Reference Re Youth Court, (1988) 96 N.B.R.(2d) 11 (CA)

• Judge: Stratton, C.J.N.B., Angers, Hoyt, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 23, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 96 N.B.R.(2d) 11 (CA)

Ref. Re Youth Court (1988), 96 N.B.R.(2d) 11 (CA);

    96 R.N.-B.(2e) 11; 243 A.P.R. 11

MLB headnote and full text

[French language version follows English language version]

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

....................

In The Matter Of Section 23 of the Judicature Act, R.S.N.B. 1973, c. J-2;

And In The Matter Of a Reference by the Lieutenant Governor-in-Council Concerning the Constitutional Validity of the Court of Queen's Bench of New Brunswick, Family Division, Exercising Certain Criminal Jurisdiction

(131/86/CA)

Indexed As: Reference Re Youth Court

New Brunswick Court of Appeal

Stratton, C.J.N.B., Angers, Hoyt, Rice and Ayles, JJ.A.

November 23, 1988.

Summary:

The Lieutenant Governor-in-Council, by Order-in-Council 86-371 dated May 8, 1986, made pursuant to s. 23 of the Judicature Act, R.S.N.B. 1973, c. J-2, referred to the Court of Appeal a series of questions concerning the constitutional competence of the Court of Queen's Bench of New Brunswick, to hear and determine matters (a) with respect to young offenders who commit federal offences, (b) with respect to young persons who commit provincial offences, and (c) with respect to adult family members who commit criminal offences against or involving members of the same family. The specific questions referred to were:

"1(a) Is the Parliament of Canada constitutionally competent to authorize the legislature of a province, the Governor-in-Council or the Lieutenant Governor-in-Council of a province to establish or designate the superior court or a division thereof to be a youth court under the Young Offenders Act?

"(b) If the answer to question 1(a) is in the affirmative, has Parliament accomplished these authorizations by enacting subsection 2(1) of the Young Offenders Act?

"(c) If the answer to question 1(b) is in the affirmative, has the Legislature of the Province of New Brunswick or the Lieutenant Governor-in-Council validly constituted a youth court and vested the judges thereof with the jurisdiction of youth court judges by enacting paragraph 11(6)(a.1) of the Judicature Act or by Orders-in-Council 84-241, and 85-228, dated March 29, 1984, and March 28, 1985, respectively?

"2(a) Is the Legislature of the Province of New Brunswick or the Parliament of Canada constitutionally competent to authorize the judges of the superior court of the Province or a division thereof to exercise the jurisdiction of a judge of the Provincial Court in proceedings under either provincial or federal legislation?

"(b) If the answer to question 2(a) is in the affirmative, has the Province of New Brunswick accomplished this by enacting paragraphs 11(6)(b), (c) and (d) of the Judicature Act?

"3. Is a superior court judge, when exercising the jurisdiction of a youth court judge or a judge of the Provincial Court, subject to judicial review by way of the prerogative writs?"

The New Brunswick Court of Appeal answered the questions referred to the court as follows:

"1(a) In the negative. The authorization of Parliament is not required. A province is constitutionally competent to establish or designate the superior court or a division thereof to be a Youth Court under the Young Offenders Act.

"1(b) No answer is required. The authorization of Parliament is not required. If Parliament's authorization had been required, subsection 2(1) of the Young Offenders Act would not be sufficient.

"1(c) With respect to paragraph 11(6)(a.1) of the Judicature Act, the answer is in the affirmative. Order-in-Council 84-241 was not necessary to complement paragraph 11(6)(a.1) and is not sufficient by itself to alter the law. Order-in-Council 85-228 is ultra vires the Province.

"2(a) The legislature of the Province of New Brunswick is constitutionally competent to confer jurisdiction on superior court judges to exercise the jurisdiction of Provincial Court judges in proceedings under both provincial and federal legislation. The Parliament of Canada does not have the power to confer jurisdiction on superior court judges to exercise the jurisdiction of Provincial Court judges under provincial legislation although it can do so in respect of proceedings under federal legislation.

"2(b) In the affirmative.

"3. In the negative."

