R. v. D.G., (1983) 51 A.R. 28 (QB)

• Judge: Cawsey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 01, 1983
• Citations: (1983), 51 A.R. 28 (QB)

R. v. D.G. (1983), 51 A.R. 28 (QB)

MLB headnote and full text

R. v. D.G.

(8303 00052-A)

Indexed As: R. v. D.G.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Cawsey, J.

December 1, 1983.

Summary:

In January 1982 a juvenile was charged in one information with rape and robbery in November 1981 and in a second information with indecent assault and robbery in December 1981. In February 1982 while he was in detention awaiting his trial, the juvenile was found to be a neglected child in another matter and in March he was placed in the Edmonton Youth Detention Center. In September 1982 he was found guilty on the first information and admitted the offences in the second information. The juvenile court placed him on probation; although he remained in detention. He was released to the custody of his parents in December 1982. However, because of his behaviour while in detention the Crown decided that the charges in the two informations should be waived and in January 1983 an order was obtained from the juvenile court transferring the charges to the ordinary courts under s. 9(1) of the Juvenile Delinquents Act. The juvenile appealed on the ground that s. 20(3) of the Juvenile Delinquents Act, which authorized the transfer of juvenile charges to adult court even after they had been disposed of in juvenile court, violated the juvenile's right to be tried within a reasonable time within s. 11(b) of the Canadian Charter of Rights and Freedoms and violated the juvenile's right not to be tried and punished a second time under s. 11(h) of the Charter.

The Alberta Court of Queen's Bench allowed the appeal and held that s. 20(3) violated s. 11(h) of the Charter insofar as it permitted the transfer to adult court of charges on which the juvenile had already been found guilty and punished in juvenile court. The court held that placing the juvenile on probation constituted punishment. Compare R. v. T.R., 51 A.R. 63. The court held that the juvenile's right to be tried within a reasonable time was not violated and that the potential for delay of trial in adult court until the age of 21 did not of itself violate s. 11(b) of the Charter.

Civil Rights - Topic 3261

Trials - Due process and fair hearings - Speedy trial - Accused's right to - General - Canadian Charter of Rights and Freedoms, s. 11(b) - S. 21(3) of the Juvenile Delinquents Act authorized the transfer to adult court of charges against a juvenile up to the age of 21 - A juvenile submitted that s. 21(3) violated the right to speedy trial under s. 11(b) of the Charter - The Alberta Court of Queen's Bench held that the potential of a delay of up to seven years of a trial against a juvenile under s. 21(3) did not violate s. 11(b) of the Charter - The court held that whether a person's right to a speedy trial has been violated must be determined on a case by case basis - See paragraphs 21 to 27.

Civil Rights - Topic 3766

Punishment - Defined - The Alberta Court of Queen's Bench held that the imposition of probation on a juvenile under s. 20(1) of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, constituted punishment within the meaning of "punished" in s. 11(h) of the Canadian Charter of Rights and Freedoms - See paragraphs 28 to 45.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - The Alberta Court of Queen's Bench held that a person charged with a criminal offence under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, was a person charged with an offence within the meaning of s. 11 of the Canadian Charter of Rights and Freedoms and was entitled to the protection of the Charter - See paragraphs 10 to 20.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy -A juvenile was found guilty of four criminal offences in juvenile court and was placed on probation - Because of his behaviour while in detention the Crown subsequently obtained an order transferring the charges to adult court pursuant to ss. 9(1) and 20(3) of the Juvenile Delinquents Act - The Canadian Charter of Rights and Freedoms, s. 11(h), prohibited further punishment where a person has been found guilty and punished - The Alberta Court of Queen's Bench held that s. 20(3) violated s. 11(h) insofar as it permitted the transfer to adult court of charges, which had already been disposed of in juvenile court by the imposition of probation - See paragraphs 28 to 45.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - The Alberta Court of Queen's Bench held that as a constitutional document the Charter should be given a liberal construction in keeping with its spirit - See paragraph 11.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - The Alberta Court of Queen's Bench held that the Provincial Court and the Juvenile Court were competent to rule on Charter defences - See paragraph 8.

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - "Charged with an offence" - The Alberta Court of Queen's Bench held that a person charged with a criminal offence under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, was a person charged with an offence within the meaning of s. 11 of the Canadian Charter of Rights and Freedoms and was entitled to the protection of the Charter - See paragraphs 10 to 20.

