R. v. W.(D.A.), 1990 CanLII 21 (SCC), [1991] 1 SCR 291
D.A.W. Appellant
v.
Her Majesty The Queen, as represented by the Attorney General of Nova Scotia Respondent
and
The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick and the Attorney General of Prince Edward Island Interveners
Indexed as: R. v. W.(D.A.)
1990: May 31*.
Present: Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.
on appeal from the nova scotia supreme court, appeal division
Constitutional law ‑‑ Courts ‑‑ Jurisdiction ‑‑ Provincially appointed judge presiding over youth court and declining jurisdiction ‑‑ Whether jurisdiction conferred on youth court reserved to superior court judges ‑‑ Whether establishment of youth court within provincial legislative competence ‑‑ Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110 ‑‑ Constitution Act, 1867, ss. 92, 96.
Courts ‑‑ Jurisdiction ‑‑ Provincially appointed judge presiding over youth court and declining jurisdiction ‑‑ Whether jurisdiction conferred on youth court reserved to superior court judges ‑‑ Whether establishment of youth court within provincial legislative competence ‑‑ Whether youth court judges must be appointed by Governor in Council -- Whether provincial court judges can be appointed youth court judges by Lieutenant Governor in Council ‑‑ Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110 ‑‑ Constitution Act, 1867, ss. 92, 96.
Appellant, a young person within the meaning of the Young Offenders Act, was charged with offences under the Criminal Code and appeared before a judge of the provincial magistrate's court sitting as a youth court judge, who declined jurisdiction. The Nova Scotia Supreme Court, Trial Division, found that the provincial court judge had jurisdiction to sit as a youth court judge and issued the mandamus sought by the Crown. The Court of Appeal upheld the decision. This appeal is to determine (1) whether the Young Offenders Act is unconstitutional to the extent that it does not specifically require that the youth court be presided over by a judge appointed pursuant to s. 96 of the Constitution Act, 1867; (2) whether the establishment of a youth court is within provincial legislative competence; (3) whether a youth court judge must be appointed by the Governor in Council; and, if not, (4) whether provincial court judges can be appointed judges of the youth court by the Lieutenant Governor in Council.
Held: The appeal should be dismissed.
In light of this Court's decision in Reference re Young Offenders Act (P.E.I.), (1) provincially appointed judges can preside over youth courts without offending s. 96 of the Constitution Act, 1867, (2) the establishment of youth courts is within provincial legislative competence, (3) youth court judges need not be appointed by the Governor General, and (4) provincial court judges can be appointed youth court judges by the Lieutenant Governor in Council.
Cases Cited
By Lamer C.J.
Applied: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 000.
By Wilson J.
Applied: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 000.
By La Forest J.
Applied: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 000.
Statutes and Regulations Cited
Constitution Act, 1867, ss. 92, 96.
Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, s. 2.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1989), 1989 CanLII 7160 (NS CA), 92 N.S.R. (2d) 92, 237 A.P.R. 92, 49 C.C.C. (3d) 284, affirming Glube C.J.T.D.'s decision (1988), 1988 CanLII 7085 (NS SC), 86 N.S.R. (2d) 392, 218 A.P.R. 392, 44 C.C.C. (3d) 138, granting mandamus. Appeal dismissed.
Chandra Gosine, for the appellant.
Robert E. Lutes and Louise Walsh Poirier, for the respondent.
John R. Power, Q.C., James Mabbutt, Q.C., and James Bissell, for the intervener the Attorney General of Canada.
John Cavarzan, Q.C., and Timothy Macklem, for the intervener the Attorney General for Ontario.
Jean Bouchard and Jean Turmel, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
R. B. Hubley, Q.C., and Agnes MacDonald, for the intervener the Attorney General of Prince Edward Island.
//Lamer C.J.//
The reasons of Lamer C.J. and Gonthier and Cory JJ. were delivered by
Lamer C.J. -- This appeal was heard together with Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 000, in which the reasons were handed down today by this Court. Pursuant to the provisions of the Young Offenders Act, S.C. 1980-81-82-83, c. 110, the Province of Nova Scotia had designated the Provincial Magistrate's Court a Youth Court. The appellant, a young person within the meaning of the Young Offenders Act, had been charged with offences under the Criminal Code and had appeared before a judge of the Provincial Magistrate's Court who was sitting as a judge of the Youth Court. Randall Prov. Ct. J. gave a ruling declining jurisdiction. By originating notice, the respondent, the Attorney General of Nova Scotia, commenced an application to the Supreme Court of Nova Scotia in which he argued for the constitutionality of the Young Offenders Act, and requested an order in the nature of a mandamus. Glube C.J.T.D. found that Judge Randall had jurisdiction and authority to sit as a Youth Court Judge and issued the mandamus. The Court of Appeal confirmed Glube C.J.T.D.'s decision.
For the reasons which I have reached in Reference re Young Offenders Act (P.E.I.), I would dismiss the appeal and answer the constitutional questions in the following manner:
- Is the Young Offenders Act, S.C. 1980-81-82-83, c. 110, unconstitutional on the basis and to the extent that it does not specifically require that the Youth Court be presided over by a Judge appointed pursuant to s. 96 of the Constitution Act, 1867?
Answer: No.
- Is the establishment by a Province of a Youth Court as defined by s. 2 of the Young Offenders Act within the legislative competence of the Province pursuant to s. 92 of the Constitution Act, 1867?
Answer: Yes.
- (a) Is the appointment of a Youth Court Judge an appointment which must be made by the Governor in Council pursuant to s. 96 of the Constitution Act, 1867?
Answer: No, the appointment need not be made by the Governor General. The Governor in Council is not mentioned in s. 96 of the Constitution Act, 1867, therefore the question of whether the appointment must be made by the Governor in Council does not arise.
(b) If the answer to (a) is no, can a Provincial Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?
Answer: Yes.
//Wilson J.//
The reasons of Wilson and McLachlin JJ. were delivered by
Wilson J. -- For the reasons I gave in Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 000, a case that was heard together with this appeal, I agree with Chief Justice Lamer's proposed disposition of this appeal.
I would accordingly dismiss the appeal and answer the constitutional questions in the same manner as Lamer C.J.
//La Forest J.//
The reasons of La Forest and L'Heureux-Dubé JJ. were delivered by
La Forest J. -- For the reasons set forth in Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 000, issued concurrently, I would dispose of this appeal in the manner proposed by Chief Justice Lamer.
Appeal dismissed.
Solicitor for the appellant: Chandra Gosine, Halifax.
Solicitors for the respondent: Robert E. Lutes and Louise Walsh Poirier, Halifax.
Solicitor for the intervener the Attorney General of Canada: John R. Power, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Jean Bouchard, Québec.
Solicitor for the intervener the Attorney General for New Brunswick: The Deputy Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of Prince Edward Island: The Deputy Attorney General of Prince Edward Island, Charlottetown.
- Reasons delivered February 7, 1991.
** Chief Justice at the time reasons delivered.