Administrative Law - Topic 3222

Judicial review - General - Superior courts not subject to - The New Brunswick Court of Appeal stated that a judge of the Court of Queen's Bench, Family Division (a superior court), when sitting as a Youth Court judge or judge of the Provincial Court, was not subject to judicial review - The court noted that judicial review was the traditional means used by superior courts to supervise inferior courts - A judge of the Family Division sitting as a Youth Court or Provincial Court judge did so as a superior court judge and not in the special capacity of persona designata - It would be contrary to the traditional rationale of judicial review and illogical to permit one superior court to supervise the actions of another superior court - See paragraphs 101 to 107.

Civil Rights - Topic 5641

Equality and protection of the law - Dissimilar provincial laws - The New Brunswick Court of Queen's Bench, Family Division (a superior court), was designated as the Youth Court in New Brunswick - Accordingly, an appeal by a young offender in New Brunswick went directly to the Court of Appeal - In other provinces, where the Provincial Court (inferior court) was designated the Youth Court an appeal went first to the superior court, then to the Court of Appeal - The New Brunswick Court of Appeal, on a reference respecting the validity of the Court of Queen's Bench, Family Division, acting as a Youth Court, was asked to determine whether a New Brunswick youth's equality rights were denied under s. 15(1) of the Charter of Rights and Freedoms - The court discussed the issue but declined to decide it - The court stated that even assuming that s. 15(1) was violated, absent evidence it was not possible to determine whether the violation would be a reasonable limit prescribed by law under s. 1 of the Charter - See paragraphs 108 to 120.

Civil Rights - Topic 5643

Equality and protection of the law - Young offenders - [See Civil Rights - Topic 5641 above].

Constitutional Law - Topic 6472

Federal jurisdiction - Constitution Act, 1867, s. 91 - Criminal law - "Procedure in criminal matters" - Designation of Youth Court - The issue was whether the establishment or designation of a Youth Court was a matter of "criminal procedure" (federal jurisdiction) or a matter in respect of the constitution of the courts of criminal jurisdiction (provincial jurisdiction) - The New Brunswick Court of Appeal stated that the constitution of criminal and civil courts mentioned in s. 92(14) of the Constitution Act was an administrative consideration and the establishment of a Youth Court was entirely within provincial competence - Criminal procedure is a consideration which is ancillary to jurisdiction and a procedural modification validly established by Parliament concerning the practice regarding young offenders does not, therefore, affect the capacity of the province to constitute the appropriate court - See paragraphs 20 to 38.

Constitutional Law - Topic 7404

Provincial jurisdiction - Constitution Act, 1867, s. 92 - Administration of justice, s. 92(14) - Jurisdiction of superior courts - The New Brunswick Court of Appeal stated that provincial legislation conferring jurisdiction on superior court judges to exercise the jurisdiction of Provincial Court judges under provincial or federal legislation was intra vires the province - See paragraphs 89 to 90.

Constitutional Law - Topic 7404

Provincial jurisdiction - Constitution Act, 1867, s. 92 - Administration of justice, s. 92(14) - Jurisdiction of superior courts - Sections 11(b), (c) and (d) of the Judicature Act, R.S.N.B. 1973, c. J-2, gave a judge of the Court of Queen's Bench, Family Division, jurisdiction to sit as a judge of the Provincial Court for the purposes of exercising jurisdiction relating to charges or other proceedings under the Criminal Code, the Summary Convictions Act and any other provincial statute - The New Brunswick Court of Appeal stated that ss. 11(b), (c) and (d) were sufficient to authorize a judge of the Court of Queen's Bench Family Division, to exercise the jurisdiction of a Provincial Court in proceedings under provincial or federal legislation - See paragraphs 97 to 100.

Constitutional Law - Topic 8605

Judicial power - Appointment of judges, s. 96 - Provincial criminal courts - Superior courts - The New Brunswick Court of Appeal stated that the Parliament of Canada has no power to confer jurisdiction on superior court judges to exercise the jurisdiction of Provincial Court judges under provincial legislation, although it can do so in respect of proceedings under federal legislation - See paragraphs 91 to 96.

Constitutional Law - Topic 8605

Judicial power - Appointment of judges, s. 96 - Provincial criminal courts - Superior courts - The New Brunswick government, by designating the Court of Queen's Bench, Family Division, to be a Youth Court, was increasing the criminal jurisdiction of a superior court (federally appointed judges) and decreasing the jurisdiction of an inferior court - The New Brunswick Court of Appeal stated that it was permissible to add to or subtract from the jurisdiction of a provincial superior court - Superior courts possess general jurisdiction and all matters are within their jurisdiction unless expressly shown not to be - Conversely, the jurisdiction of provincial inferior courts is entirely statutory and where legislation has conferred jurisdiction it can also be taken away - Section 96 entrenches only a core of superior court jurisdiction - Alterations in superior court jurisdiction which do not obliterate that core are permissible - Inferior courts have no such entrenched core of jurisdiction - Although the conferral of summary jurisdiction on a superior court may result in inefficiency in the administration of justice that is purely a policy consideration which does not render the legislation unconstitutional - See paragraphs 39 to 69.

