CITATION: R. v. G.G., 2022 ONSC 6023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
G.G.
Defendant
M. Crystal, for the Crown
J. McFadden, for the Defendant
HEARD: October 6 and 20, 2022
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under that Act. This decision complies with this restriction so that it can be published.
REASONS FOR DECISION ON DETENTION REVIEW
Ellies R.S.J.
OVERVIEW
1G.G. is before me for a detention review under s. 525 of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”). He faces approximately 52 charges spanning 7 different informations. The allegations range from robbery to sexual assault and include approximately 20 allegations of breaching court orders. He was released numerous times on different subsets of the charges before finally being detained by a justice of the peace on June 22, 2022.
2Importantly, G.G. was charged as a “young person” within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“the YCJA”). He just recently turned 18. At the outset of the hearing, I raised the issue of this court’s jurisdiction to review the detention of a young person under the YCJA. I proceeded to hear the evidence of four witnesses called by the Crown over the course of two days. At the conclusion of the hearing, I reserved my decision and requested written submissions from the parties on the jurisdiction issue.
3These reasons explain why I have concluded that this court has no jurisdiction to review G.G.’s detention, notwithstanding the parties’ submissions to the contrary.
BACKGROUND FACTS
4There is no need to review the factual allegations supporting the charges. It is enough to note that none of the charges against G.G. are listed in s. 469 of the Code, that the Attorney General has not given notice that he intends to seek an adult sentence in connection with any of them, and that there is no uncertainty as to whether G.G. was under the age of 18 at the time the offences were allegedly committed.
5I will explain the importance of these facts below.
ISSUE
6The issue is a simple one: in what circumstances does the Superior Court of Justice have jurisdiction to review the detention of a young person under s. 525 of the Code?
ANALYSIS
7Section 525 is found in Part XVI of the Code dealing with pre-trial detention and release. The relevant portion of the section reads:
(1) The person having the custody of an accused — who has been charged with an offence other than an offence listed in section 469, who is being detained in custody pending their trial for that offence and who is not required to be detained in custody in respect of any other matter — shall apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody, if the trial has not commenced within 90 days from
(a) the day on which the accused was taken before a justice under section 503; or
(b) in the case where an order that the accused be detained in custody has been made under section 521, paragraph 523.1(3)(b)(ii) or section 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision.
The person shall make the application immediately after the expiry of those 90 days.
8Section 28 of the YCJA provides that the provisions in Part XVI of the Code apply to young persons except to the extent that they are inconsistent with the YCJA. For the purposes of Part XVI of the Code, a “judge” is defined in s. 493 as meaning a judge of the superior court of criminal jurisdiction (the Superior Court of Justice) in Ontario.
9However, s. 14 of the YCJA grants exclusive jurisdiction to “youth justice courts” in respect of offences alleged to have been committed by a young person. Section 14(1) provides:
Despite any other Act of Parliament but subject to the Contraventions Act and the National Defence Act, a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person, and that person shall be dealt with as provided in this Act.
10Neither the Contraventions Act nor the National Defence Act are engaged in the present case and the YCJA makes no exceptions for the Code. The definition of “judge” under Part XVI of the Code is, therefore, subject to modification by the provisions of the YCJA.
11A “youth justice court” is defined in s. 13(1) of the YCJA as a court that is established or designated under an Act of the provincial legislature or the Governor in Council, and a “youth justice court judge” is defined under that section as a judge who is sitting in a court that has been established or designated as a youth justice court. In Ontario, the Ontario Court of Justice is designated the youth justice court by virtue s. 38(3) of the Courts of Justice Act, R.S.O., 1990, c. J.1.
12The only circumstances in which a superior court of criminal jurisdiction is deemed to be a youth justice court under the YCJA are set out in ss. 13(2) and (3) of the Act. These sections 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.
13The provisions of ss. 13(2) and (3) of the YCJA apply only where a young person has the right to elect to be tried by a Superior Court judge sitting with or without a jury. There are only three circumstances that trigger the right to such an election. Under s. 67 of the YCJA, a young person has the right to elect a trial before a Superior Court judge sitting with or without a jury where:
(1) the Attorney General seeks an adult sentence for an offence committed after the young person turned 14 years of age;
(2) the young person is charged with first-degree or second-degree murder pursuant to s. 231 of the Code; or
(3) the status of the accused is uncertain under s. 16 of the YCJA and the young person is charged with committing an offence after attaining the age of 14 years in which an adult offender would have the right to an election under s. 536 of the Code, or where the superior court of criminal jurisdiction would have exclusive jurisdiction under s. 469 of the Code.
14As noted above, none of these circumstances are present in this case.
15The Crown concedes that G.G. has no right to an election under s. 67 and that the Superior Court, therefore, has no jurisdiction to act as a youth justice court under that section. It submits, however, that the Superior Court has jurisdiction under s. 30.1 of the YCJA, which provides:
For the purposes of section 525 of the Criminal Code with respect to a young person who has been charged with an offence for which they are being prosecuted in proceedings by way of summary conviction, every reference in that provision to “90 days” or “90-day” is to be read and construed as a reference to “30 days” or “30-day” respectively.
16I cannot accept this submission. Section 30.1 of the YCJA serves only to modify the provisions of s. 525 as they apply to a young person, not to confer jurisdiction on the Superior Court to apply them.
17As the Supreme Court of Canada made clear recently in R. v. T.J.M., 2021 SCC 6, 453 D.L.R. (4th) 94, a superior court of criminal jurisdiction has jurisdiction under the YCJA only where one or more of the circumstances in s. 67 of the Act are present and where the young person has elected to be tried in the Superior Court (in Ontario): at para. 7. As the Supreme Court also made clear, where such an election is made, the Superior Court has jurisdiction to deal with all aspects of the charges, including detention and release: at paras. 14-15.
18It follows, therefore, that until such an election is made, the Superior Court has no jurisdiction to deal with the detention and release of a young person.
CONCLUSION
19G.G. has no right to elect to be tried by this court. Even if he did, he has not yet made such an election. This court, therefore, is not deemed to be a youth justice court under the YCJA. Because this court is not a youth justice court, by virtue of s. 14 of the YCJA it has no jurisdiction to review G.G.’s detention.
20Accordingly, the matter of G.G.’s continued detention will be transferred to the Ontario Court of Justice immediately for review. Because the matter has been outstanding before this court for some time, I express the hope that it can be dealt with expeditiously before that court.
M.G. Ellies R.S.J.
Released: October 25, 2022
CITATION: R. v. G.G., 2022 ONSC 6023
COURT FILE NO.: CR-YO 22-113-BR
DATE: 2022/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
G.G.
Defendant
REASONS FOR DECISION ON DETENTION REVIEW
Ellies R.S.J.
Released: October 25, 2022