R. v. M. (S.H.), [1989] 2 S.C.R. 446

S.H.M. Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. m. (s.h.)

File No.: 20508.

1989: April 27; 1989: September 28.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for alberta

Criminal law -- Young offenders -- Transfer to ordinary court ‑‑ Requirements -- Young offender just under 18 years of age charged with first degree murder -- Crown's application for transfer to ordinary court dismissed by Youth Court judge -- Youth Court's decision affirmed by Court of Queen's Bench but reversed by Court of Appeal -- Nature of burden on the Crown for transfer to ordinary court -- Nature of review on appeal -- Test for transfer -- Whether Court of Appeal erred in ordering youth to be transferred to ordinary court -- Young Offenders Act, S.C. 1980‑81‑82-83, c. 110, ss. 3, 16.

S.H.M. and an another youth, J.E.L., were charged with first degree murder and with possession of stolen property. The Crown brought an application to have them transferred to ordinary court pursuant to s. 16 of the Young Offenders Act. The Crown contended that on April 30, 1986, they accompanied a homosexual male to his home. The man allegedly attempted sexual relations with one of the youth who struck him and rendered him unconscious. The youths then bound the man with electrical wire, strangled him and concealed the body in the basement. They lived in the victim's house some days and tried to dispose of his stereo and computer equipment. S.H.M. was almost 18 years old at the time of the alleged offences. Emotionally he is described as being thirteen or fourteen. He had a prior conviction for two counts of gross indecency involving 9 and 10‑year‑old boys. S.H.M., who had a difficult childhood, claimed that he was also a victim of sexual abuse when he was younger. He was described by psychiatrists and social workers as an extremely self‑conscious, insecure young man. A social history report prepared on S.H.M. indicated that adult prison "will be destructive for this young person" and that "the combination of his immaturity, sexual identity confusion, and exaggerated need for approval by others will be disastrous for him in the prison culture".

The Youth Court judge considered the factors set out in s. 16(2) of the Act and the principles set out in s. 3 and declined to order the transfer. He concluded that there was a "heavy onus" on the Crown to establish why a transfer should be granted. The Court of Queen's Bench upheld the ruling. The Court of Appeal reversed the judgment. The court rejected the Youth Court judge's conclusion that there was a heavy onus on the applicant seeking an order for transfer and found that under s. 16(9) and (10) the provincial appellate courts must apply their own discretion in reviewing the circumstances of the case. After a review of the relevant factors and considerations, the court concluded that it was in "the interests of society, having regard to the needs of S.H.M.", that the youth be transferred to ordinary court. This appeal is to determine (1) whether there was a burden on the Crown to establish that the transfer should be made; (2) whether provincial reviewing tribunals have an independent discretion in deciding the question of transfer; and (3) whether Court of Appeal properly applied the test for transfer.

Held (La Forest and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.

Per Dickson C.J. and Lamer, Wilson, Sopinka, Gonthier, Cory and McLachlin JJ.: The Court of Appeal did not err in the view it took of the nature of the burden on the Crown. The party seeking transfer to ordinary court must persuade the court that, having regard to the factors set out in s. 16(2) and (3) of the Act, the case should be transferred. While, in this sense, there is a burden on the party seeking transfer, the burden should not be regarded as a heavy one. Section 16 does not confine the transfer to ordinary court to exceptional cases but is consistent with the conclusion that transfer must appear as the right or proper solution. The question is whether the judge is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court.

The Court of Appeal was correct in its conclusion that the Act conferred on it the discretion to independently evaluate whether a transfer should be made. Section 16(9) and (10) of the Act empowers the superior court of the province to review the decision of the Youth Court judge and, "in its discretion", to confirm or reverse it. The Court of Appeal has the same mandate in reviewing the decision of the superior court judge. While the reviewing court must base its decision on the findings of fact made by the Youth Court judge and give due deference to that judge's evaluation of the evidence, the Act confers on the provincial reviewing court a discretion to make an independent evaluation and to arrive at an independent conclusion on those facts. This involves evaluation, not only of whether the court below made an error of law or jurisdiction, but of whether its conclusions are correct based on the factors set out in the Act.

The Court of Appeal properly applied the relevant factors for transfer from Youth Court to ordinary court. The court considered the seriousness of the offence, as well as the age of the accused and the inappropriateness of a three‑year sentence under the Act (given the heinous nature of the alleged crimes), to be important factors. But the court also properly bore in mind all the factors which must be considered under s. 16. It is inevitable that, in the course of the review, some factors will assume greater importance than others, depending on the nature of the case and the viewpoint of the tribunal. The Act does not require that all factors be given equal weight, but only that each be considered.

This Court has no power under the Act to substitute its discretion for that of the court below. The jurisdiction of the Court is limited to correction of error in the proceedings below.

Per La Forest and L'Heureux‑Dubé JJ. (dissenting): The transfer of a youth to ordinary court should only be ordered in exceptional cases. In view of the history, purpose and basic philosophy of the legislation as well as the English and French texts of s. 16(1), the transfer of a youth to ordinary court under s. 16 must propose itself to the Youth Court judge's mind as the only appropriate solution. The decision to release a youth to the ordinary criminal enforcement process represents an abdication by the youth system of its exclusive jurisdiction to deal with young offenders and deprives the youth of his entitlement to the rehabilitative philosophy and treatment resources of the system specially designed to meet his needs. Here, the Court of Appeal misconceived the burden of proof required for a transfer. Section 16 sets a threshold more onerous than simply "favouring" transfer. The burden falls squarely on the applicant to persuade the Youth Court that no solution other than transfer is appropriate in the circumstances of a particular case. The Court of Appeal's error pervaded its assessment of the evidence relating to the elements to be considered in s. 16.

Under s. 16(9) and (10) of the Act, a provincial reviewing court is not authorized to substitute its own evaluation of the circumstances for the evaluation of the Youth Court. The scope of the discretion to review a matter properly brought into appeal must be interpreted in light of the general economy of the Act and of the legislative grant of exclusive jurisdiction to a specialized tribunal empowered to make the initial determination at the transfer hearing. The discretion to confirm or reverse the decision of the Youth Court under s. 16(9) and (10) can only be exercised in cases where there is a serious ground for intervention. Errors of fact as well as errors of law would constitute such serious grounds, but the test is intended to allow a somewhat broader basis for review. In some cases, it could allow the discretion to review to be exercised where there is a substantial discrepancy between the reviewing court's and the Youth Court's assessment of the relevant factors. This test recognizes the privileged position of the transfer hearing judge in determining questions of fact in the Youth Court's area of expertise and makes fitting allowance for the judge's familiarity with the resources of the youth care system, while at the same time breathing life into the right of appeal.

In this case, the Court of Appeal erred in proceeding on the basis that it could simply substitute its own appreciation as to whether a transfer should be ordered. The Youth Court judge considered the factors set out in s. 16(2) and was convinced that the Crown had failed on its burden to show why a transfer should be ordered. In the Young Court judge's view, the element of seriousness of the offence and the circumstances surrounding it, which favoured transfer, were outweighed by the other elements, which were either neutral or weighed against transfer. The available treatment facilities and the character of the youth gave rise to a sufficient likelihood that treatment would be successful. As the youth would not be likewise amenable to rehabilitation in the ordinary penal system, the balancing test under s. 16(1) and (2) required that S.H.M. not be transferred. This is a case where the additional expertise of the Youth Court and its privileged situation in assessing the expert testimony should have prevailed over only minor differences of opinion in the Court of Appeal. No error of law or of fact was committed by the Youth Court. In the absence of any serious ground for intervention, this conclusion should have determined the fate of S.H.M. as regards his transfer to the ordinary court system.

Cases Cited

By McLachlin J.

Referred to: MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460.

By L'Heureux‑Dubé J. (dissenting)

Attorney General of British Columbia v. Smith, 1967 CanLII 65 (SCC), [1967] S.C.R. 702; Kent v. United States, 383 U.S. 541 (1966); R. v. Chamberlain (1974), 1974 CanLII 1421 (ON CA), 15 C.C.C. (2d) 379; R. v. Cole (1975), 1975 CanLII 1480 (SK CA), 25 C.C.C. (2d) 140; R. v. Boisvert (No. 2) (1981), 1981 CanLII 3193 (QC CA), 63 C.C.C. (2d) 362; R. v. Smith (1975), 1975 CanLII 1349 (MB CA), 28 C.C.C. (2d) 368; R. v. R.M.C. (1987), 1987 CanLII 6821 (MB CA), 33 C.C.C. (3d) 136; R. v. N.B. (1985), 1985 CanLII 3508 (QC CA), 21 C.C.C. (3d) 374; R. v. A. (1986), 3 Q.A.C. 16; R. v. W.Y. (1988), 4 W.C.B. (2d) 267; R. v. S.J.H. (1986), 1986 CanLII 6962 (NS SC), 76 N.S.R. (2d) 163; R. v. M. (1985), 1985 CanLII 3512 (MB CA), 23 C.C.C. (3d) 538; R. v. M.A.Z. (1987), 1987 CanLII 6770 (ON CA), 35 C.C.C. (3d) 144; R. v. J.R.D. (1988), 17 Q.A.C. 81; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722; Minister of National Revenue v. Wrights' Canadian Ropes, Ltd., 1946 CanLII 345 (UK JCPC), [1947] A.C. 109 (P.C.), aff'g 1946 CanLII 41 (SCC), [1946] S.C.R. 139; Rowntree Co. v. Paulin Chambers Co., 1967 CanLII 100 (SCC), [1968] S.C.R. 134; Canadian Motorways Ltd. v. Laidlaw Motorways Ltd., 1973 CanLII 26 (SCC), [1974] S.C.R. 675; R. v. L.A.M. (1986), 1986 CanLII 4688 (BC CA), 33 C.C.C. (3d) 364.

Statutes and Regulations Cited

Act respecting Arrest, Trial and Imprisonment of Youthful Offenders, S.C. 1894, c. 58, preamble, ss. 2, 3.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 157, 218(1) [rep. & sub. 1973‑74, c. 38, s. 3; rep. & sub. 1974‑75‑76, c. 105, s. 5], 246 [am. 1972, c. 13, s. 22; rep. & sub. 1980‑81‑82‑83, c. 125, s. 19], 295 [rep. & sub. 1972, c. 13, s. 23], 313(a) [rep. & sub. 1972, c. 13, s. 28; rep. & sub. 1974‑75‑76, c. 93, s. 30; rep. & sub. 1985, c. 19, s. 50], 609 [am. 1972, c. 13, s. 55; am. 1974‑75‑76, c. 105, s. 17; 1985, c. 19, s. 141].

Juvenile Delinquents Act, R.S.C. 1970, c. J‑3, ss. 4, 9, 26, 37, 38.

Juvenile Delinquents Act, R.S.C. 1952, c. 160, ss. 9, 26, 38.

Juvenile Delinquents Act, R.S.C. 1927, c. 108, ss. 23, 33.

Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, preamble, ss. 7, 22, 31.

Juvenile Delinquents Act, 1929, S.C. 1929, c. 46, ss. 9, 26, 37, 38.

Prisons and Reformatories Act, R.S.C. 1906, c. 148.

Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41 [am. 1974‑75‑76, c. 18, s. 5].

Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 2(1) "ordinary court", "young person", "youth court", 3, 5, 16.

Authors Cited

Béliveau, Pierre and Jacques Bellemare and Jean‑Pierre Lussier. On Criminal Procedure. Translated by Josef Muskatel. Cowansville, Que.: Éditions Yvon Blais Inc., 1982.

Bowker, Marjorie Montgomery. "Waiver of Juveniles to Adult Court Under the Juvenile Delinquents Act: Applicability of Principles to Young Offenders Act" (1987), 29 Crim. L.Q. 368.

Canada. Department of Justice Committee on Juvenile Delinquency. Juvenile Delinquency in Canada. Ottawa: Queen's Printer, 1965.

Canada. Solicitor General's Committee on Proposals for new legislation to replace the Juvenile Delinquents Act. Young Persons in Conflict with the Law. Ottawa: Ministry of the Solicitor General, 1975.

Grand Robert de la langue française, 2^e éd. Paris: Robert, 1986, "exiger", "imposer".

Morley, Jane. "Transfer of Children to the Ordinary Criminal Courts: A Case of Legislative Limbo" (1979), 5 Queen's L.J. 288.

Reid, Robert F. and Hillel David. Administrative Law and Practice, 2nd ed. Toronto: Butterworths, 1978.

APPEAL from a judgment of the Alberta Court of Appeal (1987), 1987 ABCA 114, 35 C.C.C. (3d) 515, 78 A.R. 309, [1987] 5 W.W.R. 136, setting aside a judgment of Miller A.C.J.Q.B. rendered January 9, 1987, affirming a judgment of a Youth Court Judge (1986), 17 W.C.B. 322, dismissing the Crown's application for transfer to ordinary court pursuant to s. 16 of the Young Offenders Act. Appeal dismissed, La Forest and L'Heureux‑Dubé JJ. dissenting.

