Reference Re Young Offenders Act and Youth Court Judges, (1991) 89 Nfld. & P.E.I.R. 91 (SCC)

• Judge: Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 07, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 89 Nfld. & P.E.I.R. 91 (SCC);77 DLR (4th) 492;[1990] SCJ No 60 (QL);89 Nfld & PEIR 91;121 NR 81;278 APR 91;12 WCB (2d) 215;[1991] 1 SCR 252;1991 CanLII 8377 (SCC);62 CCC (3d) 385;JE 91-242

Ref. Re Young Offenders Act (1991), 89 Nfld. & P.E.I.R. 91 (SCC);

    278 A.P.R. 91

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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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. 1988, c. S-10, 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.

D.T.M. (appellant) v. The Attorney General of Prince Edward Island and the Attorney General of Canada (respondents) and the Attorney General for Ontario, the Attorney General of Québec, the Attorney General for New Brunswick and the Attorney General of Nova Scotia (intervenors)

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

Supreme Court of Canada

Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.

February 7, 1991.

Summary:

The Lieutenant Governor-in-Council acting pursuant to s. 18 of the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, 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 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, in a judgment reported 73 Nfld. & P.E.I.R. 115; 229 A.P.R. 115, 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. The young offender involved appealed.

The Supreme Court of Canada, with three sets of differing reasons, dismissed the appeal and affirmed the Court of Appeal's responses to the stated questions.

Constitutional Law - Topic 8605

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

Constitutional Law - Topic 8623

Judicial power - Appointment of judges - Provincial Youth Courts - The Supreme Court of Canada affirmed 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 - The court also stated that a superior court judge could be appointed a judge of the Youth Court, without further qualification.

Criminal Law - Topic 2836

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

Criminal Law - Topic 8704

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

Cases Noticed:

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.) et al., [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271, consd. [para. 6].

Reference re Adoption Act, [1938] S.C.R. 398, refd to. [para. 7].

Attorney General of British Columbia v. Smith, [1967] S.C.R. 702, refd to. [para. 9].

Attorney General of Québec v. Attorney General of Canada, [1945] S.C.R. 600, refd to. [para. 10].

Ministre du revenu national v. Lafleur, [1964] S.C.R. 412, refd to. [para. 10].

Re Residential Tenancies Act of Ontario, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 12].

Court of Unified Criminal Jurisdiction, Re; McEvoy v. Attorney General for 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, refd to. [para. 13].

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 20].

R. v. S.H.M., [1989] 2 S.C.R. 446; 100 N.R. 1; 100 A.R. 321, refd to. [para. 26].

Labour Relations Board of Saskatchewan v. John East Iron Works Limited, [1949] A.C. 134, refd to. [para. 28].

Statutes Noticed:

Constitution Act, 1867, sect. 91(27), sect. 92(14), sect. 96 [para. 3].

Courts of Quarter Sessions and Recorders' Courts to try Treasons and Capital Felonies, An Act to Abolish the right of (1861), 24 Vict., c. 14, generally [para. 46].

Criminal Code, R.S.C. 1985, c. C-46, sect. 469 [para. 17].

Petty Offences, Trespasses and Assaults, An Act respecting, R.S.N.S. 1864, c. 147, generally [para. 49].

Provinces of Upper and Lower Canada, and for the Government of Canada, An Act to Reunite the (1840), 3 and 4 Vict., c. 35, generally [para. 45].

Speedy Trial and Punishment of Juvenile Offenders, An Act for the, S.C. 1857, c. 29, generally [para. 45].

Young Offenders Act, S.C. 1980-81-82-83, c. 110, sect. 2(1), sect. 5(1), sect. 5(4) [para. 3]; sect. 16 [para. 53]; sect. 20 [para. 27].

Counsel:

J. McEvoy and J.L. MacDougall, for the appellant;

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

John R. Power, Q.C., James Mabbutt, Q.C., and James Bissel, for the respondent, Attorney General of Canada;

John Cavarzan, Q.C., and Timothy Macklem, for the Attorney General of Ontario;

Jean Bouchard and Jean Turmel, for the Attorney General of Québec;

Bruce Judah, for the Attorney General of New Brunswick;

Robert E. Lutes and Louise Walsh Poirier, for the Attorney General of Nova Scotia.

Solicitors of Record:

MacLeod & MacDougall, Charlottetown, P.E.I., for the appellant;

Deputy Attorney General of Prince Edward Island, Charlottetown, P.E.I. for the respondent, Attorney General of Prince Edward Island, Charlottetown, P.E.I.;

John R. Power, Ottawa, Ontario, for the respondent Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervener the Attorney General for Ontario;

Jean Bouchard, Québec, Québec, for the intervener the Attorney General of Québec;

Deputy Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervener the Attorney General for New Brunswick;

Department of Attorney General, Halifax, Nova Scotia, for the intervener the Attorney General of Nova Scotia.

This appeal was heard on May 31, 1990, before Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On February 7, 1991, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C. (Gonthier and Cory, JJ., concurring) - see paragraphs 1 to 38.

Wilson, J. (McLachlin, J., concurring) - see paragraphs 39 to 57.

La Forest, J. (L'Heureux-Dubé, J., concurring) - see paragraphs 58 to 61.