R. v. L. (J.E.), [1989] 2 S.C.R. 510

J.E.L. Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. l. (j.e.)

File No.: 20764.

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 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, s. 16.

J.E.L. and another youth, S.H.M., 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. J.E.L. was 17 years and 6 months old at the time of the alleged offences. He had prior convictions for theft and mischief. The pre-disposition report indicates that J.E.L.'s behaviour deteriorated following the death of his father in 1983. Since 1984, he has been in the care of Alberta Social Services. The psychiatric evidence concerning J.E.L. was conflicting. According to the defence psychiatrist, there was a strong possibility that he could re-establish close relationships which might result in abandonment of his anti-social ways. The Crown psychiatrist was of the opinion that J.E.L. suffered from an untreatable personality disorder. Tests conducted on J.E.L. reveal that he is of above average intelligence.

The Youth Court judge considered the factors set out in s. 16(2) of the Act and declined to order the transfer. The Court of Queen's Bench upheld the ruling but the Court of Appeal reversed the judgment. J.E.L. appealed to this Court. The issues on this appeal were the same as in R. v. M. (S.H.), [1984] 2 S.C.R. 000.

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. While there is a burden on the party seeking transfer to persuade the court that transfer to ordinary court is appropriate on the factors set out in s. 16(2) of the Act, the onus should not be regarded as a heavy one. 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 interpretation of the nature of the review process. While the provincial 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, s. 16(9) and (10) of the Act confers on the provincial courts of review a discretion to make an independent evaluation and arrive at an independent conclusion on those facts.

The Court of Appeal properly applied the relevant factors for transfer from Youth Court to ordinary court. The court considered the gravity and heinous nature of the alleged offences to be an important factor but its reasons clearly indicate that it also bore in mind the other factors prescribed by the Act. The court, in the exercise of its discretion, is not required to accord equal weight to all factors; given the nature of the case, some may loom larger than others.

Per La Forest and L'Heureux-Dubé JJ. (dissenting): The Court of Appeal erred in ordering the transfer of J.E.L. to ordinary court. The transfer of a youth to the ordinary court under s. 16(1) of the Young Offenders Act must propose itself to the Youth Court judge's mind as the only appropriate solution. The burden falls squarely on the applicant to persuade the court that no solution other than transfer is appropriate in the circumstances of a particular case. In this case, the Court of Appeal misconceived the burden of proof required for transfer. This error pervaded its assessment of the evidence relating to the elements to be considered under s. 16.

The discretion to confirm or reverse the decision of the Youth Court under s. 16(9) and (10) of the Act 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. Here, the Court of Appeal erred in proceeding on the basis that it could only substitute its own appreciation as to whether a transfer should be made.

The Court of Appeal expressed no serious disagreement with the analysis of the Youth Court judge. The sole difference between the two courts was that the Court of Appeal considered the transfer of J.E.L.'s accomplice, S.H.M., to be a relevant consideration. While the transfer of a co-accused may be relevant, it is only a single element which must be weighed in light of the other elements stated in s. 16(2). In view of the importance of the other elements in that section which were not discussed at any length by the Court of Appeal, the court simply substituted its view for that of the Youth Court in an area lying at the heart of that court's expertise. No error of fact or of law was found in the reasons of the Youth Court, nor did the Court of Appeal state any other serious ground for intervention. This was 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.

Cases Cited

By McLachlin J.

Applied: R. v. M. (S.H.), [1989] 2 S.C.R. 000, aff'g (1987), 1987 ABCA 114, 78 A.R. 309.

By L'Heureux-Dubé J. (dissenting)

R. v. M. (S.H.), [1989] 2 S.C.R. 000, aff'g (1987), 1987 ABCA 114, 78 A.R. 309; R. v. Clements (1983), 1983 CanLII 3592 (ON CA), 5 C.C.C. (3d) 308; R. v. C.R.M. (1986), 1986 CanLII 5013 (MB QB), 46 Man. R. (2d) 317; R. v. Smith (1975), 1975 CanLII 1349 (MB CA), 28 C.C.C. (2d) 368; R. v. E.S.R. (1985), 1985 CanLII 3882 (MB CA), 36 Man. R. (2d) 276.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, ss. 294 [rep. & subs. 1972, c. 13, s. 23; rep. & subs. 1974-75-76, c. 93, s. 25; am. 1985, c. 19, s. 44]; 387 [am. 1972, c. 13, s. 30; am. 1985, c. 19, s. 58].

