R. v. T. (V.), [1992] 1 S.C.R. 749

Her Majesty The Queen Appellant

v.

V. T. Respondent

Indexed as: R. v. T. (V.)

File No.: 22413.

1992: January 29; 1992: March 26.

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

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Young offenders ‑‑ Accused found guilty of uttering threats ‑‑ Court of Appeal directing verdict of acquittal ‑‑ Whether youth court may decline to enter verdict of guilty on ground that charge should never have been laid ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 3(1), 19(2).

The accused, a young person living in a group home, was charged with mischief, assault and uttering threats. The complainant, an employee of the home, had asked the accused, who was 14 at the time, to refrain from using foul language at the supper table. She greeted this request with another obscenity and pushed her plate across the table, spilling some of the contents in the complainant's lap. Later, in the office, the complainant attempted to discuss the incident with the accused, who remained uncooperative. The situation degenerated to the point where the accused threw a newspaper and a videocassette at the complainant. She left the home and on her way out again lost her temper, causing some minor damage to the door frame and also telling the complainant that she would have some friends "get" him or "beat [him] up". The complainant testified that he took these threats seriously given the tone in which they were uttered and the fact that the accused may well have known individuals who would be interested in carrying them out. The youth court judge found the accused guilty on all three counts. The Court of Appeal set aside the finding of guilt on the charge of uttering threats. This appeal raises the issue of whether a youth court judge may decline to enter a verdict of guilty for conduct which exhibits all the requisite elements of the offence if he or she is of the view that the charge ought never to have been laid.

Held: The appeal should be allowed.

The Crown has a broad discretion in the carriage of criminal cases. This discretion rests largely on the recognition that the decision to prosecute is particularly ill‑suited to judicial review. And, while prosecutorial discretion is not absolute in its operation (a stay of proceedings is available in the clearest of cases to prevent violations of the principles of fundamental justice and abuse of the court's process, for example), it is nonetheless an important feature of our criminal procedure. To hold that a youth court judge has jurisdiction to dismiss a charge on the ground that it ought never to have been laid would thus represent a marked departure from the law as it currently exists. It is open to Parliament to effect such a change but it must make manifest its intention to do so. While s. 19(2) gives a youth court discretion to dismiss a charge, this provision alone does not contain the necessary clarity to effect such a change. Nor can a sufficient intention be found in the combined operation of ss. 19(2) and 3(1). Section 3(1)(d) contemplates the taking of "no measures" or "measures other than judicial proceedings" where this would not be inconsistent with the protection of society, but this provision must be read in conjunction with the rest of s. 3(1) which also provides that "young persons who commit offences should nonetheless bear responsibility for their contraventions" and that "society must . . . be afforded the necessary protection from illegal behaviour". Hence, while s. 3(1) is not merely a "preamble", it does not reveal the kind of clear, singular intention necessary to alter the law of criminal procedure so radically.

Cases Cited

Referred to: R. v. A. K., B.C. Co. Ct., June 3, 1988, unreported; R. v. D. L., B.C. Prov. Ct., March 29, 1985, unreported; Smythe v. The Queen, 1971 CanLII 831 (SCC), [1971] S.C.R. 680; R. v. Verrette, 1978 CanLII 208 (SCC), [1978] 2 S.C.R. 838; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; Re Harvey (1957), 1957 CanLII 491 (ON SC), 119 C.C.C. 124; Re Balderstone and The Queen (1983), 1983 CanLII 2803 (MB CA), 4 D.L.R. (4th) 162; R. v. Poirier, Man. Prov. Ct., June 7, 1989, unreported; Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497; Wayte v. United States, 470 U.S. 598 (1985); Rourke v. The Queen, 1977 CanLII 191 (SCC), [1978] 1 S.C.R. 1021; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289; R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659; R. v. S. (S.), 1990 CanLII 65 (SCC), [1990] 2 S.C.R. 254; R. v. M. (J.), B.C. Prov. Ct., May 30, 1991, unreported; R. v. Rowton (1865), 10 Cox C.C. 25; Adgey v. The Queen, 1973 CanLII 37 (SCC), [1975] 2 S.C.R. 426.

