COURT FILE NO.: YC1-38/12
DATE: 20120904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
J.B. (a young person)
Defendant
Stephen Byrne, for the Crown
Michael Dineen, for the Defendant
HEARD: March 23, 2012
MOLLOY J.:
REASONS FOR JUDGMENT
A. THE ISSUE
[1] After a young person is committed for trial on murder, does a provincial court judge still have jurisdiction to release him on bail pending that trial? In this case, a provincial court judge had committed J.B. to stand trial in the superior court on a charge of first degree murder. Afterwards, the Crown consented to another provincial court judge releasing J.B. on bail. The Crown subsequently took the position that only a superior court judge had jurisdiction to deal with bail and that the decision of the provincial court judge must be quashed. The Crown therefore brought this application seeking to quash the decision granting bail. Further, the Crown now argues that J.B. should be kept in custody without bail, pending his trial.
[2] For the reasons that follow, I agree with the Crown’s submission that the provincial court judge had no jurisdiction to make the order he did. As such, his decision cannot stand. However, in the absence of a proper evidentiary record, I declined to make any ruling as to whether J.B. should be granted bail. I left that decision for the superior court judge who would ultimately hear the bail application.
B. BACKGROUND
[3] J.B. is charged with first degree murder arising from a shooting that occurred in July 2003, just prior to his 18th birthday. He was initially arrested in March 2006, but those charges were stayed when a key witness was killed. However, as a result of new information discovered by the police, J.B. was again arrested in May 2010. The preliminary hearing started in March 2011. On May 13, 2011, the preliminary hearing judge concluded there was insufficient evidence to commit for trial on first or second degree murder or manslaughter, and J.B. was discharged. The Crown brought an application in the Superior Court seeking certiorari. On January 19, 2012, Dambrot J. quashed the discharge and remitted the matter back to Bovard J. with a direction that J.B. be committed for trial on first degree murder.
[4] On February 14, 2012, Bovard J. committed J.B. for trial, but was unavailable to deal with J.B.’s application to be released on bail pending trial. The bail application therefore proceeded that same day before Weisman J., another provincial court judge (sitting as a youth court judge).
[5] Following the initial discharge at the preliminary hearing, J.B. had been living freely in the community without restrictions of any kind. This had continued for eight months up until the committal for trial on February 14, 2012.
[6] The bail hearing proceeded on February 14, 2012 before Weisman J. in the provincial court. Weisman J. raised the issue of his jurisdiction. Both the Crown and defence took the position that only a provincial court judge had jurisdiction, relying upon s. 33(8) of the Youth Criminal Justice Act (“YCJA”).[^1]
[7] Although the shooting had occurred when J.B. was under the age of 18, he was 26 years old by the time of the bail hearing before Wiseman J. The Crown consented to J.B.’s release subject to minimal conditions that included residing with his mother and observing a curfew. Weisman J. granted bail on the terms agreed upon by both counsel.
[8] Because of these circumstances, and particularly in light of the consent of the Crown, the bail hearing before Wiseman J. was brief and based entirely on the submissions of counsel.
[9] Not long after J.B. was released on bail, the Crown reconsidered its position and came to the view that: (1) the bail order was made without jurisdiction; and (2) J.B. ought not to have bail in any event. The Crown brought an application for certiorari seeking to quash the decision of Weisman J. as having been made without jurisdiction. That notice was served on March 6, 2012 and was argued before me on March 23, 2012.
[10] I concluded that the provincial court judge had no jurisdiction to order J.B.’s release on bail. I therefore quashed that decision and J.B. went into custody. The defence sought his release. However, in the absence of a full record and a proper evidentiary hearing, I was not in a position to determine whether or not his detention was warranted.
C. RELEVANT STATUTORY PROVISIONS
[11] Usually, offences committed by individuals under the age of 18 are dealt with under the YCJA rather than the Criminal Code[^2] and are tried before judges of the provincial court, who are youth court justices for this purpose. There are, however, some exceptions to this rule. Section 469 of the Criminal Code stipulates a number of indictable offences that are not within the jurisdiction of a provincial court judge. Murder is one of those listed offences. It follows that a person charged by indictment with murder can only be tried before a superior court judge.
[12] This is also reflected in sections 13(2) and (3) of the YCJA which provide:
(2) When a young person elects to be tried by a judge without a jury, the judge shall be a judge as defined in section 552 of the Criminal Code, or if it is an offence set out in section 469 of that Act, the judge shall be a judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be a youth justice court judge and the court is deemed to be a youth justice court for the purpose of the proceeding.