Richard A. Stroppel, for the appellant.

Jack Watson, for the respondent.

McLachlin J.

The judgment of Dickson C.J. and Lamer, Wilson, Sopinka, Gonthier, Cory and McLachlin JJ. was delivered by

MCLACHLIN J. -- This appeal concerns the requirements for transfer of young offenders from Youth Court to ordinary court under the Young Offenders Act, S.C. 1980-81-82-83, c. 110.

S.H.M. and an another youth, J.E.L., were charged with first degree murder and with possession of stolen property. The Crown brought an application to have them transferred to ordinary court pursuant to s. 16 of the Young Offenders Act. The Crown contended that on April 30, 1986, they accompanied a homosexual male to his home. The man allegedly attempted sexual relations with one of the youth who struck him and rendered him unconscious. The youths then bound the man with electrical wire, strangled him and concealed the body in the basement. They lived in the victim's house some days and tried to dispose of his stereo and computer equipment. S.H.M. was almost 18 years old at the time of the alleged offences. Emotionally he is described as being thirteen or fourteen. He had a prior conviction for two counts of gross indecency involving 9 and 10‑year‑old boys. S.H.M., who had a difficult childhood, claimed that he was also a victim of sexual abuse when he was younger. He was described by psychiatrists and social workers as an extremely self‑conscious, insecure young man. A social history report prepared on S.H.M. indicated that adult prison "will be destructive for this young person" and that "the combination of his immaturity, sexual identity confusion, and exaggerated need for approval by others will be disastrous for him in the prison culture".

The Youth Court judge considered the factors set out in s. 16(2) of the Act and the principles set out in s. 3 and declined to order the transfer. He concluded that there was a "heavy onus" on the Crown to establish why a transfer should be granted. The Court of Queen's Bench upheld the ruling. The Court of Appeal reversed the judgment. The court rejected the Youth Court judge's conclusion that there was a heavy onus on the applicant seeking an order for transfer and found that under s. 16(9) and (10) the provincial appellate courts must apply their own discretion in reviewing the circumstances of the case. After a review of the relevant factors and considerations, the court concluded that it was in "the interests of society, having regard to the needs of S.H.M.", that the youth be transferred to ordinary court. This appeal is to determine (1) whether there was a burden on the Crown to establish that the transfer should be made; (2) whether provincial reviewing tribunals have an independent discretion in deciding the question of transfer; and (3) whether Court of Appeal properly applied the test for transfer.

The Facts

The Crown alleges that on April 30, 1986 S.H.M. and J.E.L. accompanied a wealthy male of about fifty years of age to a store to rent two "adult" movies and then to his home. The man, a homosexual, was known to the youths. There is some evidence the man may have attempted sexual relations with J.E.L., whereupon J.E.L. struck the man in the head and stomach, rendering him unconscious. It is alleged that the youths then bound the man with electrical wire and strangled him with such force that a bone in his neck was broken. He died from asphyxiation by strangulation. The youths are alleged to have then taken the body to the basement of the house where they attempted to conceal it in a piece of carpet. They continued to reside in the victim's house at least until May 2, 1986 whilst commencing the wholesale disposition of the victim's stereo and computer equipment. The body was not found until two weeks later as a consequence of attempts by the owner of the video store to find out why the deceased had not returned the videos. A coroner placed the death on or about May 1, 1986.

S.H.M. was l7 years and 11 months old at the time of the alleged offence. He had a prior conviction for two counts of gross indecency involving two male children aged 9 and 10 years respectively, for which he had received a suspended sentence with three years' probation. His childhood appears to have been a difficult one. His father was a chronic alcoholic who left home when S.H.M. was 7 or 8 years old. S.H.M. claims that he had been the victim of sexual abuse by an older brother over a three-year period when he was 7 to l0 years old. A pre-disposition report prepared in 1984 when he faced the charges of gross indecency suggests that this experience severely traumatized S.H.M. and may have contributed to the acts which gave rise to his conviction. S.H.M. left home at a relatively early age, although there is some dispute between the appellant and his mother as to exactly when he did leave; he claims he was thrown out when he was 11 years old, while she states that he left of his own volition when he was 15. Part of the difficulty in obtaining an accurate history of his early years stems from his having a "tendency to deceit or exaggeration" related to attempts to gain sympathy. S.H.M.'s pre-disposition report quotes his mother as stating that S.H.M. is no longer welcome in the family home and she is not prepared to support him emotionally or financially in the future.

S.H.M. has been the subject of several studies and reports by psychiatrists, social workers and psychologists. The general picture that emerges is that of an extremely self-conscious, insecure young man. Laycraft C.J.A. in the Alberta Court of Appeal described him thus: "He is shy, introverted, self conscious, easily hurt and perceives himself to be isolated and disliked by his teachers and his peers". He has also been described as "passive", and "more a follower than a leader". Testing reveals his IQ to be at 84 which is "low average" or "dull normal". While his physical age at the time of the offence was almost eighteen, emotionally he is described as being thirteen or fourteen. The report prepared by the defence psychiatrist found that S.H.M. had a "predominantly neurotic personality, having feelings of inferiority, being insecure and unassertive, and hiding his feelings"; he is also seen as "pessimistic and possibly suicidal". A social history prepared by the Edmonton John Howard Society stated that adult prison "will be destructive for this young person" and that "[t]he combination of his immaturity, sexual identity confusion, and exaggerated need for approval by others will be disastrous for him in the prison culture".

Relevant Statutory Provisions

The Young Offenders Act specifies that a young person charged with a criminal offence is to be tried in Youth Court, rather than in ordinary court in accordance with the law applicable to an adult offender. The procedures in Youth Court differ from those in ordinary court in a number of respects. They are less formal, and are before a judge alone rather than before judge and jury. Moreover, the consequences of conviction in Youth Court are also much less severe than in ordinary court; the minimum disposition under the Criminal Code for the offence of first degree murder is life imprisonment in a federal penitentiary without eligibility for parole for 25 years, while the maximum disposition under the Young Offenders Act for any offence, including first degree murder, is three years in a youth detention centre.

The Young Offenders Act provides that in appropriate circumstances a young person may be transferred from Youth Court to ordinary court and tried in accordance with the law ordinarily applicable to an adult charged with the offence. Section 16(1) and (2) sets out the factors which the Youth Court judge shall consider in deciding whether or not to transfer a youth to adult court. These subsections provide:

16. (1) At any time after an information is laid against a young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 483 of the Criminal Code but prior to adjudication, a youth court may, on application of the young person or his counsel, or the Attorney General or his agent, after affording both parties and the parents of the young person an opportunity to be heard, if the court is of the opinion that, in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in ordinary court, order that the young person be so proceeded against in accordance with the law ordinarily applicable to an adult charged with the offence.

(2) In considering an application under subsection (1) in respect of a young person, a youth court shall take into account

(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed;

(b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act [c. J-3 of the Revised Statutes of Canada, 1970] or previous findings of guilt under this or any other Act of Parliament or any regulation made thereunder;

(c) the adequacy of this Act, and the adequacy of the Criminal Code or other Act of Parliament that would apply in respect of the young person if an order were made under subsection (1), to meet the circumstances of the case;

(d) the availability of treatment or correctional resources;

(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and

(f) any other factors that the court considers relevant.

In addition to considering the factors enumerated in s. 16, s. 3(2) of the Young Offenders Act requires that the Youth Court judge also consider the principles set out in s. 3(1) in deciding whether or not to transfer a youth to ordinary court. Section 3 provides:

3. (1) It is hereby recognized and declared that

(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;

(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;

(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;

(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;

(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;

(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and

(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.

(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).

Section 16 of the Act provides for review of the decision of the Youth Court judge; s. 16(9) provides for an appeal as of right to a judge of the provincial superior court; and s. 16(10) provides that the decision of the superior court may in turn be reviewed, with leave, by the Court of Appeal of the province. In each case the reviewing court is empowered not only to review the decision in question but to confirm or reverse it in its discretion. Section 16(9) and (10) reads as follows:

(9) Subject to subsection (11), an order made in respect of a young person under subsection (1) or a refusal to make such an order shall, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the youth court, be reviewed by the superior court and that court may, in its discretion, confirm or reverse the decision of the youth court.

(10) A decision made in respect of a young person by a superior court under subsection (9) may, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the superior court, with the leave of the court of appeal, by reviewed by that court, and the court of appeal may, in its discretion, confirm or reverse the decision of the superior court.

The Act makes no provision for the exercise of an independent discretion by this Court. In the absence of a special statutory jurisdiction, the usual rules governing this Court's interference with the exercise of judicial discretion by intermediate appellate courts apply. Interference with the exercise of such discretion is premised on error of law or jurisdiction in the court below. Moreover, this Court will interfere with the exercise of discretion by an intermediate court of appeal only "on those rare occasions when it perceives legal principles of national, and more particularly constitutional, significance to be at stake": MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460, at p. 510, per Wilson J. (in dissent, but not on this point). If these requirements are not met, this Court will not interfere with the exercise of judicial discretion conferred by statute on the court from which the appeal is brought. Thus, the scope for review by this Court is narrow.

Judgments

It is necessary to examine the decisions of the Youth Court judge and the justice of the Queen's Bench who reviewed that decision in some detail, in order to put in proper perspective the decision of the Court of Appeal which is under appeal.

Youth Court: Judge Gerhart

The Youth Court judge stated that in considering whether or not to transfer the appellant to adult court under s. 16(1) he was to take into consideration: the factors listed in s. 16(2) of the Young Offenders Act; the principles set out in s. 3; and a pre-disposition report pursuant to s. 16(3).

Relying on the Crown assertions, the Youth Court judge stated that the "seriousness of the alleged offences and the circumstances alleged surrounding their commission, without more, would seem to weigh in favor of a transfer". In his opinion, however, other factors indicated a contrary conclusion: "[o]n the whole, the evidence submitted with respect to the age, maturity, character, background, and record of the young person have not persuaded the Court that it is essential that S.H.M. be transferred to adult court". He stated that there was no evidence before the court with respect to the necessity for confinement for treatment longer than available under the Young Offenders Act, and that S.H.M. would be adequately treated in either the young offender or adult systems.

Having considered the factors relevant to determining if a transfer should be made, the Youth Court judge turned to the question of the onus upon the Crown to justify the transfer of the appellant from Youth Court to adult court. He concluded that there was a "heavy onus" on the Crown to establish why a transfer should be granted. In the result, he dismissed the application.

Alberta Court of Queen's Bench: Miller A.C.J.

Miller A.C.J. felt that the Provincial Court judge had canvassed the relevant considerations, and had addressed his mind to the appropriate legal principles. He detected no error of law and concluded that the Provincial Court judge had properly exercised his discretion. He confirmed the decision of the Youth Court judge.

Alberta Court of Appeal: Laycraft C.J.A., Hetherington and Irving JJ.A.

Laycraft C.J.A. delivered the judgment of the Court of Appeal, reversing the decision below and ordering that the charges be transferred to ordinary court: (1987), 1987 ABCA 114, 78 A.R. 309. He reviewed the salient provisions of the Young Offenders Act and noted that the legislation was designed to balance the interests of society with the interests of the young offender, which often conflict.

Laycraft C.J.A. rejected the Youth Court judge's conclusion that there is a heavy onus on the applicant seeking an order for transfer to ordinary court (at p. 316):

In my view it is not useful (and, indeed, not correct) to consider these basic conflicts in terms of onus as did Judge Gerhart. Unless a transfer order is made the case will remain in Youth Court; in this sense the Crown, which seeks to change the status quo, will not succeed unless it persuades the court that the balancing of the factors favours transfer. But I respectfully disagree with Judge Gerhart's view that the Crown was required "to discharge a heavy onus" or that it was helpful to consider whether the transfer order was "essential". That term connotes some sort of emergency to which a transfer to adult court was the only possible answer.

Laycraft C.J.A. was also of the opinion that the Queen's Bench judge had erred in concluding that the appeal should be dismissed because the Provincial Court judge had applied the proper principles. In his opinion, the provincial appellate court under s. 16(9) and (10) must apply its own discretion in reviewing the circumstances of the case. He stated (at p. 316):

Sections 16(9) and 16(10), in my opinion, establish different rules for the appellate tribunal than would usually apply. In each case the proceeding is a review rather than an appeal and in each case the appellate tribunal is specifically empowered "in its discretion" to confirm or reverse the decision brought before it. Each appellate tribunal has a new discretion to exercise. Of course, the appellate tribunals do not hear the evidence, de novo, and the usual rules will apply to pay deference to the advantage enjoyed by the trial judge in seeing and hearing the witnesses. I respectfully disagree, however, with the approach that this case could be answered, on the review in Court of Queen's Bench, by determining whether the Youth Court Judge had correctly stated the principles or the governing sections to be applied. The appellate judge had, himself, to exercise a discretion.

