DATE: 20030107

DOCKET: C35539

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SIMMONS and GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

William Reid for the appellant

Respondent

• and -

A. A. (A Young Person)

Kim Crosbie for the respondent

Appellant

Heard: November 19, 2002

On appeal from the decision of Justice S. Casey Hill of the Superior Court of Justice dated November 28, 2000, reported at [2000] O.J. No. 4979.

GILLESE J.A.:

[1] Does a young person, when represented by counsel, have an absolute right to waive the reading of charges in proceedings in youth court? In a decision dated November 28, 2000, Justice Hill answered that question in the negative. A.A., the young person in this matter, appeals from that decision.

Background

[2] The appellant was charged with assault and sexual assault. At the time of his first appearance on those charges in the Brampton youth court, he was represented by counsel.

[3] Through counsel, A.A. waived the reading of the charges. Crown counsel consented to the waiving of reading of the charges.

[4] The presiding justice of the peace initially indicated that waiver was not permitted. He then gave counsel for the appellant the opportunity to make submissions on the matter. Counsel responded with legal argument based on s. 12(2) of the Young Offenders Act, R.S. C. 1985, c. Y-1, as amended. He maintained that a young person has an absolute right to waive reading of the charges. After being pressed by the justice of the peace to give a reason why A.A. wished the court to waive the reading of the charges, counsel indicated that the appellant’s request was based on his embarrassment about the charges.

[5] The justice of the peace read the charges. From a reading of the transcript of the proceedings, it appears that the justice of the peace did so on the basis that the court has a residual discretion to deny the waiver and order the charges read.

[6] A.A. brought an application for certiorari, asking the court to quash the ruling of the justice of the peace that the charges be read. The applications judge dismissed the application on the basis that a judicial officer retains discretion, as an incident of the court’s control over its own process, to read the charges against a young person even where there has been a waiver.

Relevant Legislation

[7] Section 12 of the Act sets out the process to be followed at a first appearance in youth court.

12.(1) A young person against whom an information is laid must first appear before a youth court judge or a justice, and the judge or justice shall

(a) cause the information to be read to the young person;

(b) where the young person is not represented by counsel, inform the young person of the right to be so represented; and

(c) where the young person is a young person referred to in subsection 16(1.01), inform the young person that the young person will be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence unless an application is made to the youth court by the young person, the young person’s counsel or the Attorney General or an agent of the Attorney General to have the young person proceeded against in the youth court and an order is made to that effect.

12.(2) A young person may waive the requirement under paragraph (1)(a) where the young person is represented by counsel.

The Decision Below

[8] In my view, the applications judge was correct in both result and reasoning. The most critical portion of those reasons bears repeating and so is set out below.

[13] The waiver option, linked as it is to legal representation, contemplates that counsel has in hand protection of the young person’s rights and advice as to the charge(s) and jeopardy faced. Despite the policy statements of s. 3 of the Act, and the helpful submissions of Mr. Reid, I am not persuaded that the objective of s. 12(2) of the Act is to place exclusively in the control of the young person the decision as to whether the charge(s) will be read in court.

[14] Counsel submitted that the young person, presumed to be innocent, should be entitled to avoid the embarrassment of a public reading of the charges faced. While maintenance of privacy and avoidance of embarrassment may be the young person’s purpose, or indeed an incidental benefit of a waiver of the charges being read, there must exist a residual discretion in the court to have the charges read aloud. This discretion, an incident of the court’s control of its own process, takes account of factors respectful of the rights of the young person as well as relevant public interest variables. This interpretation of s. 12 of the Act, advocates a case-by-case approach. Having said that, considering the protection presumptively afforded a young person where there exists an informed waiver, the right of the young person to participate in the process (s. 3(1)(e) of the Act), and considering that the charges will be read in open court on arraignment (s. 51 of the Act, s. 801(1) of the Criminal Code), it will be the exceptional case where the charges need be read at the young person’s first appearance.

[15] In the instance of an adult charged with a criminal offence, the information and the indictment are public documents and the media are, as a general rule, at liberty to inspect the charging document and to report, at the first court appearance of the accused, the identity of the accused and the charge(s) laid. In a young offender proceeding, it seems the court records, including the information, are unavailable for public inspection (ss. 41, 44.1 of the Act) and the media are prohibited from publishing or broadcasting the identity of the young person or any information revealing his or her identity (s. 38 of the Act). Where the charge or charges are not read aloud at a young person’s first appearance, the public, including the media and members of the community present in the courtroom, will receive no information as to the nature of the charge or charges laid by the authorities. These circumstances detract substantially from the open court principle.

[16] The presiding judicial officer, at the young person’s first appearance, may, seeing the harried condition of duty counsel as she or he attempts to deal with multiple defendants, or seeing or hearing aspects of possible miscommunication between retained counsel and the young person, wish the charge(s) read despite the statement of waiver. Apart from these circumstances of constructive non-representation by counsel, the court may observe in the demeanor of the young person a lack of appreciation of the seriousness of the charge(s) and the solemnity of the occasion justifying a reading aloud of the criminal accusation to get the young person’s attention.

