Youth Criminal Justice Act Non-Publication Notice
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(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.
Criminal Code Non-Publication and Non-Broadcast Order
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Case Information
DATE: 2025-01-14
COURT FILE No.: Toronto Region 4810 998 23 Y4810596-00
BETWEEN:
His Majesty the King
— AND —
B. S., a young person
Before Justice Speyer
Heard on December 19, 2024
Ruling on Motion for Directions on section 11(i) of the Charter
Released on January 14, 2025
Counsel:
Liron Taub — counsel for the Crown
Michael Lacey and Marcella Ahumada — counsel for the young person
SPEYER J.:
[1] Following a trial, I found B.S. guilty of three offences: count 1, having sexual intercourse with a female who was not his wife without her consent, contrary to s. 143(a) of the Criminal Code; count 2, having sexual intercourse with a female who was not his wife and was under the age of fourteen, contrary to s. 146(1) of the Criminal Code; and count 3, having intercourse with a person who was related to him by blood, namely his sister, contrary to s. 150(1) of the Criminal Code. All three offences involve the rape of C.B. and were committed sometime between August 16, 1971 and August 17, 1973, when B.S. was between 15 and 17 years old.
[2] Had these charges been before the courts in 1973, B.S. would have been considered a “child”[^1] for any “delinquencies”[^2] he committed while under the age of 16. As such, he would have been tried and sentenced pursuant to the Juvenile Delinquents Act (JDA) that was then in effect. For offences committed after he turned 16, he would have been tried and sentenced as an adult under the Criminal Code. At that time, adults found guilty on count 1 and 2 were liable to a maximum sentence of life in prison and to 14 years in prison on count 3.
[3] The JDA was repealed in 1984. The current legislation governing youth court proceedings is the Youth Criminal Justice Act (YCJA). Under the YCJA, the court has jurisdiction over offences committed by a young person when they are between the ages of 12 and 17 years old, no matter how old they are at time of trial. Section 161 of the YCJA contains a transitional provision, making the applicable dispositions or sentences available under the YCJA applicable to a person found guilty of committing a “delinquency” when they were a child under the JDA.
[4] B.S. seeks a ruling that based on the guarantee contained in section 11(i) of the Charter of Rights and Freedoms, the maximum sentence that can be imposed on him is a period of probation, as that is the harshest sentencing option available under s. 20(1) of the JDA. While section 20(1)(i) of that Act allows for committal to an industrial school, that option is no longer available as there are no industrial schools in Canada.
[5] On the other hand, if B.S. is to be sentenced under the YCJA, section 42(2)(n) of that legislation permits a young person who is found guilty of an offence for which the maximum punishment is imprisonment for life, to be sentenced to a period of custody and supervision of up to 3 years, 2 years of which would be served in custody, followed by 1 year in the community under supervision. Indeed this is precisely the sentence the Crown is seeking on count 1. Moreover, since B.S. is now an adult over the age of 20, section 89(1) of the YCJA requires him to serve the custodial portion of the sentence in a provincial correctional facility for adults.
[6] B.S. argues that since the maximum available sentence under the JDA is lesser than the sentence options currently available under the YCJA, he is entitled to the protection afforded under s. 11(i) of the Charter, and he should be sentenced according to the provisions of the JDA.
[7] The Crown submits that by applying the proper definition of the term “punishment”, as that term has recently been interpreted by the Supreme Court of Canada, the YCJA provides the lesser punishment. Crown counsel argues that the JDA provided for indefinite detention of juvenile delinquents to industrial schools, which were in reality commitment to a custodial institution that also featured rehabilitative programming. Had B.S. been sentenced under that Act, he could have faced a significant restriction on his liberty of indefinite temporal duration, up to the age of 21.
Analysis:
[8] Section 11(i) of the Charter states:
Any person charged with an offence has the right …
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
[9] In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, the Supreme Court of Canada expanded the concept of “punishment” by adding a consideration of the impact of a sanction on a person’s liberty. It held that a measure or sanction constitutes “punishment” under s. 11(i) when it is (1) a consequence of a conviction that forms part of the arsenal of sanctions; and (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) has a significant impact on an offender’s liberty or security interests (para. 41). In order to satisfy this third requirement, a consequence of conviction must significantly constrain a person's ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public (para. 42).
[10] In R. v. Poulin, 2019 SCC 47, the Supreme Court of Canada provided an analytical framework within which to interpret the right under s. 11(i). It held that s. 11(i) confers a binary right requiring a comparison between “punishments” in force at the time of the offence and the ones in force at time of sentencing. Once that has been identified, the question then becomes which of these measures or sanctions constitute “punishment” in the sense contemplated by s. 11(i). In answering this question, the court must consider all aspects of the sentences available, including any ancillary orders. Once the various “punishments” for the offence have been identified, they must be compared and contrasted to determine which one reflects the “lesser” punishment.