Turning to the factors required to be considered under s. 16 and s. 3 of the Act, Laycraft C.J.A. stated (at p. 316):

The "interest of society" to which the section refers includes the protection of society, itself, from the offender, as well as the enforcement of the standard of penalty which Parliament has seen fit to fix for first degree murder. That crime attracts the most serious sanction in our criminal law. The sanction sets forth the reaction of Canadian society to the crime, as seen by the enactment of its elected representatives. By contrast the three year maximum penalty prescribed by the Young Offenders Act may be seen, in some cases, as an absurdly inadequate response.

Nevertheless the needs of the young person must also be weighed in this balance. To a greater or lesser degree, depending on age and maturity, the young person is, as s. 3(d) [sic] reminds us, in a state of dependency and has special needs which require guidance and assistance and (as stated in s. 3(f)) the least possible interference with his freedom. In addition, s. 16(2) specifically commands the court to take into account the adequacy of the Young Offender's Act, or of the Criminal Code to deal with the young person in the circumstances of the case. Each of the other factors mentioned in s. 16 and in s. 3 must similarly be put in the balance.

Laycraft C.J.A. concluded with an acknowledgment of the difficulties inherent in the question of transfer (at p. 316):

In the end the question, easy to state but profoundly difficult to answer is: do all of the circumstances considered, taking into account the declarations of principle in s. 3 and the factors in s. 16, bring the court to the conclusion that it is in the interests of society, having regard to the needs of the young person, to make the transfer?

Having reviewed the relevant factors and considerations, Laycraft C.J.A. concluded that it was in "the interests of society, having regard to the needs of S.H.M." (p. 317), that the youth be transferred to ordinary court.

Issues

This appeal raises three issues. The first concerns the burden, if any, which the Crown must discharge to permit an order for transfer. The second concerns the nature of the review process prescribed by the Act -- namely, whether a court of review under s. 16(9) and (10) of the Act is confined to correction of error, or whether it exercises an independent discretion in deciding the question of transfer. The third issue is whether the Court of Appeal failed to properly apply the test for transfer established by s. 16 and s. 3 of the Act.

I propose to consider each question in turn.

Discussion

1. The Burden or Onus on the Applicant

Two questions are subsumed in this issue. The first question is whether the decision process under s. l6 is merely one of balancing the different factors listed in s. 16(2), or whether there is a burden on the applicant (usually the Crown) to establish that the transfer should be made? If the applicant must discharge such a burden, the second question arises as to the standard of proof, to be discharged. Is it the criminal standard, the civil standard, or some other variant?

The Youth Court judge held that the Crown bore the burden of establishing that the youth should be transferred to ordinary court, and that the onus was a heavy one. The Court of Appeal, on the other hand, took the view that it is neither useful nor correct to consider the matter in terms of onus. However, having so stated, Laycraft C.J.A. went on to assert that the Crown, which seeks to change the status quo, will not succeed unless it persuades the court that the balancing of factors favours transfer.

I share the view that application of the concepts of burden and onus to the transfer provisions of the Young Offenders Act may not be helpful. The question is basically one of statutory interpretation. Parliament has declared that unless otherwise ordered, young offenders will be tried in Youth Court. That is the status quo. The party seeking transfer to ordinary court must persuade the court that, having regard to the factors set out in s. 16(2) and (3) of the Act, the case should be transferred. In this sense there is a burden on the party seeking transfer.

What then is the standard of proof which the applicant must meet? The Court of Appeal rejected the view of the judge below that there was a "heavy onus" on the party seeking transfer. I agree that it would be wrong as a matter of law to say that the applicant must meet a heavy onus. That term carries with it the connotation that only in exceptional or very clear cases should an order for transfer be made. But Parliament did not say that. Parliament set out in detail the factors which must be weighed and balanced, and stipulated that if after considering them the court was satisfied that it was in the interests of society and the needs of the young person that he or she should be transferred, the order should be made. The requirement of the French version of s. 16 that the transfer to adult court "s'impose", while arguably stricter than the wording of the English version, does not, when read together with the English text, support the view that transfer must be confined to exceptional cases. Rather, it is consistent with the conclusion that transfer must appear as the right or proper solution. This language does not require that the case for transfer be exceptional or unusually clear. On the contrary, it has been pointed out that the language in the 1982 Act appears less stringent in terms of proof for transfer than under the previous Act: M. M. Bowker, "Waiver of Juveniles to Adult Court Under the Juvenile Delinquents Act: Applicability of Principles to Young Offenders Act" (1987), 29 Crim. L.Q. 368, at pp. 379-80. Parliament having failed to so stipulate that the case for transfer must be "exceptional", or "clear" or necessary", it is not for this Court to do so. That is not to say that the transfer of a case from Youth Court to ordinary court is not a matter of the utmost seriousness. The declaration of principle in s. 3 of the Act, the emphasis throughout the Act on the interests of the young person and the need to foster rehabilitation, the establishment of a separate corrections system for young offenders -- all these speak unmistakably of Parliament's awareness of the special needs and considerations appropriate to young offenders. But at the same time, Parliament has recognized that in some cases, young offenders should be tried in ordinary court. The judge charged with the task of making this decision must consider the factors set out in s. 16(1) and (2) in the context of the philosophy of the Act toward young offenders to the end of determining whether the applicant has satisfied him that a transfer should be ordered. The task, involving as it does the balancing of conflicting factors, is not easy. But it will not be rendered lighter, in my opinion, by imposing on the scheme set out in the Act an overlay of concepts such as "heavy onus" or "very heavy onus".

Nor do I find it helpful to cast the issue in terms of a civil or criminal standard of proof. Those concepts are typically concerned with establishing whether something took place. It makes sense to speak of negligence being established "on a balance of probabilities", or to talk of the commission of a crime being proved "beyond a reasonable doubt". But it is less helpful to ask oneself whether a young person should be tried in ordinary court "on a balance of probabilities". One is not talking about something which is probable or improbable when one enters into the exercise of balancing the factors and considerations set out in s. 16(1) and (2) of the Young Offenders Act. The question rather is whether one is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court.

In my opinion, the Court of Appeal did not err in the view it took of the nature of the burden on the Crown in this case.

2. The Nature of the Review Process

The Act empowers the superior court of the province to review the decision of the Youth Court judge and, "in its discretion" confirm or reverse it. The Court of Appeal has the same mandate in reviewing the decision of the superior court judge.

The Court of Queen's Bench judge took a narrow view of his role. In the judge's opinion, he was not entitled to substitute his discretion for that of the Youth Court judge. He concluded he should not reverse the Youth Court judge's order except on grounds of jurisdiction or error of law.

The Alberta Court of Appeal took a different view, stating that it is not enough to ask whether error has been made; the review court, in its opinion, "has a new discretion to exercise". Laycraft C.J.A. qualified this statement by acknowledging that the review is not a trial de novo and that the reviewing judge must pay deference to the advantage enjoyed by the Youth Court judge in seeing and hearing the witnesses.

I agree with the view taken by the Court of Appeal. Section 16(9) and (10), by conferring on the reviewing court the "discretion" to confirm or reverse, establishes different rules for the review than normally apply on appeals, where the court is limited to correction of error. The reviewing body's function must be to "review" the decision, and then, "in its discretion", confirm or reverse it. This involves evaluation, not only of whether the court below made an error of law or jurisdiction, but of whether its conclusions are correct based on the factors set out in the Act. In short, the reviewing tribunal can go into the merits of the application. If this review leads to the conclusion that the decision below was wrong for any of these reasons, the reviewing court in the exercise of its discretion may substitute its own view for that of the judge below.

There is, however, an important limit on the power of the review tribunal. Because it has not heard the evidence, it must accept the Youth Court's findings of fact and defer to it in matters involving the credibility of witnesses. Parliament has conferred on the review court a discretion to confirm or reverse the Youth Court judge's decision, but it has left the task of hearing and evaluating the evidence entirely to the Youth Court judge. As Laycraft C.J.A. pointed out, it is a fundamental rule that review tribunals which have not had the advantage of hearing and seeing the witnesses should defer to the trial judge who has had this advantage. Nothing in the Act suggests that Parliament intended to abridge this long-standing and eminently reasonable principle.

The appellant argues that it cannot have been the intention of Parliament to encourage appeals by giving the reviewing courts an independent discretion. The first difficulty with this submission is that it runs counter to the wording of the Act, which plainly confers an independent discretion on the reviewing courts. The second difficulty is that it is by no means self-evident that Parliament could not have intended to confer a broad right of appeal, including the exercise of new discretion, on the courts of review. The transfer of a young person to ordinary court is a serious matter, both from the point of view of the alleged offender and of society. The decision is one of great imprecision and difficulty, involving as it does the balancing of conflicting considerations. It is entirely consistent with these concerns that Parliament give the reviewing court the power to interfere, not only when error of law can be found, but when it concludes that a proper weighing of the relevant factors leads to a different conclusion.

In summary, it is my conclusion that the review court must base its review on the facts found by the Youth Court judge and give due deference to the Youth Court judge's evaluation of the evidence. It must then proceed to apply the factors set out in s. 16(2) to that evidence. In applying these factors, the review court is not confined to asking whether the Youth Court judge has erred, but should make an independent evaluation on the basis of the facts found by the Youth Court judge. The result of that evaluation will be either to confirm or to reverse the Youth Court's decision.

In my opinion, the Court of Appeal did not err in its conclusion that the Act conferred on it the discretion to independently evaluate whether a transfer should be made.

3. Whether the Court of Appeal Erred in Application of the Relevant Factors

The appellant submits that the court erred in its application of the factors relevant to transfer from Youth Court to ordinary court under the Young Offenders Act.

He contends that in considering what is "in the interests of society" under the Act, the Court of Appeal placed too much emphasis on the need to protect the public by securing the lengthy incarceration of those who commit heinous crimes, and too little emphasis on the public interest in the rehabilitation of the young person. He submits that, having stated the relevant considerations, the Court of Appeal went on to focus unduly on the age of the appellant (almost adult), the seriousness of the offence, and the perceived inadequacy of the maximum sentence under the Young Offenders Act. The appellant argues that the Court of Appeal was more concerned with the inadequacy of the penalty under the Young Offenders Act than with the adequacy of the youth versus the adult system in light of all the factors set out in the Act.

The reasons of the Court of Appeal support the suggestion that the court considered the seriousness of the offence to be an important factor. The age of the accused and the inappropriateness of a three-year sentence, given the heinous nature of the alleged crimes, also bulked large in its deliberations. But the reasons also demonstrate that the court properly bore in mind all the factors which must be considered under s. 16. Under the Act, the Court of Appeal was required to review the decision below, independently balance the factors prescribed by the Act, and, in the exercise of its discretion, make a determination. It did precisely that.

I am not satisfied that the Court of Appeal erred either in its statement of the relevant factors or its application of them. It is inevitable that in the course of the review, some factors will assume greater importance than others, depending on the nature of the case and the viewpoint of the tribunal in question. The Act does not require that all factors be given equal weight, but only that each be considered.

It must be borne in mind that this Court has no power to substitute its discretion for that of the court below. The Young Offenders Act confers no independent discretion on this Court; our jurisdiction is limited to correction of error in the proceedings below. For this reason, it would be inappropriate for this Court to enter on the question of whether it would have decided the matter differently had the Act granted to it an independent discretion.

I am not persuaded that the Court of Appeal erred in the application of the relevant factors in the case on appeal.

Conclusion

I would dismiss the appeal.

L'Heureux-Dubé J.

The reasons of La Forest and L'Heureux-Dubé JJ. were delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- Having had the benefit of reading the opinion of my colleague, Justice McLachlin, with deference, I am unable to subscribe to her conclusions with respect to any of the three points in issue, nor can I agree with her disposition of this appeal.

All the issues raised here involve the interpretation of the provisions of the Young Offenders Act, S.C. 1980-81-82-83, c. 110. That legislation gives expression to certain values which, to be fully appreciated, must in my view be considered in light of the history of the Act which dates back to the turn of the century.

Parliament's legislative commitment to the separate treatment of young offenders first appeared in An Act respecting Arrest, Trial and Imprisonment of Youthful Offenders, S.C. 1894, c. 58. This commitment is evident in the words of the preamble, the relevant part of which stated:

WHEREAS it is desirable to make provision for the separation of youthful offenders from contact with older offenders and habitual criminals during their arrest and trial, and to make better provision than now exists for their commitment to places where they may be reformed and trained to useful lives, instead of their being imprisoned . . . .

