminal Justice Act rests solely with the superior court of criminal jurisdiction, which is the Court of Queen's Bench in Saskatchewan.