[11] As pointed out by the Court in Poulin, at para 42, often the comparison is obvious in that one sentence allows for a shorter period of incarceration over the other. At other times, the determination of the lesser punishment requires a more nuanced approach with a view to all of the possible consequences facing an offender. The analysis may be further complicated if the lesser punishment contains any statutory prerequisite or if there are qualitative differences between the two regimes (paras 44-48).
[12] The Crown agrees that placing B.S. on probation in accordance with s. 20(1)(d) of the JDA is not akin to committal to custody. Indeed, the jurisprudence establishes that this section did not confer upon the sentencing judge the power to order a juvenile to be placed in a group home: see Peel et al. v. Viking Houses aff’d 1977 47 (ON CA) aff’d 1979 48 (SCC); Regional Municipality of Peel v. McKenzie et al..
[13] The issue before me is whether committal to an industrial or training schools, as they were also known, pursuant to s. 20(1)(i) of the JDA is tantamount to committal in custody for an indefinite term, up to the age of 21[^3], and is therefore a “punishment” as contemplated under s. 11(i) of the Charter. The Crown argues that given the possible length of time that a child could be committed to an industrial school, and the harsh conditions in those institutions, such a sentence was in fact a “punishment” of much longer duration than that available under the YCJA.
[14] In R. v. S.B., 3 C.C.C. (3d) 390, the BCCA considered whether a juvenile committed to an industrial school for potentially 5 years or more is subject to “punishment” by way of imprisonment such that they have the right to a trial by jury as guaranteed by s. 11(f) of the Charter. In concluding that committal to an industrial school is not tantamount to “punishment” by way of imprisonment, the court looked to the purpose of the Act, which was not to punish, but to treat and rehabilitate children. In reference to sections 3(2) and 38 of the JDA, the Court held:
The above provisions, when read in the context of the Act, clearly indicate that a juvenile is not to be treated as a criminal offender deserving of punishment but as "a misdirected or misguided child in need of aid, encouragement, help and assistance". The purpose of the Act is not to punish but to afford treatment. Such treatment may require that a juvenile be confined. It does not follow that confinement constitutes punishment. It is the purpose of the confinement that determines whether or not such confinement can be construed as punishment.
[15] Our Court of Appeal in R. v. D.T. [1984] O.J. No. 2592 agreed with and adopted the reasoning in R. v. S.B., supra. Other trial level courts have come to a similar conclusion: see R. v. R.S., 2005 YKTC 72; R. v. A.B.M., [1993] B.C.J. No. 2642; R. v. L.C., [2001] Y.J. No. 42; R. v. M.R.H., [2019] A.J. No. 280.
[16] In R. v. S.S., [1990] 2 S.C.R. 254, the Supreme Court of Canada recognized that the underlying premise of the JDA was the welfare of the child. The court cited excerpts from Justice and the Young Offender in Canada (1988), written by Joe Hundson, Joseph P. Hornick, and Barbara Burrows, at pages 4-5:
The juvenile court was to serve, in whatever manner deemed necessary, the best interests of the children who came before it. The court was to act as a kind of clinic, concerned with assessing and fulfilling the needs of its clients, as opposed to a criminal court concerned with due process and the protection of society. Delinquency was viewed as a product of the social environment and susceptible to treatment. The court's role under the JDA was to act on behalf of parents when the best interests of children were not being met. Thus the court took on the role of a "... stern but understanding parent."
The protective ideology was integral to the JDA. Indeed, the JDA is widely described as paternalistic. The parens patriae doctrine of the JDA "... emphasized treatment and minimized accountability (on the part of the young person)". Children were to be saved, not punished for their misdeeds. The parens patriae doctrine drew no distinction between criminal and noncriminal youth conduct, which supported the view that juvenile court proceedings were civil rather than criminal in nature. There was seen to be no need to differentiate between delinquent and neglected children. Rather, they were perceived by one of the original drafters of the JDA to be of the "same class"; the principal concern was to be on treatment (i.e. helping the child), with "minimal attention paid to accountability, or the justification for intervention".