Provisions were made by s. 2 for the separate treatment of persons aged under sixteen involved in the criminal process:

2. Young persons apparently under the age of sixteen years who are: --

(a.) arrested upon any warrant; or

(b.) committed to custody at any stage of a preliminary enquiry into a charge for an indictable offence; or

(c.) committed to custody at any stage of a trial, either for an indictable offence or for an offence punishable on summary conviction; or

(d.) committed to custody after such trial, but before imprisonment under sentence, --

shall be kept in custody separate from older persons charged with criminal offences and separate from all persons undergoing sentences of imprisonment, and shall not be confined in the lock-ups or police stations with older persons charged with criminal offences or with ordinary criminals.

These mandatory provisions covered the criminal process in its entirety, save for one notable exception: sentencing. Under s. 3 of the Act, where any child "appearing . . . to be under the age of fourteen years" was convicted of an indictable offence or an offence punishable on summary conviction, the court "instead of sentencing the child to any imprisonment provided by law in such case, may order that the child shall be committed to the charge of any home for destitute and neglected children". [Emphasis added.] There was at that time no statutory duty not to sentence youths to adult prisons.

The 1894 Act re-enacted s. 550 of the then Criminal Code and modified it to exclude youths from the "adult" criminal trial process:

550. The trials of young persons apparently under the age of sixteen years, shall take place without publicity and separately and apart from the trials of other accused persons, and at suitable times to be designated and appointed for that purpose.

The law remained substantially the same through the turn of the century. The Prisons and Reformatories Act, R.S.C. 1906, c. 148, adopted the 1894 legislation in great part. The age where it became possible (but still not mandatory) to sentence a youth to a special home was raised to sixteen.

The first legislation providing for the establishment of youth courts and a mandatory sentencing to special rehabilitative homes for youthful offenders appeared in The Juvenile Delinquents Act, 1908, S.C. 1908, c. 40. The preamble of that legislation paralleled the preamble of the 1894 statute and read as follows:

WHEREAS it is inexpedient that youthful offenders should be classed or dealt with as ordinary criminals, the welfare of the community demanding that they should on the contrary be guarded against association with crime and criminals, and should be subjected to such wise care, treatment and control as will tend to check their evil tendencies and to strengthen their better instincts . . . [Emphasis added.]

The objectives of treatment and rehabilitation are further apparent from the following interpretation provision:

31. This Act shall be liberally construed to the end that its purpose may be carried out, to wit: That the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by its parents, and that as far as practicable every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child, and one needing aid, encouragement, help and assistance.

Parliament's enduring commitment to the separate treatment of juvenile offenders was furthered by the establishment of juvenile courts as courts of original jurisdiction for the processing of young offenders. The 1908 legislation also provided for the procedure of summary trial which is still in essence used today. While the Juvenile Court had exclusive jurisdiction in respect of offences committed by youths, a transfer to the "adult" system was possible in exceptional circumstances:

22. No juvenile delinquent shall, under any circumstances, upon or after conviction, be sentenced to or incarcerated in any penitentiary, or county or other jail, or police station, or any other place in which adults are or may be imprisoned.

23. This section shall not apply to a child who has been proceeded against under the provisions of section 7 of this Act.

24. Where the act complained of is, under the provisions of The Criminal Code or otherwise, an indictable offence, and the accused child is apparently or actually over the age of fourteen years, the court [i.e., the Juvenile Court] may, in its discretion, order the child to be proceeded against by indictment in the ordinary courts in accordance with the provisions of The Criminal Code in that behalf; but such course shall in no case be followed unless the court is of the opinion that the good of the child and the interest of the community demand it. The court may, in its discretion, at any time before any proceeding has been initiated against the child in the ordinary criminal courts, rescind an order so made. [Emphasis added.]

I note parenthetically that the "interest of the community" referred to in s. 7 and the "welfare of the community", referred to in the preamble, appear to be corresponding expressions. In the preamble, the expression "welfare of the community" is described as encompassing society's interest in the reformation of youthful offenders. The "interest of the community" would appear to comprise that reformatory or rehabilitative interest as well.

The Juvenile Delinquents Act, 1908 applied to any boy or girl apparently or actually under the age of sixteen years.

The 1908 legislation provided for no specific right of appeal against a transfer hearing decision. Rather, as set out in the second sentence of s. 7, the Juvenile Court judge retained jurisdiction to rescind the previous order. However, in 1929 (The Juvenile Delinquents Act, 1929, S.C. 1929, c. 46), such decision fell under the general right of appeal provided in s. 37:

37. (1) A Supreme Court judge may, in his discretion, on special grounds, grant special leave to appeal from any decision of the Juvenile Court . . . .

(2) No leave to appeal shall be granted under the provisions of this section unless the judge or court granting such leave considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that such leave be granted.

Sections 22 and 31 of the 1908 legislation remained unaltered through the 1927 revision (R.S.C. 1927, c. 108), except that they were renumbered 23 and 33, respectively. Likewise, the provisions remained substantially the same through the re-enactment of the legislation as The Juvenile Delinquents Act, 1929. In that re-enactment, old ss. 7, 23 and 33 were renumbered 9, 26 and 38, respectively. The transfer provision (s. 9), the separate treatment provision (s. 26) and the interpretation clause (s. 38) remained untouched through 1952 (R.S.C. 1952, c. 160), and through 1970 (R.S.C. 1970, c. J-3). Thus, the dispositions of the 1908 legislation survived for nearly 75 years, until the current legislation, the Young Offenders Act, was enacted on July 7, 1982 and proclaimed in force on April 2, 1984.

The 1982 Act increased the age of young persons covered by the legislation to apply to persons who are, or, in the absence of evidence to the contrary, appear to be, under eighteen years of age, in a province where no proclamation has specified an age of sixteen or seventeen (s. 2(1)). Another modification concerned the interpretation clause, originally found in s. 31 of The Juvenile Delinquents Act, 1908, which was substantially broadened by the addition of a statement of policy objectives:

3. (1) It is hereby recognized and declared that

(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;

(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;

(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;

(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).

The legislation adopted in 1982 maintains the exclusive jurisdiction of the Youth Court as a general rule with the exceptional possibility of a transfer to the ordinary courts. The test to be applied by the Youth Court judge was slightly redrafted and specific criteria, absent from the previous enactment, were set out in the new transfer provisions:

16. (1) At any time after an information is laid against a young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 483 of the Criminal Code [offences for which the jurisdiction of Provincial Court judges is absolute] but prior to adjudication, a youth court may, on application of the young person or his counsel, or the Attorney General or his agent, after affording both parties and the parents of the young person an opportunity to be heard, if the court is of the opinion that, in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in ordinary court, order that the young person be so proceeded against in accordance with the law ordinarily applicable to an adult charged with the offence.

(2) In considering an application under subsection (1) in respect of a young person, a youth court shall take into account

(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed;

(b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act or previous findings of guilt under this or any other Act of Parliament or any regulation made thereunder;

(c) the adequacy of this Act, and the adequacy of the Criminal Code or other Act of Parliament that would apply in respect of the young person if an order were made under subsection (1), to meet the circumstances of the case;

(d) the availability of treatment or correctional resources;

(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and

(f) any other factors that the court considers relevant.

That Act, in addition, makes specific allowance for the review of transfer hearing decisions and sets the standard of review in the following provisions:

16 ...

(9) Subject to subsection (11), an order made in respect of a young person under subsection (1) or a refusal to make such an order shall, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the youth court, be reviewed by the superior court and that court may, in its discretion, confirm or reverse the decision of the youth court.

(10) A decision made in respect of a young person by a superior court under subsection (9) may, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the superior court, with the leave of the court of appeal, be reviewed by that court, and the court of appeal may, in its discretion, confirm or reverse the decision of the superior court.

Those two sections, ss. 3 and 16, which have not been amended since their enactment in 1982, are at the heart of the present appeal.

This brief legislative history of the provisions of the Young Offenders Act amply demonstrates that for nearly one hundred years Parliament has committed itself to the separate treatment and rehabilitation of young persons involved in the criminal process. The underlying philosophy has been from the beginning that it is in society's interest to assist young offenders "to strengthen their better instincts". An attempt is made through the legislation to "prevent these juveniles to become prospective criminals and to assist them to be law-abiding citizens" (Attorney General of British Columbia v. Smith, 1967 CanLII 65 (SCC), [1967] S.C.R. 702, at p. 710). For the effective pursuit of this general objective, Parliament and the legislatures have joined in an effort to establish specialized tribunals and provide funding for facilities such as detention centers and rehabilitation programs. While in 1982 the legislation was revised, the fundamental values remained and permeate the provisions of the Act.

This brings me to the transfer provisions of the Act here in question. The discussion will focus on the three main issues: the burden of proof, the scope of review and the test for transfer.

I - Burden of Proof

Commenting on the nature of transfer, in 1965, the Department of Justice Committee on Juvenile Delinquency predicted: "Waiver is, and is likely to remain, an exceptional procedure" (Juvenile Delinquency in Canada, at p. 84). This forecast rests on policy assumptions still appropriate today. The decision to release the youth to the ordinary criminal enforcement process represents an abdication by the youth system of its exclusive jurisdiction to deal with young offenders. The immediate consequence of a decision to transfer is to strip the youth of his entitlement to the special accommodations made by the statute in its objective of treatment and care. This is noted by M. M. Bowker, a former Juvenile Court judge and respected authority in the field, in "Waiver of Juveniles to Adult Court Under the Juvenile Delinquents Act: Applicability of Principles to Young Offenders Act" (1987), 29 Crim. L.Q. 368. After emphasizing the rule, previously embodied in s. 4 of the Juvenile Delinquents Act and today expressed in s. 5 of the Young Offenders Act, that the Youth Court is exclusively seized in respect of offences alleged to have been committed by young persons, the author explains (at p. 372):

The only exception to this general rule is contained in the waiver or transfer provisions in the respective Acts. Only in special circumstances are young persons to be deprived of the benefits and protections to which they are entitled under those Acts. Such advantages include protection from publicity, private trials, limited public access to court records and less stringent penalties upon conviction.

Transfer deprives the youths of their entitlement to the rehabilitative philosophy and treatment resources of the system specially designed to meet their needs. In this sense, as was noted by the Supreme Court of the United States in Kent v. United States, 383 U.S. 541 (1966), at p. 556: "the waiver of jurisdiction is a ""critically important" action determining vitally important statutory rights of the juvenile".

The exceptional nature of transfer was recognized in the drafting of the Young Offenders Act. According to the report prepared in 1975 by the Solicitor General's Committee on Proposals for new legislation to replace the Juvenile Delinquents Act (Young Persons in Conflict with the Law, at p. 38):

The provision for transfer is based on the assumption that there are cases in which the general intent of the Juvenile Delinquents Act must be overridden because some aspect of the case demands an exception to the philosophy or practices of the juvenile court.

Because treatment within the system is the rule, and transfer the exception, it follows that the person applying for a transfer bears the burden of establishing that the conditions of the transfer are made out. This burden is laid out in s. 16(1). The applicant must establish to the satisfaction of the Youth Court that:

. . . in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in the ordinary court . . . . [Emphasis added.]

The French text of that section seems to be more stringent:

. . . le tribunal pour adolescents peut [. . .] ordonner le renvoi de l'adolescent [. . .] s'il estime que, dans l'intrêt de la société et compte tenu des besoins de l'adolescent, le renvoi de la cause devant cette juridiction s'impose. [Emphasis added.]

In the previous Act, s. 9 specified that

. . . such course [transfer] shall in no case be followed unless the court is of the opinion that the good of the child and the interest of the community demand it. [Emphasis added.]

The word "demand", taken in isolation, may appear to be a more exacting standard than is indicated today by the word "should". However, it does not follow that the change in wording from s. 9 of the Juvenile Delinquents Act to s. 16(1) of the Young Offenders Act evidences an intention to relax the onus of persuasion to bear on the Youth Court judge.

To begin with, the French text of s. 9 of the previous Act read as follows:

. . . cette mesure [transfer] ne doit être prise que lorsque la cour est d'avis que le bien de l'enfant et l'interêt de la société l'exigent. [Emphasis added.]

Both the words "exigent" in the previous Act and "s'impose" in the current legislation connote a strong sense of necessity. They imply that transfer is imperative, that it is the only possible solution. In Le Grand Robert de la langue française (1986), one finds the following definitions:

[TRANSLATION] REQUIRE . . . 1. Make a peremptory request . . . 2. Render indispensable, unavoidable, obligatory . . .

IMPOSE . . . II. 1. . . . (c) BE UNAVOIDABLE . . . Have to be accepted, be unable to be refused. Choice, solution, necessity which is unavoidable.

Thus the imperative nature of the French text in the previous Act was preserved in the current legislation.