Young Offenders Act, S.C. 1980-81-82-83, c. 110, ss. 5, 16.

APPEAL from a judgment of the Alberta Court of Appeal (1987), 4 W.C.B. (2d) 97, setting aside a judgment of Veit J. rendered May 29, 1987, affirming a judgment of a Youth Court judge, 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.

Peter J. Royal, Q.C., for the appellant.

Michael 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, heard together with R. v. M. (S.H.), [1989] 2 S.C.R. 000, 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.

The Facts

The facts giving rise to the charges have been set out in my reasons in R. v. M. (S.H.) and need not be repeated. Suffice it to say that the circumstances alleged by the Crown, if proven, establish the commission of a heinous offence in callous manner. Separate charges were laid against each of the young offenders, and each proceeded independently. In the case of J.E.L., as with S.H.M., the Youth Court judge declined to order transfer to ordinary court. The Court of Queen's Bench upheld that ruling. The Court of Appeal overturned it, ordering J.E.L. to stand trial in ordinary court. J.E.L. now appeals to this Court.

The background of J.E.L. was troubled. At the time of the alleged offences, J.E.L. was 17 years, 6 months of age. He had prior convictions for theft over $200 and mischief, for each of which he was sentenced to six months' probation. The pre-disposition report describes J.E.L. as enjoying a stable and close relationship with members of his family until his father's death in February, 1983. He was extremely close to his father who apparently offered a degree of discipline which his mother was subsequently unable to do. Following the death of his father, J.E.L.'s behaviour deteriorated; school suspensions and incidents of running away from home occurred. Since August of 1984, J.E.L. has been in the care of Alberta Social Services in various group homes and a boarding apartment situation.

The testimony of the psychiatrists concerning J.E.L. is conflicting. According to the defence psychiatrist, there is a strong possibility that J.E.L. can re-establish close relationships which might result in abandonment of his anti-social ways. The Crown psychiatrist took the bleaker view that J.E.L. suffered from an untreatable personality disorder. Tests conducted on J.E.L. reveal he is of above average intelligence; his troubles at school and his inability to remain employed would seem to stem more from a lack of motivation than a lack of ability.

Relevant Statutory Provisions

The relevant statutory provisions are those set out in my reasons in R. v. M. (S.H.)

Judgments

Youth Court: Judge Hansen

Like her counterpart in the companion case of R. v. S.H.M. (1986), 17 W.C.B. 322, the Provincial Court judge examined the factors and principles set out in s. 16 of the Young Offenders Act. She seems to have preferred the evidence of the defence psychiatrist, stating that she was not satisfied that J.E.L. was suffering from a personality disorder of the anti-social type. After considering the different penalties provided by the Acts, the seriousness of the offences, the age, development and maturity of the appellant, and the fact that the goal of the Young Offenders Act is rehabilitation, the judge found that the period of sentence or disposition under the Young Offenders Act was sufficient for the appellant to receive the therapy he needed. She noted that federal institutions are not designed to deal with young offenders and that "there is always a long term risk that incarceration in an adult institution could be detrimental to a young offender's development and ultimate rehabilitation".

The Youth Court judge then turned to the onus on the Crown to justify transfer. Noting that the test in s. 16(1) of the Young Offenders Act places the primary emphasis on the interest of society of the needs of the young person, she stated the interest of society goes beyond the protection of society to include the principles of accountability, responsibility, and rehabilitation of young offenders and she concluded that while "[t]he Crown is not required to establish beyond a reasonable doubt that the young person should be transferred", the onus is nevertheless "a heavy one". Given the onus, she concluded that transfer was not appropriate, stating:

I am not satisfied on the evidence that the Crown has discharged the heavy onus. There is no compelling reason in the interest of society that he should be transferred. Having regard to the needs of J.E.L., he has not exhausted the young offenders system and, in fact, there is a specific program within the youth system designed to meet his treatment needs and hopefully affect his rehabilitation and, accordingly, the application for transfer on each count is denied.