Constitutional Law - Topic 8623

Judicial power - Appointment of judges, s. 96 - Provincial youth courts - Section 11(6)(a.1) of the Judicature Act, R.S.N.B. 1973, c. J-2, designated the Court of Queen's Bench, Family Division, as the Youth Court in New Brunswick - Order-in-Council 84-241 did the same thing - Order-in-Council 85-228 purported to "appoint" judges of the Court of Queen's Bench, Family Division, as judges of the Youth Court - The New Brunswick Court of Appeal held that s. 11(6)(a.1) added nothing new to the jurisdiction of the Court of Queen's Bench, a superior court, but did add precision concerning the area of criminal jurisdiction - It simply indicated an area of competence in a matter of federal jurisdiction given to a judge already appointed under s. 96 - The court stated that Order-in-Council 84-241 was not constitutionally required and that Order-in-Council 85-228 was ultra vires the Lieutenant Governor-in-Council, because the power to "appoint" is a matter of federal jurisdiction - The court held that s. 11(6)(a.1), by itself, was sufficient to constitute a Youth Court and to vest the Family Division of the Court of Queen's Bench with the jurisdiction of Youth Court judges - See paragraphs 76 to 87.

Constitutional Law - Topic 8623

Judicial power - Appointment of judges, s. 96 - Provincial youth courts - [See Constitutional Law - Topic 6472 above].

Constitutional Law - Topic 8623

Judicial power - Appointment of judges, s. 96 - Provincial youth courts - Pursuant to s. 11(6)(a.1) of the Judicature Act, R.S.N.B. 1973, c. J-2, the provincial legislature conferred jurisdiction on the Court of Queen's Bench, Family Division, to sit as the Youth Court - The New Brunswick Court of Appeal stated that the Court of Queen's Bench, as a superior court of criminal jurisdiction, had an inherent jurisdiction which did not depend on any condition or require anything to vest such jurisdiction in the court - The authorization of Parliament to establish or designate the Court of Queen's Bench, Family Division, to be a Youth Court under the Young Offenders Act was not constitutionally required - See paragraphs 20 to 38.

Constitutional Law - Topic 8623

Judicial power - Appointment of judges, s. 96 - Provincial youth courts - Section 2(1) of the Young Offenders Act defined "youth court" as a court designated by or under an Act of the legislature of a province, or designated by the Lieutenant Governor-in-Council of a province - The New Brunswick Court of Appeal held that s. 2(1) was not an enabling provision for the delegation of authority - The designation was valid under s. 92(14) of the Constitution Act; s. 2(1) added nothing to existing provincial competence - See paragraphs 70 to 74.

Criminal Law - Topic 8704

Young offenders - Jurisdiction - Courts - The New Brunswick Court of Appeal held that s. 11(6)(a.1) of the Judicature Act, R.S.N.B. 1973, c. J-2, validly designated the Court of Queen's Bench, Family Division, as a Youth Court - The legislature of the Province of New Brunswick is constitutionally competent to confer jurisdiction on superior court judges (Court of Queen's Bench) to exercise the jurisdiction of judges of the Youth Court.

Practice - Topic 3781

References and inquiries - References by Lieutenant Governor-in-Council to Court of Appeal - General - Under s. 23 of the Judicature Act, R.S.N.B. 1973, c. J-2, the Lieutenant Governor-in-Council directed a reference respecting the constitutional validity of the New Brunswick Court of Queen's Bench, Family Division, exercising certain criminal jurisdiction, including sitting as a Youth Court - The New Brunswick Court of Appeal generally discussed its role on a reference - The court noted that historically the rendering of an advisory opinion to the government was viewed as an "executive" function performed by the law officers of the Crown - The court stated that it was not required to determine if the means adopted were legislatively prudent, only if they were constitutionally permissible - The court noted that the Supreme Court of Canada had not yet ruled on the constitutionality of provincial references respecting federal legislation - See paragraphs 13 to 17.

