R. v. T.R., (1984) 51 A.R. 63 (QB)

• Judge: McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 31, 1984
• Citations: (1984), 51 A.R. 63 (QB)

R. v. T.R. (1984), 51 A.R. 63 (QB)

MLB headnote and full text

R. v. T.R.

(8303-2025-C2)

Indexed As: R. v. T.R.

Alberta Court of Queen's Bench

Judicial District of Edmonton

McDonald, J.

January 31, 1984.

Summary:

A juvenile was charged with first degree murder contrary to s. 212 of the Criminal Code of Canada. She pleaded guilty to the included offence of manslaughter and the Juvenile Court placed her on probation for two years, with the condition that she be admitted to a hospital for psychiatric treatment. The juvenile was subsequently brought back before the Juvenile Court and transferred to adult court on the murder charge, pursuant to ss. 9(1) and 20 of the Juvenile Delinquents Act. The juvenile applied for prohibition to prevent the Juvenile Court judge from transferring the proceedings or, alternatively, the juvenile appealed from the order.

The Alberta Court of Queen's Bench in a judgment reported 50 A.R. 56 dismissed the application for prohibition, but granted leave to appeal. She appealed on the ground that she had already been found guilty and punished within the meaning of s. 11(h) of the Canadian Charter of Rights and Freedoms and could not therefore be tried for the same offence again in adult court.

The Alberta Court of Queen's Bench dismissed the appeal. Having previously found that the juvenile had been convicted of an offence in juvenile court, the court ruled that she had not been punished, because her probation, even with deprivation of liberty by being confined for psychiatric treatment, did not constitute punishment within the meaning of s. 11(h). The court held, however, that if she had been punished in juvenile court, she could not have been transferred to adult court, because any charge under the Criminal Code in adult court on the same facts grounding the conviction in juvenile court constituted the same "offence" within the meaning of s. 11(h).

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

Civil Rights - Topic 3766

Punishment - Defined - A juvenile was placed on probation on the condition that she be admitted to and confined in a psycho-therapy hospital ward - The Alberta Court of Queen's Bench held that the juvenile was not punished within the meaning of s. 11(h) of the Canadian Charter of Rights and Freedoms - The court discussed the general characteristics of punishment, namely: deprivation of liberty, unpleasant consequences and stigmatisation - See paragraphs 6 to 18.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy -A juvenile girl was convicted in juvenile court of the delinquency of manslaughter and was placed on probation conditional upon enforced confinement for psychiatric treatment - Because of her behaviour, she was subsequently transferred to adult court on the original murder charge - The Alberta Court of Queen's Bench held that the transfer to adult court did not violate s. 11(h) of the Charter, because, though she had been found guilty in juvenile court, her probation did not constitute punishment - The court held that, if she had been punished, another charge in adult court on the same facts would violate s. 11(h), no matter what the charge.

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular clauses - Charged with an offence - The Alberta Court of Queen's Bench held that once a person has been found guilty and punished on a criminal or juvenile charge, s. 11(h) of the Charter forbids another trial on the same set of facts notwithstanding that the charge may be different - See paragraphs 24 to 28.

Civil Rights - Topic 8549

Canadian Charter of Rights and Freedoms - Interpretation - Particular clauses - Finally found guilty and punished - A juvenile was placed on probation on the condition that she be admitted to and confined in a psychotherapy hospital ward - The Alberta Court of Queen's Bench held that the juvenile was not punished within the meaning of s. 11(h) of the Canadian Charter of Rights and Freedoms - The court discussed the general characteristics of punishment, namely: deprivation of liberty, unpleasant consequences and stigmatisation - See paragraphs 6 to 18.

Criminal Law - Topic 4230

Procedure - Pleas - Guilty plea to included offence - Effect of - Respecting main offence - Application to juvenile offences - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 534(4) - A juvenile was convicted in juvenile court of the delinquency of manslaughter and was placed on probation - She was subsequently transferred to adult court on the original murder charge - The Alberta Court of Queen's Bench held that the conviction of the delinquency of manslaughter did not constitute conviction on the included offence of manslaughter resulting in acquittal on the murder charge within the meaning of s. 534(4) - The court found that the juvenile was convicted of a delinquency and not the criminal charge of manslaughter - The court held that s. 534(4) was therefore inapplicable to juvenile offences - See paragraphs 19 to 23.

Cases Noticed:

Southam Inc. (No. 1), Re (1983), 41 O.R.(3d) 113, refd to. [para. 14].

R. v. D.G. (1983), 51 A.R. 28, not folld. [para. 18].

Minister of Home Affairs v. Fisher, [1980] A.C. 319; [1979] 3 All E.R. 21 (P.C.), consd. [para. 24].

R. v. Elrington (1861), 1 B. & S. 688; 121 E.R. 870, consd. [para. 26].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 11(h) [para. 6].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 534(4) [para. 20]; sect. 538(1) [para. 26].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 2(1), sect. 3(1) [para. 21]; sect. 3(2) [para. 14]; sect. 5(1) [para. 20].

Authors and Works Noticed:

Acton, The Philosophy of Punishment, pp. 111-112 [para. 9].

Burns, R.P., Behaviour Modification as a Punishment (1977), 2 Am. J. Juris. 19 [para. 15].

Friedland, M.L., Legal Rights Under the Charter (1982), 24 Crim. L.Q. 430, 449 [para. 26].

Friedland, M.L., Double Jeopardy (1969), p. 107 [para. 26].

Harris, J.W., Legal Philosophies, p. 52 [para. 9].

Hart, H.L.A., Punishment and Responsibility, p. 4 [para. 10].

Morel, Andr/, The Role of the Accused in the Criminal Process [para. 26].

Rawls, Two Concepts of Rules [para. 9].

Rourke, V.J., The Ethical Justification of Punishment (1977), 22 Am. J. Juris. 1, 2-3 [para. 10].

Tarnopolsky and Beaudouin, Canadian Charter of Rights and Freedoms: Commentary, p. 385 [para. 26].

Counsel:

A.D. Pringle, for the juvenile;

W. Henkel, Q.C., and P. Innes, for the Crown.

This case was heard at Edmonton, Alberta, before McDonald, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 31, 1984: