COURT OF APPEAL FOR ONTARIO
DOHERTY, GOUDGE and CRONK JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant (Appellant)
Alexander Alvaro for the Appellant
- and -
H. (J.)
Respondent
Douglas R. Lent for the Respondent
Heard: September 21, 2001
On appeal from the judgment of Justice C.N. Herold dated November 16, 2000, sitting as a summary conviction appeal judge from the judgment of Justice J.D. Karswick dated July 19, 2000.
CRONK J.A.:
1The issue on this appeal is whether a disposition in the nature of a probation order validly made under s. 20(1)(j) of the Young Offenders Act, R.S.C. 1985, c. Y-1 (the “YOA”) is enforceable against a young person under s. 26 of the YOA, where compliance with s. 20(6)(a) is not achieved by virtue of the failure to provide a copy of the disposition to the young person’s counsel. In consequence of the imperfect compliance with s. 20(6)(a), the youth court judge dismissed a charge of wilfully failing to comply with a probation order. On summary conviction appeal, Herold J. dismissed an appeal by the Crown. The Crown now seeks leave to appeal to this court from that dismissal. For the reasons that follow, I would grant leave to appeal, but dismiss the appeal.
A. BACKGROUND FACTS
2The respondent, a young offender, was found guilty of robbery and received a disposition of 18 months probation and 70 hours of community service. One of the terms of his probation required that he report to a probation officer at stipulated times. The probation order was reviewed with the respondent and his parents at a meeting with the probation officer, and the respondent was informed of the consequences of breaching a condition of the order. He signed a form entitled “Disposition Acknowledgment” confirming that he had been so informed.
3For some time the respondent reported to his probation officer as required, but subsequently failed to do so. In consequence, he was charged under s. 26 of the YOA with wilful failure or refusal to comply with the probation order.
4The order of disposition was prepared in a standard form known as “Form 11”, provided for by O. Reg. 86-818 of the YOA Forms Regulations. 1 The probation order was prepared in a “Form 12”, also a standard form provided for by the same regulation. Both forms were furnished to the respondent and his parents, but neither form was provided to his counsel at the robbery trial.
5Section 20(6)(a) of the YOA requires that the respondent’s counsel be provided with a copy of the disposition. The relevant regulation under the YOA provides that where the disposition is a probation order, the order may be in Form 12. Under the same regulation, an order of disposition under s. 20(1) may be in Form 11. In this case, the language of Form 11 contemplated that a copy of it would be furnished to the respondent’s counsel, among others. It did not refer, however, to the terms of the respondent’s probation save for the community service component. In that limited connection, it also mentioned the respondent’s probation officer. In contrast, the probation order in Form 12 referenced all terms of the probation disposition, including the requirement for performance of community service. Accordingly, in this case, Form 12 reflected the actual disposition within the meaning of s. 20(6)(a) of the YOA.
6At trial on the charge of wilful breach of probation, counsel for the respondent argued that the charge should be dismissed because of the failure to fully comply with s. 20(6)(a) of the YOA. The youth court judge accepted this submission, holding that the failure to provide a copy of the disposition to the respondent’s counsel at the robbery trial was a fundamental breach of the respondent’s statutory rights under s. 20(6)(a). Herold J. dismissed an appeal from that decision.
7On appeal to this court, the submissions of counsel focus on the narrow issue of the proper interpretation of s. 20(6)(a). The Crown argues that it should be given a directory rather than an imperative construction, while the respondent relies upon the decision of this court in R. v. M. (L.A.) (1994), 1994 8731 (ON CA), 92 C.C.C. (3d) 562 (Ont. C.A.) as supporting an obligatory construction. If the latter interpretation governs, strict compliance with s. 20(6)(a) is required in relation to the respondent’s legal counsel, unless a contrary result is otherwise contemplated by the YOA.
B. ANALYSIS
8The YOA contains no provision setting out the consequences of a failure to comply with any part of s. 20(6). That section reads as follows:
20 (6) Where a youth court makes a disposition under this section, it shall state its reasons therefor in the record of the case and shall
(a) provide or cause to be provided a copy of the disposition, and
(b) on request, provide or cause to be provided a transcript or a copy of the reasons for the disposition
to the young person in respect of whom the disposition was made, the young person’s counsel and parents, the provincial director, where the provincial director has an interest in the disposition, the prosecutor and, in the case of a custodial disposition made under paragraph (1)(k) or (k.1), the review board, if a review board has been established or designated. [Emphasis added]
(1) The Mandated Approach to Interpretation of Section 20(6)(a)
9To ascertain the intended meaning of s. 20(6)(a), it is necessary to refer to the principles declared under s. 3(1) and the rule of construction established by s. 3(2) of the YOA, which govern interpretation of all provisions of the statute. 2
10In my view, the principles set out in ss. 3(1) (a.1), (b), (c) (e) and (g) of the YOA are of particular relevance on this appeal. These provisions emphasize the accountability of young persons for their illegal behaviour, and the need to protect society from such behaviour (ss. 3(1)(a.1) and (b)). The principles declared under s. 3(1) also afford particular rights and protections to young persons, and recognize that they have special needs and require guidance and assistance. To this end, young persons have special guarantees of their rights and freedoms and, in every instance where their rights or freedoms might be affected by the YOA, are to be informed as to what those rights and freedoms are (ss. 3 (1)(c), (e) and (g)). Indeed, the right to be so informed is itself a right under the principles enshrined within the YOA (s. 3(1)(g)).
11Section 3(2) requires that young offenders be dealt with in accordance with the principles declared in s. 3(1) and, for that purpose, provides that the YOA is to be liberally construed. However, the normal principles of statutory interpretation apply, and resort may be had to the ordinary meaning of words as they appear in the statute (R. v. S. (S.) (1990), 1990 65 (SCC), 57 C.C.C. (3d) 115, at 129, per Dickson C.J.C. and R. v. Z. (D.A.), 1992 28 (SCC), [1992] 2 S.C.R. 1025, at 1042, per Lamer C.J.C.).
12The contemporary approach to the construction of statutes has been described in Driedger On the Construction of Statutes, 3rd ed. (Butterworths: 1994) at 131:
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.
13This approach mandates a full contextual analysis of a statute to determine the intended meaning of a word in the context in which it appears, having regard to the purpose and objects of the legislation (R. v. Mac (2001), 2001 24177 (ON CA), 152 C.C.C. (3d) 1 (Ont. C.A.), per Doherty J.A., relying on R. v. Goulis (1981), 1981 1642 (ON CA), 60 C.C.C. (2d) 347 (Ont. C.A.), at 351, per Martin J.A.).
14This approach is also directed by the general subject-matter of the YOA. Section 26 of the statute directly engages the criminal law power. 3 The dominant focus of the YOA as a whole is on the criminal law as applied to young persons, and not on the welfare of young persons per se (R. v. S. (S.), at 132-133). This contrasts with the child welfare focus of the former statute, the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, and the statutory regimes for juvenile courts which existed in the first half of this century, which emphasized informality for determining the “best interests” of young persons. The introduction of the YOA thus signalled a significant change, and a shift towards a criminal law orientation, in Canada’s national policy for young offenders (R. v. M. (J.J.), at 428 and 430, per Cory J.).
15Under traditional rules of statutory interpretation, ambiguity in the meaning of criminal law statutes was to be resolved by strict construction of the enactment so that any uncertainty was determined by choosing the meaning which was most favourable to the accused. This rule has been significantly moderated in recent jurisprudence to require examination of the context in which the relevant words or provisions appear in order to ascertain the true intention of Parliament (Marcotte v. Canada (Deputy A.G.) (1974), 1974 1 (SCC), 19 C.C.C. (2d) 257; R. v. Hasselwander (1993), 1993 90 (SCC), 81 C.C.C. (3d) 471 and R. v. Mac).
16Accordingly, any contextual analysis of s. 20(6)(a) must recognize the principles declared under s. 3(1) and the rule of construction established by s. 3(2) of the YOA, as well as the criminal law emphasis of the statute.
(2) The Particular Context of Section 20(6)(a)
17Section 20(1) of the YOA empowers youth courts to make various types of dispositions, including probation orders, in proceedings under the YOA. Under s. 20(1)(j), a probation order made in accordance with s. 23 of the YOA for a specified period not exceeding two years, is but one type of authorized disposition.
18Sections 20(2) to 24.5 establish limitations on, or requirements for, dispositions made under s. 20(1). Many of these sections are linked to particular types of dispositions, as are ss. 26.1 to 26.6. 4 Through these linkages, ss. 20(2) to 24.5 and ss. 26.1 to 26.6 particularize the rules governing, or content of, dispositions under s. 20(1).
19Section 26, in turn, establishes an offence punishable on summary conviction for a wilful failure or refusal to comply with identified types of dispositions, including probation dispositions made under s. 20(1)(j).
20Orders of disposition and probation orders are not identical. All dispositions under s. 20(1) of the YOA, including custodial or probation dispositions, are subject to the requirements of s. 20(6). In contrast, s. 23 is specific to probation orders. It identifies the required and optional contents of a probation order and provides statutory rules designed to ensure that the conditions of a probation order are read to, and understood by, the affected young person and, further, are brought to the attention of the parent of the young person, if the parent is in attendance at the proceedings against the young person. Accordingly, the scope of s. 20(6) is wider than that of s. 23.
21Within this framework, and having regard to the purpose and objects of the YOA as a whole, it is necessary to consider all relevant indicators of the legislative meaning of s. 20(6)(a). In my view, several factors favour an imperative interpretation of s. 20(6)(a).
(3) Indicators of Legislative Meaning
22First, the ordinary signification of the word “shall”, when it is used in a statute or legal instrument, connotes an imperative meaning. Thus, s. 11 of the Interpretation Act, R.S.C. 1985, c. I-21 provides that “the expression ‘shall’ is to be construed as imperative and the expression ‘may’ as permissive.” This is consistent with the ordinary dictionary definition of the word “shall” (Black’s Law Dictionary, 6th ed. (West Group: 1990)).
23However, the word “shall” may also be construed as merely permissive or directory, that is, as equivalent to “may”, where the context so requires to carry out the intention of Parliament (Black’s Law Dictionary). Accordingly, use of the word “shall” alone, is not determinative of whether an imperative obligation is imposed by s. 20(6)(a). It is, however, some evidence of legislative meaning.
24A second important aid to interpretation of s. 20(6)(a) concerns the absence in the YOA of a curative provision relating to non-compliance with the section.
25The YOA contains a number of curative provisions designed to address the consequences of failure to perform an act otherwise mandated under the statute. For example, s. 9(8) provides that the failure to give notice to a parent of a young person in accordance with s. 9 will not in all circumstances “affect the validity of proceedings under the Act”. A similar saving provision is contained in s. 13.2(3) of the YOA in connection with the failure to provide a parent of a young person with the notice required under s. 13.2(2) in relation to provisions of Part XX.1 of the Criminal Code. Section 23(6) also provides a limited form of saving provision. It states: “The failure of a young person to endorse a probation order pursuant to subsection (5) does not affect the validity of the order”. 5 Given the presence in the YOA of other curative provisions, the absence of such a provision in connection with s. 20(6)(a) is one marker of the intention of Parliament. 6 It argues for an imperative construction of the section and suggests that strict compliance with it is intended.
26A third indicator of Parliament’s intention is the fact that certain curative provisions existing under the YOA do not apply when notice to legal counsel, as opposed to a parent, is required. For example, as noted, s. 13.2(3) affords relief for the failure to provide notice to a parent of a young person under s. 13.2(2). However, it does not provide the same relief in connection with notices in relation to provisions of Part XX.1 of the Criminal Code required to be given in certain circumstances to counsel representing a young person. Thus, the saving provision does not operate to obviate the need to provide required notices to counsel. 7
27The respondent argues that R. v. M. (L.A.) also supports an imperative construction of s. 20(6)(a). In that case, this court considered the consequences of a failure to comply with the requirement under s. 23(3)(c) of the YOA that a copy of a probation order be provided to a young person’s parent, if the parent was in attendance at the proceedings against the young person, and concluded that the failure to comply with s. 23(3)(c) was more than a mere procedural irregularity. In result, strict compliance with the section was necessary to accord with the purpose of the YOA and the principles enshrined within it.
28Although R. v. M. (L.A.), has been followed in Ontario in a number of subsequent cases, 8 it has not been adopted in some other jurisdictions. In R. v. A. (D.C.) (2000), 2000 ABCA 99, 143 C.C.C. (3d) 302 (Alta. C.A.), leave to appeal to the Supreme Court of Canada refused (2001), 147 C.C.C. (3d) vi, the Alberta Court of Appeal also considered the consequences of a failure to comply with s. 23(3)(c), but reached a different conclusion. That court was of the view that non-compliance with s. 23(3)(c) will not prejudicially affect in every case a young person’s entitlement to the guidance and assistance of his parents, and that non-compliance alone ought not to immunize a young person from prosecution for breach of probation.
29Similarly, in R. v. H. (K.) (1997), 153 Nfld. & P.E.I.R. 28, (Nfld. Youth Ct.), no causal connection was demonstrated between the failure to provide the parents of a young person with copies of probation orders and the breach of disposition by the young person. The youth court concluded, therefore, that it could not have been Parliament’s intention that a young person could “ignore” a probation order simply because his parents had not yet received a copy of the order.
30The decision in R. v. M. (L.A.) was limited to consideration of the failure to comply with s. 23(3)(c) of the YOA. In that case, Arbour J.A. expressly did not address the consequences of a failure to comply with the duty imposed on youth courts by s. 20(6)(a). While R. v. M. (L.A.), therefore, is not dispositive of this appeal, in my view, it is of assistance in interpreting s. 20(6)(a) for two reasons.
31First, the analysis in R. v. M. (L.A.) of the role and responsibilities of parents under the YOA is instructive concerning both the purpose and objects of the YOA and the role and responsibilities of legal counsel for young persons in the YOA process.
32In R. v. M. (L.A.) Arbour J.A. concluded with regard to s. 23(3)(c) of the YOA, at 575-576:
… Both the young offender and the parent who was present at the proceedings have a statutory entitlement to receive a copy of the probation order. The purpose behind the parent’s entitlement is to give effect to the general principles expressed in the statute that parents have a responsibility for the supervision of their children, and that young persons are entitled to the guidance and assistance of their parents. In my opinion, this is particularly so when the young offender is compelled to perform community service and is otherwise bound by the conditions of a probation order. The Act contemplates that more than self-discipline may be called upon to ensure compliance. Parental guidance and supervision is an entitlement designed to facilitate that compliance. It seems to me that the consequences of failing to comply with the duty to inform the entitled parent is on equal footing with the failure to inform the young person of what is expected of him or her.
… with a copy of the probation order in hand, the parent would no doubt be in a better position to encourage and supervise the youth’s compliance. The failure in compliance with the mandatory terms of s. 23(3)(c) is therefore more than a mere procedural irregularity. Rather, it offends an important principle in the Act and may make compliance with the probation order more onerous to the immature youth than it would have been had the parent been properly notified. [Emphasis added]
33Arbour J.A. thus emphasized the role of parents under the YOA, and their special responsibility to supervise their children and to provide them with guidance and assistance in relation to probation orders including, particularly, those orders which impose performance of community service.
34The youth court and summary conviction appeal judges in this case endorsed the extension of this reasoning to the role of counsel for a young person in relation to probation orders under the YOA. In my view, they were correct to do so.
35While the parents of young persons and defence counsel do not have identical roles in relation to young persons, they both have a responsibility to provide guidance and assistance to young persons. The principles declared in s. 3(1)(c) of the YOA recognize that young persons have “special needs and require guidance and assistance”. Such guidance and assistance is not restricted to only parental guidance and assistance.
36In the case of parents, the YOA specifically recognizes that their role includes responsibility for the care and supervision of their children (s. 3(1)(h)). As noted by Arbour J.A. in R. v. M. (L.A.), a young person’s entitlement to parental guidance and supervision is an entitlement “designed to facilitate … compliance”.
37While defence counsel are not responsible for the care and supervision of young persons, they have a critical advisory role to play in furthering the entitlement of young persons under s. 3(1)(g) of the YOA to be informed of their rights and freedoms as may be affected by the YOA, and in ensuring that young persons are equipped to participate in the processes that lead to decisions that affect them, as envisaged by s. 3(1)(e).
38Further, in my view, while the provision of legal guidance and assistance is not an adjunct of a supervisory function by counsel, it cannot be regarded as wholly unrelated to compliance. Rather, the advisory, guidance and assistance responsibilities of counsel should be seen as means to facilitate a young person’s understanding of his or her rights and obligations under both the YOA process and court orders, including the requirements and implications of dispositions. Compliance with a disposition begins with an understanding of what is required to achieve compliance and of what may follow if non-compliance ensues. In this sense, to use the language employed in R. v. M. (L.A.), advice from counsel and a young person’s entitlement to the guidance and assistance of counsel may also be seen as measures “designed to facilitate compliance”.
39The special role of counsel for young persons is given prominence in the YOA. 9 The statute contains several provisions designed to ensure that young persons and their parents are informed of the young person’s legal rights, including the right to be represented by, or to consult with, counsel. 10 In other instances, at various stages of a youth court proceeding, the YOA requires that counsel be provided for a young person, 11 or that counsel be furnished with notice or copies of documents affecting the interests or liberty of a youth. 12 The obligation under s. 20(6)(a) to provide counsel with a copy of the disposition is an example of the latter type of requirement.
40The right of a young person to legal counsel is enshrined in the Canadian Charter of Rights and Freedoms, while the right to “retain and instruct counsel without delay … at any stage of proceedings against the young person …” is established by s. 11(1) of the YOA. Further, the right to be “represented” by counsel is recognized and confirmed under ss. 11(2), 11(3), 11(4), 11(5) and 11(8) of the YOA.
41By these provisions, the right to personal and full access to legal advice and assistance is established as a base principle of the YOA. This is consistent with the declaratory principles set forth under ss. 3(1)(c), (e) and (g) of the statute, described above.
42The YOA seeks to balance concerns with due process and accountability for illegal behaviour against the special needs and vulnerability of young persons. Access to legal advice, guidance and assistance at all stages of a proceeding under the YOA, including at the disposition and post-disposition stages, engages both of these values.
43A second aspect of the decision in R. v. M. (L.A.) is also of some assistance.
44It is a basic principle of statutory interpretation that Parliament is presumed to use language carefully and consistently, so that within a statute the same words have the same meaning and different words have different meanings (Driedger, at 163 and R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, at para. 19, per Sopinka J.). This “presumption of consistent expression” applies particularly “where the provisions in which the repeated words appear are close together or otherwise related” 13 (Driedger, at 164). Section 20(1)(j) requires that the placement of a young person on probation be “in accordance with s. 23”. In R. v. M. (L.A.) s. 23(3)(c) was interpreted by this court as bearing an imperative meaning. Accordingly, unless a contrary intention is clearly indicated by the context, a similar construction of s. 20(6)(a) as it relates to a young person’s counsel would accord with the presumption of consistent expression. It is of some significance in this regard, that Arbour J.A. in R. v. M. (L.A.) described the duty imposed by s. 20(6)(a) as a “mandatory” duty (at 572, 574 and 575).
(4) The Purpose of Section 20(6)(a)
45The requirement under s. 20(6)(a) that a young person’s counsel be provided with a copy of the disposition is intended, in my view, to support the general principles declared in ss. 3(1)(c), (e) and (g) of the YOA, discussed above. Legal guidance and assistance serves these principles, just as parental guidance and assistance does.
46In R. v. M. (L.A.) this court was concerned that a failure to comply with the requirements of s. 23(3)(c) in connection with the parents of a young person might render compliance with a probation order “more onerous”. The failure to comply with s. 23(3)(c) was regarded as an impediment to the provision of parental supervision, guidance and assistance to a young person, which is designed to facilitate compliance. No requirement for the demonstration of actual prejudice to the young person occasioned by the non-compliance with s. 23(3)(c) was necessary to ground this concern.
47A similar, although not identical, concern arises when impediments are created to the provision of legal advice, guidance and assistance to young persons in relation to probation orders.
48As noted above, under s. 3(1)(g) of the YOA, a young person is entitled, “in every instance where they have rights or freedoms that may be affected by [the YOA], to be informed as to what those rights and freedoms are”. Under s. 20(6)(a) of the YOA, the young person is entitled to the provision of a copy of the disposition to his or her counsel. When this occurs, and the disposition is a probation order, counsel is positioned to ensure that the disposition has been prepared in accordance with the probation terms actually ordered by the court, and to explain to the young person the terms of the order and the young person’s rights and responsibilities in respect of the order. Provision of the probation disposition to counsel thus supports the opportunity for legal advice, guidance and assistance regarding compliance and remedies.
49Conversely, when compliance with this aspect of s. 20(6)(a) does not occur, at least when the disposition is a probation order, this failure to facilitate the provision of such legal advice, guidance and assistance may make the young person’s understanding of, and compliance with, the probation order more onerous than it would have been had the young person’s counsel been properly notified. In my view, as in R. v. M. (L.A.), this failure is significant, even in the absence of proof of actual prejudice to the young person occasioned by the failure.
50Thus, in a statutory regime such as the YOA, where the importance of advice, guidance and assistance to young persons is emphasized, the requirement under s. 20(6)(a) that a young person’s counsel receive a copy of the disposition may be seen as designed to facilitate compliance with, and understanding of, dispositions by supporting the opportunity for the receipt of legal advice, guidance and assistance.
51Both the youth court and summary conviction appeal judges in this case concluded that counsel for a young person has a role to play at the post-disposition stage of young offender proceedings, by advising the young person of the meaning, propriety and consequences of the formal disposition. For the reasons outlined above, I agree that this function of counsel in relation to probation dispositions is promoted by s. 20(6)(a) and that this properly may be viewed as a result intended by Parliament.
52Section 20(6)(a) may also be seen as having a second, collateral or ancillary aspect in relation to counsel for a young person. This concerns the appeal and review processes under the YOA at the post-disposition stage.
53Disposition hearings in young offender proceedings are equivalent to sentencing hearings in proceedings under the Criminal Code involving adults. A young person found guilty of an offence under the YOA enjoys appeal rights under s. 27 in relation to both indictable and summary conviction offences. In addition, s. 28 provides for the review of custodial dispositions after a young person has served a portion of his or her sentence. This process is significant because it can result in the release of a young person from custody prior to completion of the disposition.
54If the young person’s counsel receives a copy of the disposition, as contemplated by s. 20(6)(a), he or she will be positioned to advise a young person regarding not only the meaning, propriety and consequences of the disposition but, as well, appeal and review rights and mechanisms for varying the disposition. These latter advisory activities are uniquely the function of counsel. They form an integral part of legal representation and assistance. This conforms with the principle set out in s. 3(1)(g) of the YOA that young persons “have the right, in every instance where they have rights or freedoms that may be affected by the [YOA], to be informed as to what those rights and freedoms are”.
55It follows, in my view, that the requirement under s. 20(6)(a) for a copy of the disposition to be provided to a young person’s counsel, is best understood as a mechanism intended by Parliament to facilitate the provision of legal advice, guidance and assistance to the young person, relating to the disposition and its consequences, and, as an ancillary matter, post-disposition rights. In the absence of the clear expression of a contrary legislative intention, in the form of a curative provision or by other language, this requirement cannot be abrogated. This compels the conclusion that the word “shall” as it appears in s. 20(6)(a) has an imperative meaning and, at least in relation to legal counsel for a young person, strict compliance with it was intended by Parliament.
(5) Particular Arguments by the Crown
56The Crown submits that where the disposition is a probation order, an imperative construction of s. 20(6)(a) would place ss. 20(6)(a) and 23(3)(c) in conflict or otherwise permit the former to override the latter. I disagree.
57Section 20(6)(a) does not exempt dispositions made under s. 20(1)(j) from its application, or otherwise refer to s. 23(3)(c). If ss. 20(6)(a) and 23(3)(c) were seen to be in potential conflict, or duplicative, it would have been an easy drafting matter to avoid this result by introducing words of limitation to s. 20(6)(a). The drafters of the YOA did not do so.
58Legislative provisions are to be interpreted to avoid a conflict between them (Driedger, at 176‑177). That is the result to be sought in this case. In my view, there is nothing in the YOA to militate against the conclusion that ss. 20(6)(a) and 23(3)(c) are intended to operate in a complementary fashion, to ensure that a young person’s obligations and rights in relation to a probation order are brought home to him or her. For the same reasons, I conclude that an imperative construction of s. 20(6)(a) does not render redundant the provisions of ss. 23(3)(c) or otherwise “elevate” s. 20(6)(a) above s. 23(3)(c).
59Section 20(6)(a) provides that a copy of the disposition is to be provided to various persons, including the young person, his or her counsel and parents and the prosecutor, among others. All of these persons arguably have an interest in the disposition or in the post-disposition YOA process. The Crown submits that the wide scope of the class of identified recipients of a copy of the disposition supports the conclusion that imperfect compliance with s. 20(6)(a) should not result, in every case, in the failure of a prosecution under s. 26 of the YOA for wilful breach of probation. For example, the Crown argues that a failure under s. 20(6)(a) to provide the prosecutor with a copy of the disposition, cannot have been intended to permit a young person to avoid the consequences of a wilful breach of a probation order.
60I do not disagree with these assertions. Indeed, there is much to commend them, in a proper case. This may arise, for example, where the youth court fails to provide a copy of the disposition to a recipient who does not have a special role or responsibility under the YOA to directly assist, advise or guide a young person.
61In addition, in my view, the requirement that a prosecutor receive a copy of the disposition serves a particular purpose. Prosecutors have an interest in ensuring that the actual disposition is in proper form and in accordance with the disposition plan accepted by the court. They are also involved in the appeal and review processes under the YOA. They must receive a copy of the formal disposition to assess and meaningfully participate in those processes. Provision of a formal copy of the disposition to them may be seen as but one step in furtherance of such activities.
62However, this appeal does not concern the failure to provide a copy of the probation disposition to the prosecutor, or other persons who have no direct advisory role in relation to the respondent. Rather, we are concerned with the failure to provide a copy of the probation disposition to the respondent’s own counsel, a person who has a direct advisory role in relation to the respondent, consistent with the declared rights of young persons under, and the objects of, the statute.
63It is significant in this case that the disposition is probation. Section 23(3)(c) of the YOA requires that a copy of a probation order be provided to the young person and, in some circumstances, to a parent of the young person. There is no requirement under s. 23(3)(c) that counsel for the young person receive a copy of the probation disposition. That notification is accomplished by compliance with s. 20(6)(a). Thus, so long as s. 20(6)(a) is properly interpreted to impose an imperative obligation in relation to legal counsel for a young person, there was no need for the drafters of the YOA to include in s. 23(3)(c) mention of counsel for a young person, because such counsel would automatically receive a copy of a probation disposition upon compliance with s. 20(6)(a). In this case, in my view, the combined operation of ss. 20(6)(a) and 23(3)(c) require that the respondent’s counsel at the robbery trial receive a copy of both Forms 11 and 12.
64Non-compliance with the requirements of s. 20(6)(a) in relation to a young person’s counsel, therefore, undermines a particular, and special, object of the legislation. In contrast, in my view, a failure to provide a copy of a probation disposition to other persons identified in s. 20(6)(a) may not yield a similar result if those persons have no role to play under the YOA in advising, guiding and assisting the young person, including in connection with the disposition and the requirements for compliance with it. Thus, I conclude that non-compliance with s. 20(6)(a) need not defeat, in every case, a subsequent prosecution under s. 26 for wilful failure or refusal to comply with an order of disposition. Rather, the type of non-compliance with s. 20(6)(a) must be assessed in each case in light of the purpose underlying the notice requirement established by the section, the nature of the order of disposition, the role under the YOA of the intended recipient of a copy of the disposition, and the declared principles and objects of the YOA.