Cases Noticed:

R. v. Johnston (1985), 62 N.B.R.(2d) 390; 161 A.P.R. 390, refd to. [para. 5].

R. v. Y.D. (1986), 67 N.B.R.(2d) 269; 172 A.P.R. 269, refd to. [para. 11].

Court of Unified Criminal Jurisdiction, Re; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; 48 N.R. 278; 46 N.B.R.(2d) 219; 121 A.P.R. 219, consd. [para. 13].

Attorney General for Ontario v. Attorney General for Canada, [1912] A.C. 571, refd to. [para. 14].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 15].

In Re References by the Governor General-in-Council (1910), 43 S.C.R. 536, refd to. [para. 17].

Smith, Kline & French Laboratories Ltd. et al. v. Canada (Attorney General), [1986] 1 F.C. 274; 12 F.T.R. 80; 24 D.L.R.(4th) 321 (F.C.T.D.), refd to. [para. 18].

Attorney General for Ontario v. Hamilton Street Railway Company et al., [1903] A.C. 524 (P.C.), refd to. [para. 23].

Proprietary Articles Trade Association et al. v. Attorney General for Canada, [1931] A.C. 310 (P.C.), refd to. [para. 23].

In Re County Courts of British Columbia (1982), 21 S.C.R. 446, refd to. [para. 25].

Attorney General of British Columbia v. McKenzie, [1965] S.C.R. 490, refd to. [para. 26].

Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, refd to. [para. 27].

Lord's Day Alliance of Canada v. Attorney General of British Columbia et al., [1959] S.C.R. 497, refd to. [para. 29].

Attorney General for Alberta and Winstanley v. Atlas Lumber Company Limited, [1941] S.C.R. 87, refd to. [para. 30].

Livesley et al. v. Horst Co., [1925] 1 D.L.R. 159, refd to. [para. 32].

Ministre du Revenu National v. Lafleur, [1964] S.C.R. 412, refd to. [para. 34].

Di Iorio and Fontaine v. Warden of the Common Jail of the City of Montreal, [1978] 1 S.C.R. 152; 8 N.R. 361, refd to. [para. 35].

Papp v. Papp, [1970] 1 O.R. 331 (C.A.), refd to. [para. 40].

Family Relations Act of British Columbia, Re, [1982] 1 S.C.R. 62; 40 N.R. 206, refd to. [para. 40].

R. v. Trimarchi (1988), 24 O.A.C. 379 (C.A.), refd to. [para. 45].

Reference Re Adoption Act, [1938] S.C.R. 398, refd to. [para. 50].

Re Harper (1986), 70 N.B.R.(2d) 361; 179 A.P.R. 361 (Q.B.T.D.), refd to. [para. 54].

Board v. Board, [1919] A.C. 956 (P.C.), refd to. [para. 64].

Re L. and The Queen (1984), 13 C.C.C.(3d) 148 (B.C.S.C.), refd to. [para. 81].

Case of Proclamations (1610), 77 E.R. 1352, refd to. [para. 82].

Re Solloway, Mills and Co. Ltd., [1937] O.W.N. 450, refd to. [para. 92].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 104].

Herman et al. v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729; 20 N.R. 268, refd to. [para. 106].

Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; 44 N.R. 616, refd to. [para. 106].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321; 50 C.R.(3d) 1; 26 D.L.R.(4th) 200, refd to. [para. 111].

R. v. R.L. (1986), 14 O.A.C. 318; 26 C.C.C.(3d) 417 (C.A.), refd to. [para. 112].

R. v. Sheldon S. (1988), 26 O.A.C. 285; 63 C.R.(3d) 64 (C.A.), refd to. [para. 112].

R. v. Ertel (1987), 20 O.A.C. 257; 58 C.R.(3d) 252 (C.A.), refd to. [para. 117].

R. v. Whyte (1988), 86 N.R. 328 (S.C.C.), refd to. [para. 118].

Statutes Noticed:

Administration of Justice in Civil Cases, An Act for Improving the, 1 Wm. 4, c. 14, sect. 8 [para. 54].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 117]; sect. 15(1) [para. 110]; sect. 24(1) [para. 11].

Constitution Act, 1867, sect. 91(27), sect. 92(14) [para. 22]; sect. 96 [para. 95].

Constitution Act, 1982, sect. 52 [para. 11].