In addition, one must not lose sight of the other changes which were brought by s. 16. Under the previous Act, there were no explicitly stated criteria for the assessment of whether a transfer should be ordered. The new Act of course provides in s. 16(2) for a fairly detailed list of factors which the Youth Court judge must now take into account. The new Act directs the judge to consider a pre-disposition report (s. 16(3)). It also imposes a duty on the judge to state the reasons for decision, which was not previously required (s. 16(5)). In this context, the judge's discretion was much wider under the previous legislation. This is noted by Bowker, when she writes (loc. cit., at pp. 379-80):

The wording under the new Act would appear less stringent in terms of proof than was so under the former Act. However, it would be inappropriate to assume that under the new Act waiver is likely to be more frequent. Such possibility is balanced by new legal safeguards, provided in the new Act, by guidelines for the court in reaching its opinion and the requirement that reasons be given by the court for either granting or refusing an order of waiver.

I agree with these comments. The new wording demands a burden just as strong as did the previous wording. Reading the French and the English texts together in order to find a common interpretation in accord with Parliament's intent and the basic philosophy of the legislation, including the exceptional nature of transfers, and having regard to all the requirements in s. 16, I am of the view that, under s. 16(1) of the Young Offenders Act, the transfer of a youth to the ordinary court must propose itself to the Youth Court judge's mind as the only appropriate solution.

In the case at bar, the Youth Division application considered that the burden on an applicant under s. 16(1) of the Act is a "heavy" one. Gerhart Prov. Ct. J. wrote:

It appears to the Court therefore that an application to waive a young person to adult court is in the nature of an exception, and is not merely routine because of the "seriousness" of the alleged offence. If that be so, then the onus on the Crown is not merely to demonstrate the "seriousness" of the alleged offence, but also to bring evidence to demonstrate why, in the particular case, a waiver is required. [Emphasis added.]

The expression "heavy onus" does little to further the understanding of the true scope of s. 16(1). There is no need in my view to require the high standard of proof applicable in criminal matters, but no reason either to depart from the traditional civil standard of proof, that is, proof on the balance of probabilities. There are no ritualistic incantations or magical formulas to describe the onus. Whatever words are used, the burden falls squarely on the applicant to persuade the Youth Court that no solution other than transfer is appropriate in the circumstances of a particular case.

In the Court of Appeal (1987), 1987 ABCA 114, 78 A.R. 309, Laycraft C.J.A. rejected the notion that the Crown was required to discharge a "heavy onus", saying that "[t]hat term connotes some sort of emergency to which a transfer to adult court was the only possible answer" (p. 316). Instead, Laycraft C.J.A. preferred a lower threshold (at p. 316):

Unless a transfer order is made the case will remain in Youth Court; in this sense the Crown, which seeks to change the status quo, will not succeed unless it persuades the court that the balancing of the factors favours transfer. [Emphasis added.]

In my respectful view, that threshold is too low. It pays insufficient heed to the text of s. 16(1), particularly the French text and the additional requirements in s. 16, both of which imply that transfer must be necessary or imperative. It also fails to take into account the legislative history of the Young Offenders Act, the centennial commitment to the treatment of young offenders in a special enforcement system and the exceptional nature of transfer, which are all indicative of the intent of Parliament in adopting s. 16. This erroneous characterization by the Court of Appeal of an applicant's onus did, in my view, pervade its assessment of the evidence relating to the elements to be considered in s. 16.

II - Scope of Review

The Courts Below

The Court of Queen's Bench adopted a restrictive interpretation of the scope of review allowed by s. 16(9) and (10) of the Act. Miller A.C.J.Q.B. exercised his discretion on the basis that no error had been committed by the Youth Division judge, either in fact or in law. He found that the Youth Division judge's decision should stand:

I would like to advise the accused and counsel, for the record, that in the interval since the matter was argued, I have spent several hours reading the transcript and the reports that were involved by the psychiatric experts. I have again read in detail the Reasons for Decision given by His Honour Judge Gerhart . . . . Taking all of these matters into consideration as best I can, I have come to the conclusion that the learned Provincial judge did not err in the conclusion he came to. He, as I earlier mentioned, canvassed all of the balancing factors and the relevant principles, and I can find nowhere where he has erred in law.

The Court of Appeal of Alberta took a much broader approach to its powers of review and found that s. 16(9) and (10) empowered it to reconsider the matter ab initio. Laycraft C.J.A. wrote (at p. 316):

In the end the question, easy to state but profoundly difficult to answer, is: do all the circumstances considered, taking into account the declarations of principle in s. 3 and the factors in s. 16, bring the court to the conclusion that it is in the interests of society, having regard to the needs of the young person, to make the transfer?

Laycraft C.J.A. could hardly have formulated the question in that way had he envisioned the court's reviewing function to be more restrictive than a full reconsideration of the merits. Indeed, Laycraft C.J.A. added (at p. 316):

Sections 16(9) and 16(10), in my opinion, establish different rules for the appellate tribunal than would usually apply. In each case the proceeding is a review rather than an appeal and in each case the appellate tribunal is specifically empowered "in its discretion" to confirm or reverse the decision brought before it. Each appellate tribunal has a new discretion to exercise. Of course, the appellate tribunals do not hear the evidence de novo, and the usual rules will apply to pay deference to the advantage enjoyed by the trial judge in seeing and hearing the witnesses. I respectfully disagree, however, with the approach that this case could be answered, on the review in the Court of Queen's Bench, by determining whether the Youth Court judge had correctly stated the principles or the governing sections to be applied. The appellate judge had, himself, to exercise a discretion.

Laycraft C.J.A. then considered the case law and noted that while some decisions adopted a more restrictive view of s. 16(9) and (10), others supported his interpretation of these provisions.

The Authorities

Under the previous Juvenile Delinquents Act, the case law was settled to the effect that, upon an appeal launched under the auspices s. 37 of the Act, the reviewing courts "should only intervene if the lower court has not considered all the relevant factors in making its decision and, in so doing, has committed an error of law or in principle" (P. Béliveau, J. Bellemare and J.-P. Lussier, On Criminal Procedure (1982), at p. 124). In R. v. Chamberlain (1974), 1974 CanLII 1421 (ON CA), 15 C.C.C. (2d) 379, at p. 385, the Ontario Court of Appeal held:

A Judge sitting in appeal in accordance with the provisions of s. 37 must first determine if the provincial Judge who made the order had taken into account and given weight to factors relevant to the determination of the issue as to what order was for the good of the child and the interests of the community or had considered and given effect to irrelevant matters. The test to be applied is not whether the Judge hearing the appeal would have exercised his discretion in a similar or dissimilar manner had he been sitting as a Judge in the Court of first instance.

This decision was followed by the Saskatchewan Court of Appeal in R. v. Cole (1975), 1975 CanLII 1480 (SK CA), 25 C.C.C. (2d) 140, as well as by the Quebec Court of Appeal in R. v. Boisvert (No. 2) (1981), 1981 CanLII 3193 (QC CA), 63 C.C.C. (2d) 362. The Manitoba Court of Appeal likewise adopted a policy of judicial deference upon appellate review. In R. v. Smith (1975), 1975 CanLII 1349 (MB CA), 28 C.C.C. (2d) 368, at p. 371, delivering the reasons of the majority of the court, Hall J.A. explained the policy as follows:

In the circumstances of this case, it is my opinion, that the Justice on appeal erred in freely substituting his opinion for that of the learned Provincial Judge.

Any appellate tribunal should be slow indeed to interfere with the exercise of the discretion conferred by the statute.

In the present case, the Judge of first instance saw and heard the witnesses; moreover, he is intimately familiar with the process for disposing of delinquencies. As earlier mentioned, no demonstrable error is apparent from the record.

The underpinning of this policy of deference has remained valid even since the enactment of the Young Offenders Act. However, the restrictive approach to review previously adopted by the provincial courts of appeal has not been followed with corresponding unanimity.

Instances of a restrictive approach are provided by R. v. R.M.C. (1987), 1987 CanLII 6821 (MB CA), 33 C.C.C. (3d) 136 (Man. C.A.), where Twaddle J.A. rested his interpretation on the observation that the Young Offenders Act establishes a two-tiered review. He emphasized the fact that an appeal to the second tier was only possible by leave and suggested that leave is more likely to be granted, as a matter of practice, when there is an error in principle or some overriding policy concern justifies the intervention of the Court of Appeal. He concluded (at p. 153):

In providing for review by this court with leave only, Parliament did not intend, in my view, that leave should be given, merely because this court would have reached, in its discretion, a different decision. Leave should be given only where: "(i) there is a meritorious argument that the reviewing judge applied a wrong principle or misapprehended the facts; or (ii) a point of law which this court should decide is raised".

Although in R.M.C. Twaddle J.A. had in mind the second tier of the review structure, and to this extent his comments contemplate a context different from the present one, his words nevertheless indicate that the court is not prepared to exercise its discretion to review in all cases.

A restrictive approach was likewise adopted by the Quebec Court of Appeal in R. v. N.B. (1985), 1985 CanLII 3508 (QC CA), 21 C.C.C. (3d) 374. Beauregard J.A. stated (at p. 381):

[TRANSLATION] I am therefore of the opinion that the Attorney General did not establish before Bienvenue J. [a superior court judge] that Judge Choquette [of the Youth Court] manifestly erred with respect to the facts, that she erred in law or that she used her discretion in a non-judicial manner. As a result, it was not appropriate that her decision be reversed.

Likewise, the other member of the majority, Rothman J.A. concluded his review as follows (at p. 383):

Although there were certainly elements that weighed in favour of the transfer, there were others, equally important, that weighed against it. On the basis of the material before her, I am of the opinion that the youth court judge was entitled to come to the conclusion that she did and I can see no error in her conclusion.

These words are hardly an assertion of the reviewing court's unfettered discretion to substitute its own assessment of the interests of society and the needs of the youth in the place of the Youth Court.

In R. v. A. (1986), 3 Q.A.C. 16, the Quebec Court of Appeal again underscored the need to find error in the Youth Court's decision. Following R. v. N.B., a majority of the court expressed the view that (at pp. 19-20):

[TRANSLATION] [W]e must consider whether in light of the facts in the case at bar the youth court judge, as [the Crown] submitted, committed errors of law or fact or misused his discretion and accordingly whether the superior court judge was right to intervene.

In R. v. W.Y., B.C.C.A., No. 008351, April 20, 1988 (summarized (1988), 4 W.C.B. (2d) 267), the Court of Appeal of British Columbia adopted a similar position. In rendering judgment for the court, McLachlin J.A. (as she then was) stated (at p. 5):

So there is an additional discretion. The discretion must be exercised judicially. On the other hand, the review is not a trial de novo and, generally speaking, the Court of Appeal will not interfere unless it appears that the judge below has misapprehended the facts or erred in applying the law. [Emphasis added.]

The Nova Scotia Supreme Court, Trial Division, in R. v. S.J.H. (1986), 1986 CanLII 6962 (NS SC), 76 N.S.R. (2d) 163, also considered that the reviewing discretion could only be exercised where the judge found (at p. 167) "that the conclusion of the learned [Youth Court] judge was clearly wrong, that is that he erred in principle or misconstrued the evidence".

Other decisions make room for a more liberal approach of the reviewing court's discretion. In R. v. M. (1985), 1985 CanLII 3512 (MB CA), 23 C.C.C. (3d) 538, a majority of the Manitoba Court of Appeal emphasized that "[a]ll three levels of the judiciary . . . proceed in a discretionary manner" (p. 540). In R. v. M.A.Z. (1987), 1987 CanLII 6770 (ON CA), 35 C.C.C. (3d) 144, leave to appeal to this Court refused, June 23, 1987, [1987] 1 S.C.R.. xii, the Ontario Court of Appeal likewise rejected the notion that the youth court below has to be wrong in principle before the reviewing court is entitled to exercise the discretion conferred by s. 16(9) and (10) of the Young Offenders Act. MacKinnon A.C.J.O., for the court, concluded that the reviewing court had the obligation "to review fully the evidence" and that the "appeal court renders the decision that it concludes should have been given" (p. 160). Under this approach the reviewing court appears to be entitled to freely substitute its opinion for that of the lower court.

A middle-ground approach has emerged in the case law. Under this approach, the reviewing court has discretion to review the merits of the decision made by the Youth Court judge, but such discretion is only to be exercised when the court is of the view that the evidence discloses a serious ground for intervention. This approach is best exemplified by the unanimous judgment of the Quebec Court of Appeal in R. v. J.R.D. (1988), 17 Q.A.C. 81. Delivering the reasons for the court, LeBel J.A. conducted an extensive review of the case law and legislation and concluded as follows (at p. 91):

[TRANSLATION] Unless the provisions inserted in the Young Offenders Act are to be disregarded, it has to be admitted that the legislator wished to confer additional power on the judges of the Superior Court and appellate courts hearing appeals from transfer applications. He was not content with the usual restrictions in the ordinary appeal machinery. Appellate courts thus cannot simply ensure that the law is properly applied and correct manifest errors in the assessment of facts. In each case of a transfer application, operating within certain limits inherent in the function of an appellate court, in particular acting on the basis of the facts as found by the trial judge in the youth court, an appellate court must determine whether the evidence justifies the transfer application. It will then itself proceed to apply the criteria stated in s. 16(1), (2) and (3) and render a suitable judgment on the advisability of transfer.

