Supreme Court of Canada

Attorney General of Quebec v. Lechasseur et al., [1981] 2 S.C.R. 253

Date: 1981-11-03

The Attorney General of the Province of Quebec Appellant;

and

The Attorney General of British Columbia, the Attorney General for Alberta and the Attorney General for Saskatchewan Interveners (supporting the Attorney General of Quebec);

and

His Honour Judge Guy Lechasseur and the Youth Court for the District of Terrebonne Respondents;

and

Yolande Touchette, Jean Bergeron and the Director of Youth Protection Mis en cause;

and

The Attorney General of Canada Intervener (supporting the respondents).

1981: October 6; 1981: November 3.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law—Youth protection—Whether the Youth Protection Act could operate in the face of the Juvenile Delinquents Act where a young person who by reason of his age was within both Acts under a charge of an indictable offence—Validity of s. 455 of the Criminal Code—Sections 40, 60, 61, 74 of the Youth Protection Act inoperative—British North America Act, s. 91(27)—Youth Protection Act, 1977 (Que.), c. 20, ss. 40, 60, 61, 74, 75—Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 129, 455—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, ss. 3, 39.

Following an information laid by Dame Yolande Touchette, one Jean Bergeron, then under 18 years of age, was charged with robbery under s. 302(b) of the Criminal Code and s. 3 of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3. Judge Lechasseur of the Quebec Youth Court rejected a defence contention that the

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Youth Protection Act, 1977 (Que.), c. 20, precluded consideration of a complaint against a person under age 18 not brought in accordance with that Act. He held that the Juvenile Delinquents Act prevailed in the circumstances and that he was entitled to act on the information laid by the victim of the robbery. The application of the Attorney General of Quebec for prohibition was denied by Legault J. of the Quebec Superior Court and an appeal to the Quebec Court of Appeal was dismissed.

Held: The appeal should be dismissed.

The effect of the joint application of the Juvenile Delinquents Act and Criminal Code, s. 455, is to make ss. 40, 60, 61 and 74 of the Youth Protection Act inoperative because they cannot, under the circumstances herein, stand consistently with relevant and valid federal prescriptions. That there would be a conflict between the two enactments is obvious.

Section 455 of the Criminal Code is valid federal legislation. It is competent in relation to the criminal law, including procedure in a criminal matter. The section makes it possible for a charge of an indictable offence to be brought before a justice of the peace or for a magistrate to consider the issue of a summons or a warrant in respect of the charge. The criminal process is thus initiated and this initiation is integral to the process.

Section 39 of the Juvenile Delinquents Act, which allows the application of otherwise valid provincial legislation, preserves the paramountcy of this Act in the case of a charge of an indictable offence. The fact that the section speaks of a juvenile who has not been guilty of an indictable offence under the Criminal Code cannot mean that prior guilt is a condition of the application of the federal Act. Such a construction would erode it before it could have any effect.

Attorney General of British Columbia v. Smith, [1967 65 (SCC)], [1967] S.C.R. 702; Lund v. Thompson, [1958] 3 W.L.R. (U.K.) 594; R. v. Hauser, [1979 13 (SCC)], [1979] 1 S.C.R. 984; R. v. Aziz, [1981 170 (SCC)], [1981] 1 S.C.R. 188, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec[^1], affirming a judgment of the Superior Court[^2], refusing a writ of prohibition to be issued. Appeal dismissed.

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Henri Brun, Louis Crête and Paul Monty, for the appellant.

Donald L. Clancy and Peter A. Insley, for the intervener the Attorney General of British Columbia.

William Henkel, Q.C., for the intervener the Attorney General for Alberta.

Bryan Schwartz, for the intervener the Attorney General for Saskatchewan.

Yvan Cousineau, for the mis en cause the Director of Youth Protection.

Diane Piché, for the mis en cause Yolande Touchette.

Raynold Langlois, James Mabbutt and Bernard Gravel, for the intervener the Attorney General of Canada.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal, which is here by leave, arises out of an information laid by the mis en cause Yolande Touchette, charging one Jean Bergeron, then under age 18, with robbery. The information invoked Criminal Code, s. 302(b) and s. 3 of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3. Judge Lechasseur of the Quebec Youth Court rejected a defence contention that the Youth Protection Act, 1977 (Que.), c. 20 applied to preclude consideration of a complaint against a person under age 18 not brought in accordance with that Act. He held that the Juvenile Delinquents Act prevailed in the circumstances and that he was entitled to act on the information laid by the victim of the robbery.

The Attorney General of Quebec, who had intervened in the proceedings before Judge Lechasseur, sought prohibition which was denied by Legault J. of the Quebec Superior Court. An appeal to the Quebec Court of Appeal was dismissed. On leave being given to come here, four questions were posed for this Court’s determination, as follows:

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1. Are sections 40, 60, 61 and 74 of the Quebec Youth Protection Act (S.Q. 1977, Chap. 20) ultra-vires the Legislature of Quebec?

2. Is section 455 of the Criminal Code (R.S.C. 1970, Chap. C-34) ultra-vires the federal Parliament?

3. If sections 40, 60, 61 and 74 of the Quebec Youth Protection Act and section 455 of the Criminal Code are held valid, are the aforementioned sections of the Quebec Youth Protection Act constitutionally operative?

4. Does section 129 of the Criminal Code render sections 40, 60, 61 and 74 of the Quebec Youth Protection Act inoperative?

The Youth Protection Act is a comprehensive statute directed to the protection of children, defined to mean persons under age 18. It provides for the appointment of directors of youth protection who are given broad powers to take protective measures in the interests of children whose security or development is considered to be in danger as delineated in s. 38. Sections 40, 60, 61 and 74, referred to in the first and third questions before this Court, are as follows:

40. If a person has reasonable cause to believe that a child has committed an offence against any act or regulation in force in Québec, the director shall be seized of the case before the institution of any judicial proceeding.

41. Any decision concerning the directing of a child shall be taken jointly by the director and a person designated by the Ministre de la justice in the following cases:

(a) where an act contrary to any law or regulation in force in Québec is imputed to the child;

(b) where the parents of the child or the child himself, if he is fourteen years of age or older, disagree on the voluntary measures proposed;

(c) where the director believes it advisable to seize the Court of the case of the child except where he must compel the parents or the child to consent to the application of an urgent measure contemplated in the second paragraph of section 47.

The director and the person designated by the Ministre de la justice under the first paragraph, the Comité or the arbitrator designated by it in the case contemplated in paragraph f of section 23 shall not seize the Court of

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the case of a child less than fourteen years of age for an act contrary to any act or regulation in force in Québec.

The person designated by the Ministre de la justice under the first paragraph shall not act in any capacity whatever in a judicial proceeding involving a child about whom a decision in which he participated was taken.

61. In the cases provided for in section 60, the director and the person appointed by the Ministre de la justice shall decide

(a) to commit the child to the care of the director for the application of voluntary measures;

(b) to seize the Court of the case; or

(c) to close the record.

74. Except in the cases of urgency contemplated in section 47, the Court shall be seized of the case of a child whose security or development is considered to be in danger or to whom an act contrary to any act or regulation in force in Québec is imputed, only by the director acting in cooperation with a person designated by the Ministre de la justice, by the Comité or by the arbitrator designated by it in the case contemplated in paragraph f of section 23.

The Court may be seized of the case of a child by the child himself or his parents if they disagree with

(a) a joint decision of the director and a person designated by the Ministre de la justice or a decision of the arbitrator designated by the Comité under paragraph f of section 23, or

(b) the decision to prolong the period of voluntary foster care in a reception centre or a foster family.

Judge Lechasseur, in his reasons denying the provincial contention, agreed that the protection and welfare of children fell within provincial legislative competence but, at the same time, such provincial provisions as were set out in ss. 60, 61 and 74 of the Youth Protection Act could not operate where competent federal juvenile delinquency legislation applied, as it did in the case before him. The validity of the Juvenile Delinquents Act had been upheld by the Supreme Court of Canada in Attorney General of British Columbia v. Smith[^3]. Morever, the right to lay an information in respect of an alleged indictable offence was one of the rights recognized by Parlia-

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ment in Criminal Code, s. 455, reading as follows:

455. Any one who, on reasonable and probable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside, within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

In the result, Judge Lechasseur held that the Youth Protection Act was unconstitutional in respect of those of its aspects that were before him.

