R. v. S. (S.), 1990 CanLII 65 (SCC), [1990] 2 SCR 254

Her Majesty The Queen Appellant

v.

Sheldon S. Respondent

and

The Attorney General of Canada,

the Attorney General of Quebec

and the Attorney General for Saskatchewan Interveners

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

File No.: 20845.

1989: March 23; 1990: June 28.

Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for ontario

Criminal law -- Young offenders -- Alternative measures -- Ontario choosing not to implement alternative measures programmes -- Whether s. 4 of Young Offenders Act imposes mandatory obligation on provinces to authorize such programmes -- Whether s. 4 intra vires Parliament -- Whether Ontario's failure to implement alternative measures programmes infringes a young offender's right to equality before the law under s. 15 of Canadian Charter of Rights and Freedoms -- Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 3, 4.

Constitutional law -- Distribution of legislative powers -- Young Offenders Act -- Alternative measures -- Provinces permitted under s. 4 of Young Offenders Act to implement alternative measures programmes for young offenders -- Whether s. 4 intra vires Parliament -- Whether s. 4 encroaches upon provincial jurisdiction over child welfare -- Whether s. 4 is unconstitutional delegation of Parliament's authority over criminal law ‑‑ Constitution Act, 1867, ss. 91(27), 92(13) -- Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, s. 4.

Constitutional law -- Charter of Rights -- Equality before the law ‑‑ Discrimination on the basis of province of residence -- Ontario failing to implement alternative measures programmes pursuant to s. 4 of the Young Offenders Act -- Whether Ontario's failure to implement such programmes infringes s. 15(1) of Canadian Charter of Rights and Freedoms -- Whether s. 4 of the Act infringes s. 15(1) of the Charter -- Impact of s. 15(1) of Charter on distinctions based upon province of residence in the application of a valid federal law.

The respondent, a young offender, was charged with possession of stolen goods. Before he entered a plea, his counsel brought a motion alleging that Ontario's failure to designate "alternative measures programmes" for the purposes of s. 4 of the Young Offenders Act resulted in a violation of the respondent's right to equality before the law, as guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 4 provides that "alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if" a number of conditions are met. The judge held that the Attorney General for Ontario was under a positive duty to authorize alternative measures programmes in the province by virtue of s. 3(1)(d) and (f) of the Act, and that the failure to implement such programmes, which were available to young offenders in all the other provinces, infringed the respondent's s. 15(1) right. He concluded that the infringement could not be justified under s. 1 of the Charter and dismissed the charge. Before the Court of Appeal, the appellant submitted that s. 4 of the Act was, in pith and substance, legislation in relation to child welfare, a matter falling within the sphere of provincial legislative competence under s. 92(13) of the Constitution Act, 1867. The court rejected this argument, upheld the trial judge's decision on the s. 15(1) issue and dismissed the appeal.

Held: The appeal should be allowed.

(1) Section 4 of the Young Offenders Act

Section 4(1) of the Act does not oblige the provinces to implement alternative measures programmes; rather, the legislation leaves the decision to the discretion of each province. The use of the word "may" in s. 4(1) and the absence of an obligation expressed in unequivocally mandatory language lead to that conclusion. The word "should" in s. 3(1)(d) of the Act, which states that "taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences", does not provide evidence of a mandatory duty. In the context of s. 3(1)(d), the word "should" denotes simply a "desire or request" and not a legal obligation. Section 4(1) thus gives to the provincial Attorneys General a power, but not a duty, to develop and implement alternative measures programmes.

(2) Section 91(27) of the Constitution Act, 1867

Section 4 of the Act is intra vires Parliament. The Act as a whole is valid criminal law. It addresses the commission of offences contrary to the Criminal Code and other federal criminal law statutes. While s. 4(1) differs from most criminal law remedial statutes in that the focus is on alternatives to more traditional criminal sanctions, the federal legislative power over criminal law is sufficiently flexible to recognize new developments in methods of dealing with offenders. Indeed, Parliament's jurisdiction under s. 91(27) of the Constitution Act, 1867 extends beyond the confines of creating offences and establishing penalties. The discretion to create an alternative measures programme pursuant to s. 4 represents a legitimate attempt to deter young offenders from continued criminal activity. There is a concern with preventing recidivism and with balancing the interests of the offending `young person' with those of society. Section 4, therefore, was a valid exercise of Parliament's legislative authority under s. 91(27).

Section 4 of the Act is not an unconstitutional delegation of Parliament's authority over criminal law and procedure. There is no limitation imposed by the Constitution Act, 1867 on Parliament's ability to leave the implementation of alternative measures programmes to the discretion of the provincial Attorneys General. The provinces have accepted a delegation of responsibility from Parliament in respect of prosecutions, including the prosecution of young offenders (s. 2 of the Criminal Code and s. 2(4) of the Act). The discretion to establish alternative measures programmes is clearly incidental to that legitimate delegation.

(3) Section 15 of the Charter

Since s. 4 of the Act does not impose a mandatory duty on the province to establish alternative measures programmes, the Attorney General for Ontario's decision not to authorize such programmes cannot contravene the respondent's equality rights under s. 15(1) of the Charter. His decision was made in accordance with the permissive terms of s. 4. That section, and not the discretionary determination made by the Attorney General pursuant to its provisions, constitutes "the law" for the purposes of a s. 15 challenge. Further, once it is determined that there is no duty on the Attorney General for Ontario to implement alternative measures programmes, the non‑exercise of discretion cannot be constitutionally attacked simply because it creates differences among provinces. To find otherwise would potentially open to Charter scrutiny every jurisdictionally permissible exercise of power by a province, solely on the basis that it creates a distinction in how individuals are treated in different provinces. The constitutionality of s. 4, in terms of compliance with the Charter, was not in issue in this appeal.

The outcome of this appeal would be no different had s. 4 been challenged directly. As a result of the discretion granted by Parliament to the provincial Attorneys General, alternative measures programmes were available to young offenders in all the provinces of Canada except Ontario. The absence of this benefit in that province must be considered a legal disadvantage imposed upon young offenders resident in Ontario. However, while the respondent has established that he was not receiving equal treatment before and under the law or that the law has a differential impact on him in the protection or benefit accorded by law, he did not establish that s. 4 was discriminatory. In a federal system of government, the values underlying s. 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. Unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based upon province of residence. A case‑by‑case approach is appropriate to determine whether province-based distinctions which arise from the application of federal law contravene s. 15(1). Here, the legislation does not amount to a distinction which is based upon a "personal characteristic" for the purposes of s. 15(1) of the Charter. Differential application of federal law can be a legitimate means of forwarding the values of a federal system, especially in the context of the administration of the criminal law, where differential application is constitutionally fostered by ss. 91(27) and 92(14) of the Constitution Act, 1867. The area of criminal law and its application is one in which the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal‑provincial cooperation. Further, although s. 4 of the Act is valid federal law, it is not wholly unconnected to child welfare -- a matter of provincial jurisdiction. Differential application of the law through federal‑provincial cooperation is a legitimate means whereby governments can overcome the rigidity of the "watertight compartments" of the distribution of powers with respect to matters that are not easily categorized or dealt with by one level of government alone.