I would however add one word of warning. Some caution is necessary despite the apparently wide extent of the powers conferred on an appellate court under s. 16(10). This caution proceeds from the function of an appellate court, a court of general jurisdiction as compared with a specialized tribunal. The legislator intended that the treatment of young offenders by the courts should in general be in the hands of courts with special qualifications based on their expertise. This means that the experience and competence possessed by such courts should be viewed with respect by superior and appellate courts. They should only exercise their own discretion for good reason, in cases where there is substantial disagreement with the way in which the trial judge has applied the rules. In my opinion minor discrepancies will not justify the intervention of an appellate court, which it seems to me would then be going beyond even the broad function which it is assigned by s. 16(10) of the Act. [Emphasis added.]

These closing words suggest that the restriction on the exercise of the reviewing discretion is more than a question of judicial policy; it is a matter of law. With this suggestion I agree.

Curial Deference

There are two aspects of the statutory scheme set up by the Young Offenders Act which in my view require a reviewing court acting under the authority of s. 16(9) and (10) to pay curial deference to the Youth Division's decision.

First, there is no allowance in the Act for the giving of evidence before the reviewing court. The review contemplated by the Act is not a de novo hearing, as the Court of Appeal correctly noted in the present case. Moreover, unlike the case in a criminal trial pursuant to s. 609 of the Criminal Code, R.S.C. 1970, c. C-34, no provision is made in the Young Offenders Act for the transcription of the proceedings conducted by the Youth Court judge, nor, of course, for the transmission of such transcription to the reviewing court. The Court of Queen's Bench and the Court of Appeal, acting under the authority of s. 16(9) and (10) respectively, are therefore not required by Parliament to proceed on the basis of the oral evidence adduced at the transfer hearing. In the absence of a transcript, the reviewing courts must rely exclusively on the written evidence and the findings of fact as recorded in the reasons of the Youth Court judge. These considerations seem to me to stress Parliament's intention to favour the usual restraint with respect to the assessment of the credibility of witnesses and the determination of facts made by the Youth Court judge.

The particularities of the Young Offenders Act compel in my view an even greater restraint. Since the applications for transfer are made before the trial, much of the evidence adduced at the transfer hearing is in the nature of hearsay. It is not uncommon in transfer hearings for the investigating officer to offer viva voce evidence reporting statements of witnesses not present to testify in person, such as the medical examiner and informants. As a matter of practice, the usual rules of evidence appear to be relaxed during transfer hearings. In R. v. W.Y., supra, McLachlin J.A., commenting on "the more liberal rules governing material admissible on transfer proceedings under the Young Offenders Act" stated (at p. 8):

Section 16 itself requires the court to have regard to material which is by its very nature founded on hearsay when it requires that the transfer hearing judge consider the pre-disposition report relevant to the accused.

Without passing upon the legality of such a practice, as the issue is not raised in this appeal, I would emphasize that the Youth Court's assessment of the sincerity and credibility of witnesses is all the more crucial where the witnesses are allowed to adduce evidence which may be eminently prejudicial to the youth yet remains unchecked by the traditional safeguards of the law of evidence.

Second, the Youth Court was established as a court of specialized jurisdiction to help attain the objectives of the legislation. As noted by this Court in Attorney General of British Columbia v. Smith, supra, with respect to the Juvenile Court, it is "an enforcement process specially adapted to the age and impressibility of juveniles and fundamentally different, in pattern and purpose, from the one governing in the case of adults" (p. 710). That Parliament intended the Youth Court to differ from the ordinary courts is evidenced by a distinction between the two courts imported in s. 2(1) of the Act:

2. (1) In this Act,

"ordinary court" means the court that would, but for this Act, have jurisdiction in respect of an offence alleged to have been committed;

"youth court" means 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 Youth Court is given exclusive jurisdiction in respect of the criminal enforcement of charges laid against young persons:

5. (1) Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act.

As a necessary consequence of this statutory scheme, Youth Court judges accumulate a precious familiarity with the particular situation of youths involved in the criminal system. By virtue of their specialized jurisdiction, the judges are in a better position to appreciate the scientific data and literature, the statistics developed over the years with respect to similar cases, the facilities available for the rehabilitation of young offenders and the likelihood that the resources will satisfy the treatment and care objectives of the legislation. Parliament could not have been blind to the fact that the creation of such a specialized tribunal would foster the emergence of a specially skilled class of decision-makers.

The policy of deference to expert decision-makers is entrenched in the principles of judicial review. Commenting upon a privative clause ensuring the finality and conclusiveness of the decisions of a provincial labour board, Dickson J. (as he then was) noted (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at pp. 235-36):

The rationale for protection of a labour board's decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

The rationale for curial deference in judicial review compels with equal strength a similar restraint in statutory review. In determining the breadth of the right to review conferred by statute, "it is hardly practical for the court to consider substituting its opinion where there is no written transcript of the proceedings below, or where the tribunal's opinion is based upon purely technical matters or upon familiarity with matters in respect of which the court has no expertise" (R. F. Reid and H. David, Administrative Law and Practice (2nd ed. 1978), at p. 452). While no privative clause ensures the finality and conclusiveness of the Youth Court's transfer dispositions, Parliament's intention to defer to the Youth Court's expertise sufficiently underlies the statutory constitution of a specialized tribunal vested with exclusive first instance jurisdiction. In a recent judgment, Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722, this Court noted the importance of the specialization of duties in appellate review in matters lying at the heart of the administrative tribunal's expertise (at p. 1746):

However, within the context of a statutory appeal from an administrative tribunal, additional consideration must be given to the principle of specialization of duties. Although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise.

The elements which are relevant to the transfer hearing involve questions of fact. For instance, s. 16(2)(a) directs the judge to consider "the seriousness of the alleged offence and the circumstances in which it was allegedly committed". The judge is also required to assess the "age, maturity, character and background of the young person" (s. 16(2)(b)) as well as the "availability of treatment or correctional resources" (s. 16(2)(d)). The factors of the "availability of treatment" (s. 16(2)(d)) and of the "adequacy of this Act" to meet the circumstances of each case (s. 16(2)(c)) fall squarely within the scope of the Youth Court judge's expertise. In balancing the factors set out in s. 16(2), the judge will inevitably assess the evidence adduced before the court in light of this accumulated experience. For instance, the judge may be satisfied that the expert evidence establishes that there are no treatment facilities suited for the young offender, or that the offender has exhausted the resources of the system. Courts of general jurisdiction, who do not benefit from a transcript of the proceedings and do not have the advantage of seeing or hearing the witnesses, are perhaps not as well prepared as the specialized judges to make these assessments. As a result, to the extent that these elements are not rooted in any palpable or overriding error they should be taken as definitively established by the Youth Court judge.

In light of this background I now turn to the interpretation of the true scope of s. 16(9) and (10) of the Act.

Section 16(9) and (10) of the Young Offenders Act

For the sake of convenience, I reproduce once again s. 16(9) and (10) of the Young Offenders Act:

(9) Subject to subsection (11), an order made in respect of a young person under subsection (1) or a refusal to make such an order shall, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the youth court, be reviewed by the superior court and that court may, in its discretion, confirm or reverse the decision of the youth court.

(9) Sous réserve du paragraphe (11), l'ordonnance concernant un adolescent rendue en vertu du paragraphe (1) ainsi que le refus de rendre une telle ordonnance sont, sur demande présentée dans les trente jours de la décision par l'adolescent, son avocat, le procureur général ou le représentant de celui-ci, examinés par la cour supérieure. La cour dispose d'un pouvoir discrétionnaire pour confirmer ou infirmer la décision du tribunal pour adolescents.

(10) A decision made in respect of a young person by a superior court under subsection (9) may, on application of the young person or his counsel or the Attorney General or his agent made within thirty days after the decision of the superior court, with the leave of the court of appeal, be reviewed by that court, and the court of appeal may, in its discretion, confirm or reverse the decision of the superior court. [Emphasis added.]

(10) La décision concernant un adolescent rendue par une cour supérieure en vertu du paragraphe (9) peut, sur demande présentée dans les trente jours de la décision par l'adolescent, son avocat, le procureur général ou le représentant de celui-ci, et avec la permission de la cour d'appel, être revisée par celle-ci. La cour d'appel dispose d'un pouvoir discrétionnaire pour confirmer ou infirmer la décision de la Cour supérieure. [Je souligne.]

Other than possibly its residual supervisory power to correct jurisdictional excesses, there is no inherent power in a superior court to review decisions made by Youth Court judges at transfer hearings, and the jurisdiction of a court of appeal to review such a decision of a superior court is likewise limited to the scope of the enabling statute. While the French text of s. 16(9) and (10) removes any doubt that the superior court and the court of appeal sitting in review do benefit from some discretion, it does not follow, in my view, that the reviewing court is in all cases empowered to exercise that discretion so as to be able, in weighing the relevant factors afresh, simply to substitute its own view for that of the lower courts. The words "in its discretion" are not used in a vacuum. They are used in relation to the previous exercise of the same discretion by the Youth Court, a specialized decision making body. While the right of appeal must have some scope to be efficacious, then so must the Youth Court's initial determination, as intended by Parliament. The scope of the discretion to review a matter properly brought into appeal is, in my view, to be interpreted in light of the legislative grant of exclusive jurisdiction to a specialized tribunal empowered to make the initial determination at the transfer hearing.

Language comparable in breadth to the language used in s. 16(9) and (10) has been interpreted by the courts to limit review where an error of some kind is established to the satisfaction of the court. A most striking illustration of such a restrictive interpretation of the scope of statutory appeals is provided in Minister of National Revenue v. Wrights' Canadian Ropes, Ltd., 1946 CanLII 345 (UK JCPC), [1947] A.C. 109 (P.C.), aff'g 1946 CanLII 41 (SCC), [1946] S.C.R. 139. Under s. 6(2) of the Income War Tax Act, R.S.C. 1927, c. 97, the Minister of National Revenue was empowered to "disallow any expense which he . . . may determine to be in excess of what is reasonable". The Income War Tax Act also provided that a person dissatisfied with the Minister's assessment could cause the Minister to communicate to the Exchequer Court all relevant documents relative to the disputed assessment, whereupon the matter was "deemed to be an action in the said Court ready for trial or hearing" (s. 63(2)). The speech of Lord Greene, M.R., in the Privy Council shows the extent to which a statutory right of appeal, though broadly framed, may nevertheless be limited (at p. 122):

If the matter had stood there, and there had been no right of appeal against the decision of the Minister, the position would have been different from what it is. But in contrast to cases arising under sub-ss. 3 and 4 of s. 6, where the decision of the Minister is to be "final and conclusive", a right of appeal to the Exchequer Court is given, and the appeal is to be regarded as an action in that court. This right of appeal must, in their Lordships' opinion, have been intended by the legislature to be an effective right. This involves the consequence that the court is entitled to examine the determination of the Minister and is not necessarily to be bound to accept his decision. Nevertheless, the limits within which the court is entitled to interfere are, in their Lordships' opinion, strictly circumscribed. It is for the taxpayer to show that there is ground for interference, and if he fails to do so the decision of the Minister must stand. Moreover, unless it be shown that the Minister has acted in contravention of some principle of law the court, in their Lordships' opinion, cannot interfere: the section makes the Minister the sole judge of the fact of reasonableness or normalcy and the court is not at liberty to substitute its own opinion for his. [Emphasis added.]

I entertain little doubt that, in the case at bar, the scope of the review is more limited than the scope of the initial determination. Since the Court of Queen's Bench and the Court of Appeal are not empowered to hear evidence de novo, the restrictive interpretation of the Privy Council in Wrights' Ropes takes on all the more significance here.

A second illustration is provided by Rowntree Co. v. Paulin Chambers Co., 1967 CanLII 100 (SCC), [1968] S.C.R. 134, where this Court determined the nature of the appeal from the Registrar of Trade Marks' decision not to allow a proposed trade mark on the basis that it was confusing with a previously issued trade mark. In determining whether a trade mark is confusing, the Act directs the Registrar to "have regard to all the surrounding circumstances" including the "inherent distinctiveness" of the proposed trade mark, the "length of time" the previous trade mark has been registered, the "nature of the wares", the "nature of the trade" and the "degree of resemblance" between the two trade marks. Note how this statutory direction resembles the list of factors set out in s. 16(2) of the Young Offenders Act. At any rate, in Paulin Chambers, the Registrar exercised his discretion and refused to grant a trade mark for the word "Smoothies" on the grounds that it could be confused with the previously issued trade mark under the word "Smarties". On appeal, the trial judge reversed the Registrar's conclusion. On appeal to this Court, the Registrar's finding was reinstated. A restrictive interpretation of the allowable scope of review was adopted by this Court (at p. 138):

It is contended on behalf of the respondent that the conclusion reached by the learned trial judge should not be disturbed having regard to the terms of s. 55(5) of the Act which provides that "on the appeal . . . the Court may exercise any discretion vested in the Registrar". I do not, however, take this as meaning that the Court is entitled to substitute its view for that of the Registrar unless it can be shown that he proceeded on some wrong principle or that he failed to exercise his discretion judicially. [Emphasis added.]