Legault J. of the Quebec Superior Court, in refusing the request for prohibition to Judge Lechasseur, held similarly, in extensive reasons, that ss. 40, 60, 61 and 74 of the Youth Protection Act were invalid in the face of the Juvenile Delinquents Act and Criminal Code, s. 455. In affirming the refusal of prohibition, Turgeon J.A. of the Quebec Court of Appeal, Lajoie J.A. concurring, pointed out that although the Youth Protection Act has a valid provincial object, it cannot in its application abrogate or supersede the application to juveniles of the federal Juvenile Delinquents Act in respect of criminal matters, as in this case, arising out of an information charging an indictable offence. It was not open to the Province to deal with this particular matter non-judicially when the federal enactment prescribed judicial treatment. There was, in his view, a direct conflict between the provincial Act and the federal Act and the former must give way. McCarthy J.A., in

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concurring reasons, referred to the validity of Criminal Code, s. 455 and to the incompatibility of the relevant provisions of the Youth Protection Act with s. 455. This was enough to dispose of the appeal without challenging the intrinsic validity of the Youth Protection Act.

Two central issues emerged in the course of the hearing in this Court, issues similar to those that engaged the courts below. The first was whether the Youth Protection Act, and especially the four sections set out above, could operate in the face of the Juvenile Delinquents Act where a young person who, by reason of age, was within both Acts under a charge of an indictable offence. The second issue, related to the first, was whether Criminal Code, s. 455, authorizing the laying of an information respecting the alleged commission of an indictable offence, was valid federal legislation or, even if valid, could have effect as against the Youth Protection Act and the particular provisions thereof set out above.

No attack is made against the validity of the federal Juvenile Delinquents Act. It is enough to refer here to one of its key provisions, s. 3(1), reading as follows:

3. (1) The commission by a child of any of the acts enumerated in the definition “juvenile delinquent” in subsection 2(1), constitutes an offence to be known as a delinquency, and shall be dealt with as hereinafter provided.

If it applies to the facts herein, in association with Criminal Code, s. 455, it must follow that the specified sections of the Youth Protection Act become inoperative. That there would be a conflict between the two enactments is, to me, obvious. Although question 1 poses a direct issue of validity or invalidity, I do not think such an assessment is required in the present case. The impugned provisions are part of a statute which, in its relation to child welfare and child protection, appears to be within provincial legislative competence. I would

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be loathe to fasten on any particular provisions as being per se unconstitutional rather than as courting inoperability because they cannot, under the circumstances herein, stand consistently with relevant and valid federal prescriptions.

It was suggested in the factum of the intervening Attorney General of Canada that the Youth Protection Act itself yields to the paramountcy of the Juvenile Delinquents Act by reason of the second paragraph of s. 75 of the former Act. Section 75 is as follows:

75. Where an act contrary to any act or regulation of Québec is imputed to a child, the provisions of the Summary Convictions Act (Revised Statutes, 1964, chapter 35) not inconsistent with this division apply, mutatis mutandis.

Where an act contrary to any act or regulation of Canada is imputed to a child, the Juvenile Delinquents Act applies.

In the other cases, the Court shall be seized by the filing of a sworn declaration containing, if possible, the names of the child and of his parents, their address, their ages and a summary of the facts justifying the intervention of the Court.

Every officer of the Court and every person working in an establishment must, when so required, assist a person who wishes to file a declaration under the third paragraph.

I do not have to come to a conclusion on the merit of this contention but I am bound to say that the explanation of the second paragraph of s. 75 given by counsel for the Attorney General of Quebec is appealing. The explanation, shortly put, is that s. 75 does not come into play until Court proceedings are taken and that it has no application where the provincial authorities intervene before the institution of judicial proceedings. This, of course, is the main contention of the Attorney General of Quebec and it requires consideration of whether it is open to a province to preclude federally authorized proceedings by introducing provincial adjustment or corrective machinery of its own in place of or in advance of judicial proceedings. On this view of the matter, it is unnecessary to pursue the application of s. 75 either in the terms

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advanced by the Attorney General of Canada or by the Attorney General of Quebec.

Criminal Code, s. 455, thus becomes the pivotal provision, leading as it does to the application of s. 3(1) of the Juvenile Delinquents Act and other associated provisions which it is unnecessary to set out. Section 455 has already been set out above. The validity of this provision is challenged as being an invasion of provincial legislative authority in relation to “the administration of justice in the Province” under s. 92(14) of the British North America Act. Whatever this provision encompasses it cannot be invoked to interfere with the legislative authority of Parliament in relation to the criminal law, including the procedure in criminal matters, bestowed by s. 91(27) of the British North America Act and so bestowed notwithstanding, inter alia, anything in s. 92. Is then s. 455 a provision respecting criminal procedure as included in the governing grant of authority in relation to the criminal law?