(3) When a young person elects or is deemed to have elected to be tried by a court composed of a judge and jury, the superior court of criminal jurisdiction in the province in which the election is made or deemed to have been made is deemed to be a youth justice court for the purpose of the proceeding, and the superior court judge is deemed to be a youth justice court judge. [Emphasis added.]
[13] Only a superior court judge has jurisdiction to grant bail to any adult person charged with an offence listed in s. 469 of the Criminal Code, which includes a murder charge. Section 522(1) states:
- (1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.
[14] The Criminal Code provisions dealing with bail applications apply to young persons, unless they are inconsistent with or excluded by the YCJA. This is governed by s. 28 of the YCJA, which provides:
- Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act.
[15] Section 33(8) of the YCJA stipulates that where a young person is charged with murder only a youth court justice has jurisdiction to release that young person from custody. That section states:
- (8) If a young person against whom proceedings have been taken under this Act is charged with an offence referred to in section 522 of the Criminal Code, a youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section.
D. ANALYSIS
Framing the issue
[16] The issue before me is whether s. 33(8) of the YCJA confers jurisdiction on a provincial court judge to grant bail to a young offender who has been committed for trial on a charge of murder.
[17] But for this provision, it seems clear that only a superior court judge would have jurisdiction. That is because murder is an offence listed in s. 469 of the Criminal Code and s. 522(1) of the Criminal Code provides that only a superior court judge has jurisdiction to release someone on bail on a s. 469 charge, whether before or after the accused has been ordered to stand trial. The Criminal Code bail provisions are specifically incorporated into the YCJA by s. 28 of that Act “except to the extent that they are inconsistent with or excluded by” the YCJA. It therefore follows that only a superior court judge can deal with bail for a young person charged with murder, unless there is some provision in the YCJA to the contrary. The only possible YCJA provision conflicting with s. 522 of the Criminal Code would be s. 33(8).
[18] Section 33(8) is very explicit about a “youth court justice” having exclusive jurisdiction to release from custody any young person who is charged with an offence falling within s. 469 of the Criminal Code, which includes murder. The question then is whether that provision is inconsistent with s. 522 of the Criminal Code, which in turn depends upon the definition of “youth justice court judge”. If “youth court justice” always means a provincial court judge, and excludes superior court judges, then the provisions are inconsistent, and the YCJA specific provision would prevail.
[19] It is clear from s. 13 of the YCJA that the term “youth justice court judge” is not applied exclusively to provincial court judges. In this province, the Ontario Court of Justice has been designated as the presumptive youth justice court and provincial court judges are therefore “youth justice court judges” under s. 13(1) of the YCJA, which will be the vast majority of cases involving young persons coming before the courts. However, subsections 13(2) and 13(3) set up four situations in which the superior court is deemed to be the “youth justice court”:
(i) when a young person elects to be tried by a judge without a jury (s. 13(2));
(ii) when the offence falls under s. 469 of the Criminal Code (s. 13(2));
(iii) when a young person elects to be tried by judge and jury (s. 13(3)); and
(iv) when a young person is deemed to have elected to be tried by judge and jury (s. 13(3)).
[20] If any of these exceptions apply, then the superior court judge will be the youth justice court judge and there will be no conflict between s. 522 of the Criminal Code (requiring that only a superior court judge has jurisdiction to grant bail in a murder case) and s. 28 of the YCJA (stipulating that a youth justice court judge has exclusive jurisdiction to release a young person from custody). In both instances, it will be a superior court judge dealing with bail.
[21] The issue before me therefore depends on whether any of these exceptions in ss. 13(2) and 13(3) of the YCJA apply. In my view, J.B. falls within both s. 13(2) and 13(3). He is within 13(2) because he is charged with a s. 469 offence (murder); he is within s. 13(3) because upon being committed for trial on first degree murder, he is deemed to have elected to be tried by a judge and jury.[^3]
“Proceeding” includes more than the trial itself
[22] Defence counsel relies upon the wording of ss. 13(2) and 13(3) of the YCJA in which the superior court is deemed to be a youth justice court “for the purpose of the proceeding.” He argues that those subsections only confer jurisdiction upon the superior court in respect of the trial itself and that all other proceedings, including bail applications, must be dealt with in the provincial court.