In another case, Canadian Motorways Ltd. v. Laidlaw Motorways Ltd., 1973 CanLII 26 (SCC), [1974] S.C.R. 675, this Court determined the related issue of the scope of review in the context of an assessment by the Minister of Corporations that the corporate name "Laidlaw Motorways" was not so similar to the name "Canadian Motorways" so as to be likely to deceive, within the meaning of the applicable legislation. The statute provided a right of "review" to the courts:

12. . . .

(3) A person who feels aggrieved . . . may . . . apply to the court for a review of the matter, and the court may make an order changing the name of the corporation to such name as it deems proper or may dismiss the application.

While this right of "review" might at first blush appear to confer a large discretion upon the reviewing court, a majority of this Court determined that this was not so. Laskin J. (as he then was), for himself and Spence J., wrote (at p. 683):

The Court, in the exercise of the power of review conferred by s. 12(3), is undoubtedly authorized to consider the meaning and application of the statutory standard fixed under s. 12(1). There is, however, the anterior question of the scope of the power of review which has been granted. "Review" is not a hearing de novo but is related here to a prior administrative decision. I do not read the power to review as authorizing a substitution of a judicial for an administrative opinion on no other basis than disagreement with the administrative decision. Nor do I regard it as permitting a Court to come to a different conclusion merely on the basis of its conclusion as to the weight of the evidence which was before the administrative authority. [Emphasis added.]

Pigeon J. agreed in the result but expressed the view that he saw no difference between a right of appeal and a right of review to a court. This led him to adopt a somewhat wider basis for intervention than the one advocated by Laskin and Spence JJ. in the same case. Pigeon J. concluded that the reviewing court was empowered to reconsider the merits, although he did remark that such reconsideration should be exercised "always remembering that this being a specialized judge with particular experience in the matter at hand, due weight is to be given to his conclusions" (p. 689). This test is akin to the one put forward by the Quebec Court of Appeal in J.R.D.

Under s. 16(9) and (10), in light of s. 5, the general economy of the Act and the necessarily incidental creation of a specialized body of decision-makers, paying due tribute to curial deference in the Youth Court's area of expertise, the discretion to confirm or reverse the decision of the Youth Court can, in my view, be exercised only in cases where there is a serious ground for intervention. Errors of fact as well as errors of law would constitute such serious grounds, but the test is intended to allow a somewhat broader basis for review. In some cases, it could allow the discretion to review to be exercised where there is a substantial discrepancy between the reviewing court's and the Youth Court's assessment of the relevant factors. This test recognizes the privileged position of the transfer hearing judge in determining questions of fact in the Youth Court's area of expertise and makes fitting allowance for the judge's familiarity with the resources of the youth care system, while at the same time breathing life into the right of appeal.

This interpretation of s. 16(9) and (10) accommodates a sound policy reason not to allow unfettered discretion to the reviewing court. Such a discretion would necessarily encourage a multiplicity of appeals which, in turn, would spoil Parliament's intention to resolve transfer hearings speedily and expertly. Dragging the matter into appeal seriously hampers a young offender's entitlement to the rehabilitative resources of the youth system. Parliament could not have intended this drastic consequence to result from its decision to exceptionally allow the review of transfer hearings.

In conclusion on this point, it is my view that the Court of Appeal erred in proceeding on the basis that it could simply substitute its own appreciation as to whether a transfer should be ordered. It found no error in the legal principles applied by the Youth Court judge. Nor did it state any serious ground for intervention, as I next propose to show by considering how the Court of Appeal interpreted the test for transfer.

III Test for Transfer

The test, set out by s. 16(1) of the Young Offenders Act for transfer, is a balancing test:

16. (1) At any time after an information is laid against a young person alleged to have, after attaining the age of fourteen years, committed an indictable offence . . . a youth court may . . . if the court is of the opinion that, in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in ordinary court, order that the young person be so proceeded . . .

In making this assessment, the Youth Court is directed to a number of factors listed in s. 16(2) which I reproduce again for convenience:

(2) In considering an application under subsection (1) in respect of a young person, a youth court shall take into account

(2) Le tribunal pour adolescents saisi d'une demande présentée en vertu du paragraphe (1) et visant un adolescent, doit tenir compte des éléments suivants:

(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed;

a) la gravité de l'infraction et ses circonstances;

(b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act [c. J-3 of the Revised Statutes of Canada, 1970] or previous findings of guilt under this or any other Act of Parliament or any regulation made thereunder;

b) l'âge, le degré de maturité, le caractère et les antécédents de l'adolescent, de même que tout résumé des délits antérieurs relevant de la Loi sur les jeunes délinquants, [chap. J-3 des Statuts révisés du Canada de 1970] ou des déclarations de culpabilités antérieures intervenues dans le cadre de la présente loi, ou de toute autre loi du Parlement ou de leurs règlements d'application;

(c) the adequacy of this Act, and the adequacy of the Criminal Code or other Act of Parliament that would apply in respect of the young person if an order were made under subsection (1), to meet the circumstances of the case;

c) l'opportunité, compte tenu des circonstances de l'espèce, de soumettre l'adolescent à la présente loi ou au Code criminel ou à une autre loi du Parlement, si une ordonnance était rendue en conformité avec le paragraphe (1);

(d) the availability of treatment or correctional resources;

d) l'existence de moyens de traitement ou de réadaptation;

(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and

e) les observations qui lui ont été présentées par l'adolescent ou en son nom, par le procureur général ou par le représentant de celui-ci;

(f) any other factors that the court considers relevant.

f) tous autres éléments qu'il considère pertinents.

Here again the history of the legislation is instructive. Prior to 1982, s. 9 of the Juvenile Delinquents Act allowed a transfer provided the youth court "is of the opinion that the good of the child and the interest of the community demand it". In expounding what the words "good of the child" meant, juvenile courts under the previous legislation did not benefit from a statutory description of the relevant factors as is today present in s. 16(2). While the "good of the child" initially had been held by the case law to encompass the benefits of a public criminal trial, the courts gradually rejected this approach and eventually came to recognize that the expression chiefly alluded to the likelihood of successful treatment. As noted by Bowker (loc. cit., at p. 391):

More and more, the paramount consideration in determining the "good of the child" focused on the juvenile's potential for rehabilitation within the Juvenile Court system.

This approach was adopted by Parliament in enacting the Young Offenders Act and is enshrined in s. 16(2)(b), (c) and (d).

The needs of the young person find expression in s. 16(2)(b). In requiring the Youth Court judge to consider the age, maturity and character of the offender, Parliament recognizes that the special treatment of young offenders is premised in part on their immaturity. This immaturity would cause young persons to be unable to fully evaluate the consequences of their actions, on the one hand, and, on the other, it also facilitates their rehabilitation. In addition, when associating with adult criminals in an adult prison, the immaturity of youths gives rise to legitimate fears that they will forever lose any hope of being rehabilitated. The consequences of incarceration in adult quarters may not only be drastic but in some cases fatal. The decision to transfer a youth to adult prison is a most serious decision, one which may possibly cause irreparable damage to the youth and to society as well.

Accordingly, any evidence that the emotional and intellectual development of the young offender is greater than one could expect of a person of the same physical age may suggest that the Youth Court's exclusive jurisdiction should be waived. Conversely, evidence of immaturity or impressionability would militate in favour of tending to the young person's needs within the system. The young person's age and criminal background are to be considered in this context. Where there is a reasonable likelihood that the young person's immaturity and character could work to his disadvantage in the ordinary court or correctional facilities, s. 16(2)(b) weighs against transfer.

Section 16(2)(c) directs the Youth Court judge, in light of all the circumstances, to assess the respective suitability of the Young Offenders Act, the Criminal Code and any other relevant Act. The Youth Court judge must first consider any circumstances which may diminish the likelihood that the objective of reformation of criminal behaviour set out by the Act will be attained in the circumstances of the case. For instance, evidence that the proposed treatment will take longer than the period of custody allowed for by the legislation is relevant here. To take another example, the fact that the offence was committed against, or within, the youth system would tend to indicate that the system, and therefore the Act, is inadequate. As well, evidence that the protection of society cannot be ensured by detention facilities of the youth system, such as a prior record of escape in the case of a violent offender, would be apposite here. This is not intended to be an exhaustive list of factors. If the judge finds that the youth system offers no reasonable likelihood that the rehabilitation objective will be attained, then that is the end of the inquiry under s. 16(2)(c). If, however, such a possibility exists, then the judge must move to a second level of inquiry. The judge must turn to evidence that the rehabilitation needs of the young person could be served in the ordinary penitentiary system. The potential for treatment must then be appraised and compared. Transfer would be favoured if the likelihood of successful treatment in the ordinary penitentiary system is greater than the same likelihood in the youth system.

Section 16(2)(d) speaks for itself, although once again there is a slight discrepancy between the English and French texts. The French text clearly states that the availability of means of "treatment or rehabilitation" are to be considered. The English text instead refers to "treatment or correctional resources". I think this is a proper case for the application of the ejusdem generis rule. The criminal law is premised on the availability of correctional resources. If the section read "the availability of correctional resources", it would be meaningless. Consequently, the word "correctional" must be given a meaning consistent with the companion word "treatment". It follows that, under s. 16(2)(d), germane evidence includes evidence that the youth court system does not provide the facilities needed to treat that young person. Equally relevant is evidence that the youth has exhausted the resources of the system.

The other major element to be balanced, the "interest of society", is a broad concept. On the one hand, it incorporates the legitimate interest that those persons guilty of a criminal offence will be prosecuted and convicted. Reinforcement of fundamental societal values through the deterrence of criminal conduct and the punishment of criminals is a legitimate goal for the benefit of society. On the other hand, society's interest also commands the rehabilitation of criminals and their reintegration into society. This is especially relevant in the case of young criminals for whom the possibilities of rehabilitation are greater. The preamble to the 1908 legislation stresses that the welfare of the community demands that young offenders be "subjected to such wise care, treatment and control as will tend to check their evil tendencies and to strengthen their better instincts". Indeed, the Young Offenders Act itself is premised in part on the notion that the reformation of the young criminal is in the interest of all, in accord with the truism that the youths of today contain the hope for tomorrow's society. These objectives, though complemented by other policies, have not been set aside by Parliament in the legislative reform of 1982.

At this juncture, I find it necessary to remark on a proposition which has found some support in the case law. Under s. 9 of the previous Act, in deciding whether to allow transfer, the Youth Court judge was directed to have regard to "the good of the child and the interest of the community". Section 16(1) reversed the order of these factors, pressing the Youth Court judge to consider "the interest of society and having regard to the needs of the young person". Some courts have considered this shift in emphasis to indicate that a priority attaches to the interest of society. In R. v. L.A.M. (1986), 1986 CanLII 4688 (BC CA), 33 C.C.C. (3d) 364 (B.C.C.A.), the court speaks of "a clear shift of emphasis in favour of the interest of society" and in R. v. M., supra, the court mentions "a slight emphasis on the interest of society" (p. 541). However, in other decisions, this change in drafting gives no preponderance whatsoever to the interest of society. I adopt as my own the following passage of MacKinnon A.C.J.O.'s reasons in M.A.Z., supra, at p. 162:

In light of s. 3, I do not think that the interest of society or the needs and interests of the young person are to be given greater importance one over the other. They are to be weighed against each other having regard to the matters directed to be considered in s. 16(2).

The interest in reinforcing fundamental societal values finds incidental expression in s. 16(2)(a). The seriousness of an offence relates only indirectly to the rehabilitative objectives of the legislation. The more fundamental purpose of this element would appear to be deterrence. Section 16(2)(a) is premised on the notion that some criminal conduct may not be sufficiently dissuaded when tried before the Youth Court, perhaps on account of the publicity of trials and the severity of punishment in ordinary courts. These are all characteristics of the ordinary criminal process. There is a danger in over-emphasizing the importance of this element, particularly since Parliament has not seen fit to provide for automatic transfers to adult courts for such serious crimes as murder or aggravated sexual assault. The Committee on Juvenile Delinquency aptly formulated this concern as follows (Juvenile Delinquency in Canada, op. cit., at p. 79):

[I]t does not follow from the fact alone that an offence is one that the law regards as particularly heinous, including on occasion even murder or rape, that an offender is not amenable to the treatment approach of the juvenile court, however much public sentiment may be aroused.