Cases Cited

Applied: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296; Attorney General of British Columbia v. Smith, 1967 CanLII 65 (SCC), [1967] S.C.R. 702; considered: Julius v. Bishop of Oxford (1880), 5 App. Cas. 214; distinguished: Regional Municipality of Peel v. MacKenzie, 1982 CanLII 53 (SCC), [1982] 2 S.C.R. 9; referred to: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Attorney‑General for Ontario v. Hamilton Street Railway Co., 1903 CanLII 121 (UK JCPC), [1903] A.C. 524; Proprietary Articles Trade Association v. Attorney‑General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310; R. v. M. (S.H.), 1989 CanLII 31 (SCC), [1989] 2 S.C.R. 446; R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940; Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen, 1956 CanLII 4 (SCC), [1956] S.C.R. 303; Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148; Fredericton v. The Queen (1880), 1880 CanLII 28 (SCC), 3 S.C.R. 505; R. v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693; R. v. Cornell, 1988 CanLII 64 (SCC), [1988] 1 S.C.R. 461.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 15, 24.

Constitution Act, 1867, ss. 91(27), 92(13), (14).

Criminal Code, R.S.C. 1970, c. C‑34, s. 2 "Attorney General" [rep. & sub. 1985, c. 19, s. 2].

Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 2(1) "alternative measures", (4) [now 2(2)], 3, 4.

Authors Cited

Bala, Nicholas and Heino Lilles, The Young Offenders Act Annotated. Don Mills, Ont.: Richard De Boo, 1984.

Côté, Pierre‑André. The Interpretation of Legislation in Canada. Translated by Katherine Lippel, John Philpot and Bill Schabas. Cowansville, Qué.: Yvon Blais, Inc., 1984.

Debates of the Houses of Commons, 1st Sess., 32rd Parl., 30 Eliz. II, 1981, vol. VIII, p. 9309.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Hudson, Joe and Joseph P. Hornick and Barbara A. Burrows, eds. Justice and the Young Offender in Canada. Toronto: Wall & Thompson, 1988.

Oxford English Dictionary, vol. IX, 2nd ed. Oxford: Clarendon Press, 1989, "may".

Rabinovitch, Paul. "Diversion Under Section 4: Is There a Future for It in Ontario?". In Nicholas Bala and Heino Lilles, Young Offenders Service, vol. 1. Edited by Roman N. Komar and Priscilla Platt. Toronto: Butterworths, 1984.

Swinton, Katherine E. "Competing Visions of Constitutionalism: Of Federalism and Rights". In Katherine E. Swinton and Carol J. Rogerson, eds., Competing Constitutional Visions: The Meech Lake Accord. Toronto: Carswells, 1988.

APPEAL from a judgment of the Ontario Court of Appeal (1988), 1988 CanLII 7100 (ON CA), 26 O.A.C. 285, 63 C.R. (3d) 64, 35 C.R.R. 247, 42 C.C.C. (3d) 41, dismissing the appeal of the Attorney General for Ontario from a judgment of Bean Prov. Ct. J., [1986] W.D.F.L. 2598, 17 W.C.B. 399, 9 C.R.D. 350.45‑01, dismissing a charge of possession of stolen goods against a young offender. Appeal allowed.

Brian J. Gover, for the appellant.

Brian Weagant and Michael Anne MacDonald, for the respondent.

Douglas J. A. Rutherford, Q.C., and D. J. Avison, for the intervener the Attorney General of Canada.

Yves de Montigny and Jean Turmel, for the intervener the Attorney General of Quebec.

Robert G. Richards and Ross Macnab, for the intervener the Attorney General for Saskatchewan.

//The Chief Justice//

The judgment of the Court was delivered by

THE CHIEF JUSTICE -- This appeal concerns the failure of the Attorney General for Ontario to implement a program of "alternative measures" within that province pursuant to s. 4 of the Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110 (now R.S.C., 1985, c. Y‑1).

The Legislation

Young Offenders Act

The provisions of the Young Offenders Act relevant to this appeal, as they stood at the time of the events in issue, are as follows:

INTERPRETATION

2. (1) In this Act,

"alternative measures" means measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence;

(4) Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.

DECLARATION OF PRINCIPLE

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 rights, 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 of 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).

ALTERNATIVE MEASURES

4. (1) Alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if

(a) the measures are part of a program of alternative measures authorized by the Attorney General or his delegate or authorized by a person, or a person within a class of persons, designated by the Lieutenant Governor in Council of a province;

(b) the person who is considering whether to use such measures is satisfied that they would be appropriate, having regard to the needs of the young person and the interests of society;

(c) the young person, having been informed of the alternative measures, fully and freely consents to participate therein;

(d) the young person has, before consenting to participate in the alternative measures, been advised of his right to be represented by counsel and been given a reasonable opportunity to consult with counsel;

(e) the young person accepts responsibility for the act or omission that forms the basis of the offence that he is alleged to have committed;

(f) there is, in the opinion of the Attorney General or his agent, sufficient evidence to proceed with the prosecution of the offence; and

(g) the prosecution of the offence is not in any way barred at law.

Constitution Act, 1867

The provisions of the Constitution Act, 1867, relevant to this appeal are as follows:

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,--

27.The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, --

13.Property and Civil Rights in the Province.

14.The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

Canadian Charter of Rights and Freedoms

The provisions of the Canadian Charter of Rights and Freedoms relevant to this appeal are as follows:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Facts

On February 24, 1986, the respondent Sheldon S., who was then 14 years of age, appeared before Judge D. A. Bean of the Ontario Provincial Court (Family Division) at Toronto and was arraigned on a charge which alleged that he:

. . . on or about the 23rd day of September in the year 1985 at the Municipality of Metropolitan Toronto in the Judicial District of York unlawfully did have in his possession property to wit: four shirts and two sweaters, of a value exceeding two hundred dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to the Criminal Code.

Before a plea was entered, counsel for the respondent indicated that he wished to bring a motion alleging that the failure of the Lieutenant Governor in Council for the province of Ontario to designate "alternative measures programs" for the purposes of s. 4 of the Young Offenders Act resulted in a violation of the respondent's equality rights, as guaranteed by s. 15 of the Charter. Counsel for the respondent indicated that the remedy sought was an order pursuant to s. 24(1) of the Charter staying the proceedings or dismissing the charge.

The Judgments Below

The Judgment at First Instance

The motion was heard on April 18, 1986. It was agreed that the respondent had not been considered for an alternative measures program. On August 11, 1986, Judge Bean delivered his reasons and ordered that the charge be dismissed. He defined the issue in this manner:

. . . are the young person's rights in accordance with Section 15 infringed or denied, because the Attorney General for Ontario or Lieutenant Governor in Council for Ontario has not authorized alternative measures pursuant to Section 4(1)(a) of the Young Offenders Act, and therefore this young person cannot be considered for alternative measures under Section 3(1)(d) of the Young Offenders Act.

The judge held that no programs of alternative measures were in operation for which the respondent could be considered. Had the Attorney General for Ontario or the Lieutenant Governor in Council authorized such a program, the judge found on the evidence that the respondent could have been considered for alternative measures. Furthermore, it was found that the failure to implement an alternative measures program could be traced to two factors:

. . . I further find on the evidence before me that the reasons why the Attorney General has not authorized programs in Ontario are; firstly, that the philosophy of the Attorney General and his Ministry, with regard to the dispositions and procedures of the Young Offenders Act, is in conflict with that of the Federal Government, and in particular the Federal Ministry of Justice, and; secondly, that the Attorney General does not wish to either expend the public funds for or to cope with the administrative difficulties inherent in setting up alternative measures in the Province of Ontario.