[23] There is some authority for that proposition in two decisions of the Manitoba Provincial Court.[^4] However, I do not agree with the reasoning in those cases. Further, courts in other jurisdictions have also not followed that reasoning. The issue has been dealt with in Ontario at the provincial court level,[^5] although not in the superior courts. There is also a decision from the Saskatchewan Court of Appeal[^6] and one from the Alberta Queen’s Bench,[^7] both taking essentially the same position I have adopted.
[24] In my view, the word “proceeding” is a far broader term than the word “trial” and encompasses all aspects of the case, not merely the trial itself. If Parliament had intended these provisions to apply only to the trial proper, it would have used the word “trial” rather than “proceeding”. In my view, there is no logical basis for restricting the word “proceeding” to only the trial portion of the proceeding. There is no requirement within the legislation to interpret it in this manner, nor is such an interpretation more consistent with the context or purpose of the legislation. On this point, I agree entirely with the decision of Gage J. of the Ontario Court of Justice, in R. v. F.(M.),[^8] in which he held (at paras. 44-46):
Whether used in its singular or plural form the term “proceeding” in civil, matrimonial and criminal litigation context is usually and ordinarily understood to encompass the entirety of the processes within an action, application or prosecution.
Several sections of the YCJA make specific reference to the “trial” portion of the proceeding – see sections 64(2), 130, 131, and 142(1).
I am unable to discern any logical support for the contention that the term “proceeding” as it is used in subsections 13(2) and 13(3) should be interpreted as being limited to the trial process. If this were the proper interpretation there would be no need for subsection 67(7) to stipulate that a section 13(1) judge conduct the preliminary hearing. The fact that subsection 67(7) does so stipulate suggests that as soon as the election is made there is concurrent jurisdiction in the two courts referenced in subsections 13(1) on the one hand and 13(2) and (3) on the other.
[25] A similar conclusion was reached by LoVecchio J. of the Alberta Court of Queen’s Bench in R. v. S.(T.)[^9] as follows (at para 40):
In my view, the plain and ordinary meaning of the word proceeding must be seen as encompassing more than simply the ultimate trial of T.S. on the charge. Where that not the case, there would be no need for Section 67(7) of the YCJA, which stipulates that if a young person has elected to be tried by a court consisting of a judge sitting with a jury, the preliminary inquiry, if held, is to be held in the court mentioned in Section 13(1) of the YCJA which is the Provincial Court.
[26] In R. v. W.(E.E.), the Saskatchewan Court of Appeal first noted that the word “proceeding” could mean a single step in a proceeding, or could mean the entire prosecution of the charge from its inception. The Court then held that the interpretation to be ascribed to the use of that word in s. 33(8) depends on the context of the words within the subsection itself and the rest of the legislation.[^10] In the result, the Court of Appeal ruled that because of s. 13(2), a bail for a young person charged with murder was solely within the jurisdiction of provincial court judges up to the time of the young person’s election of mode of trial, but after that point was within the exclusive jurisdiction of the superior court. It is implicit from that decision that “proceeding” was given its broader definition and not restricted merely to the trial.
[27] A contrary view was taken by Devine J. of the Provincial Court of Manitoba in R. v. H.(B.W.). She referred to the decision of the Saskatchewan Court of Appeal, but declined to follow it. In her view, the word “proceeding” in its ordinary grammatical sense, as well as within the context of the legislation, referred only to the trial and ss. 13(2) and 13(3) did no more than clarify the situations in which it was necessary to deem the superior court trial judge to be a judge of the youth justice court.[^11] In reaching that conclusion, she reasoned that it was the intention of Parliament to have a separate and specialized youth justice court to deal with young people as much as possible,[^12] and that a different interpretation would create anomalous results as between young persons and adults and unduly strain the resources of the superior court.[^13]
[28] As I have already stated, I do not agree that the ordinary meaning of “proceeding” is “trial.” I do accept that this is a possible interpretation if required by the context in which the language is used. However, I do not agree that the context here requires, or even supports, such an interpretation. I also recognize the importance of a specialized youth justice court. However, Parliament has clearly signaled its intention to remove the more serious criminal offences from that regime for purposes of trial. There is no good reason to reject the notion that once a case has in effect been transferred to the superior court (whether by election or committal for trial), other matters such as bail should also be dealt with in that court. Indeed, in my view, logic would support an interpretation that bail should be dealt with in the court that will be conducting the trial. I am also in agreement with Gage J. in R. v. F.(M.)[^14] that neither the interplay of the legislative provisions, nor their impact on the courts, creates any anomalous results or undue strain on the courts. He stated, at paras. 51-52:
As of March 27, 2006, when this youth elected to be tried by judge and jury, the judges of superior court of criminal jurisdiction (Superior Court of Ontario) acquired concurrent jurisdiction. At that point the conflict or inconsistency between the YCJA the requirements of section 33(8) and the direction contained in section 522(1) is resolved and in accord with section 28 of the YCJA the direction requiring that the bail hearing be conducted by a judge of a court of superior criminal jurisdiction as contained in section 522(1) will apply.