Alberta Court of Queen's Bench: Veit J.

Veit J. took the view that the review procedure contemplated under s. 16(9) of the Young Offenders Act was akin to an administrative law judicial review. The reviewing court, in her opinion, could not substitute its discretion for that of the Youth Court judge. Rather, the reviewing court's jurisdiction was limited to assessing jurisdiction and determining if the transfer court judge has made an error of law.

On the question of the burden of proof on the Crown, Veit J. stated that although the phrase "heavy onus" was unfortunate, the lower court judge had correctly considered whether the interests of society would be served by transfer. She expressed the view that the phrase "heavy onus" was merely meant to emphasize that transfers to adult court were not to be automatic. Having found that the hearing judge had adopted the correct test under s. 16(1) by noting that the primary emphasis was on the interests of society over the needs of the young person, and having concluded that the hearing judge did not fail in her appreciation of the evidence, Veit J. confirmed the Youth Court judge's ruling against transfer to ordinary court.

Court of Appeal: Lieberman, McClung and Irving JJ.A.

McClung J.A., writing for the court, found that the decision of Veit J. was inconsistent with the Court of Appeal's ruling in the companion case of R. v. S.H.M. (1987), 1987 ABCA 114, 78 A.R. 309, and that she had erred in confining the role of a reviewing court to determining jurisdiction and reviewing for error. In the Court of Appeal's view, the review court is empowered to confirm or reverse the decision before it "in its discretion", entitling it to render the decision which it believes should have been given initially. Stating that he had assessed the evidence and factors in this case and noting that "[t]his homicide was not a crime of adolescent proportion", McClung J.A. concluded that a transfer to ordinary court should be ordered.

Issues

The issues on this appeal are the same as in R. v. M. (S.H.): (1) the nature of the burden on the applicant for transfer to ordinary court; (2) the nature of review on appeal; and (3) whether the Court of Appeal erred in application of the test for transfer.

Discussion

1. The Burden on the Applicant

In R. v. M. (S.H.) I concluded that while there is a burden on the party seeking transfer to persuade the court that transfer to ordinary court is appropriate on the factors set out in s. 16(2) of the Act, the onus should not be regarded as a heavy one. 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 did not err in its appreciation of this principle in the case at bar.

2. The Nature of the Review Process

In R. v. M. (S.H.), I set out my views on the nature of the review process in the Court of Queen's Bench and the Court of Appeal. 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 Young Offenders Act confers on the provincial courts of review a discretion to make an independent evaluation and arrive at an independent conclusion on those facts.

In my opinion, the Court of Appeal did not err in its interpretation of the nature of the review process.

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

The reasons in this case, as in R. v. M. (S.H.), indicate that the Court of Appeal considered the gravity and heinous nature of the alleged offences to be an important factor in determining whether the case should be transferred to ordinary court. But its reasons make clear that it also bore in mind the other factors prescribed by the Act. The court, in the exercise of its discretion, is not required to accord equal weight to all factors; given the nature of the case, some may loom larger than others. I can find no error in the Court of Appeal's application of the principles to the facts of this case.

Conclusion

I would dismiss the appeal.

L'Heureux-Dubé J. (dissenting)

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

L'HEUREUX-DUBÉ J. (dissenting) -- With deference, having had the benefit of reading the reasons of my colleague Justice McLachlin, I am unable to subscribe to her opinion nor can I agree with her disposition of the present appeal.

This case was heard at the same time as R. v. M. (S.H.), [1989] 2 S.C.R. 000 (reasons delivered concurrently). It raises the same issues. In accordance with the reasons I gave in R. v. M. (S.H.), I am of the view that the Court of Appeal erred in ordering that J.E.L. be transferred to ordinary court.