Criminal Code, s. 455, is a long standing provision. It was in the original Code of 1892 as s. 558 and, as federal legislation, had its origin in 1869 (Can.), c. 30, s. 1; and see also The Criminal Procedure Act, R.S.C. 1886, c. 174, s. 30. Beyond this, it has its roots in English criminal law (see The Indictable Offences Act, 1848 (U.K.), c. 42, s. 1, replaced by the Magistrates’ Courts Act, 1952, 1952 (U.K.), c. 55, s. 1, (Criminal Jurisdiction and Procedure)) and reflects a fundamental precept in the right of an ordinary citizen, the victim of a criminal offence, to lay an information against the offender: see Lund v. Thompson[^4], per Diplock J. Members of the community were thus given a role in the enforcement of public order, and their involvement in the criminal process carried over into Canadian prescriptions adopted by the Parliament of Canada.

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That the present s. 455, no less than its forerunners, is within federal competence as an exercise of power in relation to the criminal law, including procedure in a criminal matter, appears to me to be incontestable. The section makes it possible for a charge of an indictable offence to be brought before a justice of the peace or a magistrate to consider the issue of a summons or a warrant in respect of the charge. The criminal process is thus initiated and this initiation is integral to the process.

It is beside the point that an Attorney General may stay proceedings initiated by the victim of a crime. That does not tell in favour of the provincial jurisdiction asserted in the present case, nor does it impeach the validity of s. 455. Nothing in this case engages the issues canvassed in R. v. Hauser[^5] or in R. v. Aziz[^6].

Although a question was put as to whether Criminal Code, s. 129, rendered ss. 40, 60, 61 and 74 of the Youth Protection Act inoperative, that issue fell away during the course of the argument in this Court. Indeed, I can see no ground upon which s. 129 could be brought into account to challenge the administration by provincial public officials of the aforementioned provisions of the Youth Protection Act. This can readily be seen from a mere perusal of s. 129 which reads as follows:

129. Every one who asks or obtains or agrees to receive or obtain any valuable consideration for himself or any other person by agreeing to compound or conceal an indictable offence is guilty of an indictable offence and is liable to imprisonment for two years.

The situation is, of course, different with respect to the conjoint application of the Juvenile Delinquents Act and Criminal Code, s. 455. Their effect is to make the provincial provisions inoperative in the present case.

One further point should be mentioned. Emphasis was laid upon s. 39 of the Juvenile Delinquents Act as itself making way for the application of

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otherwise valid provincial legislation. Section 39 is as follows:

39. Nothing in this Act shall be construed as having the effect of repealing or overriding any provision of any provincial statute intended for the protection or benefit of children; and when a juvenile delinquent, who has not been guilty of an act that is under the provisions of the Criminal Code an indictable offence, comes within the provisions of a provincial statute, he may be dealt with either under such statute or under this Act as may be deemed to be in the best interests of the child.

I can construe this provision in no other way than as preserving the paramountcy of the Juvenile Delinquents Act in the case of a charge of an indictable offence. The fact that the section speaks of a juvenile who has not been guilty of an indictable offence under the Criminal Code cannot mean that prior guilt is a condition of the application of the federal Act. Such a construction would erode it before it could have any effect.

In the result, the appeal fails and must be dismissed with costs. There will be no costs to or against any of the interveners in this Court.

Appeal dismissed with costs.

Solicitors for the appellant: Boissonneault, Roy & Poulin, Montreal; Henri Brun and Jean‑François Jobin, Quebec.

Solicitor for the intervener the Attorney General of British Columbia: Richard H. Vogel, Victoria.

Solicitor for the intervener the Attorney General for Alberta: R.W. Pains ley, Edmonton.

Solicitor for the intervener the Attorney General for Saskatchewan: R.F. Gosse, Regina.

Solicitor for the mis en cause the Director of Youth Protection: Yvan Cousineau, St-Hubert.

Solicitor for the mis en cause Yolande Touchette: Diane Piché, St-Jérôme.

Solicitors for the intervener the Attorney General of Canada: James Mabbutt, Ottawa; Langlois, Drouin & Associés, Montreal.

[^1]: [1981] C.A. 72.

[^2]: [1980] C.S. 662.

[^3]: [1967 65 (SCC)], [1967] S.C.R. 702.

[^4]: [1958] 3 W.L.R. (U.K.) 594.

[^5]: [1979 13 (SCC)], [1979] 1 S.C.R. 984.

[^6]: [1981 170 (SCC)], [1981] 1 S.C.R. 188.