Criminal Law and to Repeal Certain Enactments Therein Mentioned, An Act Respecting, S.C. 1869, c. 36 [para. 55].

Force and Effect of the Acts of Parliament of Canada in and in Relation to the Province of Manitoba and the Colony of British Columbia when it becomes a Province of the Dominion, An Act Respecting, S.C. 1871, c. 13 [para. 61].

Judicature Act (1906), 6 Edw. 7, c. 37, sect. 3 [para. 93].

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 9(1), sect. 11(3), sect. 11(4) [para. 80]; sect. 11(6)(a.1), sect. 11(6)(b), sect. 11(6)(c), sect. 11(6)(d) [paras. 9, 78]; sect. 11(8) [para. 80]; sect. 36(1) [para. 101]; sect. 36(3) [para. 102].

Justices of the Peace out of Sessions, An Act Respecting the Duties of in Relation to Summary Convictions and Orders, S.C. 1869, c. 31 [para. 61].

Larceny and Other Similar Offences, S.C. 1869, c. 21 [para. 56].

Order-in-Council 84-241 [para. 79].

Order-in-Council 85-228 [para. 83].

Procedure in Criminal Cases and Other Matters Relating to Criminal Law, An Act Respecting, S.C. 1869, c. 29, sect. 12 [para. 55].

Proceedings on Indictment, An Act Respecting, S.N.B. 1854, c. 158, sect. 3 [para. 54].

Prompt Administration of Justice in Criminal Matters to the Province of Manitoba, An Act to Extend Certain Acts Relating to the, S.C. 1874, c. 39 [para. 61].

Prompt and Summary Administration of Criminal Justice in Certain Cases, An Act Respecting, S.C. 1869, c. 32 [para. 61].

Province of British Columbia, An Act to Extend Certain of the Criminal Laws now in force in other Provinces of the Dominion to, S.C. 1874, c. 42, sect. 5 [para. 60].

Province of Manitoba, An Act to Extend Certain of the Criminal Laws now in force in the other Provinces of the Dominion to, S.C. 1871, c. 14, sect. 2 [para. 59].

Rules of Court (N.B.), rule 69 [para. 102].

Sunbury County Charter, Acts of General Assembly 1786-1836, App. III [para. 54].

Trial and Punishment of Juvenile Offenders, An Act Respecting, S.C. 1857, c. 29; C.S.C. 1859, c. 106 [para. 56].

Trial and Punishment of Juvenile Offenders, An Act Respecting, S.C. 1869, c. 33 [para. 56].

Young Offenders Act, S.C. 1980-81-82-83, c. 110, sect. 2(1) [paras. 6, 7, 71].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2nd Ed.), p. 219 [para. 74].

Driedger, E.A., The Composition of Legislation (2nd Ed. 1976), p. 45 [para. 73].

Elliot, Robin, Constitutional Law - Judicature - Is Section 96 Binding on Parliament - Reference Re Establishment of Unified Criminal Court of New Brunswick (1982), 16 U.B.C.L. Rev. 313 [para. 43].

Elliot, Robin, New Brunswick Unified Criminal Court Reference (1984), 18 U.B.C.L. Rev. 127 [para. 43].

Halsbury's Laws of England (4th Ed.), vol. 10, para. 713 [para. 53].

Hatherly, Mary E., A survey of Courts of Criminal Jurisdiction in New Brunswick, Nova Scotia and Ontario [para. 54].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 150-151 [para. 14]; 534-535 [para. 23].

Lederman, W.R., The Independence of the Judiciary (1956), 34 Can. Bar Rev. 769 [para. 40].

McEvoy, John P., The Constitutionality of Canada's Youth Courts Under the Young Offenders Act (1986), 32 McGill L.J. 159 [para. 56].

Snell, James G., and Frederick Vaughan, Supreme Court of Canada: History of the Institution (1985), pp. 136-139, 244-251 [para. 17].

Whyte, John D., Developments in Constitutional Law; The 1982-83 Term (1984), 6 Supreme Ct. L. Rev. 47, pp. 74-81 [para. 43].

Counsel:

Bruce Judah and John Evans, for the Attorney General of the Province of New Brunswick;

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

John P. McEvoy on his own behalf as intervenor.

This reference was heard before Stratton, C.J.N.B., Angers, Hoyt, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal.

On November 23, 1988, Stratton, C.J.N.B., delivered the following judgment for the Court of Appeal.