In light of these comments, I now propose to briefly review the findings made in the courts below as regards the three issues raised in this appeal, namely, the burden of proof required to justify transfer of a youth pursuant to s. 16 of the Young Offenders Act, S.C. 1980-81-82-83, c. 110, the scope of review allowed by s. 16(9) and (10) of the Act, and the proper test for transfer, as set out in s. 16(1) and (2) of the Act.

Before doing so, however, I find it appropriate to recall that J.E.L. was charged with first degree murder, theft and possession of stolen property in connection with the killing of George Dreifus. Although S.H.M. and J.E.L. were not jointly charged, it was alleged that they had both participated in the killing. We were informed that, recently, after having proceeded to preliminary inquiry over the youths' objections, the charge was reduced to second degree murder.

I - Burden of Proof

The French and the English texts of s. 16(1) of the Act must be read 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. For the reasons I gave in R. v. M. (S.H.), 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 the 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 considered that the burden on an applicant under s. 16(1) of the Act is a "heavy" one. Hansen Prov. Ct. J. said:

The Crown is not required to establish beyond a reasonable doubt that the young person should be transferred however the onus on the Crown is a heavy one.

In the Court of Queens' Bench, Veit J. commented on the notion of a "heavy onus", although she appeared not to endorse the use of such an onus. She said:

It may be unfortunate that the expression "heavy onus" has crept into judicial language with respect to the onus on a transfer applicant. One might have thought that one of the traditional tests would suffice: establish beyond a reasonable doubt or on a balance of probabilities. By adopting a third, probably intermediate, standard, the existing jurisprudence undoubtedly wishes to emphasize only that Parliament has decided that young persons should be dealt with in a particular way; it has not established automatic transfers to the ordinary courts either for a certain age class of young persons or for certain types of offences. The jurisprudence emphasizes that a transfer hearing judge must recognize this overall intention of Parliament on the burden of satisfying the tests in s. 16(1).

In the Court of Appeal, McClung J.A. did not expressly comment upon the burden, although it is clear that he followed the decision of Laycraft C.J.A. in R. v. S.H.M. (1987), 1987 ABCA 114, 78 A.R. 309. Laycraft C.J.A. held that it sufficed if "the balancing of the factors favours transfer" (p. 316).

In my view, for the more detailed reasons I have given in R. v. M. (S.H.), 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. To the extent that it relied on the lower threshold of "favouring transfer", the Court of Appeal erred and that error pervaded its assessment of the evidence relating to the elements to be considered in s. 16.

II - Scope of Review

In the Court of Queen's Bench, Veit J. exercised her statutory discretion to review in a restrictive manner. Commenting on the scope of review, she said:

Although the expressed options of confirming or reviewing the decision of the provincial court make it clear that something more than a mere review of jurisdiction is anticipated in this review, the scope of the appeal court's jurisdiction on review is clearly not to review the matter de novo and is presumably not so broad as to enable the review court to substitute its discretion for that of the court being reviewed. Assuming that there is no challenge to the jurisdiction of the transfer hearing court, I am of the view that the appeal court on review should interfere only if there has been an error in law or a patently unreasonable result.

The Court of Appeal of Alberta, however, felt that it was "bound to apply the principles . . . that were expressed in Regina v. S.H.M." For the court, McClung J.A. added that he "fully agree[d]" with these principles:

By their explicit wording, these provisions [s. 16(9) and (10)] have recast the customary standard of appellate review of interlocutory orders of this type. The appellate court is required to render the decision it concludes should have been given. [Reference omitted.]

In my view, this is too broad an interpretation of the scope of appeal. For the reasons I gave in R. v. M. (S.H.), the discretion which is conferred by s. 16(9) and (10) of the Act is not to be exercised in a vacuum. 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 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.

I now turn to the test for transfer to determine whether in this case there was such a serious ground for intervention.

III - Test for Transfer

In considering the elements listed in s. 16(2) in the case at bar, Hansen Prov. Ct. J. first considered the element of seriousness. She noted that "[t]he offence of first degree murder is one of the most serious offences under the Criminal Code". Hansen Prov. Ct. J. then cited with approval a decision of the Ontario Court of Appeal where the alleged commission of murder was referred to as a "weighty factor" (R. v. Clements (1983), 1983 CanLII 3592 (ON CA), 5 C.C.C. (3d) 308, at p. 311). She also appraised the circumstances, in particular, the degree of violence and insensitivity of the murder. Though urged by the Crown to conclude that J.E.L.'s actions were premeditated, she found no evidence in this respect:

The Crown has argued, however, that because the strangulation occurred after the deceased was rendered unconscious or incapable of protecting himself, the Court should infer that the murder was premeditated.

There is, however, no evidence of the degree, if any, of J.E.L.'s participation in the strangulation and, accordingly, it is not possible for the Court to come to any conclusion as to the degree of premeditation and violence on the part of J.E.L.

Veit J., in the Court of Queen's Bench, considered the element of seriousness at length. She took note of the Youth Court judge's finding that there was no evidence of premeditation. In this respect, she indicated some approval for the proposition that "[t]he matter of premeditation is something to be decided by the trier of fact at the hearing of the case, and not for the judge at the hearing of the transfer application" (R. v. C.R.M. (1986), 1986 CanLII 5013 (MB QB), 46 Man. R. (2d) 317, at p. 318). Veit J. concluded as follows:

In summary on this issue, the learned trial judge explicitly recognized the weightiness of the mere charge of first degree murder. As to the circumstances of the murder, she was entitled to consider the evidence led, to note the absence of any evidence of premeditation, to weigh the frailty of the hearsay evidence on the crucial issue of [J.E.L.]'s participation in the cruelty of the strangulation as distinct from his involvement in the initial blow to the victim's head, and to note the existence of potential provocation on the issue of the danger of [J.E.L.] to society at large.

In the Court of Appeal, equal attention was given to this element of the balancing, as McClung J.A. noted:

Mr. Davies has urged that J.E.L.'s role in the homicide is subsidiary to that of S.H.M. Nonetheless, at its lowest level of criminality, the case alleged against J.E.L. points to his participation in a culpable homicide that was brutal, coordinated and mercantile. There was evidence that it was unregretted.

This homicide was not a crime of adolescent proportion.

Other than the use of more emphatic language in the Court of Appeal, it appears that all courts below found that the element of seriousness of the alleged offence and circumstances militated in favour of transfer.

With respect to s. 16(2)(b), Hansen Prov. Ct. J. found that J.E.L. was 17 years and six months old at the time of the alleged offence. She accepted the evidence of Dr. Brooks, who this time had prepared a psychiatric assessment report at the request of the youth, to the effect that J.E.L. is of average intelligence and that his personality testing fell within normal limits. Hansen Prov. Ct. J. quoted from Dr. Brooks' report, which indicated "a mildly anti-social pattern with a tendency to anti-authority attitudes".

The Crown adduced evidence through another psychiatrist, Dr. Blashko, who expressed the view that J.E.L. suffers from a personality disorder. However, Hansen Prov. Ct. J. rejected that evidence:

Dr. Blashko, in response to a lengthy hypothetical question, was of the opinion that J.E.L. suffers from a personality disorder, anti-social type, for which the prognosis is bleak. While Dr. Blashko had available to him, in formulating his opinion, a great deal of historical information, he did not have the benefit of a clinical interview.

Dr. Blashko indicated that in arriving at his conclusion, he considered patterns of anti-social behaviour in J.E.L.'s history but did not specifically relate the onset of the anti-social behaviour to the death of J.E.L.'s father.

I am not satisfied on the evidence that J.E.L. falls within the limits of the category of personality disorder, anti-social type, as described by Dr. Blashko. [Emphasis added.]

With respect to previous findings of guilt, the pre-disposition report indicates that J.E.L. had one previous finding of guilt of theft over $200, contrary to s. 294 of the Criminal Code, R.S.C. 1970, c. C-34, and one finding of guilt of mischief contrary to s. 387 of the Code.

These prior convictions are not discussed in the reasons for judgment in the courts below. There is no further acknowledgement of the elements of age, character and background in the Court of Queen's Bench and in the Court of Appeal. Accordingly, it must de assumed that the Court of Appeal did not disagree with the analysis of Hansen Prov. Ct. J. on the element of s. 16(2)(b) in the circumstances of this case.

Turning to the factors of adequacy under s. 16(2)(c) and availability of resources under s. 16(2)(d), Hansen Prov. Ct. J. noted:

The maximum disposition under the Young Offenders Act is three years secure custody. Under the Criminal Code, the minimum punishment for the offence of first degree murder is life imprisonment. In determining the adequacy of the Act, one must have regard to the degree of accountability expected bearing in mind the age, level of maturity and development of the young person, together with seriousness and circumstances surrounding the alleged offence.

One must also consider that the primary goal when dealing with a youthful offender is that of rehabilitation. The Court must determine whether a longer period of time than that provided for in the Young Offenders Act having regard to the protection of society is necessary for the rehabilitation of the young person.

Dr. Brooks was of the opinion that J.E.L. required a fairly long period of individual and group psychotherapy about one year, which is well within the statutory limits in Section 20 of the Young Offenders Act. [Emphasis added.]

Hansen Prov. Ct. J. indicated that she was satisfied that J.E.L. was amenable to treatment when she cited the following portion of Dr. Brooks' report:

There is a strong possibility that J.E.L. can re-establish relationships with somebody on a close basis and if this occurs, he can abandon his anti-social ways. With this in mind, a fairly long period of individual and group psycho-therapy, about one year, could achieve this end.

Hansen Prov. Ct. J. suggested that J.E.L.'s case would not benefit from the same likelihood of reformation in the adult system:

The Young Offender institutions are specifically designed and staffed to meet the needs of young offenders. In addition, within the young offender system, there is a forensic unit at Alberta Hospital, which has been established to meet the treatment needs of young offenders. The federal institutions are not designed to deal with young offenders. While the vocational training programs available to inmates in adult institutions may be superior to those in young offender institutions, there are no special handling units, nor is there individualized programming for young people.

In addition, having regard to the inmate culture in provincial and federal institutions, there is always a long term risk that incarceration in an adult institution could be detrimental to a young offender's development and ultimate rehabilitation.

Later, Hansen Prov. Ct. J. added: "he [J.E.L.] has not exhausted the young offenders system and, in fact, there is a specific program within the youth system designed to meet his treatment needs and hopefully affect his rehabilitation . . ."

In the Court of Queen's Bench, Veit J. also noted the availability of facilities suited to address J.E.L.'s treatment needs, stressing the "explicit psychiatric evidence that [J.E.L.] . . . was amenable to treatment, and that a program exists which can treat him". She concluded:

Given the explicit support of the psychiatrist for this program for this young person, in total the learned trial judge has certainly not failed in her appreciation of the evidence.

There was no discussion of this element in the Court of Appeal. Accordingly, it must be assumed that the court found no reason to disagree with Hansen Prov. Ct. J. in her analysis of these elements in the circumstances of the present case.

Pursuant to s. 16(2)(e), Hansen Prov. Ct. J. then considered two other elements which were urged by the Crown to be relevant. First, the Crown adduced evidence that J.E.L. escaped from the Youth Development Centre while being held in respect of the charge of murder. The crown urged the Court to infer that the security system was inadequate to hold J.E.L. Hansen Prov. Ct. J. rejected this submission, noting: "The possibility of escape is a concern in all correctional institutions". There was no further discussion of this submission in the courts below. While evidence of escape may be relevant to the overall assessment, as ultimately going to the societal interest in being protected from dangerous criminals and also perhaps indicating the youth's non amenability to treatment, it is open to the Youth Court judge to consider such evidence in light of all the other evidence before the court. The second submission involved a letter allegedly written by J.E.L. showing insensitivity and lack of remorse on his part. This evidence was rejected by the Youth Court judge:

As stated by Dr. Brooks, however, there is no way to determine whether this letter is a true statement of lack of remorse and bragging or whether it is a means of putting up a front for peers.

