R. v. D.S., (1998) 168 Sask.R. 225 (CA)

• Judge: Cameron, Vancise and Gerwing, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 30, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 168 Sask.R. 225 (CA)

R. v. D.S. (1998), 168 Sask.R. 225 (CA);

    173 W.A.C. 225

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. JL.042

D.S. (appellant) v. Her Majesty The Queen (respondent)

(2622)

Indexed As: R. v. D.S.

Saskatchewan Court of Appeal

Cameron, Vancise and Gerwing, JJ.A.

June 30, 1998.

Summary:

By an Information laid under the Young Offenders Act, the accused was charged with gross indecency, sexual assault and incest. The offences were alleged to have occurred during periods between 1982 and 1989. At trial, the youth court judge found the accused not guilty on the first count. On the remaining two counts, the judge declined jurisdiction because he was uncertain whether the events comprising the alleged offences occurred before or after the accused ceased to be a "young person" pursuant to the Young Offenders Act. The Crown sought mandamus to compel the trial judge to ren­der a decision.

The Saskatchewan Court of Queen's Bench, in a decision reported at 150 Sask.R. 113, determined that the youth court judge should have assumed jurisdiction. The court issued a writ of mandamus directing the judge to render a decision concerning the events he found occurred during the period of uncertainty. The accused appealed.

The Saskatchewan Court of Appeal set aside the decision and remitted the matter to the youth court. Either party could apply for a transfer hearing under s. 16 of the Young Offenders Act.

Criminal Law - Topic 8706

Young offenders - Jurisdiction - Courts - Age of juvenile - By an Information laid under the Young Offenders Act, the accused was charged with gross indecency, sexual assault and incest - The offences were alleged to have occurred between 1982 and 1989 - The youth court judge acquitted the accused on the first count - On the remaining counts, he declined jurisdiction because he was uncertain whether the offences occurred when the accused was a young person or an adult (the accused's status changed from young offender to adult and back again to young offender) - On appeal, the Saskatchewan Court of Appeal reviewed two methods of determining which court had jurisdiction: (1) view the facts in a manner most favourable to the accused, deem that the offence was committed when the accused was a young person and that the youth court had juris­diction and (2) order a transfer hearing under s. 16 - The court opted for the second method.

Criminal Law - Topic 8706

Young offenders - Jurisdiction - Courts - Age of juvenile - A youth court judge declined jurisdiction as he was unable to determine whether the alleged offences occurred when the accused was a young offender or an adult - On appeal, the Saskatchewan Court of Appeal stated that: "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." - See paragraph 34.

Criminal Law - Topic 8781

Young offenders - Transfer into or out of youth court - General - [See both Crimi­nal Law - Topic 8706 ].

Cases Noticed:

R. v. E.A.A. (1987), 22 O.A.C. 83 (C.A.), dist. [para. 12, footnote 6].

R. v. K.B. (1997), 152 Sask.R. 196; 140 W.A.C. 196 (C.A.), refd to. [para. 15, footnote 7].

R. v. S.A.C. (1989), 92 A.R. 237; 47 C.C.C.(3d) 76 (C.A.), refd to. [para. 16, footnote 9].

R. v. R. and C. (1985), 49 C.R.(3d) 93 (B.C.C.A.), refd to. [para. 16, footnote 10].

R. v. W.Y. (1988), 4 W.C.B.(2d) 267 (B.C.C.A.), refd to. [para. 21, footnote 12].

R. v. K.J.H. (1980), 5 Man.R.(2d) 14; 54 C.C.C.(2d) 238 (Q.B.), refd to. [para. 23, footnote 15].

R. v. S.J.H. (1986), 76 N.S.R.(2d) 163; 189 A.P.R. 163 (T.D.), refd to. [para. 24, footnote 16].

R. v. G.S. (1991), 50 O.A.C. 163; 5 O.R.(3d) 97 (C.A.), refd to. [para. 24, footnote 17].

R. v. B.R.C. (1985), 13 W.C.B. 193 (Alta. Prov. Ct. Yth. Div.), refd to. [para. 32, footnote 18].

R. v. A.J.M., [1986] 6 W.W.R. 175; 73 A.R. 52 (Q.B.), refd to. [para. 33, foot­note 20].

Statutes Noticed:

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 2(1), sect. 5(1), sect. 16(1), sect. 16(1.1), sect. 16(2), sect. 16(3) [para. 5].

Authors and Works Noticed:

Bala, Nicholas and Heino, Lilles, Transfer to Adult Court and Bill C-12: The Most Serious Disposition (1993), Service Issue 33, p. 75 [para. 22, footnote 14].

Counsel:

S.E. Halyk, Q.C., for the appellant;

D.M. Brown, Q.C., for the Crown.

This appeal was heard on October 15, 1997, before Cameron, Vancise and Gerwing, JJ.A., of the Saskatchewan Court of Appeal.

On June 30, 1998, Vancise, J.A., delivered the following decision for the Court of Appeal.