Statutes and Regulations Cited

Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 3(1), (2), 4, 19(1), (2), 20, 51.

Authors Cited

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

Bala, Nicholas and Mary‑Anne Kirvan. "The Statute: Its Principles and Provisions and Their Interpretation by the Courts". In The Young Offenders Act: A Revolution in Canadian Juvenile Justice. Edited by Alan W. Leschied, Peter G. Jaffe and Wayne Willis. Toronto: University of Toronto Press, 1991.

Cross, Sir Rupert. Statutory Interpretation, 2nd ed. By John Bell and Sir George Engle. London: Butterworths, 1987.

Doob, Anthony N. and Lucien A. Beaulieu. "Variation in the Exercise of Judicial Discretion with Young Offenders" (1992), 34 Can. J. Crim. 35.

Maxwell, Sir Peter Benson. Maxwell on the Interpretation of Statutes, 12th ed. By P. St. J. Langan. London: Sweet & Maxwell, 1969.

Morgan, Donna C. "Controlling Prosecutorial Powers ‑‑ Judicial Review, Abuse of Process and Section 7 of the Charter" (1986), 29 Crim. L.Q. 15.

Platt, Priscilla. Young Offenders Law in Canada. Toronto: Butterworths, 1989.

Salhany, R. E. Canadian Criminal Procedure, 5th ed. Aurora: Canada Law Book, 1989.

APPEAL from a judgment of the British Columbia Court of Appeal (1991), 1991 CanLII 514 (BC CA), 64 C.C.C. (3d) 40, allowing the accused's appeal from her conviction on a charge of uttering threats. Appeal allowed.

Carol C. Baird, for the appellant.

D. Wayne Robertson, for the respondent.

//Le juge L'Heureux-Dubé//

The judgment of the Court was delivered by

L'Heureux‑Dubé J. -- This appeal raises the issue of whether a Youth Court judge may decline to enter a verdict of guilty for conduct which, though apparently of a rather minor nature, exhibits all the requisite elements of the offence, if he or she is of the view that the charge ought never to have been laid. This is a narrow point but one of some significance in relation to the Young Offenders Act, R.S.C., 1985, c. Y‑1 (hereinafter "the Act").

Factual Background

The circumstances surrounding this appeal are not in dispute and may be dealt with rather summarily.

On December 4, 1989, the respondent was fourteen years old and was involved in an incident at her residence, the Touchstone Group Home, in Richmond, British Columbia. The complainant, Mr. Louis Larson, an employee of the home and at all material times the respondent's parent within the meaning of the Act, requested that the respondent refrain from using foul language at the supper table. The respondent greeted this request with another obscenity and pushed her plate across the table, spilling some of the contents in the complainant's lap. Later, in the office, the complainant attempted to discuss the incident with the respondent, who remained uncooperative. The situation degenerated to the point where the respondent threw a newspaper and a videocassette at Mr. Larson. She left the home and on her way out again lost her temper, causing some minor damage to the door frame and also telling Mr. Larson that she would have some friends "get" him or "beat [him] up". Mr. Larson testified that he took these threats seriously given the tone in which they were uttered and the fact that the respondent may well have known individuals who would be interested in carrying them out.

Constable Simpson of the Richmond detachment of the RCMP happened to be in the home on unrelated matters on the night in question. The respondent was charged with one count of mischief in relation to property, one count of assault, and one count of uttering threats. She was found guilty on all three counts. Her appeal to the British Columbia Court of Appeal on the charge of uttering threats was allowed. Apparently, the parties have agreed that the finding of guilt on the charge of assault will be governed by the result of the instant appeal and that final disposition on both the assault charge and the charge of uttering threats will also await this Court's disposition.

Relevant Provisions of the Young Offenders Act

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;

(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.]