Civil Rights - Topic 8549

Canadian Charter of Rights and Freedoms - Interpretation - Particular clauses - Finally found guilty and punished - The Alberta Court of Queen's Bench held that the word "finally", as found in the phrase "finally found guilty and punished" in s. 11(h) of the Charter, referred only to the words "found guilty" - See paragraph 43.

Civil Rights - Topic 8549

Canadian Charter of Rights and Freedoms - Interpretation - Particular clauses - Finally found guilty and punished - A juvenile was found guilty of criminal offences under the Juvenile Delinquents Act and was put on probation - The Alberta Court of Queen's Bench held that the juvenile had been found guilty and punished within the meaning of s. 11(h) of the Charter and that the subsequent transfer of the charges to adult court constituted double jeopardy - See paragraphs 28 to 45.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - After a juvenile was found guilty and placed on probation in juvenile court the Crown obtained an order transferring the juvenile to adult court for trial on the same charges - On the transfer application the judge ruled that the juvenile's submission that the transfer provisions violated the Canadian Charter of Rights and Freedoms could only be raised when the juvenile appeared in adult court - The Alberta Court of Queen's Bench held that the juvenile's Charter objections were properly raised in juvenile court - See paragraph 8.

Statutes - Topic 1626

Interpretation - Extrinsic aids - Other statutes - Similar statutes in other jurisdictions - The Alberta Court of Queen's Bench stated that American jurisprudence on the right to a speedy trial under the U.S. Bill of Rights was of great assistance in interpreting the right to a speedy trial under s. 11(b) of the Canadian Charter of Rights and Freedoms - See paragraph 21.

Cases Noticed:

R. v. Big M Drug Mart Ltd. (1983), 49 A.R. 194, appld. [para. 8].

A.G. for B.C. v. Smith (1967), 61 W.W.R.(N.S.) 236, consd. [para. 11].

R. v. Morris (1979), 27 N.R. 313; 6 C.R.(3d) 36, consd. [para. 12].

Gault, Re (1967), 18 L. Ed. 527; 387 U.S. 1, consd. [para. 18].

Winship, Re (1970), 25 L. Ed. (2d) 368; 397 U.S. 358, consd. [para. 19].

McKeiver v. Pennsylvania (1971), 29 L. Ed. (2d) 647; 403 U.S. 528, consd. [para. 19].

Breed v. Jones (1975), 44 L. Ed. (2d) 346; 421 U.S. 519, consd. [para. 19].

R. v. Cameron (1982), 39 A.R. 194; 29 C.R.(3d) 73 (Alta. Q.B.), consd. [para. 21].

Barker v. Wingo (1971), 33 L. Ed. (2d) 101; 401 U.S. 514 (U.S.S.C.), consd. [para. 21].

R. v. Stanger (1983), 46 A.R. 240 (Alta. C.A.), consd. [para. 25].

R. v. Oakes (1983), 2 C.C.C.(2d) 339 (Ont. C.A.), consd. [para. 25].

R. v. Lalick (1963), 41 W.W.R.(N.S.) 566 (B.C.C.A.), refd to. [para. 28].

R. v. S.B., [1983] 4 W.W.R. 743; 33 C.R.(3d) 33 (B.C.C.A.), not folld. [para. 29].

R. v. T.R. (a juvenile), 50 A.R. 56, granting leave to appeal from 46 A.R. 200, appld. [para. 32].

R. v. W.; R. v. L., 1 C.C.C.(3d) 268, consd. [para. 35].

R. v. M., 2 C.C.C.(3d) 296, appld. [para. 37].

R. v. D.L.W. (1982), 14 Man.R.(2d) 268; 64 C.C.C.(2d) 40 (Man. Q.B.), affd. 18 Man.R.(2d) 377; 1 C.C.C. (3d) 288 (Man. C.A.), appld. [para. 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(b), sect. 11(h), sect. 24(1) [para. 6].

Constitution Act, 1982, sect. 52(1) [para. 6].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 664(4) [para. 30].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 3(1) [para. 14]; sect. 9(1), sect. 9(20) [para. 6]; sect. 38 [para. 16].

Authors and Works Noticed:

Friedland, M.L., Double Jeopardy (1969), c. 11 [para. 17].

Counsel:

C. Hugh Clark, for the appellant;

W. Henkel, Q.C., and Wanda Fish for the respondent.

This case was heard at Edmonton, Alberta, before Cawsey, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 1, 1983: