R. v. S. (G.), [1990] 2 S.C.R. 294

Gregory S. Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,

the Attorney General of Quebec and

the Attorney General for Saskatchewan Interveners

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

File No.: 21336.

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

Appeal -- Mootness -- Young offender challenging the constitutionality of Ontario's alternative measures programme on basis that it infringes ss. 15(1) and 7 of Canadian Charter of Rights and Freedoms -- Supreme Court of Canada holding in concurrent judgment that s. 4 of Young Offenders Act does not oblige provinces to implement such programme -- Issue raised in this appeal rendered moot by Supreme Court of Canada's judgment -- Admission criteria set out in Ontario's programme not infringing ss. 15(1) and 7 of the Charter.

Constitutional law -- Charter of Rights -- Equality before the law - Fundamental justice ‑‑ Eligibility for Ontario's alternative measures programme based upon nature of offences charged against young offender -- Admission criteria set out in Ontario's programme not infringing ss. 15(1) and 7 of the Canadian Charter of Rights and Freedoms ‑‑ Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, s. 4.

The appellant, a young offender, was charged with breaking, entering and theft, and possession of stolen goods over a $ 1,000 contrary to ss. 306(1)(b) and 312 of the Criminal Code. Because of the nature of the offences charged against him, the appellant was not eligible for the interim alternative measures programme authorized by the Attorney General for Ontario under s. 4 of the Young Offenders Act. The Youth Court judge held that the programme instituted in Ontario, which included limits on eligibility based upon the offences with which the young offender is charged, violated the appellant's rights pursuant to ss. 15(1) and 7 of the Canadian Charter of Rights and Freedoms and ordered that the charges be stayed against him. The Court of Appeal quashed the order and remitted the matter for trial before another Youth Court judge. This appeal is to determine whether the admission criteria set out in Ontario's alternative measures programme violate the appellant's right to the equal benefit of the law pursuant to s. 15(1) of the Charter, or the right to be treated in accordance with the principles of fundamental justice pursuant to s. 7 of the Charter.

Held: The appeal should be dismissed.

In view of the determination in R. v. S. (S.), [1990] 2 S.C.R. 000, that s. 4 of the Act does not impose a mandatory obligation upon the Attorney General for Ontario to implement a programme of alternative measures in that province, the issue raised in this appeal has become moot. It was conceded before this Court by counsel for the appellant that if alternative measures programmes are a matter of provincial option, the appellant is not entitled to a remedy.

Cases Cited

Applied: R. v. S. (S.), [1990] 2 S.C.R. 000, rev'g (1988), 1988 CanLII 7100 (ON CA), 35 C.R.R. 247 (Ont. C.A.); referred to: R. v. P. (J.), [1990] 2 S.C.R. 000; R. v. T. (A.), [1990] 2 S.C.R. 000; R. v. B. (J.), [1990] 2 S.C.R. 000.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 15(1).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 306(1)(b), 312 [am. 1972, c. 13, s. 27; rep. & sub. 1974‑75‑76, c. 93, s. 29].

Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 3, 4.

APPEAL from a judgment of the Ontario Court of Appeal (1988), 1988 CanLII 191 (ON CA), 67 O.R. (2d) 198, 31 O.A.C. 161, 46 C.C.C. (3d) 322, 38 C.R.R. 322, allowing the Crown's appeal from a judgment of the Ontario Youth Court (1988), 5 W.C.B. (2d) 200, 13 C.R.D. 650.70‑01, [1988] Ont. D. Crim. Conv. 5702‑04, granting a stay of proceedings under s. 24 of the Canadian Charter of Rights and Freedoms. Appeal dismissed.

Frank Addario, for the appellant.

Brian J. Gover, 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 was heard together with three other appeals: R. v. P. (J.), [1990] 2 S.C.R. 000; R. v. T. (A.), [1990] 2 S.C.R. 000, and R. v. B. (J.), [1990] 2 S.C.R. 000 (released concurrently with these reasons). These appeals all raise the issue of whether the program of alternative measures authorized by the Attorney General for Ontario on April 11, 1988, unjustifiably violates the rights of the appellants to the equal benefit of the law pursuant to s. 15(1) of the Canadian Charter of Rights and Freedoms, or the right to be treated in accordance with the principles of fundamental justice pursuant to s. 7 of the Charter.

The appellant was charged on May 11, 1988, with the indictable offences of break, enter and theft, and possession of stolen goods over $1,000, contrary to ss. 306(1)(b) and 312 of the Criminal Code, R.S.C. 1970, c. C-34. The offences were alleged to have taken place on May 6, 1988, when the appellant was 14 years of age.