C. CONCLUSION
65I conclude that the word “shall” as it appears in s. 20(6)(a) of the YOA, according to its ordinary signification, is capable of bearing either a directory or imperative meaning. However, when it is read in the full context in which it is used, in view of the purpose of s. 20(6)(a) in relation to legal counsel for a young person and the objects of the YOA, it is intended to receive an imperative interpretation, consistent with the rule of liberal construction established by s. 3(2) and the principles enshrined within s. 3(1) of the YOA. This does not mean that the word “shall” bears a similar meaning throughout the YOA when it is used in different contexts, for different purposes, or even within s. 20(6)(a) when different statutory purposes or dispositions other than probation dispositions are in issue.
66Given this interpretation of s. 20(6)(a), and its purpose in relation to legal counsel for a young person, described above, the consequence of non-compliance with it in this case is clear. Where the disposition is a probation order and the affected young person is not accorded the opportunity to obtain advice, guidance and assistance from his or her counsel concerning the probation disposition, as provision of a copy of the disposition to such counsel is intended to facilitate, a conviction cannot be entered on a charge under s. 26 of the YOA of wilful failure or refusal to comply with the probation order.
67I would therefore grant leave to appeal under s. 839(1) of the Criminal Code, and dismiss the appeal.
“E.A. Cronk J.A.”
“I agree: S. Goudge J.A.”
Released: January 28, 2002
DOHERTY J.A. (Dissenting):
68The respondent, a young offender, pleaded guilty to robbery. He was found guilty and placed on probation for 18 months. One of the terms of his probation required the respondent to report to a probation officer. He reported as required for a while and then stopped reporting. He knew he was required to report to his probation officer and he knew the consequences of failing to report when he chose to stop reporting to the probation officer. The respondent was charged with wilfully failing to comply with the probation order contrary to s. 26 of the Young Offenders Act, R.S.C. 1985, c. Y-1 (“Y.O.A.”).
69The case against the respondent seemed open and shut. However, his counsel pointed out that the Crown had failed to prove that the respondent’s lawyer at the robbery proceedings had been provided with a copy of the disposition order as required by s. 20(6) of the Y.O.A. He submitted that the failure to provide the lawyer with a copy of the order entitled the respondent to escape liability for his wilful and knowing breach of the terms of his probation. The trial judge agreed and dismissed the charge. The summary conviction appeal court judge agreed and dismissed the Crown’s appeal. My two colleagues also agree and would dismiss the appeal. I dissent. I would grant leave to appeal and allow the appeal.
I
70Section 20 of the Y.O.A. sets out the various dispositions available to a youth court that finds a young person guilty of an offence. Section 20(1)(j) authorizes the court to “place the young person on probation”. Probation orders made under s. 20(1)(j) are governed by the provisions of s. 23 of the Y.O.A. Those provisions include s. 23(3) which provides:
23(3) Where the youth court makes a probation order under paragraph 20(1)(j), it shall
(a) cause the order to be read by or to the young person bound by the probation order;
(b) explain or cause to be explained to the young person the purpose and effect of the order and ascertain that the young person understands it; and
(c) cause a copy of the order to be given to the young person and to a parent of the young person, if the parent is in attendance at the proceedings against the young person.
71Section 23(3) was complied with in this case.
72Section 20(6) of the Y.O.A. is applicable to all dispositions, including probation orders. It provides:
20(6) Where a youth court makes a disposition under this section, it shall state its reasons therefor in the record of the case and shall
(a) provide or cause to be provided a copy of the disposition, and
(b) on request, provide or cause to be provided a transcript or a copy of the reasons for the disposition
to the young person in respect of whom the disposition was made, the young person’s counsel and parents, the provincial director, where the provincial director has an interest in the disposition, the prosecutor and, in the case of a custodial disposition made under paragraph (1)(k) or (k.1), the review board, if a review board has been established or designated.
73It is agreed that counsel for the respondent did not receive a copy of the disposition as required in s. 20(6).
74After the respondent was found guilty of robbery, the youth court judge placed him on probation and set out the terms of that probation. Subsequent to the making of the probation order in court by the youth court judge, the clerical staff of the youth court prepared two documents. Both documents were prepared by filling in blanks on pre-printed forms authorized for use under a regulation passed pursuant to the Y.O.A. 14 One of the documents, a Form 11, is described in the regulations as “an order of disposition” and is said to be referable to s. 20(1) of the Y.O.A. That is the section that sets out all of the dispositions available under the Act, including probation. The Form 11, however, makes no reference to a probation disposition. The Form 11 prepared in this case does not indicate that the respondent was placed on probation and does not refer to any of the terms of the probation order except the community service requirement. Form 11 contains boxes showing the distribution of that form. The respondent’s Form 11 showed that his parents got a copy of the document, but that counsel did not receive a copy. The respondent was represented by duty counsel and duty counsel’s name does not appear anywhere in the material that would be available to the clerical staff when it completed the forms. This explains why counsel did not receive a copy of the Form 11. 15
75The second document prepared by the clerical staff, a Form 12, is described in the regulations as “a probation order” and is said to be referable to paragraph 20(1)(j) of the Y.O.A. That is the section which provides for a probation disposition. The pre-printed Form 12 identifies the disposition imposed on the respondent (probation for 18 months) and has attached to it a copy of the probation order signed by the youth court judge setting out all of the terms and conditions of the probation order, including the community service requirement. The Form 12 is signed by the respondent who acknowledges that the document has been explained to him. The respondent also signed a document called a “disposition acknowledgement” indicating he was aware that a failure to comply could result in prosecution and that he had the right to a review under s. 32. A copy of the Form 12 was provided to the respondent and to his “parent in attendance”.
76The case has proceeded from the outset on the basis that the Form 11 was the “copy of the disposition” referred to in s. 20(6) and that the Form 12 was the probation order referred to in s. 23(3) of the Act. While it is irrelevant to my ultimate determination of this appeal, I do not think that the Form 11 prepared in this case can be described as a “copy of the disposition” imposed on the respondent. The Form 11 makes no reference to probation at all. I think the Form 12 which does indicate the actual disposition imposed on the respondent and the terms of that disposition should be regarded as the “copy of the disposition” referred to in s. 20(6). 16
II
77I agree with my colleague, Cronk J.A., that compliance with s. 20(6) is mandatory. I also agree that the Y.O.A. places special emphasis on the availability of counsel to assist a young person at the various stages of proceedings under the Y.O.A. I do not agree that a failure to provide counsel with a copy of the disposition renders the order unenforceable or otherwise immunizes a young person from conviction where he or she wilfully breaches a term of probation.
