R. v. S.B. and H.B., (1989) 76 Sask.R. 308 (CA)

• Judge: Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 11, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 76 Sask.R. 308 (CA)

R. v. S.B. (1989), 76 Sask.R. 308 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. S.B. and H.B. (appellants)

(No. 2360)

Indexed As: R. v. S.B. and H.B.

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.

July 11, 1989.

Summary:

Two youths were charged with an indictable offence. The youths claimed that s. 52(1) of the Young Offenders Act, which precluded a jury trial, violated their rights under ss. 7, 11(f) and 15 of the Charter of Rights and Freedoms. The Youth Court judge ruled that s. 52(1) violated s. 11(f); the youths accordingly had the right to a jury trial. The Crown applied to prohibit a jury trial.

The Saskatchewan Court of Queen's Bench, in a judgment not reported in this series of reports, allowed the application. The court held that s. 11(f) did not apply and even if s. 52(1) violated s. 7 or 15 such limitation would be reasonable under s. 1 of the Charter. The youths appealed.

The Saskatchewan Court of Appeal dismissed the appeal. The court held that s. 52(1) did not violate s. 7 or 11(f) and that the s. 15 challenge was premature. The court did direct that no further proceedings be taken against the youths, "given the delay in the matter, for which this court takes sole responsibility".

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury trial - Youths charged with an indictable offence claimed that s. 52(1) of the Young Offenders Act, which denied them a jury trial, violated their right to a jury under s. 11(f) of the Charter of Rights and Freedoms - The youths were liable to a maximum of two years' secure custody - The Saskatchewan Court of Appeal affirmed that s. 11(f) did not apply, because s. 11(f) applied only where the maximum punishment was five years' imprisonment or more.

Civil Rights - Topic 5516

Equality and protection of the law - Tests for inequality - The Saskatchewan Court of Appeal set out the following Supreme Court of Canada test to determine whether there was a denial of equality rights under s. 15(1) of the Charter of Rights and Freedoms: "a complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her and the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory" - See paragraph 18.

Civil Rights - Topic 5643

Equality and protection of the law - Young offenders - Youths charged with an indictable offence were denied a jury trial by s. 52(1) of the Young Offenders Act, whereas adults had the right to a jury trial - The youths claimed s. 52(1) violated their equality rights under s. 15(1) of the Charter - The Saskatchewan Court of Appeal held that the s. 15(1) Charter challenge was premature, where the youths had not yet applied for and been denied a transfer to adult court under s. 16 of the Act.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - Youths denied a jury trial under s. 52(1) of the Young Offenders Act claimed that s. 52(1) denied them their liberty in a manner not in accordance with the principles of fundamental justice under s. 7 of the Charter - The Saskatchewan Court of Appeal rejected the claim - The court held that there was no principle of fundamental justice that required a right to a jury trial in all criminal cases.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - [See Civil Rights - Topic 8344 above].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 5643 above].

Courts - Topic 2005

Jurisdiction - Remedies - Delay by appellate court - Two youths charged with an indictable offence challenged s. 52(1) of the Young Offenders Act, which denied them a jury trial, as violating their rights under ss. 7, 11(f) and 15 of the Charter of Rights and Freedoms - The Saskatchewan Court of Appeal affirmed that there was no Charter rights denial - The court stated "given the delay in the matter, for which this court takes sole responsibility and which is largely explained by our awaiting certain decisions respecting s. 15; no further proceedings should be taken against the [youths] and we so direct" - See paragraph 25.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - Delay by appellate court - [See Courts - Topic 2005 above].

Criminal Law - Topic 8712

Young offenders - Right to jury trial - Youths charged with an indictable offence claimed that s. 52(1) of the Young Offenders Act, which denied them a jury trial, violated their rights under ss. 7, 11(f) and 15 of the Charter of Rights and Freedoms - The Saskatchewan Court of Appeal held that s. 52(1) did not violate s. 7 or 11(f) and that the s. 15 challenge was premature.

Cases Noticed:

R. v. R.L. (1986), 14 O.A.C. 318; 26 C.C.C.(3d) 417 (C.A.), refd to. [para. 10].

Reference Re s. 94 of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 12].

McKeiver v. State of Pennsylvania (1971), 403 U.S. 528, refd to. [para. 15].

Andrews v. Law Society of British Columbia, [1989] 2 W.W.R. 289; 91 N.R. 255 (S.C.C.), appld. [para. 18].

R. v. Turpin, Siddiqui and Clauzel (1989), 96 N.R. 115 (S.C.C.), refd to. [para. 19].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 11(f), sect. 15(1), sect. 15(2) [para. 5].

Criminal Code, R.S.C. 1970, c. C-34, sect. 245.2 [para. 2].

Young Offenders Act, S.C. 1980-81-82-83, c. 110, sect. 16 [para. 21]; sect. 20(1)(k), sect. 20(2), sect. 20(3), sect. 20(4), sect. 20(8), sect. 52(1) [para. 5].

Counsel:

W. McBride, for the appellants;

G.G. Mitchell, for the respondent.

This appeal was heard before Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal.

On July 11, 1989, the following judgment was delivered by the court.