[17] I would, as well, not wish to discount the importance, in rare cases, of an exercise of the court’s residual discretion to have the criminal charge(s) read aloud, despite waiver, to allow members of the public present in court to hear the charges(s) laid by the government. For example, widely held public concern that the local police force never lays charges in instances of gang violence or in cases of historical sexual assaults, or public concern that the police force engages in under-charging whenever the children of the local municipal councillors are brought before the court, may be dispelled at the outset by a reading of the charge(s) without in any fashion diminishing the force of the presumption of innocence.

[18] Where a judicial officer, in every first appearance by a young person with legal representation, despite an announced waiver, requires the charge(s) be read, there is an abuse of discretion. On the current record, there are strong indications that the presiding judicial officer was adhering to an invariable practice of this sort. However, given the submission by the Applicant’s counsel before me that he was not arguing the existence of jurisdictional error should this court hold that the court maintains a residual discretion to have the charge(s) read despite a waiver from the young person, no final determination need be made on this point. In other words, the Applicant was unprepared to advance an argument that the justice of the peace exercised an existing discretion in an arbitrary manner. In any event, having regard to the particular facts of this case, and considering the discretionary nature of the writ of certiorari, and the possible impact that the curative provisions in s. 485(1) of the Criminal Code may hold in retaining jurisdiction over the offences (Regina v. B.(J.E.), [1993] O.J. No. 3757 (C.A.)), the relief requested is denied. Some further observations are warranted on the particular facts of this case.

Analysis

[9] In addition to the reasons given by the applications judge, I would add the following three observations.

[10] First, the modern approach to construction of legislation was stated by E.A. Driedger in Construction of Statutes, 2^nd ed. (Toronto: Butterworths, 1983) at 87 and recently cited with approval in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 33.

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[11] Section 12 of the Act is designed to ensure that young persons understand the charges that they face. Section 12(1) directs the judicial officer presiding over a first appearance to have the charges against the young person read aloud in court. It is only when the young person is represented by counsel that s. 12(2) provides that the young person “may” waive the reading of the charge(s).

[12] The language of s. 12(2) is clearly permissive in nature, as demonstrated by the use of the word “may”. There is nothing in s. 12 to suggest that Parliament intended to limit the court’s jurisdiction to control its own process nor is there anything in its terms that suggests that the right of the represented young person to waive the reading is absolute. Clear language would be necessary, in my view, to derogate from the undisputed obligation and power of the presiding officer to control the court process. And, as the applications judge points out, there may be occasions when it is desirable to have the charges read even when a represented young person has requested a waiver under s. 12(2). Such situations include where the presiding officer is concerned about possible miscommunication between counsel and the young person or where it appears to the court that a young person may fail to appreciate the seriousness of the charges or solemnity of the court process.

[13] Section 3(2) of the Act states that the Act is to be construed in accordance with the principles set out in s. 3(1). Those principles recognize the special position of young persons and the need for protection of society. Section 12(2), when read in the context of the entire Act and particularly s. 3(1), reflects the need for a careful balancing of the interests of the young person with the need for protection of society. Thus, a contextual and purposive reading of s. 12(2) reinforces the conclusion that s. 12(2) is designed to give the young person a right of waiver without dictating that the presiding judicial officer is bound by the waiver. The permissive language in s. 12(2) is consonant with the obligation of the presiding officer to ensure that all relevant considerations are brought to bear when making decisions in respect of its processes. Recognition of the residual power of the presiding officer is a recognition that the presiding officer must consider and balance all relevant rights, including the right of waiver given to the represented young person.

[14] Second, the decision by the presiding officer to read the charges in the face of an express waiver is an exercise of discretion. As such, it must comply with the legal requirements that prevent an exercise of discretion from being arbitrary. The presiding officer must hear from both sides before coming to a decision. Hearing does not include an inquisitorial approach that requires counsel to disclose a young person’s reasons for requesting waiver. This is not to say that a young person’s motive or reason is necessarily irrelevant, however, the court does not have the right to invade solicitor-client privilege. The decision, as an exercise of discretion, brings with it an obligation to give reasons. The reading of charges when a young person is represented cannot be an invariable practice as that would amount to an improper fetter on discretion.

[15] Third, the reading of charges is not to be done as a form of punishment. Until found guilty of an offence, the presumption of innocence is operative. Punishment, therefore, is not properly considered at the time of the first appearance and to read the charges for such a purpose would be improper.

[16] I conclude by reiterating the applications judge’s observation that it would be rare for a judicial officer to have the charges read despite an express waiver. This is particularly true where, as in the instant case, the Crown has consented to the waiver.

Conclusion

[17] I would dismiss the appeal.

“E.E. Gillese J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Janet M. Simmons J.A.”

Released: January 7, 2003