Court File and Parties

COURT FILE NO.: CR-22-30000670 DATE: 20230313 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. B.W.

BEFORE: Justice E.L. Nakonechny

COUNSEL: D. Harm, for the Crown J. Erickson, for the Accused

HEARD: March 6 and 7, 2023 RELEASED: March 13, 2023

Warning

Pursuant to an Order of this Court under s. 486.4 (1) any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.

Endorsement

[1] By indictment dated September 21, 2020, the accused, B.W., was charged with sexual assault, sexual touching of a person under age 14, and confinement of the complainant, V.B., in the period between June 21, 1993, and August 31, 1994.

[2] The indictment was amended in December 2022 to two counts of sexual assault on V.B. in the period between September 17, 1993, and August 31, 1994.

[3] At the commencement of trial, B.W. was arraigned on the two counts of sexual assault and pleaded not guilty to both counts.

[4] The Crown called V.B. as a witness. She gave evidence describing two sexual assaults that occurred when she was 9 or 10 years old. V.B. was born in June 1983. B.W. is her stepfather’s nephew. V.B. believes he is about nine years older than her.

[5] The alleged sexual assaults took place in V.B.’s family home on two separate occasions when B.W. was babysitting her and her three siblings. The first assault occurred while they were playing hide and seek in a dark basement. B.W. put his hand down V.B.’s pants and touched her vagina beneath her underwear. The second assault took place when B.W. followed V.B. upstairs to a bathroom. He put his foot in the door to stop her from closing it. He then let her close the door and waited outside. When she opened the door he pushed himself in and shut the door behind him. He pushed her down to the floor and pulled down her jeans and panties. He pinned her arms over her head and covered her mouth. He touched her vagina with his hands, rubbed his erect penis against her and penetrated her vaginally. V.B. cried and asked him to stop because it hurt her.

[6] After a few minutes, V.B.’s brother yelled from downstairs. B.W. put his pants on and left the bathroom. He told V.B. not to say anything or it would ruin her family. V.B. was afraid and ran from the house.

[7] V.B. reported the incidents to police in 1998. B.W. was not charged. She gave a statement to police again in 2018.

[8] In cross examination, V.B. was asked only about the timing of the alleged events. She confirmed that the second assault took place during the summer of her 10th birthday in 1983 and the first assault took place a few months earlier.

[9] At the end of the Crown’s case, Mr. Erickson made a motion for a directed verdict on the grounds that this Court does not have jurisdiction to hear the trial. B.W. was born on September 17, 1975. He was under the age of 18 when the alleged offences took place. Mr. Erickson argues that charges should have proceeded under the Youth Criminal Justice Act, S.C. 2002, c. 1.

[10] In argument, Mr. Erickson conceded that his motion is not for a directed verdict of acquittal, but rather that the charges in this Court be dismissed for lack of jurisdiction. He agrees that it is open to the Crown to re-charge B.W. in Youth Court.

The Crown’s position

[11] The Crown does not dispute B.W.’s date of birth for purposes of the jurisdiction hearing. Mr. Harm argues that this Court does have jurisdiction to hear this trial because:

a. the date is not an essential element of the offence; b. there is some evidence that B.W. was an adult at the time of the offence; c. Section 13(2) and (3) and s. 14(7) of the YCJA allow a Superior Court of Criminal Jurisdiction Judge to be deemed a Youth Court Justice.

[12] I will deal with these points in turn.

The date is not an essential element of the offence

[13] I agree that the date of the occurrences is not an essential element of the offences under section 271(1) of the Code. However, the date the offences took place is relevant to whether this Court has jurisdiction to hear the matter.

[14] Section 14(1) of the YCJA confirms that the youth justice court has exclusive jurisdiction over any offence alleged to have been committed by a young person. The YCJA defines a young person as a person who is twelve years or older but less than eighteen years old. For this court to have jurisdiction, the offences must have occurred on or after September 17, 1993 when B.W. attained the age of 18.

There is evidence B.W. was over 18 years old at the time of the offence

[15] The Crown relies on the evidence of V.B. who testified that she believed B.W. was about 9 years older than her. She states that the assaults took place in June, 1993 when she was 9 or 10 years old which would put B.W. at age 18 or 19. On this evidence, the Crown submits that B.W.’s age at the time of the offences is uncertain.

[16] The Crown argues that, on a directed verdict for acquittal, the judge must decide whether there is a basis in the evidence upon which a reasonable jury, properly instructed, could convict: R. v. Kelly, 2017 ONCA 290 at para. 19. It is not for the judge to weigh the evidence to determine whether there are competing inferences. Where there are competing inferences, they must be drawn in favour of the Crown: R v. Papasotiriou-Lanteigne, 2018 ONSC 1994 at para. 7.