78As is often the case, the outcome of the analysis of the problem presented on this appeal depends on one’s starting premise. I begin from the principle that the determination of criminal liability should not be akin to a game of procedural “snakes and ladders” where the outcome is unconnected to the merits of the allegation. Young persons, like anyone else, should not escape responsibility for their criminal actions because of an administrative error that has nothing to do with the merits of the allegation, and in no way compromises the young person’s ability to defend against the charge or the fairness of the proceedings. 17 In certain situations, our law recognizes that policy concerns demand that criminal allegations should be disposed of on grounds other than the merits. The circumstances in which those policy considerations will override the imperative to arrive at a disposition on the merits, however, should be limited to situations where the applicable statutory language clearly demands it, or the policies served by allowing a guilty person to escape responsibility are compelling. 18 Consequently, I do not begin my analysis by asking whether Parliament has specifically provided that non-compliance with s. 20(6) should not affect the respondent’s criminal liability. Instead, I ask whether Parliament has clearly indicated that non-compliance should preclude a determination of a criminal charge on its merits, or whether the policy underlying s. 20(6) demands that accused persons escape liability for their criminal conduct.
III
79With the principle expressed above in mind, I turn to R. v. M.(L.A.) (1994), 1994 8731 (ON CA), 92 C.C.C. (3d) 562 (Ont. C.A.), a case in which this court held that a young person should escape liability for failure to comply with a probation order because his parent did not receive a copy of the probation order.
80In R. v. M.(L.A.), supra, there was non-compliance with s. 23(3)(c) of the Y.O.A. The section is similar to s. 20(6). For convenience, I will set out the two sections side by side:
Section 20(6) of the Y.O.A.
Section 23(3) of the Y.O.A.
20(6) Where a youth court makes a disposition under this section, it shall state its reasons therefor in the record of the case and shall
(a) provide or cause to be provided a copy of the disposition, and
(b) on request, provide or cause to be provided a transcript or copy of the reasons for the disposition
to the young person in respect of whom the disposition was made, the young person’s counsel and parents, the provincial director, where the provincial director has an interest in the disposition, the prosecutor and, in the case of a custodial disposition made under paragraph (1)(k) or (k.1), the review board, if a review board has been established or designated.
23(3) Where the youth court makes a probation order under paragraph 20(1)(j), it shall
(a) cause the order to be read by or to the young person bound by the probation order;
(b) explain or cause to be explained to the young person the purpose and effect of the order and ascertain that the young person understands it; and
(c) cause a copy of the order to be given to the young person and to a parent of the young person, if the parent is in attendance at the proceedings against the young person.
81Section 20(6) applies to all dispositions made under the Y.O.A. It requires that:
the youth court shall give reasons for the disposition;
the youth court shall provide a copy of the disposition to the young person, his or her parents, the young person’s counsel, the prosecutor, and sometimes the provincial director and review board; and
that upon request, the youth court shall provide a transcript of the reasons for disposition to any person entitled to a copy of the disposition.
82Section 23(3) applies only to probation orders. It requires that:
the probation order shall be read to the young offender and its purpose and effect explained to the young person so that he or she can understand it; and
that a copy of the probation order shall be given to the young person and to the parent of the young person if the parent is in attendance at the proceeding.
83Section 20(6) requires that a copy of the disposition order be given to a number of persons who can be generically described as those persons with an interest in the disposition or some potential future involvement in the disposition. The requirement in s. 20(6) that a parent receive a copy of the disposition order refers to all parents as defined in the Y.O.A. Section 23(3) is limited only to those parents who were in attendance at the proceedings. 19
84In R. v. M.(L.A.), supra, at pp. 572-74, 576, Arbour. J.A. described both s. 20(6) and s. 23(3) as “mandatory”. She was careful, however, not to decide what consequences, if any, should flow from non-compliance with s. 20(6) of the Y.O.A. Arbour J.A. was also not concerned with non-compliance involving the failure to provide persons other than the parents as described in s. 23(3) of the Y.O.A. with the required document, or with dispositions other than probation orders.
85Although R. v. M.(L.A.), supra, has not been followed in other jurisdictions, 20 its correctness is not challenged on this appeal. The question to be decided is whether the failure to provide a young person’s lawyer with a copy of the disposition order as required by s. 20(6) should have the same effect as the failure to give a young person’s parent a copy of the probation order as required in s. 23(3).
86The question is not resolved by the characterization of s. 20(6) as “mandatory”. Although Arbour J.A. described s. 23(3) as mandatory, she did not hold that the failure to comply with the mandatory terms of that section automatically rendered the probation order unenforceable or otherwise immunized the young person from prosecution for failure to comply with the probation order. She considered the enforceability of the order in the context of a subsequent prosecution for breach of the order as a discrete question that was not answered simply by reference to the mandatory nature of the section. In deciding the effect of failing to provide a copy of the probation order to parents who had attended the proceedings as required by s. 23(3)(c), Arbour J.A. looked to the purpose underlying the requirement that such parents receive a copy of the probation order. She said at pp. 575-76:
… The purpose behind the parent’s entitlement is to give effect to the general principles expressed in the statute that parents have a responsibility for the supervision of their children, and that young persons are entitled to the guidance and assistance of their parents. In my opinion, this is particularly so when the young offender is compelled to perform community service and is otherwise bound by the conditions of a probation order. The Act contemplates that more than self-discipline may be called upon to ensure compliance. Parental guidance and supervision is an entitlement designed to facilitate that compliance. It seems to me that the consequences of failing to comply with the duty to inform the entitled parent is on equal footing with the failure to inform the young person of what is expected of him or her.
… The failure in compliance with the mandatory terms of s. 23(3)(c) is therefore more than a mere procedural irregularity. Rather, it offends an important principle in the Act and may make compliance with the probation order more onerous to the immature youth than it would have been had the parent been properly notified. [Emphasis added.]
87In her analysis, Arbour J.A. tied the requirement that the parent receive a copy of the probation order directly to parents’ statutory obligation set out in s. 3(1)(h) of the Y.O.A. to provide care and supervision for their children. For a young person on probation, that supervision was “an entitlement designed to facilitate compliance” with the probation order. Without that supervision, compliance was “more onerous”. Arbour J.A. saw s. 23(3)(c) as the means of ensuring that parents were sufficiently aware of the terms of the probation order to provide the supervision and guidance needed to facilitate compliance with the probation order by the young person. The direct link between compliance with the probation order by the young person and the providing of a copy of the probation order to the parent fashioned by Arbour J.A., drove her conclusion that a failure to provide the parent with a copy of the probation order should preclude a conviction for non-compliance with the probation order.
88The connection between compliance by the young person with the probation order and the providing of a copy of that order to his or her parent finds additional support from two other sources. First, s. 23(3)(a) and s. 23(3)(b) address matters which are clearly intended to ensure that the young offender is in a position to properly comply with the probation order. Those subsections are designed to make sure that the young person understands the terms of the order. It is a fair inference that s. 23(3)(c), like the other two subsections, serves the purpose of promoting the young offender’s compliance with the order.