(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;

(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).

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.

(2) Alternative measures shall not be used to deal with a young person alleged to have committed an offence if the young person

(a) denies his participation or involvement in the commission of the offence; or

(b) expresses his wish to have any charge against him dealt with by the youth court.

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a young person alleged to have committed an offence as a condition of his being dealt with by alternative measures shall be admissible in evidence against him in any civil or criminal proceedings.

(4) The use of alternative measures in respect of a young person alleged to have committed an offence is not a bar to proceedings against him under this Act, but

(a) where the youth court is satisfied on a balance of probabilities that the young person has totally complied with the terms and conditions of the alternative measures, the youth court shall dismiss any charge against him; and

(b) where the youth court is satisfied on a balance of probabilities that the young person has partially complied with the terms and conditions of the alternative measures, the youth court may dismiss any charge against him if, in the opinion of the court, the prosecution of the charge would, having regard to the circumstances, be unfair, and the youth court may consider the young person's performance with respect to the alternative measures before making a disposition under this Act.

(5) Subject to subsection (4), nothing in this section shall be construed to prevent any person from laying an information, obtaining the issue or confirmation of any process or proceeding with the prosecution of any offence in accordance with law.

19. (1) Where a young person pleads guilty to an offence charged against him and the youth court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence.

(2) Where a young person pleads not guilty to an offence charged against him, or where a young person pleads guilty but the youth court is not satisfied that the facts support the charge, the court shall proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or make an order dismissing the charge, as the case may be. [Emphasis added.]

20. (1) Where a youth court finds a young person guilty of an offence, it shall consider any pre‑disposition report required by the court, any representations made by the parties . . . and the court shall then make any one of the following dispositions, or any number thereof that are not inconsistent with each other:

(a) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest; [Emphasis added.]

51. Except to the extent that they are inconsistent with or excluded by this Act, all the provisions of the Criminal Code apply, with such modifications as the circumstances require, in respect of offences alleged to have been committed by young persons.

Judgments

B.C. Youth Court, August 15, 1990

Despite the sympathy he might have felt for the accused's argument that the behaviour in question, while technically constituting an offence, ought not to attract the attention of the courts, Davis Prov. Ct. J. felt bound by the appellate court decision of R. v. A. K., B.C. Co. Ct., June 3, 1988, unreported. He drew particular attention to the following passage from that case (at pp. 3-4):

. . . then it falls upon the youth court judge, no matter how unpleasant or, indeed, how unnecessary it may seem to him, to deal with it, and moreover, to make a decision in law on the facts which he finds to have been proven. That is the plain duty of any judge, whether or not he may be in philosophical agreement with the procedure or the nature of the charge.

Accordingly, Davis Prov. Ct. J. found the respondent guilty of one count of uttering threats and one count of assault. (It appears from the transcript that the charge of mischief had already been dealt with.)

British Columbia Court of Appeal (1991), 1991 CanLII 514 (BC CA), 64 C.C.C. (3d) 40

On the appeal only from the finding of guilt on the charge of uttering a threat, Macdonald J.A. (Lambert and Cumming JJ.A. concurring) set out the facts and then alluded to two differing lines of jurisprudence in cases such as this. One, embodied in the reasons of the B.C. Provincial Court in R. v. D. L., March 29, 1985, unreported, interpreted the Act in the context of parental powers and the discretion conferred on the court to direct the person acting in loco parentis to take matters of discipline into their hands and deal with these more minor matters at home. The second line of jurisprudence is embodied in A. K., supra, and is characterized by a reticence on the part of the court to overstep its perceived mandate.

