R. v. M. and W., (1977) 5 A.R. 154 (CA)

• Judge: MILLER, J., concurred with McDERMID, J.A.
• Case Date: June 20, 1977
• Citations: (1977), 5 A.R. 154 (CA)

R. v. M. (1977), 5 A.R. 154 (CA)

MLB headnote and full text

R. v. M. and W.

Indexed As: R. v. M. and W.

Alberta Supreme Court

Appellate Division

McDermid, Haddad, JJ.A. and Miller, J. (ad hoc)

June 20, 1977.

Summary:

This case arose out of charges against the two accused of contributing to a child becoming a juvenile delinquent contrary to the Juvenile Delinquents Act, R.S.C. 1970, c. J-3. The offences took place with regard to two 16 year old girls. Under s. 2(2) of the Juvenile Delinquents Act, the Governor In Council proclaimed that in Alberta a "child" was a girl under 18 and a boy under 16 years of age. The accused 16 year old boy was accused of contributing to the girl being a juvenile delinquent by having sexual intercourse with her. The accused boy claimed that the distinction between boys and girls in the proclamation under the Act was discriminatory towards boys contrary to s. 1 of the Canadian Bill of Rights. The accused were convicted in provincial court, but their appeal by way of trial de novo to the Alberta District Court was allowed. The Crown appealed.

The Alberta Court of Appeal allowed the appeal and convicted the accused. The Court of Appeal held that under s. 37 of the Juvenile Delinquents Act there was no jurisdiction in the judge of district court to hear an appeal by way of trial de novo from the convictions of the accused - see paragraphs 10 to 16 and 50.

The Court of Appeal held that the proclamation under the Juvenile Delinquents Act is valid and was not discriminatory contrary to the Canadian Bill of Rights - see paragraphs 17 to 28.

Haddad, J.A., dissenting in part, was of the opinion that the proclamation under the Juvenile Delinquents Act was discriminatory contrary to the Canadian Bill of Rights - see paragraph 50.

Civil Rights - Topic 8002

Canadian Bill of Rights - Operation and principles of interpretation - Discrimination - Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1 - The Alberta Court of Appeal stated that the word "discrimination" in s. 1 was used in the sense of "to discriminate against; to make an adverse distinction with regard to; to distinguish unfavourably from others" - See paragraphs 33 to 37.

Civil Rights - Topic 8048

Canadian Bill of Rights - Conflicting legislation - Definition of juvenile offenders - Under s. 2(2) of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, the Governor in Council proclaimed that in Alberta a "child" was a girl under 18 and a boy under 16 years of age - The accused 16 year old boy was accused of having sexual intercourse with a girl of the same age, who under the proclamation was still a child, while the accused was not - The accused claimed that the distinction between boys and girls under the Act was discriminatory contrary to s. 1 of the Canadian Bill of Rights - The Alberta Court of Appeal held that the proclamation was valid and not discriminatory contrary to the Canadian Bill of Rights - See paragraphs 17 to 48.

Criminal Law - Topic 7268

Summary conviction proceedings - In formations - Defects and objections - Time for objections - The accused juvenile appeared and pleaded to an information sworn before a justice of the peace, whose jurisdiction over informations respecting juveniles was later questioned on appeal - The Alberta Court of Appeal held that, whether or not the justice of the peace had jurisdiction, by appearing and pleading to the information with out objection the accused waived any right to object - See paragraphs 7 to 9.

Criminal Law - Topic 8882

Juveniles - Appeals - Jurisdiction - Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 37 - The Alberta Court of Appeal held that under s. 37 of the Juvenile Delinquents Act there was no jurisdiction in a judge of district court to hear an appeal by way of trial de novo from the conviction of a juvenile in provincial court - See paragraphs 10 to 16 and 50.

Words and Phrases

Discrimination - The Alberta Court of Appeal discussed the meaning of "discrimination" as found in s. 1 of the Canadian Bill of Rights, R.S.C. 1970, App. III - See paragraphs 33 to 37.

Cases Noticed:

R. v. Samboluk, 77 C.C.C. 243, refd to. [para. 11].

R. v. Henderson, 82 C.C.C. 357, refd to. [para. 11].

R. v. Curtiss, 92 C.C.C. 321, refd to. [para. 13].

R. v. Kelham, 103 C.C.C. 205, appld. [para. 14].

Cyr v. The Queen, 14 C.R.N.S. 287, refd to. [para. 15].

R. v. Salterio, [1968] 1 C.C.C. 66, refd to. [para. 15].

Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, refd to. [para. 23].

Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, appld. [para. 25].

Attorney General of British Columbia v. Smith, [1967] S.C.R. 702, consd. [para. 26].

Curr v. The Queen, 26 D.L.R.(3d) 611, consd. [para. 30].

British Oxygen Company v. South West Scotland Electricity Board, [1958] S.C. 90, [para. 34].

Highfield Development Corp. (Calgary) Ltd. v. The Provincial Planning Board (1977), 4 A.R. 603, appld. [para. 35].

R. v. Drybones, [1970] S.C.R. 282, appld. [paras. 8, 42].

R. v. Burnshine, [1975] 1 S.C.R. 693; 2 N.R. 53; 44 D.L.R.(3d) 584; 15 C.C.C.(2d) 505; 25 C.R.N.S. 270, appld. [paras. 28, 43].

Prata v. Minister of Manpower and Immigration (1975), 3 N.R. 484; 52 D.L.R.(3d) 383, appld. [para. 44].

R. v. McEwan, [1972] 2 W.W.R. 618, refd to. [para. 45].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1, sect. 2, sect. 5 [para. 20].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 748 [para. 2].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 2, sect. 3, sect. 38 [para. 19]; sect. 5(1)(a), sect. 37 [para. 10].

Authors and Works Noticed:

Bowker, W.F., Case Comment (1970), Alta. L.R. 414 [para. 8].

Dreidger on the Construction of Statutes (1974) [para. 35].

New English Dictionary [para. 33].

Tarnopolsky, The Canadian Bill of Rights (2nd Ed.) [para. 24]; p. 102 [para. 46].

Tremeear's Criminal Code (5th Ed.), p. 824 [para. 9].

Counsel:

H. Henkel, Q.C. and H.L. Kushner, for the appellants;

A.B.C. Chivers, for the respondents;

L. Jones and I.G. Whitehall, for the intervenant, the Attorney General of Canada.

L. JONES and I.G. WHITEHALL, for the Intervenant, the Attorney General of Canada

This case was heard before McDERMID, HADDAD, JJ.A., and MILLER, J. (ad hoc), of the Alberta Supreme Court, Appellate Division.

On June 20, 1977, the judgment of the Appellate Division was delivered and the following opinions were filed:

McDERMID, J.A. - see paragraphs 1 to 48;

HADDAD, J.A., dissenting in part - see paragraphs 49 to 50.

MILLER, J., concurred with McDERMID, J.A.