WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20031212

DOCKET: C37518 & C37519

COURT OF APPEAL FOR ONTARIO

WEILER, LASKIN and MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

John McInnes for the appellant

Appellant

• and -

J. J. R. (a young person) and N. G. (a young person)

Ricardo G. Federico

for the respondents

Respondents

Heard: November 12, 2003

On appeal from the ruling of Justice Michael H. Caney of the Ontario Court of Justice (sitting as a youth court judge) dated December 10, 2001.

MACPHERSON J.A.:

[1] On December 10, 2001, the respondents J. J. R. and N. G. entered guilty pleas to one count of forcible confinement contrary to s. 279(2) of the Criminal Code before Justice Michael H. Caney of the Ontario Court of Justice, sitting as a youth court judge. The Crown submitted to the youth court judge that he should make a DNA data bank order against each of the respondents pursuant to s. 487.051(1)(a) of the Code. The youth court judge declined. He held that he lacked jurisdiction to make the requested orders because forcible confinement was not an offence included in the list of “primary designated offences” in s. 487.04 of the Code.

[2] The Crown appeals the youth court judge’s ruling on this issue. The appeal raises three issues: (1) whether this court has jurisdiction to hear the appeal; (2) the merits of the ruling; and (3) the appropriate remedy if the appeal is allowed.

(1) Jurisdiction

[3] The respondents contend that this court has no jurisdiction to hear the Crown’s appeal of the youth court judge’s ruling.

[4] The respondents submit, correctly, that the jurisdiction of a court of appeal in criminal matters is purely statutory: see Kourtessis v. M.N.R. (1993), 1993 137 (SCC), 81 C.C.C. (3d) 286 at 294 (S.C.C.) and R. v. Thomas (1998), 1998 774 (SCC), 130 C.C.C. (3d) 225 at 236‑37 (S.C.C.).

[5] The respondents then point to the Code provision that governs this appeal:

487.054 The offender or the prosecutor may appeal from a decision of the court made under subsection 487.051(1) or 487.052(1).

The respondents say that the youth court judge did not make a judicial order under s. 487.051(1) of the Code, which is the provision relating to offences committed after the DNA data bank statutory regime came into force. He did not reach the factors set out in ss. 487.051(1) and 487.051(2) because he decided that the offence of forcible confinement was not an offence subject to the DNA data bank statutory regime.

[6] I disagree. It is true that the youth court judge did not consider the factors set out in ss. 487.051(1) and 487.051(2) of the Code. However, that does not mean that he did not make “a decision” within the meaning of s. 487.054. The youth court judge’s decision was that the statutory regime did not apply to the offence committed by the respondents. That decision is subject to appeal by the prosecutor: see R. v. Hendry (2001), 2001 21168 (ON CA), 161 C.C.C. (3d) 275 at para. 15 (Ont. C.A.), per Rosenberg J.A.

(2) The merits of the ruling

[7] I begin by noting that the respondents concede that the youth court judge erred in the substance of his ruling. Since I agree with this concession, and with the Crown’s position, my canvass of this issue can be brief.

[8] Before the youth court, the Crown invited the judge to exercise his jurisdiction to make DNA data bank orders against the young offenders on the basis that the offence to which they had pleaded guilty, forcible confinement contrary to s. 279(2) of the Code, was a primary designated offence.

[9] At the time of disposition, the definition of the term “primary designated offence” in s. 487.04 catalogued a long list of offences, including “(xvi) section 279 (kidnapping)”. The respondents contended at trial that the word “kidnapping” meant that only s. 279(1), which dealt with kidnapping, and not s. 279(2), which dealt with forcible confinement, was included in the DNA data bank statutory regime.

[10] The youth court judge accepted this submission:

[I]f parliament had intended to include in the primary designation all the offences in a named section it would have done so.

Kidnapping and forcible confinement are two distinct although similar offences.…Accordingly…it would be necessary to designate each clearly as either a primary designated offence or a secondary designated offence to enable this court to have the jurisdiction to make the order sought.

Having found that forcible confinement has not been specifically designated in either category, I am without jurisdiction to make the order and the application is dismissed.

[11] I agree with the youth court judge that although kidnapping and forcible confinement are both set out in s. 279 of the Code, they are distinct offences: see R. v. Tremblay (1997), 1997 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.). However, with respect, I do not think that the offence of forcible confinement is excluded from the catalogue of primary designated offences listed in s. 487.04 of the Code. The bracketed word “kidnapping” in the definition of the term “primary designated offence” in s. 487.04(a)(xvi) simply lifts the marginal note from the Criminal Code and uses it as a general description of the contents of subparagraph (xvi); it does not confine those contents to the kidnapping component of the offences contained in s. 279 of the Code.

[12] This interpretation is clear when one examines the entire catalogue of offences (both primary and secondary designated offences) listed in s. 487.04. When Parliament wanted to limit the application of the DNA data bank regime to only a particular offence contained in a section of the Code, it did so by expressly referring to the subsection or paragraph relating to that offence: see, for example, in the primary offence designations, s. 212(4) (juvenile prostitution), and in the secondary offence designations, s. 249(3) (dangerous operation causing bodily harm), s. 249(4) (dangerous operation causing death), s. 255(2) (impaired driving causing bodily harm), s. 255(3) (impaired driving causing death), s. 270(1)(a) (assaulting a peace officer) and s. 430(2) (mischief that causes actual danger to life). In short, Parliament clearly chose to use a section number when it meant an entire section, a subsection number when it intended to refer only to an offence in a subsection, and a paragraph letter when the focus was on an offence in a specific paragraph. Accordingly, in “(xvi) section 279 (kidnapping)”, “section 279” controls and “kidnapping” is simply a general description.

(3) Remedy

[13] The Crown submits that the appropriate remedy is to allow the appeal and to make orders under s. 487.051(1)(a) of the Code in respect of the respondents.

[14] The respondents contend that this court should not make the orders requested by the Crown because of s. 487.051(2) of the Code:

487.051(2) The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has established that, were the order made, the impact on the person’s or young person’s privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.

The respondents submit that there is no evidence before this court enabling it to make the assessment required by this provision.

[15] I agree. Normally, this would result in an order returning the matter to the youth court judge for determination. Sadly, this disposition is not possible because the youth court judge, an experienced and highly regarded jurist, passed away earlier this year. Counsel for both parties submit that, in these circumstances, there is nothing to bar an order that the matter be returned to a different youth court judge.

[16] I agree. It is not uncommon for this court to allow an appeal and remit the matter for further consideration by a different judge of the same court that has jurisdiction over the matter. I see no reason to doubt that such an order is appropriate in the circumstances of this appeal, given the death of the original presiding judge.

Disposition

[17] I would allow the appeals and remit the issue of potential orders pursuant to s. 487.051(1) of the Code to a different youth court judge.

[18] On October 15, 2003, Doherty J.A. ordered the appointment of counsel for the respondents for the appeals. Despite the short notice, Mr. Federico agreed to act. He represented the respondents in a capable fashion. He has submitted a statement of account for $4435.27, which includes counsel fees and disbursements. In my view, Mr. Federico’s account is appropriate and should be paid.

RELEASED: December 12, 2003 (“KMW”)

“J. C. MacPherson J.A.”

“I agree K. M. Weiler J.A.”

“I agree John I. Laskin J.A.”