Macdonald J.A. then discussed the Act and, in particular, ss. 3(1), 3(2) and 51. He concluded (at p. 45):

With all respect, it is my view that R. v. A.K. was wrongly decided. The prosecuting authorities are required before they lay charges against young persons to act under the guidance of s. 3(1)(d). If they fail to do so the youth court judges who have the ultimate responsibility for application of the Young Offenders Act are not, in my view, helplessly bound to convict every time all elements of an offence are proved. The contention that they are so bound does not give the statute and particularly s. 3(1)(d) the liberal construction required by s. 3(2). If a judge dismisses a charge on the basis that it should never have been laid, having in mind s. 3(1)(d), the result is not as stated in R. v. A.K. to declare a crime not to be a crime. An offence has been proved but nevertheless the judge may decline to register a conviction. He or she may dismiss the charge.

Coming back to the case at bar, I would not express an opinion upon the facts of this case. Crown counsel says that they are more aggravated than indicated in the appellant's factum and uttering a threat can be in some circumstances a serious matter. But as I read the reasons of Judge Davis I conclude that he only convicted because he was bound by R. v. A.K.

That being so, I would allow the appeal and direct a verdict of acquittal.

Analysis

The position advanced by the respondent, as I understand it, is akin to that adopted by the Court of Appeal. She submits that the Youth Court had jurisdiction to dismiss the charges on the ground that those charges ought never to have been laid. This argument is based on the following propositions: 1) pursuant to s. 19(2), the Youth Court has discretion to dismiss a charge; 2) the finding of guilt on the part of the respondent in these circumstances was inconsistent with the policies underlying the Act, particularly as reflected in s. 3(1); and, 3) by operation of s. 51, the Act specifically overrides the provisions of the Criminal Code.

Whatever the merits of this reasoning, it is clear that, if accepted as the proper interpretation of the Act, it would amount to a substantial alteration to normal criminal procedure and, in particular, to the principle of prosecutorial discretion. Consequently, prosecutorial discretion is a principle worthy of some discussion in the course of these reasons.

There is no doubt that the Crown acting through the Attorney General, and in turn through his or her prosecutors, has a wide amount of discretion in the carriage of criminal cases. Our own Court has recognized the principle numerous times and I would cite, as an example, the words of Fauteux C.J. in Smythe v. The Queen, 1971 CanLII 831 (SCC), [1971] S.C.R. 680, at p. 686:

Obviously, the manner in which the Attorney General of the day exercises his statutory discretion may be questioned or censured by the legislative body to which he is answerable, but that again is foreign to the determination of the question now under consideration. Enforcement of the law and especially of the criminal law would be impossible unless someone in authority be vested with some measure of discretionary power. The following statements made in [R. v. Court of the Sessions of the Peace, ex parte Lafleur, 1966 CanLII 560 (QC CA), [1967] 3 C.C.C. 244] at page 248, by Montgomery J., with the concurrence of Chief Justice Tremblay and Pratte J., are to the point and I adopt them.

I cannot conceive of a system of enforcing the law where some one in authority is not called upon to decide whether or not a person should be prosecuted for an alleged offence. Inevitably there will be cases where one man is prosecuted while another man, perhaps equally guilty, goes free. A single act, or series of acts, may render a person liable to prosecution in more than one charge, and someone must decide what charges are to be laid.

(See also: R. v. Verrette, 1978 CanLII 208 (SCC), [1978] 2 S.C.R. 838, at p. 850.)

Later, in the context of the Canadian Charter of Rights and Freedoms, this Court had occasion to consider whether such discretion constituted an affront to the principles of fundamental justice. In R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 410, La Forest J., speaking for the Court, states:

The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

(See also: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 348, and Morgan, "Controlling Prosecutorial Powers ‑‑ Judicial Review, Abuse of Process and Section 7 of the Charter" (1986), 29 Crim. L.Q. 15, at pp. 17‑24.)

Prosecutorial discretion has also been the subject of a number of lower court decisions. In Re Harvey (1957), 1957 CanLII 491 (ON SC), 119 C.C.C. 124 (Ont. H.C.), at p. 125, McLennan J. notes that:

the duty of a judicial officer under our system of the administration of criminal justice is to try charges which are brought before him, and not to substitute his own views as to what charge ought to be laid for those of the prosecuting officials. It should not be forgotten that if this practice were permitted, a Magistrate could lay a more serious charge than that laid by the Crown and if the members of the judicial branch in the administration of justice are at liberty to dictate the charges to be laid, chaos would inevitably result. [Emphasis added.]

The words of Monnin C.J.M. of the Manitoba Court of Appeal in Re Balderstone and The Queen (1983), 1983 CanLII 2803 (MB CA), 4 D.L.R. (4th) 162, at p. 169 (leave to appeal to this Court refused, [1983] 2 S.C.R. v) are to the same effect and, in my opinion, apposite:

The judicial and the executive must not mix. These are two separate and distinct functions. The accusatorial officers lay informations or in some cases prefer indictments. Courts or the curia listen to cases brought to their attention and decide them on their merits or on meritorious preliminary matters. If a judge should attempt to review the actions or conduct of the Attorney‑General ‑‑ barring flagrant impropriety ‑‑ he could be falling into a field which is not his and interfering with the administrative and accusatorial function of the Attorney-General or his officers. That a judge must not do. [Emphasis added.]

I also wish to refer to the judgment of Giesbrecht Prov. Ct. J. in R. v. Poirier, Man. Prov. Ct., June 7, 1989, unreported, at pp. 11-12:

In the criminal law process prosecutorial discretion exists throughout the entire process, from the initial investigation stage through to the conclusion of the trial. The people involved in the process, be they police officers . . . or other individuals charged with the responsibility of investigating breaches of various laws, or crown attorneys, are not the same nor will they necessarily act in the same way in exercising the discretion they have. This may lead to a situation where one person is charged with an offence, while another in seemingly identical circumstances is not; one person is prosecuted by indictment another by summary conviction; one person is dealt with under one provision of a particular statute while another is dealt with under a different, perhaps harsher provision. As is pointed out by Scollin J. of the Manitoba Court of Queen's Bench in Tit and Tit v. Director of Vital Statistics (Manitoba) 1986 CanLII 3918 (MB QB), [1986] 4 W.W.R. 238, at p. 240:

"The world of democratic theory may be peopled by legal clones, but the real world is not."

It is important to understand the rationale for this judicial deference to the prosecutor's discretion. In this regard, the reasons of Viscount Dilhorne in Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), at p. 511, are instructive:

A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. [Emphasis added.]

Consider also Powell J.'s comments in Wayte v. United States, 470 U.S. 598 (1985). Though the factual content of the case at bar is fundamentally different from that with which the U.S. Court was faced (selective prosecution of violators of a law requiring Selective Service registration), his caution respecting the institutional competence of the courts bears repeating. At pages 607‑8 Powell J. remarks:

This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill‑suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. [Emphasis added.]

I wish to be clear, however, that while the principle of prosecutorial discretion is an important precept in our criminal law, and exists for good reason, it is by no means absolute in its operation. It is now apparent, for example, that a stay of proceedings is available to prevent violations of the principles of fundamental justice and abuse of the court's process. In R. v. Jewitt, infra, our own Court relied heavily on the comments of the House of Lords in Humphrys, supra, at pp. 509‑11, when it examined the question of whether or not the remedy was known in Canada:

Where an indictment has been properly preferred . . . has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend, Lord Edmund‑Davies, has said, unacceptable in any country acknowledging the rule of law. But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness. If at the time of Connelly it had been possible to try the murder and robbery charges together, then it might well have been held unfair, oppressive and an abuse of process for them to be tried separately, each charge being based on the same evidence. But that is very different from saying that a judge has power to stop a prosecution for perjury just because he thinks it should not have been brought and that it will show that the verdict at the trial at which it is alleged the perjury was committed should have been guilty.

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances. [Emphasis added.]

In this country, the issue apparently remained in some doubt following the decision of this Court in Rourke v. The Queen, 1977 CanLII 191 (SCC), [1978] 1 S.C.R. 1021. However, R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, resolved the matter. Dickson C.J., for the Court, relies on the passage from Humphrys cited above (which was seen to temper the general reluctance expressed in Rourke) as well as the decision of the Ontario Court of Appeal in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289 and allows for the possibility of the remedy. The former Chief Justice is, however, careful to restrict the cases in which it might be available. At pages 136‑37 he states:

I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young . . . and affirm that "there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings". I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the "clearest of cases". [Emphasis added.]

This position was subsequently confirmed in R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, and R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659. Again, in both instances the Court was careful to point out that the remedy will only be granted in the "clearest of cases".

From the preceding discussion it should be apparent that, while not absolute, the principle of prosecutorial discretion is an important and useful part of our criminal law. Hence, as I mentioned above, the interpretation of the Act which is urged upon us by the respondent and which was accepted by the Court of Appeal would represent a marked departure from the law as it currently exists. This, in turn, heightens the scrutiny with which the argument must be examined. As stated in Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 116:

It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended.

(See also Cross, Statutory Interpretation (2nd ed. 1987), at pp. 169‑72.)

Consequently, subject to such exceptions as the doctrine of abuse of process (which was not argued before us), while it is open to Parliament to confer discretion upon Youth Court judges to dismiss charges on the basis that those charges ought not to have been laid, indeed, subject to over‑arching constitutional norms, it is open to Parliament to change the law in whatever way it sees fit, the legislation in which it chooses to make these alterations known must be drafted in such a way that its intention is in no way in doubt. The question for the purposes of this case becomes, therefore, whether Parliament has drafted the Young Offenders Act in such a way so as to make this intention manifest.

The type of clarity necessary to effect such a change cannot, in my opinion, be found in s. 19(2) alone. The wording of that section is not explicit enough to reflect an intent on the part of Parliament to confer on Youth Court judges the discretion to dismiss charges whenever it strikes their fancy. The respondent recognizes this and submits that Parliament's expression lies rather in the combined operation of ss. 19(2) and 3(1). Section 19(2), she points out, provides that a youth court may dismiss a charge. The court may do so, the argument continues, where the prosecutor has not acted in conformity with the principles underlying the Act. Those principles are contained in s. 3(1). The respondent relies particularly on s. 3(1)(d) which contemplates the taking of "measures other than judicial proceedings" or "no measures" where doing so would "not be inconsistent with the protection of society".

In light of my conclusions pertaining to the need of Parliament to make its intention manifest when effecting a change to the existing law, the argument of the respondent would appear to depend upon Parliament including a coherent, unified statement of the principles underlying the Young Offenders Act and the goals sought to be achieved by its enactment. Presumably, if Parliament wished to confer upon the Youth Court the discretion to dismiss charges where the prosecutor has not acted in conformity with the philosophy of the Act, it would leave no doubt as to the nature of that philosophy.

I am unable to accede to the submission of the appellant that s. 3(1) is merely a "preamble" and does not carry the same force one would normally attribute to substantive provisions, especially since Parliament has chosen to include the section in the body of the Act. Yet, I am equally unable to attribute to that section the clarity necessary to accept the respondent's interpretation. Section 3(1)(d) admittedly advocates the taking of no measures in certain circumstances. However, this subsection must be read in conjunction with the rest of s. 3 which states, inter alia, that "young persons who commit offences should nonetheless bear responsibility for their contraventions" (3(1)(a)), and that "society must . . . be afforded the necessary protection from illegal behaviour" (3(1)(b)). These statements, on their face, would both militate against the action advocated by the Court of Appeal just as much as s. 3(1)(d) is said to militate in favour of it.

Some commentators have been relatively critical of the drafting of the Declaration of Principle as it appears in s. 3(1). Platt, in Young Offenders Law in Canada (1989), at {SS} 2.18, has said:

In many respects, the policies are an articulation of the principles of criminal law in the context of young persons. The difficulty is that they are not coherent and, in some instances, are positively inconsistent. It is because of this that s. 3(1) is such a fertile ground for both the defence and the prosecution in searching out Parliament's legislative intention.