89Second, s. 23(3)(c), unlike s. 20(6), is addressed only to parents who were in attendance at the proceedings or who are otherwise considered by the youth court to have a sufficient interest in the proceedings. Unlike some parents who have not had any interest in the proceedings, but are still entitled to receive a copy of the disposition order under s. 20(6), the subset of parents identified in s. 23(3)(c) are presumably those who are seen as being sufficiently involved in the young person’s life to be in a position to exercise the supervision and guidance during the tenure of the probation order needed to facilitate compliance with that order.
90I do not think that the purpose underlying s. 23(3) as identified in R. v. M.(L.A.), supra, is the same as the purpose underlying s. 20(6). Section 23(3) is a very specific provision. It targets only probation orders. Probation orders by their nature impose limits and place requirements on the young person over an extended period of time. Those orders govern the young person’s conduct. During the tenure of the order, there is no direct state control over the young person, but he or she is under the supervision of his or her parents. Section 23(3)(c) looks to parents who have a statutory duty to supervise their children and are in a position to provide supervision and guidance to their children to facilitate the young person’s compliance with the probation order.
91Section 20(6) refers to all dispositions, including custodial dispositions. Custodial dispositions do not engage compliance concerns like those associated with a probation order. A young person sentenced to a custodial term falls under the direct supervision of the state. Parents have no role to play in facilitating compliance with a custodial term.
92Section 20(6) also requires that copies of the disposition be given to persons who have no ability to supervise the young person and no responsibility for the ongoing supervision of the young person. For example, neither prosecutors nor the review board have any role to play in ensuring that a young person complies with any disposition that was imposed on the young person.
93In my view, the requirement in s. 20(6) that the named persons receive copies of the disposition is aimed at two things, both of which foster the proper and effective operation of the disposition scheme created by the Y.O.A. First, the requirement provides a means by which those present when the youth court made the disposition can ensure that the order generated by the clerical staff accurately reflects the disposition imposed. Errors can be made and it is crucial that the disposition order accurately reflect the disposition imposed as that order will become the operative document in subsequent proceedings involving the disposition.
94Second, the persons referred to in s. 20(6) have various post-disposition responsibilities and rights. The fulfilment of these responsibilities and the exercise of these rights is furthered by providing these persons with an accurate copy of the disposition. The prosecutor and counsel for the young person have the responsibility of ensuring that the disposition order is accurate. The prosecutor and the young person have certain post-disposition rights of review and appeal, eg. s. 27, s. 28, s. 28.1, s. 29(2), s. 32. The provincial director has numerous post-disposition responsibilities and rights of review, eg. s. 24.1(3), s. 24.2(9-12), s. 24.5, s. 26.1, s. 26.2, s. 28(1) and (2), s. 28(7), s. 29. The parents of a young person also have certain rights to initiate proceedings to alter or review dispositions, eg. s. 25, s. 28(3), s. 28(6), s. 28.1, s. 29(2), s. 32. The review board, where one exists, also has certain post-disposition responsibilities, eg. s. 30.
95By providing the persons identified in s. 20(6) with a copy of the disposition order, s. 20(6) seeks to promote the co-ordinated and effective operation of the overall disposition scheme established by the Y.O.A. That scheme begins with the imposition of the disposition, but extends beyond to potential appeals, reviews, and variations. Section 20(6) seeks to ensure that all involved in this overall disposition scheme begin with an accurate record of the disposition imposed.
96In holding that the reasoning in R. v. M.(L.A.), supra, should be extended to s. 20(6) and to the failure to provide the young person’s lawyer with a copy of the disposition order, my colleague refers to counsel’s obligation to advise the young person of “the meaning, propriety and consequences” of the disposition imposed. She contends that counsel’s role as a legal adviser encourages compliance by the young person with all dispositions and, in particular, with probation orders.
97While I can agree that counsel has a professional obligation to advise the young person of the meaning and consequences of an order imposed by the court, the Y.O.A. does not entrust that obligation to counsel in so far as it affects the enforcement of probation orders. Instead, s. 23(3) of the Y.O.A. places that obligation squarely on the court. If the court does not fulfill its obligations the young person cannot be prosecuted for breach of probation regardless of what counsel may have told him. Equally, in my view, if the court does comply with its obligations under s. 23(3), it is irrelevant to the appellant’s liability for breach of probation what, if anything, his lawyer told him about his obligations.
98I also cannot agree that s. 20(6) is designed to facilitate the giving of legal advice with respect to the meaning of dispositions or the remedies available to challenge those dispositions. Section 20(6) says nothing about when or how counsel is to be provided with a copy of the disposition. In the normal case, I would think that counsel would not be present when the disposition order is prepared. Presumably, he or she will receive the copy at some later time. Nothing in the Y.O.A. compels any communication between counsel and the young person after counsel receives a copy of the disposition order. In many cases, counsel will not see his or her client after the court proceeding is completed. Certainly, this is the case where the young person is represented by duty counsel. If s. 20(6) was designed to facilitate the giving of legal advice to a young person in respect of the disposition, I would think that it would have put some obligation on counsel to at least communicate with the young person after counsel received the copy of the disposition.
99I also cannot read s. 20(6) as having any connection to the young person’s right to legal advice as to post-disposition remedies which may be available to the young person. The young person is certainly entitled to that advice and it may be that trial counsel has a professional obligation to offer it, but nothing in s. 20(6) is directed to post-disposition remedies. Nor, in my view, can it be said that giving a copy of the disposition order to trial counsel, who as I said above may never see the client after the disposition is made in court, facilitates the giving of legal advice as to the available remedies.
100Lastly, and perhaps most importantly, counsel does not have any supervisory role to play in relation to the ongoing conduct of the young person after the disposition. It is this supervisory role and its particular significance in the context of a probation order that led Arbour J.A. to the conclusion she reached in R. v. M.(L.A.), supra. Unlike parents, counsel has no statutory obligation to provide ongoing supervision and guidance to clients who happen to be young persons. This essential difference between the role of counsel and the role of parents makes the reasoning in R. v. M.(L.A.), supra, inapplicable to the failure to provide counsel with a copy of the disposition.
101There are also significant practical difficulties with an interpretation of s. 20(6) that makes compliance with that section a prerequisite to the validity of a disposition. Cronk J.A. alludes to one, the effect of a failure to provide the prosecutor with a copy of the disposition. While I agree with her observation that the prosecutor has important post-disposition duties, I do not see any connection between the performance of those duties and the young person’s obligations under the disposition or his rights to either parental supervision and assistance or legal advice. If, however, s. 20(6) has the effect that the majority describes, it must follow that a failure to provide the prosecutor (or the provincial director or the review board) with a copy of the disposition will enable the young person to breach that disposition with impunity.
102There are other practical problems. For example, s. 20(6) declares that the youth court must give reasons for its disposition. That requirement is also framed in mandatory language. If a youth court fails to give reasons, can the young person simply ignore the disposition? If a custodial disposition is imposed, can the young person walk away from the institution, or successfully bring a habeas corpus application? I shudder at the suggestion that a young person convicted of, for example, first degree murder is entitled to escape any responsibility for that murder because the youth court judge failed to give reasons.