Authorship of the letter was not proven, and even if it had been, the Youth Court judge found, as a fact, that the letter could not be taken as establishing lack of remorse. Nevertheless, in the Court of Appeal, McClung J.A. observed: "There was evidence that it [the murder] was unregretted". It is difficult to see how the Court of Appeal, in the absence of palpable mistake by the court below, and not having had the benefit of Dr. Brooks' viva voce testimony, could reverse the Youth Court's findings with respect to the letter.

There was an additional relevant element considered in the Court of Appeal which had not been examined in the courts below. McClung J.A. relied on the principle that co-accused should be tried jointly. He said:

It is a consideration which cannot deny a young offender an individual assessment of the justification for his transfer to the ordinary court but neither is it irrelevant to the issues before the court. Like cases should be treated alike.

Some cases have indeed considered that the treatment of co-accused is a relevant consideration in an application for transfer. For instance, under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, in the case of R. v. Smith (1975), 1975 CanLII 1349 (MB CA), 28 C.C.C. (2d) 368 (Man. C.A.), Hall J.A. wrote at p. 371:

This was a joint venture between the accused and his adult confederate. If they are tried by two different tribunals -- one in the juvenile Court, the other in adult Court -- there is a danger of disparate conclusions being reached, as well as the certainty of vastly different degrees of punishment being imposed, if verdicts of guilt were reached.

In the later case of R. v. E.S.R. (1985), 1985 CanLII 3882 (MB CA), 36 Man. R. (2d) 276 (C.A.), Hall J.A. had an opportunity to explain his words in Smith. He said (at p. 279):

In my opinion the transfer of E. and the retention of W. [are] not necessarily inconsistent. Each accused must be viewed separately. Both should be treated the same if the circumstances warrant but that does not have to be the case. The decision of this court in R. v. Smith (1975), 1975 CanLII 1349 (MB CA), 28 C.C.C. (2d) 368 was not intended as a statement that transfer must always be ordered where the co-accused of a young offender is to be tried in adult court. It is only one factor to be taken into account. It was a particularly important factor in R. v. Smith, (supra), but only because of the facts in that particular case.

I agree with these views. Each case must be determined on its specific facts. Minor differences in the factual background of particular cases may result in different conclusions respecting the propriety of transfer. While the transfer of a co-accused may be relevant, it is only a single element, one which must be weighed in light of the other elements stated in s. 16(2).

It can readily be seen that the Court of Appeal expressed no serious disagreement with the analysis of the Youth Court judge. The sole difference between the two courts lies in the taking into account by the Court of Appeal of the fact that the accomplice, S.H.M., had been transferred to ordinary court. Considering the importance of the other elements in s. 16(2), which were not discussed at any length in the reasons of McClung J.A., the Court of Appeal, for no apparent reason, simply substituted its view for that of the Youth Court in an area lying at the heart of that court's expertise.

In view of the scant discussion of the factors to be balanced and the comment of McClung J.A. adopting the principles expressed in R. v. S.H.M., supra, one cannot escape the impression that, at the end of the day, much reliance was put on the earlier judgment of the Court of Appeal in that case. In my view, this is anything but the exercise of a fresh discretion as envisaged by the legislation.

IV - Conclusion

As was the case in R. v. S.H.M., the Court of Appeal found no error of fact or of law in the reasons of the Youth Division. Nor in my view did the Court of Appeal state any other serious ground for intervention. This was a case where the additional expertise of the Youth Division and its privileged situation in assessing the expert testimony should have prevailed over only minor differences of opinion in the Court of Appeal.

As a result, I would allow the appeal and quash the order to transfer J.E.L. 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: Freeland, Royal & McCrum, Edmonton.

Solicitor for the respondent: Michael Watson, Edmonton.