However, while I am not unmindful of the apparent inconsistencies of the stated goals of the Act as contained in s. 3(1), in my opinion the better view is that advocated by Bala and Kirvan in Chapter 4 of The Young Offenders Act: A Revolution in Canadian Juvenile Justice (1991), at pp. 80‑81:

It is apparent that there is a level of societal ambivalence in Canada about the appropriate response to young offenders. On the one hand, there is a feeling that adolescents who violate the criminal law need help to enable them to grow into productive, law‑abiding citizens; this view is frequently reflected in media stories about inadequate facilities for treating young offenders. On the other hand, there is a widespread public concern about the need to control youthful criminality and protect society. This view is reflected in media stories and editorials commenting on the alleged inadequacy of the three‑year maximum disposition that can be applied to young offenders, a particular public concern in regard to those youths who commit very serious, violent offences.

While it may not be inaccurate to suggest that the Declaration of Principle reflects a certain societal ambivalence about young offenders, it is also important to appreciate that it represents an honest attempt to achieve an appropriate balance for dealing with a very complex social problem. The YOA does not have a single, simple underlying philosophy, for there is no single, simple philosophy that can deal with all situations in which young persons violate the criminal law. While the declaration as a whole defines the parameters for juvenile justice in Canada, each principle is not necessarily relevant to every situation. The weight to be attached to a particular principle will be determined in large measure by the nature of the decision being made and the specific provisions of the YOA that govern the situation. There are situations in which there is a need to balance competing principles, but this is a challenge in cases in the adult as well as the juvenile system.

. . . There is a fundamental tension in the YOA between such competing ideals as due process and treatment; in some situations, the act gives precedence to due process, though in exceptional circumstances treatment may be emphasized at the expense of due process. The underlying philosophical tensions in the YOA reflect the very complex nature of youthful criminality. There is no single, simple philosophy and no single type of program that will "solve" the problem of youthful criminality. Judges and the other professionals who work with young persons who violate the criminal law require a complex and balanced set of principles like those found in the YOA.

(See also Doob and Beaulieu, "Variation in the Exercise of Judicial Discretion with Young Offenders" (1992), 34 Can. J. Crim. 35, at pp. 47‑48.)

On this reading of the section, it becomes plain that Parliament was attempting to achieve disparate goals by including s. 3(1) in the Act. This is entirely understandable. However, in my view, it is also fatal to the argument as advanced by the respondent for it fails to reveal the kind of clear, singular intention necessary to accept the type of radical change in the law of criminal procedure which is advocated by the Court of Appeal and by the respondent.

In any event, I have come to the conclusion that the argument advanced by the respondent is not at all consonant with recent pronouncements of this Court on the nature of s. 3(1). In R. v. S. (S.), 1990 CanLII 65 (SCC), [1990] 2 S.C.R. 254, the accused, a young person, had been charged with possession of stolen goods but before entering a plea brought a motion alleging that the failure of the Ontario government to designate an alternative measures program constituted a violation of his s. 15 rights as guaranteed by the Charter. He relied on ss. 3(1)(d) and (f), arguing that in conjunction with s. 4, they showed the government to be under a positive duty to initiate such programs. The trial judge accepted this argument as did the Court of Appeal. This Court reversed. Speaking through Dickson C.J., the Court held that no such mandatory duty could be inferred from the language Parliament had chosen in drafting the legislation. At page 274 Dickson C.J. states:

. . . 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" . . . and not a legal obligation.

In the circumstances of this case I am of the view that this pronouncement significantly undermines the submission of the respondent since she is arguing, in effect, that pursuant to s. 3(1)(d) the prosecutor is under a positive obligation to consider the bringing of no charges where doing so would be consistent with the underlying philosophy of the Act and, if the prosecutor fails to abide by this obligation and brings charges where they are not warranted, the Youth Court has authority to dismiss those charges. As seen from the decision in R. v. S. (S.), no such positive obligation may be gleaned from the wording of s. 3(1)(d) and, consequently, none may be imputed to the authorities.