Judge Bean held that s. 3(1)(d) of the Young Offenders Act gave to the young person a positive right to be considered for alternative measures; the denial of that right, when such alternative measures are available in provinces other than Ontario, denied the young person the equal protection and equal benefit of the Young Offenders Act based on place of residence, and this constituted discrimination under s. 15 of the Charter. Furthermore, the judge held that the Attorney General for Ontario was under a positive duty to authorize a program of alternative measures in Ontario by virtue of s. 3(1)(d) and (f) of the Act. He found, from the context of the Act as a whole and, in particular, from the wording of s. 4(1)(a) that:

. . . the intention of Parliament was to give the Attorney General the right to authorize parts of a program, and by inference, not to authorize other parts of a program. I think, on the wording of Section 4(1)(a), the Attorney General was not given a right by law to not authorize all parts, or to not authorize a program at all.

Because the judge found that the failure of the Attorney General for Ontario to implement alternative measures pursuant to his duty under the statute violated the respondent's right under s. 15(1) of the Charter, it was then necessary to determine whether the infringement could be justified under s. 1 of the Charter. First, Judge Bean determined that the limitation on the respondent's rights was not "prescribed by law" within the meaning of s. 1:

The non‑authorization is not proscribed [sic] by law; the authorization is prescribed by law. And, I quite frankly, do not see how one can, taking the Act as a whole and Section 4(1)(a) in particular, come to the conclusion that by the mere empowering of the Attorney General to authorize measures which are a part of a program of alternative measures, parliament has given the Attorney General the right, by law, to also not authorize any program.

In the alternative, the judge held that even if the limitation was prescribed by law, it did not meet the reasonableness test of s. 1. This determination was based on a number of factors:

In my view, on the evidence before me, it is simply not reasonable. The Attorney General of Ontario has disregarded; firstly, the will of Parliament as clearly expressed in the legislation; secondly, the experience of eight other provinces with regard to alternative measures under this Act; thirdly, the experience of the Province of Ontario with regard to alternative measures prior to the introduction of the Young Offenders Act, and; fourthly, the opinion of the Ministry of Community and Social Services of the Province . . . .

The issue of the power of Parliament to enact s. 4 of the Young Offenders Act was not raised at trial.

The Court of Appeal

The Attorney General for Ontario appealed the decision of Judge Bean to the Ontario Court of Appeal. The Attorney General of Canada intervened in support of the respondent. Before the Ontario Court of Appeal, the Attorney General for Ontario submitted that s. 4 of the Young Offenders Act was, in pith and substance, legislation in relation to child welfare, a matter falling within the sphere of provincial legislative competence under s. 92(13) of the Constitution Act, 1867.

The Majority

The reasons of the majority of the Ontario Court of Appeal were delivered by Tarnopolsky J.A., Krever J.A. concurring: (1988), 1988 CanLII 7100 (ON CA), 63 C.R. (3d) 64, 26 O.A.C. 285, 42 C.C.C. (3d) 41, 35 C.R.R. 247 (hereinafter cited to C.R.R.); leave to appeal to this Court granted September 30, 1988, [1988] 2 S.C.R. ix. Tarnopolsky J.A. referred extensively to the reasons of Fauteux J., writing for a unanimous Supreme Court of Canada, in Attorney General of British Columbia v. Smith, 1967 CanLII 65 (SCC), [1967] S.C.R. 702. He found the reasons in Smith to be applicable to the Young Offenders Act and rejected the argument of the appellant that the Court's decision in Regional Municipality of Peel v. MacKenzie, 1982 CanLII 53 (SCC), [1982] 2 S.C.R. 9, governed the facts of the instant case. Tarnopolsky J.A. saw no merit in the argument that s. 4 of the Young Offenders Act was in pith and substance in relation to child welfare. Instead, he held that s. 4 of the Young Offenders Act is valid criminal law and, therefore, intra vires the Parliament of Canada.

On the Charter issue raised by the respondent, and accepted by the trial judge, Tarnopolsky J.A. applied a three‑step analysis to determine whether there had been a contravention of s. 15(1) of the Charter (at p. 271):

(1)an identification of the class of individuals who are alleged to be treated differently;

(2)a consideration of whether the class purported to be treated differently from another class is similarly situated to that other class in relation to the purpose of the law; and

(3)a determination as to whether the difference in treatment is "discriminatory" in the sense of a pejorative or invidious or disadvantageous purpose or effect of the law or action impugned.

In applying the first step, Tarnopolsky J.A. had little difficulty in finding a class of individuals alleged to have been treated differently since "[t]he class of individuals at issue are the young persons defined in s. 2 of the Act" (p. 271). With respect to the second, he found the classes of individuals identically situated but for their province of residence. With respect to the third step, Tarnopolsky J.A. analyzed the disadvantage to the class of individuals identified in order to determine whether it was "so unfair as to be discriminatory having regard to the purpose and effect of the legislation". He found the fact that the legislation was federal to be decisive in his determination that the treatment was discriminatory in nature (at p. 275):

This is . . . a case arising out of what the federal government clearly thought was a reform in favour of young offenders. Considerable time was spent trying to convince provincial governments that diversion by way of alternative measures was desirable both from the point of view of young persons and of society generally. In the final analysis, we are concerned with federal legislation and the federal Attorney‑General has submitted a long list of arguments which lead one to conclude that non‑implementation by any province of the scheme set out in the Act, according to the principles declared, would be invidious or pejorative to the extent of being discriminatory. [Emphasis in original.]

Tarnopolsky J.A. next dealt with the question of whether the reference to designation in s. 4 of the Young Offenders Act was mandatory or permissive. This analysis was undertaken in the context of the issue of what the "law" is that results in a denial of equal benefit to young persons in Ontario. After examining the relevant statutory provisions, he found that the discretion granted in the opening paragraph of s. 4(1) was in respect of each individual young person and that s. 4 "is not the basis of either a mandatory or a permissive delegation of power" (p. 278). However, upon examining the Act as a whole, and in particular, ss. 3(1)(d), 3(1)(f) and 3(2), Tarnopolsky J.A. found that without provincial designation of alternative measures the purpose of the Act would be undermined (at p. 279):

There is no way that young persons can be dealt with "in accordance with the principles set out in (sub‑s. 3(1))" which is the "Policy for Canada with respect to young offenders", unless there are alternative measures programs designated under s. 4(1)(a), for which a young person can be considered. The learned trial judge was correct in holding that s. 3 imposes a positive duty to authorize such programs. A failure to implement a legislative mandate, which results in the kind of discriminatory or invidious inequality discussed earlier herein, constitutes a contravention of Charter s. 15(1).

Consequently, Tarnopolsky J.A. held that the failure of the Attorney General for Ontario to designate alternative measures programs resulted in the respondent being denied the equal benefit of the law as protected by s. 15(1).

The final step in the Charter analysis engaged in by Tarnopolsky J.A. was a determination of whether the denial of the equal benefit of the law amounted to a reasonable limit under s. 1 of the Charter. Applying the test set out by this Court in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, Tarnopolsky J.A. found that the first requirement, that the objective of the limit must be of sufficient importance to justify overriding a constitutionally protected right, had not been met. Alternatively, he held that even if the objectives provided by the Attorney General for Ontario were accepted as sufficient to justify overriding the s. 15(1) right, the appellant failed to meet the proportionality requirement in Oakes.

On the basis of the s. 15(1) infringement, the majority of the Ontario Court of Appeal held that the appropriate remedy was a declaration that until programs of alternative measures within ss. 3 and 4 of the Act were instituted in Ontario, action against any young person who might have qualified and so claims, may have to be stayed. In the instant case, the majority of the court upheld the disposition of the trial judge that the charges against the respondent be dismissed. The alternative remedy of a stay of proceedings until alternative measures were introduced in the province would violate the respondent's right under s. 11(b) of the Charter.

The Minority

Robins J.A., in dissent, defined the issue, at p. 250, as being:

. . . whether or not a young offender residing in Ontario is denied the right to the equal protection and benefit of the law, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms, because the Attorney‑General for Ontario, unlike eight of his provincial counterparts, has not authorized a program of alternative measures within Ontario pursuant to s. 4 of the Young Offenders Act.

He held, first, that the Young Offenders Act does not obligate the Attorney General for Ontario to authorize alternative measures, but rather the legislation leaves the decision to the discretion of each province. He reached this conclusion on the basis of the wording of s. 4 of the Act (at p. 255):

The wording used in s. 4(1)(a) of the Act indicates that alternative measures may be used in Ontario to deal with a young person alleged to have committed an offence only if they are part of a provincially authorized program. The section does not impose or purport to impose a positive obligation on the provinces to authorize such a program. Read in its grammatical or ordinary sense, s. 4(1)(a) is a permissive enabling enactment granting powers whose exercise is optional. [Emphasis in original.]

He referred to s. 28 of the Interpretation Act, R.S.C. 1970, c. I‑23, which stated that the word "may" is to be construed as permissive, and he concluded that the words "only if" signify that provincial authorization is a precondition to the use of alternative measures. In the opinion of Robins J.A., s. 3(1) and (2) provided no aid in interpreting s. 4(1) (at p. 256):

The words of s. 4 in question are, however, plain and unambiguous; they empower the provinces of Canada to implement alternative measures programs within federally stipulated safeguards only if they so desire; they do not create any obligation on the provinces to establish such programs. If, as stated earlier, Parliament had intended that alternative measures be made available across Canada, it can be assumed that s. 4 would have been framed in mandatory and not permissive terms.

Robins J.A. also examined the purpose of the Act, and found no indication that the legislation was predicated on the universality of alternative measures programs (at pp. 256‑57):

In not forcing the provinces to implement programmes and in not establishing criteria (other than minimum safeguards) as to their nature, content and scope, Parliament recognized that diverse conditions exist from province to province and within the provinces themselves, and that legislation of this nature cannot be universal in its application across Canada but must be tailored to take regional differences into account. The approach Parliament has adopted to this area of the new juvenile justice system, in my opinion, is intended to accommodate both federal and provincial interests and values as they relate to the use of measures alternative to court proceedings in dealing with young offenders.

Robins J.A. drew support for his interpretation of s. 4 from extrinsic evidence introduced by the parties. He found the comments of the then Solicitor General of Canada, the Honourable Robert Kaplan, in the House of Commons Debates on Second Reading of the Young Offenders Act, April 15, 1981, at p. 9309, to be of particular relevance (at p. 258):

One of the criticisms of the new law has been to the effect that the federal government should have made diversion mandatory and more explicit. But the proponents of such arguments fail to recognize the importance to the young person of having the right to plead not guilty and the role of the provinces in the exercise of prosecutorial discretion. The use of alternative measures, in my opinion, is better left to the discretion of provinces which can develop programs to suit their particular circumstances. [Emphasis added by Robins J.A.]

He also relied upon the following passage from Nicholas Bala and Heino Lilles, The Young Offenders Act Annotated (1984), at p. 257:

Alternative measures must be part of an authorized program. The Act does not set out guidelines for establishing the programs; it merely provides legislative authority for them and legislates minimum standards to safeguard the young person's rights. The Act permits each province to determine whether it wishes to implement alternative measures programs, and provides flexibility for the development of different types of programs in response to local needs, interests and resources. [Emphasis added by Robins J.A.]

He referred to a similar observation made by Paul Rabinovitch in his paper "Diversion Under Section 4: Is There a Future for It in Ontario?", published in the Young Offenders Service (1984), at p. 257:

With the proclamation of the Young Offenders Act in April of 1984 and the official recognition of diversion under the Alternative Measures Provision, s. 4, it was hoped that diversion would finally become a permanent part of the juvenile justice system for all of Canada. The result would be that the obstacles in the way of the growth of diversion in provinces such as Ontario would be permanently removed. The Young Offenders Act appeared to do just that, as it formally recognized diversion and gave it official status. The key to s. 4, however, was that it was up to the individual provinces to take the initiative and respond to the legislation. The Y.O.A. itself did not officially establish diversion programs but merely gave the provinces the ability to do so. The Act encouraged the provinces to review their policies on diversion, and it gave them the incentive to formulate long range plans. As an added impetus to the provinces, a cost‑sharing scheme was put into the Y.O.A. in s. 70. This provision allowed individual provinces to enter into a cost‑sharing agreement with the federal Ministry of the Solicitor‑General. [Emphasis added by Robins J.A.]

Having concluded that s. 4 did not impose a mandatory duty on the Attorney General for Ontario, Robins J.A. did not feel obliged to pursue the s. 15(1) Charter analysis. In his determination of the case, once it is found that s. 4 is permissive with respect to the provinces, then the provincial Attorneys General cannot be faulted for failing to implement an alternative measures program. Section 4 constitutes "the law" for the purposes of a s. 15 challenge, but the legislation itself was not in issue with respect to its compatibility with s. 15 of the Charter.

Robins J.A. would allow the appeal, set aside the acquittal and order a new trial.

Constitutional Questions

The following constitutional questions were stated:

1.Is s. 4 of the Young Offenders Act ultra vires the Parliament of Canada because it is, in pith and substance, legislation dealing with a matter outside Parliament's jurisdiction over criminal law and procedure as conferred by s. 91(27) of the Constitution Act, namely, child welfare?

2.Does the decision of the Attorney General for Ontario not to authorize diversion programs as alternative measures under s. 4 of the Young Offenders Act violate the equality rights of the young persons accused of committing offences within Ontario, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms?

3.If the answer to question number 2 is yes, is the decision of the Attorney General for Ontario not to authorize diversion programs as alternative measures justified under s. 1 of the Canadian Charter of Rights and Freedoms?

The Issues

This appeal involves three issues: (i) whether s. 4(1)(a) of the Young Offenders Act imposes a legal obligation on the provinces to authorize programs of alternative measures; (ii) whether s. 4 is intra vires the Parliament of Canada pursuant to its jurisdiction over criminal law in s. 91(27) of the Constitution Act, 1867; and (iii) whether, if the legislation is intra vires, the failure of the Attorney General for Ontario to implement a program of alternative measures is a denial of the respondent's right to equality before and under the law pursuant to s. 15(1) of the Charter. I propose to deal with each issue in turn.

Analysis

1.Does s. 4(1)(a) of the Young Offenders Act Impose a Legal Obligation on the Provinces to Authorize Alternative Measures?

The appellant argued before this Court that s. 4(1) of the Young Offenders Act does not oblige the province of Ontario to designate programs of alternative measures. The respondent submitted that the presence of programs of alternative measures is obligatory throughout Canada under federal criminal legislation and that the integrity of the legislative scheme would be jeopardized if the spectrum of sanctions was not universally available.