This interpretation, in my view, does not have the effect of requiring that a superior court judge conduct all post election bail hearings for any and all offences for which the youth has an election under the YCJA. It will only apply to those offences listed in section 469. All other bail hearings will be conducted in accord with Part XVI of the Code as envisioned by section 28 of the YCJA. The practical impact of this interpretation is not likely to be significant inasmuch as the bulk of applications for judicial interim release by youths charged with section 469 offences will be made before the youth has elected mode of trial.
[29] Accordingly, I conclude that under s. 13(2) and 13(3) of the YCJA, the reference to “proceeding” includes a bail application and that the superior court is deemed to be the youth justice court, provided the other requirements of those sections apply.
Superior court jurisdiction over s. 469 offences in s. 13(2) and 13(3) is triggered by an election
[30] J.B. is charged with murder, an offence listed in s. 469 of the Criminal Code. That was also the situation before the Saskatchewan Court of Appeal in R. v. W.(E.E.).[^15] In that case, the Court of Appeal considered whether the wording of s. 13(2) transferred all jurisdiction in respect of s. 469 offences to the superior court, or if this only occurred after the accused had elected his mode of trial. The section is awkwardly worded. The first part of the section refers to “when a young person elects to be tried by a judge without a jury or if it is an offence set out in section 469.[^16] This seems to imply that the rest of the section applies to s. 469 offences without qualification. However, the next clause goes on to state, “the judge shall be a judge of the superior court of criminal justice in the province in which the election is made”.[^17] The logical implication of referring to the judge in the province in which the election is made is that there must have been an election before there can be any application. The clause applies equally to a person charged with a s. 469 offence. In my opinion, that must mean that the transfer of jurisdiction to the superior court only arises in a s. 469 case upon an election of mode of trial being made. That conclusion is also consistent with s. 67(7) of the YCJA which provides that where a young person elects to be tried by a judge without a jury or elects or is deemed to have elected trial by a judge and jury, and a preliminary hearing is requested, “the youth justice court referred to in s. 13(1)” shall conduct the preliminary inquiry. This section is required so that the preliminary inquiry is conducted by a provincial court judge, notwithstanding s. 13(2) of the YCJA. I note that this is the conclusion also reached by the Saskatchewan Court of Appeal, which held in W.(E.E.), at paras 14 and 21:
On the first several readings of ss. 13(2), it appears from the words used to be intended to apply unconditionally to all young persons charged with s. 469 offences with no restrictions as to time of application, and that is how the Queen’s Bench judge interpreted it. However, when it says “the judge shall be a judge of the superior court of criminal jurisdiction in the province in which the election is made”, one must ask why the legislators referred to “the province in which the election was made” rather than to the province in which the offence was committed or in which the young person is to be tried. The only possible reason is that it was intended that the subsection apply to s. 469 offenders at the same time as to all other offenders to which the subsection applies, namely, at the time of election of mode of trial.
The conclusion must be that ss.13(2) applies to s. 469 offenders from the time of election of mode of trial. Up until that time, ss.13(1) judges have exclusive jurisdiction over all proceedings in respect to them.
[31] With respect to s. 13(3), the situation is more clear cut. Upon his committal for trial in the superior court on the charge of first degree murder, J.B. is deemed to have elected trial by judge and jury.[^18] As that point, the superior court is deemed to be a youth justice court. The provisions of s. 522(1) of the Criminal Code will then apply and bail can only be granted by a superior court judge. The terms of s. 28 of the YCJA will have no application because there will be no conflict once the superior court is deemed to be a youth justice court.