Finally, I wish to note that, besides failing to be clearly reflected in the principles of the Act and being contrary to the jurisprudence of this Court, the interpretation advanced by the respondent and adopted by the Court of Appeal could, in my respectful opinion, lead to no small amount of difficulty. Consider the case of R. v. M.(J.), B.C. Prov. Ct., May 30, 1991, unreported. The young person had been charged with assault after he had put his hands on the shoulders of a group home worker "and shoved her backwards 3 or 4 times. She did not fall, nor did she suffer any injuries". The Crown, relying on the Court of Appeal decision in the present case, and on the reasoning in D. L., supra, sought to adduce evidence of past misconduct in order to show that the discretion of the prosecutor in deciding to lay charges had been properly exercised. Counsel for the young person, of course, objected strongly and relied on R. v. Rowton (1865), 10 Cox C.C. 25 and the general prohibition on admission of character evidence. Auxier Prov. Ct. J. was clearly put in a difficult position because the only evidence available to show proper exercise of discretion was inadmissible. This difficulty, I think, is reflected in her reasons (at p. 3):

I feel I may only know the tip of the iceberg in this case but, as stated, am of the view that the only relevant evidence is that relating to the alleged offence. On those facts, all I see is a minor disciplinary matter, precisely of the type referred to in the David L. case. I follow the reasoning . . . in that case and dismiss the charge.

I am of the view that it would be unwise for the courts to institutionalize such a dilemma. I would note that where a Youth Court judge is under the impression, for whatever reason, that though the strict elements of a charge have been established, the charges ought not to have been laid, he or she has the express power under s. 20(1)(a) to grant an absolute discharge. At this point, presumably, evidence of the young person's history would be available. I make no comment on whether an absolute discharge would have been the appropriate course of action in this case, but I cannot help but think that this would have responded to the concerns expressed by the trial judge and by the Court of Appeal in a manner consistent with the Act.

For these reasons I am bound to hold that the appeal must be allowed. However, since this case reflects considerable confusion on the nature of s. 19(2), I wish to add a few words on that subject. As is already apparent from these reasons, that section does not, in conjunction with s. 3(1) or otherwise, confer jurisdiction upon a Youth Court judge to dismiss charges against a young person merely because he or she feels that those charges ought not to have been laid. Instead, I am of the view that s. 19 simply seeks to protect the young person against the consequences of an ill‑informed plea of guilty. Section 19(1) requires that the court be satisfied that the facts support the charge before accepting a guilty plea. (In adult proceedings, the court has discretion to perform such an inquiry but is under no obligation to do so: Adgey v. The Queen, 1973 CanLII 37 (SCC), [1975] 2 S.C.R. 426. See also: Salhany, Canadian Criminal Procedure (5th ed. 1989), at pp. 220‑21.) If the court is not satisfied that the facts support the charge, s. 19(2), as well as directing that a trial be held where the young person has entered a plea of not guilty, then requires the court to enter a plea of not guilty and proceed with the trial: Bala and Lilles, The Young Offenders Act Annotated (1984), at pp. 167‑70. Although s. 19(2) provides that the court may "make an order dismissing the charge", I do not think that the section contains clear enough language to alter such a long‑standing principle of criminal procedure as deference to the discretion of the prosecutor. Accordingly, the respondent's argument cannot succeed.

Disposition

I would allow the appeal, reverse the decision of the Court of Appeal and affirm the trial judge's finding of guilty on the charge of uttering threats. I would further direct that the matter be remitted to the court of first instance for disposition under s. 20.

Appeal allowed.

Solicitor for the appellant: The Attorney General of British Columbia, Vancouver.

Solicitors for the respondent: Lindsay, Kenney, Vancouver.