R. v. M.L. et al., (1998) 215 A.R. 295 (QB)

• Judge: Nash, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 05, 1988
• Citations: (1998), 215 A.R. 295 (QB)

R. v. M.L. (1998), 215 A.R. 295 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MR.041

Her Majesty The Queen v. M.L., R.L. and J.L.

Indexed As: R. v. M.L. et al.

Alberta Court of Queen's Bench

Judicial District of Peace River

Nash, J.

March 5, 1998.

Summary:

Two brothers (M.L. and R.L.) were ordered to stand trial together on charges of rape and incest involving three of their sisters. Another brother (J.L.) faced similar charges respecting one sister. The offences took place over the span of several years. M.L. and R.L. applied for severance of counts and for a direction for separate trials with respect to each of the complainants. All three accused applied for certiorari to quash the committal for trial on those charges relating to incidents that occurred when they were between the ages of 16 and 18 years old, alleging discrimination under the Cana­dian Bill of Rights and the Canadian Charter of Rights and Freedoms. The counts charged the accused from their 16th birthday because under the Juvenile Delinquents Act, which was in effect when the offences were al­legedly committed, the Province of Alberta had proclaimed that males were considered adults from the age of 16.

The Alberta Court of Queen's Bench allowed the application for separate trials respecting each complainant. The court ruled that the proclamation respecting the age from which males could be charged did not offend the Bill of Rights but did offend s. 15 of the Charter. The court reserved its deci­sion respecting whether the proclamation could be saved by s. 1 of the Charter pend­ing further submissions.

Civil Rights - Topic 1066

Discrimination - By sex - What consti­tutes - In 1994 three brothers (the accused) were charged with sexual of­fences involving their sisters between 1958 and 1970 - In 1951 the Province of Alberta, acting under s. 2 of the Juvenile Delinquents Act, had proclaimed that a "child" was "any boy apparently or actual­ly under the age of 16 years or any girl apparently or actually under the age of 18 years" - The accused were therefore charged from their 16th birthdays - The accused alleged that the proclamation infringed s. 15 of the Charter - The Alberta Court of Queen's Bench held that the proclamation made a distinc­tion between males and females based on gen­der and contravened s. 15 of the Charter - Section 15 was violated, notwith­standing that the Charter came into effect in 1985, where the effect of the proclama­tion was to impose an on-going discrimina­tory status on the accused - See paragraphs 55 to 77.

Civil Rights - Topic 1130

Discrimination - Criminal and quasi-criminal law - On basis of sex - [See Civil Rights - Topic 1066 ].

Civil Rights - Topic 5643

Equality and protection of the law - Young offenders - [See Civil Rights - Topic 1066 ].

Civil Rights - Topic 8007

Canadian Bill of Rights - Principles of operation and interpretation - Equality before the law - Section 2(2) of the Ju­venile Delinquents Act allowed any prov­ince to proclaim what age constituted a "child" for purposes of the Act - Such a proclamation could apply either to boys only or to girls only or to both boys or girls - In 1951 the Province of Alberta proclaimed that a "child" in Alberta was "any boy apparently or actually under the age of 16 years or any girl apparently or actually under the age of 18 years" - The Alberta Court of Queen's Bench held that the distinction between males and females under the Juvenile Delinquents Act was based solely on gender and was therefore discriminatory - The court held however that s. 2(2) did not offend s. 1(b) of the Canadian Bill of Rights - See paragraphs 50 to 54.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General (incl. retro­spectivity) - [See Civil Rights - Topic 1066 ].

Criminal Law - Topic 4737.1

Procedure - Indictment - Count - Indict­able offences - Severing counts in an indictment - Two brothers (M.L. and R.L.) were ordered to stand trial together on charges of rape and incest involving three of their sisters - The offences took place over the span of several years - M.L. and R.L. applied for severance of counts and for a direction for separate trials with respect to each of the complainants (Cri­minal Code, s. 592(3)) - The accused did not object to being tried together in respect of any of the complainants - The Alberta Court of Queen's Bench reviewed the law on when counts would be severed and granted the application for separate trials respecting each complainant - See para­graphs 1 to 41.

Cases Noticed:

R. v. C.D.R. (1995), 178 A.R. 94; 110 W.A.C. 94 (C.A.), refd to. [para. 26].

R. v. Sweitzer (1979), 24 A.R. 515 (S.C.T.D.), refd to. [para. 26].

R. v. J.T.S. (1996), 180 A.R. 385 (Prov. Ct.), refd to. [para. 26].

R. v. M.G.S. (1995), 168 A.R. 144 (Q.B.), refd to. [para. 29].

R. v. Racco (No. 1) (1975), 23 C.C.C.(2d) 201 (Ont. Co. Ct.), refd to. [para. 29].

R. v. Gaudry (1990), 113 A.R. 25 (Q.B.), refd to. [para. 31].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 32].

Andrews v. Law Society of British Col­umbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 45].

R. v. MacKay and Willington (1977), 5 A.R. 154; 30 C.C.C.(2d) 349 (C.A.), refd to. [para. 47].

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392; 105 D.L.R.(4th) 210; 83 C.C.C.(3d) 1, refd to. [para. 48].

Thibaudeau v. Minister of National Rev­enue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 60].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 61].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 64].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81; 66 C.R.(3d) 193; 45 C.C.C.(3d) 204, refd to. [para. 64].

R. v. Wowk (1986), 68 A.R. 78 (C.A.), refd to. [para. 67].

R. v. Jones (1985), 20 C.C.C.(3d) 91 (B.C.S.C.), refd to. [para. 67].

R. v. Lucas; R. v. Neely (1986), 27 C.C.C.(3d) 229; 14 O.A.C. 12 (C.A.), refd to. [para. 67].

R. v. Dickson and Corman (1982), 3 C.C.C.(3d) 23; 145 D.L.R.(3d) 164; 40 O.R.(2d) 366 (Ont. Co. Ct.), refd to. [para. 68].

R. v. Thorburn (1986), 26 C.C.C.(3d) 154 (B.C.C.A.), refd to. [para. 68].

R. v. McDonald (1985), 10 O.A.C. 321; 21 C.C.C.(3d) 330 (C.A.), refd to. [para. 69].

R. v. Sampson (1993), 83 C.C.C.(3d) 149 (B.C.C.A.), refd to. [para. 70].

R. v. Hawes (1996), 108 C.C.C.(3d) 286 (N.S.S.C.), refd to. [para. 69].

Statutes Noticed:

Canadian Bill of Rights, sect. 1(b) [para. 50].

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [para. 58].

Criminal Code, R.S.C. 1985, c. C-46, sect. 591(3) [para. 21].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 2(1), sect. 2(2) [para. 43]; sect. 3(2) [para. 46].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleading in Canada, pp. 244, 245 [para. 30].

Counsel:

Brian J. Holtby (Edmonton, Alberta), for the Crown;

David J.M. Mochan (Grand Prairie, Alberta), for M.L.;

Thomas H. Hara (Vancouver, British Col­umbia), for R.L.;

James A. Watson (Grande Prairie, Alberta), for J.L.

This case was heard before Nash, J., of the Alberta Court of Queen's Bench, who delivered the following decision on March 5, 1988.