[17] The Crown submits that the cases relied on by B.S. are not applicable as they predate K.R.J. and Poulin. These cases do not consider the expanded definition of “punishment”, which places a greater emphasis on the real impact of the sentence on the offender’s liberty. In its Response, the Crown cited academic articles and a 1965 Report to the Department of Justice Committee on Juvenile Delinquency. This material makes it clear that industrial schools were reformatory custodial institutions that were often lacking in adequate facilities and staff, in distant locations. The average length of stay in such institutions was two years.
[18] In assessing the nature of a sentence imposed under s. 20(1)(i) of the JDA, I found the case of R. v. R.S., [2005] Y.J. No. 95 (Territorial Court) to be useful. In that case, the court compared industrial schools to the lower level security facilities available under s. 85 of the YCJA, which are similar to “open custody” and “secure custody” facilities under the Young Offender’s Act. Citing a passage from Justice Corey in R. v. J.J.M., [1993] 2 S.C.R. 421, Justice Ruddy observed that while open custody facilities restrict the liberty of the young offender, those places are not simply jails for young people. Rather they are facilities dedicated to the long term welfare and reformation of the young offender.
[19] In applying these principles to the case before me, I find that s. 11(i) of the Charter requires me to sentence B.S. as a juvenile according to the provisions of the JDA. I am satisfied and find as a fact, that the JDA provides for the “lesser punishment”. In coming to this conclusion, I have considered and adopted the reasoning in R. v. S.B., supra, and R. v. D.T., supra. Clearly the objective and purpose of the JDA was not to punish children but to treat them. The Act simply did not allow for custodial sentences. The issue before the courts in those cases was whether a sentence under the JDA was a “punishment” for the purpose of the availability of a jury trial guaranteed by s. 11(f) of the Charter. Nonetheless, the Court in Poulin at para. 40 held that the term “punishment” is to be defined consistently across sections 11 and 12 of the Charter.
[20] On the other hand, one of the goals and objectives of the YCJA is to hold young persons accountable through the imposition of appropriate consequences, including a period of imprisonment in either a youth or adult facility, depending on the seriousness of the offence and the young person’s age at time of sentence.
[21] Section 39(1)(a) of the YCJA states that a Youth Court shall not commit a young person to custody unless the young person has committed a violent offence. B.S. has been found guilty of rape, which is a violent offence. On that offence, s. 42(2)(n) would allow me to sentence B.S. to a custody and supervision order of up to 3 years, 2 years of which would be served in custody. Indeed this is the sentence advocated by the Crown. Since B.S. is now an adult over the age of 20, section 89(1) of the YCJA requires that he serve the custodial portion of the sentence in a provincial correctional facility for adults. Thus the comparison is between committal to an industrial school versus committal to an adult facility.
[22] This is one of those cases referred to in R. v. Poulin, supra, that requires a more nuanced comparison between the two “punishments” beyond just comparing the length of sentences available. I accept that depending on their age, a juvenile might be subject to committal to an industrial school for longer than the 2 years of custody permitted under s. 42(2)(n) of the YCJA. Nonetheless, a qualitative comparison between those two options leads me to the inescapable conclusion that an adult facility constitutes a far greater restriction on a person’s liberty than that which they would face if they were committed to an industrial school. Thus, even on an expanded definition of punishment, I find that committal to an industrial school is the lesser punishment.
[23] There is one last issue in this matter that I must address. As previously stated, I found that B.S. committed the offences when he was between 15 and 17 years old. C.B. testified, and I accepted, that there were multiple incidents of rape. Unfortunately the evidence before me does not permit me to conclusively determine when precisely each of the offences were committed. If B.S. committed some or all of the rapes when he was 16 or older, he would have been tried and sentenced as an adult and subject to be sentenced to a maximum of life in prison under the Criminal Code. In that scenario, clearly the sentence allowed under s. 42(2)(n) of the YCJA would be the “lesser sentence”.
[24] The Crown has not argued that I should find B.S. to have committed all or some of the offences after he turned 16. There is insufficient evidence to support that conclusion. In the absence of such evidence, B.S. is entitled to be sentenced as a child pursuant to the JDA. Since we no longer have training or industrial schools, the maximum allowable sentence is a period of probation pursuant to s. 20(1)(d) of the JDA.
Released: January 14, 2025
Signed: Justice Speyer
[^1]: Juvenile Delinquents Act, R.S.J. 1970, c J-3, section 2(1) states that a "child" means any boy or girl apparently or actually under the age of sixteen years, or such other age as may be directed in any province pursuant to subsection (2).
[^2]: JDA, s. 3(1) states the commission by a child of any of the acts enumerated in the definition juvenile delinquent in subsection 2, constitutes an offence to be known as a delinquency, and shall be dealt with as hereinafter provided.
[^3]: S. 20(3) JDA