In the judgment below, a majority of the Ontario Court of Appeal agreed with the respondent and upheld the trial judge's ruling that s. 4(1) of the Young Offenders Act imposes a mandatory duty on the provincial governments to establish programs of alternative measures. With respect, I must disagree with this finding. In my opinion, the meaning of s. 4(1) is unambiguous and can be gleaned from the plain meaning of the provision. The section requires that "[a]lternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if" a number of conditions are met. (Emphasis added.) Based upon the wording of the section, Robins J.A. in his dissenting reasons in the Court of Appeal below concluded, at p. 255, that:

. . . Parliament chose to employ the words "may" and "only if" in conjunction with a province's use of alternative measures under the Y.O.A. These words can in no sense be taken as indicating a federal intention to place the provinces under a duty to authorize alternative measures.

I agree with this conclusion. However, I wish to add that my reasons should not be taken as an indication that the use of the term "may" alone is determinative of the question whether an obligation is imposed. The Oxford English Dictionary (2nd ed. 1989), vol. IX, p. 501, includes the following two alternative definitions of the word "may", both of which are relevant to this issue:

Expressing permission or sanction: To be allowed (to do something) by authority, law, rule, morality, reason, etc.

In the interpretation of statutes, it has often been ruled that may is to be understood as equivalent to shall or must.

Obviously, either interpretation of s. 4(1) might be supported by the dictionary meaning of the word "may". The absence of an obligation expressed in unequivocally mandatory language is, however, one factor which leads me to conclude that the Young Offenders Act does not oblige the provinces to initiate a program of alternative measures.

Furthermore, I do not find support for the respondent's argument in the "Declaration of Principle" set out in s. 3 of the Act. Tarnopolsky J.A., for the majority of the Ontario Court of Appeal, made reference to s. 3(2), which states that the Young Offenders 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)". In order to construe the statutory purpose, then, it is necessary to refer to those principles. Of particular relevance to this appeal is s. 3(1)(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; [Emphasis added.]

I agree with Robins J.A. that the use of the term "should" in s. 3(1)(d) does not provide evidence of a mandatory duty. While I agree that s. 3(2) dictates that a liberal interpretation be given to the legislation, in my opinion that does not require the abandonment of the principles of statutory interpretation nor does it preclude resort to the ordinary meaning of words in interpreting a statute. In the context of s. 3(1)(d), I find that the word "should" denotes simply a "desire or request" (to use Robins J.A.'s definition) and not a legal obligation.

In interpreting this section I have found the approach taken in the English case of Julius v. Bishop of Oxford (1880), 5 App. Cas. 214 (H.L.) to be of some assistance. That case was concerned with the phrase "it shall be lawful" in the Church Discipline Act (U.K.), 3 & 4 Vict., c. 86, s. 3. The House of Lords held that the phrase was permissive and not compulsory in the sense that the Bishop had the discretion not to institute proceedings against an individual accused of ecclesiastical offences. The dictum of Lord Selborne remains relevant to this appeal (at p. 235):

I agree with my noble and learned friends who have preceded me, that the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.

To the same effect are the comments of Elmer A. Driedger in his treatise Construction of Statutes (2nd ed. 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Equally instructive is the interpretive approach adopted by Professor Pierre‑André Côté in his book, The Interpretation of Legislation in Canada (1984), at p. 235:

It is reasonable to believe that this rationality [that of the legislator] first manifests itself within a particular enactment: the statute is to be read as a whole, and each of its components should fit logically into its scheme.

From the point of view of the context, provisions, and scope and objects of the legislation, I find that the Young Offenders Act gives to the provincial Attorneys General a power, but not a duty, to develop and implement programs of alternative measures. The federal Parliament has left it to the provinces to deal with a matter which it has determined is best resolved at the provincial level. In my opinion, it must have been within the contemplation of Parliament that the result of s. 4(1) would be diversity among provinces in the content of alternative measures programs and moreover, diversity in terms of whether alternative measures programs were instituted at all. In fact, the legislation was intended to foster diversity as a means of "tailoring" programs of alternative measures to the facilities and needs of territorially based communities. In their book The Young Offenders Act Annotated, Professors Bala and Lilles elaborate on the types of programs of alternative measures which could be developed by the provinces, and they emphasize the discretionary nature of the decision to implement a program (at pp. 22‑23):

Under the Y.O.A., each province is free to set up and administer alternative measures programs. If the provincial programs follow the most common model of present diversion programs, a decision will be made prior to the first court appearance to determine whether the young person will be offered an opportunity to participate in the program. If the young person agrees, a meeting will be held to discuss the alleged offence and the choice of alternative measures available. The young person must acknowledge responsibility for the act, as a minimum prerequisite to participation. If he is not prepared to accept responsibility, the young person should be dealt with in youth court. If alternative measures are felt suitable, the legislation does not specify the conditions which may be imposed. Normally, they might include measures such as writing an essay, restitution, community service work, participation in a recreation program, involvement with Big Brothers/Big Sisters, or some form of counselling.

The fact that the Attorney General for Ontario chose not to implement an alternative measures program, then, should not be construed as a failure to comply with a statutorily imposed duty. Rather, it is a legitimate decision not to exercise a power granted by Parliament.

2. Is s. 4 of the Young Offenders Act intra vires the Parliament of Canada?

The appellant, supported by the intervener Attorney General of Quebec, argued that s. 4 of the Young Offenders Act was not constitutionally supportable pursuant to Parliament's jurisdiction over criminal law in s. 91(27) of the Constitution Act, 1867. Instead, the appellant submitted that s. 4 is in pith and substance in relation to child welfare, a matter falling within the exclusive jurisdiction of the provinces over "Property and Civil Rights" pursuant to s. 92(13). The respondent and the intervener Attorney General of Canada argued that s. 4 is merely an extension of the scope of sanctions available to address the criminal activity of young persons and is a valid exercise of Parliament's legislative authority.

The federal jurisdiction over the criminal law has been the subject of much judicial comment and the principle which has been followed consistently in interpreting s. 91(27) is that stated by the Lord Chancellor writing for the Judicial Committee of the Privy Council in Attorney‑General for Ontario v. Hamilton Street Railway Co., 1903 CanLII 121 (UK JCPC), [1903] A.C. 524, at p. 529: "the criminal law, in its widest sense, is reserved for the exclusive authority of the Dominion Parliament". This principle was reiterated and expanded upon by the Privy Council in the often cited case involving the constitutionality of combines legislation, Proprietary Articles Trade Association v. Attorney‑General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310. In that case Lord Atkin held that in determining whether legislation has been validly enacted pursuant to the criminal law power, consideration must be given to the dynamic nature of the criminal law (at p. 324):

It certainly is not confined to what was criminal by the law of England or of any Province of 1867. The power must extend to legislation to make new crimes. Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State.

These general principles have been applied by this Court in judicial review of the predecessor legislation to the Young Offenders Act, namely the Juvenile Delinquents Act. In my opinion the judicial treatment of that statute is useful in an examination of s. 4 of the current Act, although the differences between the two statutes must be borne in mind. The scope of the Juvenile Delinquents Act was all encompassing. In the introduction to their book, Justice and the Young Offender in Canada (1988), Joe Hudson, Joseph P. Hornick and Barbara Burrows describe the underlying rationale of the Juvenile Delinquents Act as based upon the welfare of the child (at pp. 4‑5):

The juvenile court was to serve, in whatever manner deemed necessary, the best interests of the children who came before it. The court was to act as a kind of clinic, concerned with assessing and fulfilling the needs of its clients, as opposed to a criminal court concerned with due process and the protection of society. Delinquency was viewed as a product of the social environment and susceptible to treatment. The court's role under the JDA was to act on behalf of parents when the best interests of children were not being met. Thus the court took on the role of a ". . . stern but understanding parent."

The protective ideology was integral to the JDA. Indeed, the JDA is widely described as paternalistic. The parens patriae doctrine of the JDA ". . . emphasized treatment and minimized accountability (on the part of the young person)". Children were to be saved, not punished for their misdeeds. The parens patriae doctrine drew no distinction between criminal and noncriminal youth conduct, which supported the view that juvenile court proceedings were civil rather than criminal in nature. There was seen to be no need to differentiate between delinquent and neglected children. Rather, they were perceived by one of the original drafters of the JDA to be of the "same class"; the principal concern was to be on treatment (i.e. helping the child), with "minimal attention paid to accountability, or the justification for intervention".

In contrast, the Young Offenders Act has a narrower focus and a more modest child welfare component. The Act addresses the commission of offences contrary to the Criminal Code and other federal criminal law statutes. Its purpose was described by McLachlin J. in R. v. M. (S.H.), 1989 CanLII 31 (SCC), [1989] 2 S.C.R. 446, at p. 454:

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.

I refer to this passage because it is indicative of the focus of the Young Offenders Act, which is primarily on the criminal law as applied to young persons, and not on the welfare of the young persons per se.

In my opinion, there is no question that the Young Offenders Act as a whole is valid criminal law. This Court addressed the question of the constitutionality of the Juvenile Delinquents Act in Attorney General of British Columbia v. Smith, supra, and Fauteux J. held that the Act did not encroach upon provincial jurisdiction over child welfare, at p. 708:

The primary legal effect of the Juvenile Delinquents Act . . . is the effective substitution, in the case of juveniles, of the provisions of the Act to the enforcement provisions of the Criminal Code or of any other Dominion statute, or of a provincial statute validly adopted, under head 15 of s. 92 . . . . this substitution of the provisions of the Act to the enforcement provisions of other laws, federally or provincially enacted, is a means adopted by Parliament, in the proper exercise of its plenary power in criminal matters, for the attainment of an end, a purpose or object which, in its true nature and character, identifies this Act as being genuine legislation in relation to criminal law.

Given that the focus of the Young Offenders Act is more closely tailored to our traditional conception of the criminal law than was the Juvenile Delinquents Act, I think it is a logical conclusion that this Court's reasoning in Smith remains applicable to the current legislation.

That, however, does not in itself resolve the issue before this Court. Although the Act as a whole is constitutionally valid, the appellant argues that s. 4 is ultra vires and severable from the Act. In support of this argument the appellant relies upon this Court's decision in Regional Municipality of Peel v. MacKenzie, supra. In that case the Court's attention was focussed upon s. 20 of the Juvenile Delinquents Act:

20. (1) In the case of a child adjudged to be a juvenile delinquent the court may, in its discretion, take either one or more of the several courses of action hereinafter in this section set out, as it may in its judgment deem proper in the circumstances of the case:

(a) suspend final disposition;

(b) adjourn the hearing or disposition of the case from time to time for any definite or indefinite period;

(c) impose a fine not exceeding twenty‑five dollars, which may be paid in periodical amounts or otherwise;

(d) commit the child to the care or custody of a probation officer or of any other suitable person;

(e) allow the child to remain in its home, subject to the visitation of a probation officer, such child to report to the court or to the probation officer as often as may be required;

(f) cause the child to be placed in a suitable family home as a foster home, subject to the friendly supervision of a probation officer and the further order of the court;

(g) impose upon the delinquent such further or other conditions as may be deemed advisable;

(h) commit the child to the charge of any children's aid society, duly organized under an Act of the legislature of the province and approved by the lieutenant governor in council, or, in any municipality in which there is no children's aid society, to the charge of the superintendent, if there is one; or

(i) commit the child to an industrial school duly approved by the lieutenant governor in council.

(2) In every such case it is within the power of the court to make an order upon the parent or parents of the child, or upon the municipality to which the child belongs, to contribute to the child's support such sum as the court may determine, and where such order is made upon the municipality, the municipality may from time to time recover from the parent or parents any sum or sums paid by it pursuant to such order.

Martland J., writing for the Court, held that while s. 20(1) unquestionably was a valid exercise of Parliament's criminal law jurisdiction, s. 20(2) was outside of the scope of s. 91(27), at pp. 16‑17:

Unless it were held to be necessarily incidental to the exercise of Parliament's legislative authority in the field of criminal law, in the enactment of the Juvenile Delinquents Act, it would not be possible to support the constitutional validity of the subsection. It is designed to come into operation only after the trial has occurred, the accused has been found to be a juvenile delinquent and the Court has decided as to the disposition of the delinquent child. It is not a part of the definition of the offence, of the procedures to be followed or of the penalties which may be imposed. What it seeks to do is to impose upon municipalities the financial burden of contributing toward the support of a delinquent child who has already been tried, convicted and made subject to the disposition prescribed in the Court order. In my opinion this is not, per se, legislation in relation to criminal law.

In my opinion, this dicta provides no assistance to the appellant. Section 4(1) of the Young Offenders Act more closely resembles s. 20(1) of the Juvenile Delinquents Act in that both deal with the "punishment" of young persons found to have contravened the law. Section 20(2), on the contrary, dealt with the financing of that disposition, which is well beyond the scope of the criminal law power as it was defined in the Proprietary Articles Trade Association case, supra.

Although I agree with the argument of the appellant that s. 4(1) differs from most criminal law remedial statutes in that the focus is on alternatives to more traditional criminal sanctions, I do not find this factor to be dispositive. While resort to non‑judicial alternatives in the correction of young offenders may not resemble the criminal law model envisioned by Lord Atkin, this Court has held repeatedly that the legislative power over criminal law must be sufficiently flexible to recognize new developments in methods of dealing with offenders. This principle was applied by Laskin C.J., in dealing with a restitutionary remedy for a criminal offence: R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940. The principle is equally relevant here.

Further support for this interpretation of s. 4(1) can be drawn from the principle that Parliament's jurisdiction over criminal law in s. 91(27) extends beyond the confines of creating offences and establishing penalties. In Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen, 1956 CanLII 4 (SCC), [1956] S.C.R. 303, this Court upheld a prohibition order provided for by the Criminal Code and the Combines Investigation Act. Locke J., writing for a majority of the Court, found that the validity of the order was sustainable not only on the basis that it defined a new offence, but also on the basis that it was a means for the prevention of further crime (at p. 308):

The power to legislate in relation to criminal law is not restricted, in my opinion, to defining offences and providing penalties for their commission. The power of Parliament extends to legislation designed for the prevention of crime as well as to punishing crime.

In my opinion, the discretion to create an alternative measures program pursuant to s. 4 represents a legitimate attempt to deter young offenders from continued criminal activity. In this regard, I agree with Tarnopolsky J.A.'s characterization of s. 4 as demonstrating a "concern with a curative approach, rather than the traditionally punitive approach of the criminal law. There is a concern with preventing recidivism and with balancing the interests of the offending `young person' with those of society" (p. 270). Although I do not intend to define the limits of the "prevention of crime" doctrine, s. 4 of the Young Offenders Act is well within its scope.

