WARNING
THIS IS AN APPEAL UNDER THE
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: 20030319
DOCKET: C38874
COURT OF APPEAL FOR ONTARIO
RE: Her Majesty the Queen (Respondent) – and – M. C. (A Young Person) (Appellant)
BEFORE: MCMURTRY C.J.O., MORDEN AND CRONK JJ.A.
COUNSEL: Carol-Ann Bauman,
for the appellant
David North,
for the respondent
HEARD: March 11, 2003
On appeal from the order of Justice Fournier of the Ontario Youth Court, Kirkland Lake, dated September 5, 2002.
E N D O R S E M E N T
Released Orally: March 11, 2003
[1] This Crown appeal involves the interpretation of s. 16(1.02) of the Young Offenders Act. The Crown argues that no oral application for a transfer to youth court of the trial in this case, within the meaning of s. 16(1.01) of the Young Offenders Act, was made in court by defence counsel on July 5, 2002. First, the Crown asserts that the attendance in court on July 5, 2002 was not before a “youth court” as that term is defined under s. 2 of the Young Offenders Act because the proceedings on that date were before a justice of the peace. Second, the Crown submits that in order to comply with s. 16(1.02), it must be clear at the time of the oral application that the application is a s. 16(1.01) application. The Crown argues that was not the case here.
[2] We agree with Crown counsel that the procedure for an oral transfer application as contemplated by s. 16(1.02) of the Young Offenders Act requires that the application be
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made in youth court. The term “youth court” is defined under s. 2 of the Young Offenders Act as “a court established or designated by or under an Act of the legislature of a province, or designated by the Governor in Council or the Lieutenant Governor in Council of a province, as a youth court for the purposes of this Act.” The Courts of Justice Act provides in s. 21.12(2) that the Family Court “shall continue as a youth court for the purposes of the Young Offenders Act (Canada) with respect to all proceedings that were commenced in the Family Court under that Act before the day the Courts of Justice Amendment Act (Improved Family Court), 1998 [was] proclaimed in force.” Further, the Courts of Justice Act provides in s. 38(3) that the Ontario Court of Justice is a youth court for the purposes of the Young Offenders Act (Canada). No similar statutory provision exists concerning justices of the peace.
[3] Having regard to that statutory scheme, proceedings over which justices of the peace preside are not “youth courts” for the purpose of an application under s. 16(1.01) of the Young Offenders Act. Accordingly, we reverse and set aside the decision of Justice Fournier dated September 5, 2002, without prejudice to a defence application under s. 16(1.01) of the Young Offenders Act.
“Roy McMurtry C.J.O.”
“J. W. Morden J.A.”
“E.A. Cronk J.A.”