The superior court’s jurisdiction is exclusive
[32] This is not a situation in which there is concurrent jurisdiction between the provincial and superior courts. A provincial court judge has no jurisdiction to deal with bail once the conditions in ss. 13(2) and 13(3) deeming the superior court to be a youth justice court have been met. The terms of s. 522(1) of the Criminal Code are clear. Only a judge of the superior court has jurisdiction to grant bail from that point on.
[33] It is well established that an agreement by counsel cannot confer jurisdiction where jurisdiction does not otherwise exist.[^19] It follows that the decision of the provincial court judge granting bail to J.B. in this case cannot stand and is quashed.
E. CONCLUSIONS
[34] In the result, I quashed the decision of Weisman J. releasing J.B. on bail. The next issue before me was whether I should release J.B. on the same conditions as had been agreed to by the Crown in the provincial court. I did not do so. The Crown had since resiled from that position. I refrained from making any determination as to whether any unfairness to the accused as a result of that change in position ought to be taken into account in determining bail. However, my duty is not to consider only issues of fairness to the accused, but also the interests of the community at large. Bearing in mind that the accused at this point was 26 years old and bore the onus of establishing that his release was appropriate in all the circumstances, I declined to order his release without a proper evidentiary foundation before me.
[35] Finally, I note from my own experience and from my review of the decisions of other judges who have dealt with this issue (some of them with considerable experience with this legislation), these provisions are difficult to understand and to reconcile. Legislative amendment to bring clarity to the situation would be welcome. I also share the view of Trotter J. in his definitive text on bail, The Law of Bail in Canada,[^20] that the transfer of jurisdiction to the superior court at the point of election might not be the most logical or desirable result. He wrote in his text, at p. 4-15:
The decisions in this area place great emphasis on the accused’s election as a triggering device for the transfer of jurisdiction from the provincial courts to the superior courts. It is questionable whether this is a legitimate basis for determining what level of court the young person should apply for bail. The practice of putting a young person to his or her election differs from province to province, and place to place. The timing of an election may end up injecting a certain amount of randomness into a decision of where bail is ultimately heard. A more logical point of departure for passing bail jurisdiction between levels of court is the committal to stand trial and/or the young person’s first appearance in the superior courts. The wording of s. 13 might at that point establish bail jurisdiction in the superior courts. Suffice it to say, this aspect of the YCJA requires more work.
[36] I agree.
MOLLOY J.
Released: September 04, 2012
COURT FILE NO.: YC1-38/12
DATE: 20120904
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
J.B. (a young person)
Defendant
REASONS FOR JUDGMENT
MOLLOY J.
Released: September 04, 2012
[^1]: Youth Criminal Justice Act, S.C. 2002, c.1 [YCJA]. [^2]: Criminal Code, R.S.C., 1985, c. C-46. [^3]: Criminal Code, supra note 1, s.565(1)(c [^4]: R. v. H.(B.W.) (2005), 2005 57045 (MB PC), 198 Man.R. (2d) 264, 202 C.C.C. (3d) 566 (Prov. Ct.); R. v. M.(N.), 2010 MBPC 45, 257 Man. R. (2d) 207. [^5]: R. v. F. (M.), 2006 ONCJ 161, 210 C.C.C. (3d) 146. (There is an earlier Ontario Court of Justice decision in which a provincial court judge granted bail in a s. 469 case: R. v. K.(T.), 2004 ONCJ 410, 192 C.C.C. (3d) 279. However, in that case, both counsel took the position that the provincial court had jurisdiction, the judge did not deal with the interpretation of the word “proceeding”, and also did not consider whether an election of mode of trial triggers the jurisdiction of the superior court.) [^6]: R. v. W.(E.E.), 2004 SKCA 114, 188 C.C.C. (3d) 467. [^7]: R. v. S.(T.), 2006 ABQB 631, 421 A.R. 370. [^8]: R. v. F. (M.), supra note 4. [^9]: R. v. S.(T.), supra note 6. [^10]: R. v. W.(E.E.), supra note 5 at para. 12. [^11]: R. v. H.(B.W.), supra note 3 at paras. 25 and 39. [^12]: Ibid at para. 30. [^13]: Ibid at paras. 31-38. [^14]: R. v. F. (M.), supra note 4. [^15]: R. v. W.(E.E.), supra note 5. [^16]: Youth Criminal Justice Act, supra note 1, s.13(2). [^17]: Ibid. [^18]: Criminal Code, supra note 1, s.565(1)(c). [^19]: R. v. Dudley, [2009] 3 S.C.R. 570, 2009 SCC 58. [^20]: Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010).