Thus, I find that s. 4 of the Young Offenders Act has been validly enacted pursuant to Parliament's power over criminal law in s. 91(27) of the Constitution Act, 1867. In view of my disposition of this question, I need not consider the alternative argument that s. 4 is "necessarily incidental" to the criminal law power.

As a related issue, the respondent also raised the question whether s. 4 of the Young Offenders Act is an unconstitutional delegation of Parliament's authority over criminal law and procedure. This matter can be dealt with summarily as, in my opinion, there is no limitation imposed by the Constitution Act, 1867 on the ability of Parliament to leave this issue to the discretion of the provincial Attorneys General. Tarnopolsky J.A. has summarized accurately the effect of the decisions of this Court regarding the intersection of ss. 91(27) and 92(14) of the Constitution Act, 1867 (at p. 278):

There is no doubt, since the decisions of the Supreme Court of Canada in A.‑G. Can. v. Canadian National Transportation Ltd. (1983), 1983 CanLII 36 (SCC), 7 C.C.C. (3d) 449, 3 D.L.R. (4th) 16, [1983] 2 S.C.R. 206, and R. v. Wetmore and A.‑G. Ont. (1983), 1983 CanLII 29 (SCC), 7 C.C.C. (3d) 507, 2 D.L.R. (4th) 577, [1983] 2 S.C.R. 284, that the federal Parliament has jurisdiction to confer powers on provincial officials to supervise the conduct of criminal prosecutions.

Authority over the prosecution of young offenders has been delegated through the definition of Attorney General in s. 2 of the Criminal Code, R.S.C. 1970, c. C‑34 (now R.S.C., 1985, c. C‑46). This is made applicable to the Young Offenders Act by virtue of s. 2(4) (now s. 2(2)) of the Act). With respect to the Young Offenders Act, the provinces have accepted a delegation of responsibility from the federal Parliament in respect of prosecutions. In my view, the discretion to establish programs of alternative measures clearly is incidental to that legitimate delegation.

The only remaining issue, then, is whether the diversity which flows from the conferral of a discretion on provincial officials over the conduct of a criminal prosecution pursuant to s. 92(14) of the Constitution Act, 1867 is unconstitutional by reason of the equality provisions of s. 15(1) of the Charter.

3.Does Ontario's failure to authorize alternative measures violate s. 15 of the Charter?

The appellant argued that the Ontario Court of Appeal erred in law when it held that the decision of the Attorney General for Ontario not to authorize a program of alternative measures pursuant to s. 4 of the Young Offenders Act violated the right of the respondent to equality before and under the law and to the equal benefit of the law as guaranteed by s. 15(1) of the Charter. The respondent has not attacked the constitutionality of s. 4 itself in this appeal; rather, the issue is whether the exercise of discretion by the Attorney General for Ontario in choosing not to implement a program of alternative measures itself violated the respondent's equality rights. The respondent also raised s. 7 of the Charter; however, no constitutional question in relation to s. 7 was framed in this case. In any event, the extent to which the principles of fundamental justice encompass the values which underpin the equality guarantee in s. 15(1) of the Charter is premised upon an initial determination that s. 15(1) itself has been violated. The Attorneys General of Quebec and Saskatchewan intervened on behalf of the appellant and the Attorney General of Canada made submissions in support of the position of the respondent on this issue.

The rights protected by s. 15(1) are all framed in terms of "the law" -- equality before and under the law, and equal protection and equal benefit of the law. Therefore, it is first necessary to determine whether the failure of the Attorney General for Ontario to implement a program of alternative measures can be considered "the law" for the purposes of a s. 15 challenge. This issue is made more difficult by my determination that this legislation does not impose a mandatory obligation on the Attorney General for Ontario. Robins J.A. in his dissenting reasons at the Court of Appeal found this fact to be conclusive (at pp. 259‑60):

In my opinion, once it is accepted that s. 4 of the Act does not impose a mandatory duty on the province to establish alternative measures, the Attorney‑General for Ontario's decision not to authorize such programs under s. 4 cannot contravene the respondent's equality rights under s. 15(1) of the Charter. His decision was made in accordance with the permissive terms of s. 4. That section, and not the discretionary determination made by the Attorney‑General pursuant to its provisions, constitutes "the law" for the purposes of a s. 15 challenge. If equality is denied alleged young offenders in Ontario, the denial results, not from the Attorney‑General's decision or, as the intervenant argues and the trial judge held, from the Attorney‑General's failure "to give effect to the will of Parliament", but from the law enacted by Parliament in the exercise of its governmental power over criminal law which authorizes the Attorney‑General to proceed precisely as he has. In short, the Attorney‑General for Ontario's decision is not "the law" and that decision cannot in itself violate s. 15.

I agree. Once it is determined that there is no duty on the Attorney General for Ontario to implement a program of alternative measures, the non‑exercise of discretion cannot be constitutionally attacked simply because it creates differences as between provinces. To find otherwise would potentially open to Charter scrutiny every jurisdictionally permissible exercise of power by a province, solely on the basis that it creates a distinction in how individuals are treated in different provinces. The Attorney General for Ontario was under no legal obligation to implement a program and, in my opinion, the decision is unimpeachable because, for the purposes of a constitutional challenge on the basis of s. 15(1) of the Charter, "the law" is s. 4, which grants the discretion. The respondent did not risk invalidating the entire scheme of alternative measures programs brought into being by federal statute. As a consequence, the constitutionality of s. 4, in terms of compliance with the Charter, was not in issue in this appeal.

I would add, however, that in my opinion the result of this appeal would be no different had s. 4 of the Young Offenders Act been challenged directly. This Court's approach to s. 15(1) was outlined by McIntyre J. in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 182. First, the complainant must establish that "he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law". On this point, there can be no dispute. As a result of the discretion granted by Parliament to the provincial Attorneys General, there existed, in all but one province, programs of alternative measures available to young persons found to have violated a federal law in that province. I note that both Robins J.A. and Tarnopolsky J.A., in the Court of Appeal below mistakenly stated that Prince Edward Island had not instituted a program of alternative measures. In a statement issued on March 29, 1988, the Honourable Wayne D. Cheverie, Q.C., Minister of Justice and Attorney General for Prince Edward Island, noted that alternative measures were authorized in that province on April 2, 1984. Therefore, a distinction based on the situs of an offence is created. Moreover, it is reasonable to assume that but for the exceptional case, a young person who commits an offence will do so in the province in which he or she lives. Thus, I find the substantive distinction to be geographic and based upon the province of residence of young offenders. I agree with Tarnopolsky J.A., that the absence of this benefit in the province of Ontario must be considered to be a legal disadvantage imposed upon young offenders resident in that province (p. 272). As a consequence, the respondent has met the first stage of the s. 15(1) test.

Having reached that conclusion, it becomes necessary to deal with the second aspect of the test for the determination of whether a s. 15(1) violation exists. McIntyre J. described the inquiry that courts must undertake in Andrews, supra, at pp. 174‑75:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

In the context of a distinction based upon province of residence, the inquiry turns to whether the distinction is based upon a personal characteristic. In my view, the approach to s. 15(1) established by this Court in Andrews takes on an extra dimension when the distinction is province based. It is trite law that the Canadian Constitution creates not only a boundary between the individual and the state, but also creates boundaries between the federal and provincial levels of government. The intersection of these two constitutionally mandated boundaries inherently raises a problem because it represents the conflict of two competing values -- uniformity and diversity. This is particularly true when the Charter section raised is s. 15(1), which enshrines the principle of equality before and under the law. As Professor Katherine Swinton has observed in "Competing Visions of Constitutionalism: Of Federalism and Rights", in Katherine E. Swinton and Carol J. Rogerson, eds., Competing Constitutional Visions: The Meech Lake Accord (1988), at p. 291:

In Canada, the concerns about the permissible limits on rights and the scope of the equality guarantee will inevitably raise questions about diversity among and within communities in Canada and the degree to which governments can respond to that diversity without violating the Charter.