On April 11, 1988, the Ontario government announced that it was commencing a program of alternative measures 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). This was stated to be an interim program established as a result of the decision of the Ontario Court of Appeal in R. v. S. (S.) (1988), 1988 CanLII 7100 (ON CA), 35 C.R.R. 247 (leave to appeal to this Court granted September 30, 1988, [1988] 2 S.C.R. ix; judgment of this Court released concurrently with these reasons). In that case, the Court of Appeal held that the failure of the Attorney General for Ontario to establish a program of alternative measures violated the rights of young persons charged with offences in Ontario. Young persons charged with the following types of offences were eligible for consideration under the Ontario alternative measures program:

All dual procedure offences for which the maximum prescribed indictable punishment for adults is 2 years and it is the young person's first offence, . . .

Any summary conviction offence where it is the young person's first offence or second summary conviction offence.

On June 15, 1988, the appellant, at his first appearance in court, attempted to apply for a program of alternative measures. His request was refused. On July 8, 1988, Judge King of the Provincial Court of Ontario (Family Division) released reasons for judgment: (1988), 5 W.C.B. (2d) 200. She held that the alternative measures program instituted in Ontario, authorized pursuant to s. 4 of the Young Offenders Act, violated the appellant's rights pursuant to ss. 15(1) and 7 of the Charter. The judge noted that in many other provinces the appellant would be eligible for consideration for a program of alternative measures. She held that the automatic exclusion of the appellant from consideration for the alternative measures program violated his rights pursuant to s. 15 of the Charter because the appellant was treated differently from young persons in other provinces. Furthermore, King Prov. Ct. J. found that the treatment of the appellant was discriminatory in relation to the treatment of young offenders in the province of Ontario who were charged with summary offences or hybrid offences where the maximum penalty was two years imprisonment. Moreover, the judge found that the Charter violation was not justifiable pursuant to s. 1. Finally, King Prov. Ct. J. considered whether the admission criteria for the program of alternatives measures were inconsistent with s. 7 of the Charter. She noted that the Ontario program deprived a class of young offenders from being considered for admission to the program, even though they may have qualified under the requirements of s. 4 of the Young Offenders Act. King Prov. Ct. J. held that this was manifestly unfair and not in keeping with the principles of fundamental justice. In a ruling released August 4, 1988, King Prov. Ct. J. ordered that charges be stayed against the appellant as there was no reason to believe that the government of Ontario would change its guidelines to include the appellant.

The respondent appealed from the rulings of the Youth Court judge to the Ontario Court of Appeal. Reasons for judgment were delivered by Lacourcière J.A. for a unanimous court on December 29, 1988. The appeal was allowed and orders were made to quash the orders of Judge King staying the proceedings and to remit the matters for trial before another judge of the Youth Court of Ontario: (1988), 1988 CanLII 191 (ON CA), 67 O.R. (2d) 198, 31 O.A.C. 161, 46 C.C.C. (3d) 322, 38 C.R.R. 322. Lacourcière J.A. did not agree that the program of alternative measures designated by the Attorney General of Ontario breached any of the Charter rights of the appellant. He held that the program, clearly an interim one, satisfied the requirements enumerated in the declaration of principles contained in s. 3 of the Young Offenders Act. The Court of Appeal was of the opinion that the differential application of federal law did not create an automatic infringement of s. 15 of the Charter. The general requirement that criminal law be uniform was inapplicable in this context, as the legislation has a valid provincial aspect in its concern with the welfare of young persons. Moreover, Lacourcière J.A. did not agree with King Prov. Ct. J.'s assessment that there was discrimination between similarly situated young persons within Ontario. He held that the distinction between those young persons charged with summary conviction offences and those charged with indictable offences, for the purposes of eligibility for the program of alternative measures, did not constitute discrimination between similarly situated persons. Finally, with regard to s. 7 of the Charter, the court was of the opinion that the treatment accorded young persons in the appellant's position was not arbitrary nor was it contrary to the principles of fundamental justice.

In view of my determination in R. v. S. (S)., [1990] 2 S.C.R. 000, that s. 4 of the Young Offenders Act does not impose a mandatory obligation upon the Attorney General for Ontario to implement a program of alternative measures in that province, the issue raised in this appeal has become moot. It was conceded in oral argument before this Court by counsel for the appellant that if programs of alternative measures are a matter of provincial option, the appellant is not entitled to a remedy.

That being the case, the appeal is accordingly dismissed. I would answer the constitutional questions raised in this appeal as follows:

1. Are the admission criteria set out in the Alternative Measures Program designated by the Attorney General for the province of Ontario inconsistent with s. 7 or s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answer: No.

2. If the admission criteria set out in the Alternative Measures Program designated by the Attorney General for the province of Ontario are inconsistent either with s. 7 or s. 15(1) of the Canadian Charter of Rights and Freedoms, whether that inconsistency is justified on the basis of s. 1 thereof.

Answer: The question need not be answered.

Appeal dismissed.

Solicitor for the appellant: Frank Addario, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, 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.