Reference Re Young Offenders Act and Youth Court Judges, (1988) 73 Nfld. & P.E.I.R. 115 (PEICA)

• Judge: Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A.
• Case Date: November 16, 1988
• Jurisdiction: Prince Edward Island
• Citations: (1988), 73 Nfld. & P.E.I.R. 115 (PEICA)

Ref. Re Young Offenders (1988), 73 Nfld. & P.E.I.R. 115 (PEICA);

    229 A.P.R. 115

MLB headnote and full text

In The Matter Of a reference to the Supreme Court of the Province of Prince Edward Island, Appeal Division, pursuant to the provisions of the Supreme Court Act, R.S.P.E.I. 1974, c. S-012, that the Lieutenant Governor-in-Council for the Province of Prince Edward Island has requested the Supreme Court Appeal Division for the Province of Prince Edward Island to hear and consider in accordance with the provisions of s. 18 of the Supreme Court Act, the questions contained in an Order of the Lieutenant Governor-in-Council, being No. EC364/88, which questions generally concern the constitutional validity of the Young Offenders Act, S.C. 1980-81-82-83, c. 110, and of the Youth Court in the Province of Prince Edward Island and the constitutional validity of the appointment process of Youth Court Judges.

(No. AD-0064)

Indexed As: Reference Re Young Offenders Act and Youth Court Judges

Prince Edward Island Supreme Court

Appeal Division

Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A.

November 16, 1988.

Summary:

The Lieutenant Governor-in-Council acting pursuant to s. 18 of the Supreme Court Act, R.S.P.E.I. 1974, c. S-012, referred the following questions to the Prince Edward Island Court of Appeal for hearing and consideration:

"1. Is the Young Offenders Act, S.C. 1980-81-82-83, c. 110, unconstitutional on the basis and to the extent that it does not specifically require that the Youth Court be presided over by a judge appointed pursuant to section 96 of the Constitution Act, 1867?

"2. Is the establishment by a Province of a Youth Court as defined by section 2 of the Young Offenders Act within the legislative competence of the Province pursuant to section 92 of the Constitution Act, 1867?

"3. (a) Is the appointment of a Youth Court judge an appointment which must be made by the Governor-in-Council pursuant to section 96 of the Constitution Act, 1867?

(b) If the answer to (a) is no,

(i) Can a Provincial Court judge be appointed a judge of the Youth Court by the Lieutenant Governor-in-Council?

(ii) Can a Supreme Court judge be appointed a judge of the Youth Court by the Lieutenant Governor-in-Council?"

The Prince Edward Island Supreme Court, Appeal Division, responded as follows: (1) provincially appointed judges presiding over the Youth Court did not offend s. 96 of the Constitution Act; (2) provincial establishment of a Youth Court was within the legislative competence of the province; (3(a)) the appointment of a Youth Court judge need not be made by the Governor-in-Council under s. 96; (3(b)(i)) the Lieutenant Governor-in-Council may appoint a Provincial Court judge as a judge of the Youth Court; (3(b)(ii)) a Supreme Court judge could be appointed a judge of the Youth Court provided doing so would not erode or interfere with his function as a superior court judge.

Constitutional Law - Topic 8605

Judicial power - Appointment of judges - Provincial criminal courts - [See Constitutional Law - Topic 8623 below].

Constitutional Law - Topic 8623

Judicial power - Appointment of judges - Provincial Youth Courts - The Prince Edward Island Court of Appeal stated that pursuant to s. 92(14) of the Constitution Act, 1867, it was within the legislative competence of the provinces to appoint Provincial Court judges as judges of the Youth Court; that the appointments did not offend s. 96 of the Constitution Act, 1867, because the Provincial Court (as a Youth Court) did not exercise powers exclusively reserved for s. 96 judges and the court remained subject to the supervision of the superior court - The court stated that the appointment of Provincial Court judges as Youth Court judges did not obliterate the jurisdiction of the superior court, nor did it transform the inferior court into a s. 96 court - The Court of Appeal stated that a Supreme Court judge could be appointed a judge of the Youth Court provided it did not erode or interfere with his function as a superior court judge.

Criminal Law - Topic 2836

Jurisdiction - Provincial Court judges - Young offenders - [See Constitutional Law - Topic 8623 above].

Criminal Law - Topic 8704

Young offenders - Jurisdiction - Courts - General - [See Constitutional Law - Topic 8623 above].

Cases Noticed:

Court of Unified Criminal Jurisdiction, Re; McEvoy v. Attorney General of New Brunswick and Attorney General of Canada, [1983] 1 S.C.R. 704; 48 N.R. 228; 46 N.B.R.(2d) 219; 121 A.P.R. 219, appld. [para. 5].

R. v. Trimarchi (1987), 24 O.A.C. 379; 62 C.R.(3d) 204 (C.A.), agreed with [para. 6].

Reference Re Adoption Act, [1938] S.C.R. 398, refd to. [para. 19].

Re Residential Tenancies Act of Ontario, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 19].

Harper, Re; R. v. McGann and Charters (1986), 70 N.B.R.(2d) 361; 179 A.P.R. 361, refd to. [para. 39].

R. v. R.L. (1986), 14 O.A.C. 318; 52 C.R.(3d) 209; 26 C.C.C.(3d) 417; 27 C.R.R. 30, refd to. [para. 55].

Statutes Noticed:

Constitution Act, 1867, sect. 92(14) [paras. 10, 16]; sect. 96 [paras. 4, 14].

Supreme Court Act, R.S.P.E.I. 1974, c. S-012, sect. 18 [paras. 1, 12].

Young Offenders Act, S.C. 1980-81-8283, c. 110, sect. 2(1) [para. 2]; sect. 3(1), sect. 3(2) [para. 50]; sect. 16(9), sect. 27, sect. 51 [para. 8].

Authors and Works Noticed:

Bala and Lilles, The Young Offenders Act, Annotated (1984), p. 16 [para. 57].

Counsel:

Richard B. Hubley, Q.C., and Agnes MacDonald, for the Attorney General of Prince Edward Island;

John R.A. Douglas and John Power, Q.C., for the Attorney General of Canada;

John L. MacDougall and John P. McEvoy, for the Intervenor, D.T.M.

This reference was heard on September 19-21, 1988, before Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A., of the Prince Edward Island Supreme Court, Appeal Division.

On November 16, 1988, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Mitchell, J.A. (Carruthers, C.J.P.E.I., concurring) - See paragraphs 1 to 11;

McQuaid, J.A. - See paragraphs 12 to 62;

By the Court - See paragraphs 63 to 64.