Obviously, the federal system of government itself demands that the values underlying s. 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. There can be no question, then, that unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based upon province of residence. As Wilson J. stated in Reference Re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, at p. 1197, "[it] was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution". To find otherwise would be to completely undermine the value of diversity which is at the foundation of the division of powers.

However, the matter does not end there. This appeal raises the issue of the impact of s. 15(1) on distinctions based upon province of residence in the application of a valid federal law. Thus, the question is whether in that circumstance, province of residence can be considered a "personal characteristic". This Court recently dealt with this question in R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296. That case concerned the ability of an accused to waive the right to trial by judge and jury. Wilson J., writing for the Court, concluded that the fact that only in the province of Alberta could an accused charged with murder choose to be tried by judge alone did not give rise to a violation of the s. 15(1) Charter right to equality before the law. Wilson J. determined that while the Criminal Code section denied the appellants equality before the law because it "denied an opportunity which is available to others" (p. 1329), the distinction was not based upon a personal characteristic for the purposes of the second stage of the Andrews inquiry (at pp. 1332‑33):

The appellants claim that because they are accused of one of the indictable offences listed in s. 427 of the Criminal Code but do not have an opportunity, as do persons charged with the same offence in Alberta, to be tried by a judge alone, they are victims of discrimination. I disagree. In my respectful view, it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427 of the Criminal Code in all the provinces except Alberta as members of a "discrete and insular minority". . . . Differentiating for mode of trial purposes between those accused of s. 427 offences in Alberta and those accused of the same offences elsewhere in Canada would not, in my view, advance the purposes of s. 15 in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society. A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case because what we are comparing is the position of those accused of the offences listed in s. 427 in the rest of Canada to the position of those accused of the offences listed in s. 427 in Alberta. To recognize the claims of the appellants under s. 15 of the Charter would, in my respectful view, "overshoot the actual purpose of the right or freedom in question": see R. v. Big M Drug Mart Ltd., at p. 344.

I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination. I simply say that it is not so here. [Emphasis added.]

I agree with Wilson J. that in determining whether province‑based distinctions which arise from the application of federal law contravene s. 15(1) of the Charter, a case‑by‑case approach is appropriate. However, in my view, in order to engage in that analysis, it is useful to formulate a principled approach for dealing with such distinctions.

It is necessary to bear in mind that differential application of federal law can be a legitimate means of forwarding the values of a federal system. In fact, in the context of the administration of the criminal law, differential application is constitutionally fostered by ss. 91(27) and 92(14) of the Constitution Act, 1867. The area of criminal law and its application is one in which the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal‑provincial cooperation. A brief review of Canadian constitutional history clearly demonstrates that diversity in the criminal law, in terms of provincial application, has been recognized consistently as a means of furthering the values of federalism. Differential application arises from a recognition that different approaches to the administration of the criminal law are appropriate in different territorially based communities. In a line of cases beginning with Fredericton v. The Queen (1880), 1880 CanLII 28 (SCC), 3 S.C.R. 505, this Court consistently has upheld federal statutes with differential geographic application. As Laskin J. conceded in his dissenting reasons in R. v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693, a case which dealt with the differential application of a provision of the Criminal Code in the context of s. 1(b) of the Canadian Bill of Rights, at p. 715:

As a matter of legislative power only, there can be no doubt about Parliament's right to give its criminal or other enactments special applications, whether in terms of locality of operation or otherwise.

That principle was reaffirmed by Le Dain J., in the context of s. 1(b) of the Canadian Bill of Rights, writing for the Court in R. v. Cornell, 1988 CanLII 64 (SCC), [1988] 1 S.C.R. 461. Finally, it was recognized in the context of s. 15 of the Charter by Wilson J. in Turpin, supra, at p. 1334:

In concluding that s. 15 is not violated in this case, I realize that I am rejecting the proposition accepted by several Courts of Appeal in Canada that it is a fundamental principle under s. 15 of the Charter that the criminal law apply equally throughout the country.

I agree with that conclusion and find it equally applicable to the facts of this appeal.

In my opinion, the question of how young people found to have committed criminal offences should be dealt with is one upon which it is legitimate for Parliament to allow for province‑based distinctions as a reflection of distinct and rationally based political values and sensitivities. Professors Bala and Lilles, op. cit., emphasize the benefits that derive from the adaptability of a program of alternative measures to the needs of different regions and communities (at pp. 17‑18):

The benefits of alternative measures range from reducing delays in handling young persons to the increased scope for flexibility, especially in procedures and in the manner of dealing with young persons. The use of alternative measures frees court facilities, allowing the youth court to be reserved for the more serious cases. The range of dispositional options that may be used in alternative measures programs includes special education and counselling for behavioural problems or drug or alcohol related problems. Alternative measures programs can be adaptable to the particular needs of the communities in which they are set up, whether the community is rural, urban, native, etc. One aim of such programs is to involve the community in dealing with the problems of the illegal behaviour of young persons; this is often achieved through the use of community participants at all levels of the alternative measures program, through the involvement of the victim and the employment of innovative forms of disposition. [Emphasis added.]

In recognizing the benefit of geographical diversity in the context of programs of alternative measures, I am mindful of the fact that although I have found this legislation to be valid federal law, it is not wholly unconnected to child welfare -- a matter of provincial jurisdiction. Differential application of the law through federal‑provincial cooperation is a legitimate means whereby governments can overcome the rigidity of the "watertight compartments" of the distribution of powers with respect to matters that are not easily categorized or dealt with by one level of government alone. Consequently, I find that in this case the legislation does not amount to a distinction which is based upon a "personal characteristic" for the purposes of s. 15(1) of the Charter.

Disposition

This appeal is allowed, the judgment of the Court of Appeal is set aside, and a new trial is ordered.

I would answer the constitutional questions as follows:

1.Is s. 4 of the Young Offenders Act ultra vires the Parliament of Canada because it is, in pith and substance, legislation dealing with a matter outside Parliament's jurisdiction over criminal law and procedure as conferred by s. 91(27) of the Constitution Act, namely, child welfare?

Answer: No.

2.Does the decision of the Attorney General for Ontario not to authorize diversion programs as alternative measures under s. 4 of the Young Offenders Act violate the equality rights of the young persons accused of committing offences within Ontario, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms?

Answer: No.

3.If the answer to question number 2 is yes, is the decision of the Attorney General for Ontario not to authorize diversion programs as alternative measures justified under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: The question need not be answered.

Appeal allowed.

Solicitor for the appellant: The Ministry of the Attorney General, Toronto.

Solicitor for the respondent: Brian Weagant, Toronto.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitors for the intervener the Attorney General of Quebec: Yves de Montigny and Françoise Saint‑Martin, Ste‑Foy.

Solicitor for the intervener the Attorney General for Saskatchewan: Brian Barrington‑Foote, Regina.