103Section 20(6) also directs that persons named in the section shall, on request, be provided with a copy of the reasons for the disposition. In Ontario, it is not unusual to wait weeks or even months for transcripts of reasons. What is the status of the disposition pending receipt of the transcript by a person named in s. 20(6) who has requested a copy of the transcript? If compliance with s. 20(6) is a prerequisite to the validity or enforceability of the disposition, it must follow that a disposition cannot be enforced against the young person pending receipt of the transcript. Returning to the hypothetical example of the young person convicted of first degree murder, there may be weeks or even months between the making of the order and the availability of the transcript. If s. 20(6) has the effect described by my colleagues, the state will have no ability to enforce that order against the young person pending receipt of the transcript. During that time period, the young person could not be held in custody under the authority of the disposition. This result would hardly inspire confidence in the operation of the Y.O.A. and perhaps more to the point, would run directly against s. 20(2) of the Y.O.A. that provides that unless otherwise ordered, a disposition comes into force on the day it is made.
IV
104For the reasons set out above, I would not immunize a young person from responsibility for non-compliance with a probation order because of a failure to provide his lawyer with a copy of the disposition. In so holding, I do not suggest that compliance with s. 20(6) is not important or that it will never have any consequences. The state has an obligation to comply with s. 20(6). Those to whom that obligation is owed are entitled to insist upon compliance with s. 20(6) and to seek whatever legal remedies are appropriate to enforce compliance. Furthermore, if in a given case non-compliance with s. 20(6) has some actual impact on a young person’s ability to comply with the disposition, or adversely affects some post-disposition entitlement of the young person, that non-compliance will give rise to legal remedies and perhaps in the appropriate case a dismissal of a charge for non-compliance with the order.
V
105I would grant leave to appeal, allow the appeal, and quash the order dismissing the charge. As the Crown seeks only a new trial, I would direct a new trial on the charge of failure to comply with the probation order.
“Doherty J.A.”
Footnotes
- SOR/86-818, Can. Gaz. Part II, at 3187.
- The Supreme Court of Canada has recognized the importance of the principles embodied in s. 3 of the YOA and has confirmed that that section is to be given the force usually attributed to substantive legislative provisions. It is not to be interpreted as a mere preamble (see R. v. T. (V.), [1992] 1 S.C.R. 749 and R. v. M. (J.J.), [1993] 2 S.C.R. 421).
- Moreover, s. 51 of the YOA provides that, except to the extent that they are inconsistent with or excluded by the YOA, “all the provisions of the Criminal Code apply, with such modifications as the circumstances require, in respect of offences alleged to have been committed by young persons”.
- Thus, for example, the provisions of s. 21 are linked to fines and compensation which may be ordered to be paid by a young person under the authority of ss. 20(1)(b), (c), (e) or (f), or to community service ordered under s. 20(1)(g), while ss. 24 to 24.5 are linked to custodial dispositions under ss. 20(1)(k) or (k.1). In turn, s. 23 is linked to dispositions in the nature of probation orders made under the authority of s. 20(1)(j). Sections 26.1 to 26.6 are linked to custodial dispositions made under s. 20(1)(k.1), including conditional supervision.
- In other instances under the YOA, a youth court is authorized to dispense with otherwise applicable notice requirements. Such authority exists under ss. 9(9) and 28(16) of the YOA. However, in neither of these instances is the relevant notice required to be given to counsel.
- Arbour J.A. reached a similar conclusion in R. v. M. (L.A.), at 575, concerning the intended meaning of s. 23(3)(c) of the YOA.
- The same distinction does not exist under s. 9(8) of the YOA, because the notices to be given under s. 9 are not required to be given to counsel.
- See R. v. P. (J.), unreported, April 11, 1995 (Ont. Prov. Ct.); R. v. C. (L.), unreported, May 18, 1995 (Ont. Prov. Ct.); and R. v. W. (R.), unreported, March 26, 1994 (Ont. Prov. Ct.). In the latter case, R. v. M. (L.A.) was relied upon to enter an acquittal on a charge of breach of a probation order where no evidence was proffered to establish that counsel for a young person had been provided with a copy of the order of disposition.
- As observed by Nicholas Bala in Young Offenders Law (Irwin Law: 1997), at 168, in the due process model of justice reflected in the YOA “legally trained professionals inevitably play a key role”. See also, to the same effect, Priscilla Platt’s treatise on Young Offenders Law in Canada, 2nd ed., (Butterworths: 1995), at 309, in which the author states “clearly Parliament has placed a high value on the provision of legal advice to young people. This is reflected in the provisions of the Act which contemplate that young persons will be apprised of and avail themselves of all the rights available to them under the justice system”.
- See, for example, ss. 4(d), 9(6), 11(2), 11(3), 11(9), 12(1)(b), 16.1(6), 26.1(8), 28(13), 31(2), 32(5) and 56(2)(b)(iii).
- See, for example, ss. 11(4)(b), 11(8) and 12(5).
- See, for example, ss. 13(4)(a), 13.2(2)(a) and (b), 14(5), 20.1(6), 26.1(11) and 26.6(3).
- Driedger refers, at 163-164, to Thomson v. Canada (Minister of Agriculture) (1992), 89 D.L.R. (4th) 218 (S.C.C.) for illustration of reliance by the courts on this principle.
- S.O.R./86-818, s. 3.
- The trial judge refused to distinguish, for the purposes of s. 20(6), between duty counsel and counsel retained by the young person. I agree that no distinction can be drawn.
- Herold J., in the summary conviction appeal court, referred to the forms prescribed under the regulation as “somewhat deficient” where the disposition is probation. Others have made the same point: eg. see R. v. L.C., unreported May 18, 1995 (Ont. Ct. (Prov. Div.)) August J.; R. v. J.P., unreported April 11, 1995 (Ont. Ct. (Prov. Div.)) Johnston J. I agree with these comments. As near as I can tell, Form 11 as presently designed has no application where the disposition is an order of probation standing alone. The Form 11 prepared in this case not only does not refer to probation, but is misleading to the extent that it suggests that the community service order was a separate disposition made under s. 20(g) of the Y.O.A. and not a term of the probation order.
- Section 3(1)(a.1) of the Y.O.A. specifically recognizes that young persons who commit offences should bear responsibility for their actions.
- The very limited circumstances in which a stay of proceedings is an appropriate remedy under s. 24(1) of the Charter for a constitutional violation reflect this strong presumption: eg. see R. v. Power, [1994] 1 S.C.R. 601 at 615, R. v. O’Connor, [1995] 4 S.C.R. 411.
- Section 23(4) provides that a youth court may direct that parents other than parents who attended at the proceeding receive a copy of the probation order if the court is satisfied that those parents are “taking an active interest in the proceedings”.
- R. v. K.H. (1997), 153 Nfld. and P.E.I.R. 28 (Nfld. Youth Ct.); R. v. A.(D.C.) (2000), 2000 ABCA 99, 143 C.C.C. (3d) 302 (Alta. C.A.), leave to appeal to S.C.C. refused October 5, 2000, (2001), 147 C.C.C. (3d) vi.