Youths involved in allegedly serious offences may be as much if not more in need of the treatment provided to other youths. The seriousness of the offence may or may not have great bearing on the potential for rehabilitation. It captures the right of society to be vindicated. In this respect, one author commented (Jane Morley, "Transfer of Children to the Ordinary Criminal Courts: A Case of Legislative Limbo" (1979), 5 Queen's L.J. 288, at p. 307):

Accepting seriousness as an appropriate criterion causes additional problems in that it leaves the door open to the influence of public opinion. A child who commits a heinous act for whatever reasons is in a very poor position. The more violent and contemptible the offence, the more publicity it will receive and the more public outrage will be generated. In such cases, seriousness is a convenient handle by which to justify fulfilling community expectations.

On the other hand, the punishment provided by the Act may be thought to be inadequate in the face of a particularly revolting crime. This is no doubt a legitimate concern but the shortcomings of the legislation, which the legislature can always rectify, should not penalize young offenders. Perhaps the difficulties experienced by the Court of Appeal of Alberta in the present case find their origin in the considerable difference between the length of incarceration provided for by the Criminal Code and the length of custody allowed by the Young Offenders Act in connection with the most serious offences. If the Act allowed for longer periods of treatment perhaps the courts would be less inclined to lose sight of the commitment toward the rehabilitation of young offenders. However, this is not a concern for the courts. As noted by MacKinnon A.C.J.O. in M.A.Z., supra, at p. 162:

This is obviously an area for consideration and possible amendment by those responsible for the Act.

I find it appropriate here to stress that, as the transfer hearing proceeds before the trial, the offence charged is not to be taken as having been established. Neither are the alleged circumstances to be taken as proven facts. It may very well turn out that the evidence does not support the initial charge and allegations. The present case illustrates this. During his oral pleading, counsel informed this Court that while this appeal was pending, S.H.M.'s case proceeded to preliminary inquiry, albeit over the objections of the youth. Counsel added that, as a result of the inquiry, S.H.M. was committed for trial, not on a charge of first degree murder, but rather on a charge of second degree murder.

In light of this background I now propose to briefly review the findings made in the courts below with respect to each of the factors enumerated in s. 16(2).

Pursuant to s. 16(2)(a), Gerhart Prov. Ct. J. considered the seriousness of the offence. He noted that "[t]he offence of first degree murder is one of the most serious offences under the Criminal Code and for which the minimum punishment is life imprisonment" and that "[t]he allegation of the commission of a serious offence such as murder is a weighty factor . . . ." Gerhart Prov. Ct. J. also considered the circumstances of the alleged offence, noting that the Crown had "submitted evidence in support of the proposition that S.H.M. was a party to the brutal, callous, senseless slaying" of Dreifus. He concluded:

The seriousness of the alleged offence and the circumstances alleged surrounding their commission, without more, would seem to weigh in favour of a transfer.

In the Court of Queen's Bench, Miller A.C.J.Q.B. was not blind to the element of seriousness. In dismissing the application for review, he stated that he did "in no way wish to minimize the gravity of the offence and some of the surrounding circumstances".

In the Court of Appeal, Laycraft C.J.A. shared the assessment of the Youth Court judge that the element of seriousness favored transfer. His reasons for judgment suggest that he was strongly impressed by "the callous and brutal nature of the crime alleged and the insensitivity of the perpetrators as they sold the property while the victim lay dead in the basement" (p. 3l7).

All courts below were in agreement that s. 16(2)(a) favoured transfer in the circumstances of the case.

In respect of s. 16(2)(b), S.H.M. was found to have been 17 years and eleven months of age at the time of the alleged offence. However, Gerhart Prov. Ct. J. concluded that his intellectual and emotional development were much lower than his physical age would suggest. According to a report prepared by a psychiatrist who testified for the Crown, Dr. Lang, S.H.M. has a "full-scale I.Q." of 84, which was characterized by him as being "in the "Low Average" range of intelligence". As well, upon cross-examination by counsel for S.H.M., Dr. Lang characterized S.H.M. "as emotionally about 13 or 14 years of age and a follower rather than a leader, a passive, frightened little boy". Dr. Lang expressed the opinion that S.H.M. "exhibited neurotic behaviour but was not a disturbed psychotic or schizophrenic". To help S.H.M. with "life skills", Dr. Lang recommended group therapy, two hours per week, for one or two years. A report prepared by another psychiatrist, Dr. Brooks, was also adduced by the Crown. The report indicated that "[a]lthough his [S.H.M.] personality problems would benefit from treatment, this would not be essential to his well-being".

Although there is no specific acknowledgement of this in the reasons for judgment, the Predisposition Report, necessarily part of the record by virtue of s. 16(3) of the Act, records a single prior conviction as a juvenile for joyriding under s. 295 of the Criminal Code. S.H.M. was also convicted for gross indecency under s. 157 of the then Criminal Code. The report states that when S.H.M. was charged with that offence he was an adult. He appeared and pleaded guilty in the regular court on June 26, 1986. He received a suspended sentence and three years probation.

On the whole, it is fair to conclude that in Gerhart Prov. Ct. J.'s view, s. 16(2)(b) did not significantly weigh in favour of transfer in the overall assessment.

In the Court of Queen's Bench, Miller A.C.J.Q.B. did not pass upon this element in great detail, simply stating: "there is something to be said for the fact that this young man, although he has established some very bad lifestyle habits, had not come into serious difficulty with the law before this incident occurred. There is no record of prior violence".

In the Court of Appeal, Laycraft C.J.A. noted that "had the events occurred three and one-half weeks later, S.H.M. would, without more, have been liable to the full adult penalties for first degree murder" (p. 315). Laycraft C.J.A. also considered the emotional and intellectual development of S.H.M., though he cast doubt on the credibility of the psychiatric assessment adduced at trial (at p. 313):

His I.Q. was found to be 84 which is "low average" or "dull normal" . . . "equal to or better than only 15 per cent of his peers". His emotional age is described as 4 to 5 years lower than his chronological age. He is shy, introverted, self conscious, easily hurt and perceives himself to be isolated and disliked by his teachers and his peers. One witness describes him as passive and "more a follower than a leader" though, the Crown's allegations, if established, would not support that assessment. [Emphasis added.]

This last remark, in my respectful view, does not seem to be supported by the record.

With respect to S.H.M.'s prior convictions, Laycraft C.J.A. noted (at p. 317):

I also respectfully disagree with the observation in Court of Queen's Bench that this offender had no record of violence. His record showed two counts of sexual assault against nine and ten year old boys. Sexual assault is essentially a crime of violence even if the young victims were compliant as S.H.M. asserts. What effect this 1984 offence has on this transfer application is, of course, another matter. [Emphasis added.]

Again, these remarks do not appear to be supported by the record. The pre-disposition report adduced as evidence at trial shows a count of gross indecency (s. 157 of the then Criminal Code) but no count of sexual assault (s. 246 of the then Code). This evidence was undisputed in the Youth Court and in the Court of Queen's Bench. The written evidence adduced at the transfer hearing does not disclose the circumstances described by the Court of Appeal. Gross indecency does not necessarily involve violence. To be made out, the offence does not require the non-consensual application of force to another person as does assault.

While in Laycraft C.J.A.'s view, s. 16(2)(b) favored transfer, this conclusion was premised in substantial part on an erroneous interpretation of the evidence. In addition, the Court of Appeal did not find any palpable error in the findings of fact made by the Youth Division nor did it in any way pay curial deference to that court.

Turning to s. 16(2)(c), Gerhart Prov. Ct. J. considered the comparative "adequacy" of the Young Offenders Act and that of the Criminal Code as part of the overall balancing. The expression "adequacy" was understood to focus on the rehabilitative aspect of the respective enactments:

The minimum disposition under the Criminal Code for the offence of first degree murder is life imprisonment. The maximum disposition under the Young Offenders Act is three years secure custody.

The Court, in determining the adequacy of the Young Offenders Act or of the Criminal Code, must bear in mind the age and maturity of the young person together with any evidence as to the necessity for prolonged treatment. There is no evidence before the Court with respect to the necessity for confinement for treatment longer than available under the Young Offenders Act. The Court is therefore of the opinion that the Young Offenders Act is adequate to meet the needs of society and of the accused S.H.M.

Gerhart Prov. Ct. J. was satisfied on the evidence adduced before him that S.H.M. would be amenable to treatment within a three-year period spent in the youth system. He was of the view that the evidence did not establish that a longer treatment would be necessary.

In the Court of Queen's Bench, Miller A.C.J.Q.B. similarly contemplated the adequacy of the Young Offenders Act when he wrote:

Because of the reports on file which indicate that with proper guidance and some treatment, [S.H.M.] may still be salvaged and be a useful citizen to society, I am prepared to give him the benefit of the provisions of the Young Offenders Act . . . .

In the Court of Appeal, however, the emphasis was on the retributive aspect of adequacy. Laycraft C.J.A. wrote (at p. 316):

The "interest of society" to which the section [s. 16(1)] refers includes the protection of society, itself, from the offender, as well as the enforcement of the standard of penalty which Parliament has seen fit to fix for first degree murder. That crime attracts the most serious sanction in our criminal law. The sanction sets forth the reaction of Canadian society to the crime, as seen by the enactment of its elected representatives. By contrast the three year maximum penalty prescribed by the Young Offenders Act may be seen, in some cases, as an absurdly inadequate response. [Emphasis added.]

With respect for the learned opinion of the Court of Appeal, s. 16(1)(a) already provides for a consideration of the seriousness of the crime. It appears that, in considering "adequacy", the Court of Appeal in effect gave additional regard to the element of seriousness of the crime in underscoring the need for correlative punishment. In my view the Court failed to recognize that the element of "adequacy" focusses on the likelihood that the youth's need for rehabilitation and treatment will be met. As a result, while the Court expressed the view that s. 16(2)(c) favoured transfer, that conclusion was premised on an erroneous interpretation of the element of "adequacy".

In considering s. 16(2)(d), Gerhart Prov. Ct. J. heard evidence from witnesses called by the Crown. These witnesses testified that the provincial correctional facilities provided adequate psychiatric facilities. It was the opinion of one of these witnesses that S.H.M.'s group counselling needs could be met in either the young offender system or the ordinary correctional system. Gerhart Prov. Ct. J. accepted this evidence and found that "S.H.M. will be adequately served in either the Young Offenders system or in the Adult system". Although the use of the word "adequately" may lead to confusion when used in the context of s. 16(2)(d), it is clear from the present context that Gerhart Prov. Ct. J. meant that the necessary resources were available in either system. The availability of resources was not discussed in the Court of Queen's Bench nor in the Court of Appeal. Given that the Court carefully reviewed the other conclusions of the Youth Court, this silence may be taken as implicit approval.

As a result, of the four elements considered, the Court of Appeal agreed with the Youth Court that two of these militated in favour transfer. It took a different view on the other two elements, though, as I have attempted to show, these conclusions are in part unsupported by the record and inextricably bound to an erroneous interpretation of s. 16(2)(c). In my view, these circumstances fail to disclose a serious ground for the exercise of the Court of Appeal's power of review.

IV - Conclusion

On the whole, I am led to the conclusion that in the present case s. 16(9) and (10) of the Act did not authorize the Court of Appeal to substitute its own evaluation of the circumstances for the evaluation of the Youth Division. No error of fact or of law was committed by the Youth Division. Nor are there any other serious grounds for intervention.

In fact, the Court of Appeal itself proceeded on the footing of an incorrect interpretation of s. 16(1) and (2) of the Act. It misconceived the burden of proof required for a transfer. The history and purpose of the legislation as well as the English and French texts of the provisions set a threshold more onerous than simply "favouring" transfer, as was held in the Court of Appeal. In my view, the burden falls squarely on the applicant to persuade the court that no solution other than transfer is appropriate.

This is a case where the additional expertise of the Youth Division and its privileged situation in assessing the expert testimony should have prevailed over any perceived differences of opinion in the Court of Appeal. In the circumstances of this particular case, the Youth Division was convinced that the Crown had failed on its burden to show why a transfer should be ordered. In the Youth Court's view, the element of seriousness, which favoured transfer, was outweighed by the other elements, which were either neutral or weighed against transfer. As found by the Youth Division, the available treatment facilities and the character of the youth gave rise to a sufficient likelihood that treatment would be successful. As the youth would not be likewise amenable to rehabilitation in the ordinary penal system, the balancing test under s. 16(1) and (2) required, in the Youth Court's view, that he not be transferred. In the absence of any serious ground for intervention, this conclusion should have conclusively determined the fate of the appellant as regards his transfer to the ordinary court system.

As a result, I would allow the appeal and quash the order to transfer S.H.M. to ordinary court. I would restore the judgment of the Court of Queen's Bench dismissing the appeal from the decision of the Youth Division.

Appeal dismissed, LA FOREST and L'HEUREUX‑DUBÉ JJ. dissenting.

Solicitors for the appellant: Brimacombe & Sanderman, Edmonton.

Solicitor for the respondent: Jack Watson, Edmonton.