[17] The Crown invites the Court to draw the inference that B.W.’s age at the time of the offences is uncertain. I do not think that this inference assists the Crown. Section 16 of the YCJA applies when the accused’s age at the time of the offence is uncertain. That section provides that where a person is charged with an offence during a period that includes the date on which they attain the age of 18 years, the youth justice court has jurisdiction to hear the case. The youth court trial judge will ultimately decide whether the person was a young person at the time of the offence and, depending on the finding, will sentence them either to an adult sentence pursuant to s. 16(b) or a youth sentence pursuant to ss. 16(a) or (c).

[18] The youth court has jurisdiction unless it is proven that an accused attained the age of eighteen years when the offence was committed: R. v. White, 2014 ONCA 64 at para. 13. Where there is no proof of the accused’s age at the time of the offence, the facts should be viewed in the manner most favourable to the accused: R v. A. (E.A.) (1987), 22 O.A.C. 83 at para. 11.

[19] In R. v. B.F., 2016 ONSC 2840, Bielby, J. held that where the defence challenges the jurisdiction of the court to try an accused, the onus is on the Crown to prove that the incidents the accused is charged with took place after they attained age 18. Bielby, J. reviewed the line of cases dealing with a jurisdictional challenge by the defence based on the accused’s age at the time of the incidents including R. v. K. (P.A.), 1992 CarswellNfld 125 and R. v. Male, 2013 MBPC 12.

[20] Bielby, J. adopted the two-step approach set out in these cases to determine whether the accused was a youth or an adult at the time of the offences:

a. The accused bears the evidentiary burden to show there is sufficient evidence to raise the issue; and b. The Crown then has the burden of proving jurisdiction beyond a reasonable doubt.

[21] Bielby, J. held that where there was a reasonable doubt as to whether the accused was at least 18 years of age when the alleged offences took place, the Ontario Superior Court did not have jurisdiction to try the accused for the offences.

[22] In R v. A.M., 2020 ONCJ 477 at paras. 36 and 43, Porter, J. confirmed the test in B.F. and held that when an accused is charged as an adult but adduces evidence that he or she was less than 18 years old at the time of the alleged offence, the Crown must prove beyond a reasonable doubt that the accused was 18 years of age or older at the time of the offence to maintain jurisdiction.

[23] In R. v. Sullivan, 2022 SCC 19 at para. 75, the court held that the principle of judicial comity, that judges treat fellow judges’ decisions with consideration, as well as the principles of stare decisis mean that trial courts should only depart from binding decisions issued by a court of co-ordinate jurisdiction in three narrow circumstances: citing Re Hansard Spruce Mills, [1954] 4 D.L.R. 590:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached through carelessness or by inadvertence; or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

[24] In Sullivan at paras. 73-80, the Supreme Court held that one judge thinking that another judge of co-ordinate jurisdiction was “wrong” is not a proper basis for departing from judicial comity and horizontal stare decisis. I do not think that B.F. and A.M. were wrongly decided but, even if I did, this is not a proper basis for departing from these authorities. In addition, none of the three bases for departing from judicial comity and horizontal stare decisis set out in Sullivan apply. Accordingly, I will follow the line of authority from this Court.

[25] It is agreed that B.W. was age 18 on September 17, 1993. The defence has met its evidentiary burden to raise the issue.

[26] Based on this agreement and the evidence of the timing of the alleged assaults given by V.B., which I accept, I find there is reasonable doubt as to whether B.W. had attained the age of 18 at the time the alleged offences took place.

Do sections 13(2) and (3) and s. 14(7) of the YCJA allow a Superior Court of Criminal Jurisdiction Judge to be deemed a Youth Court Justice?

[27] Sections 13(2) and (3) of the YCJA read as follows:

Designation of youth justice court

(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.

[28] Both of these sections refer to the election or deemed election by a young person in certain circumstances. In R. v. T.J.M., 2021 SCC 6, para. 7, the Supreme Court held:

“Sections 13(2) and 13(3) apply where any of the three circumstances described in s. 67 of the YCJA as triggering a right to election apply [i] and the young person elects to be tried by a judge with or without a jury. In the case of a young person charged with a s. 469 offence, a judge of the superior court will have jurisdiction when the young person elects a trial in the superior court of criminal jurisdiction sitting without (in the case of s. 13(2)) or with (in the case of s. 13(3)) a jury. This is because, when a young person charged with a s. 469 offence is put to an election, s. 67(2) of the YCJA gives the young person three options: (1) a trial before a s. 13(1) judge of the court designated by the province as a youth justice court; (2) a trial before a judge of the superior court of criminal jurisdiction, who is deemed by s. 13(2) to be a youth justice court judge, sitting alone; and (3) a trial before a judge of the superior court of criminal jurisdiction, who is deemed by s. 13(3) to be a youth justice court judge, sitting with a jury.

[29] B.W. is not charged as a young person. Although he elected to proceed with this trial before a judge alone, he was not a young person as defined in the YCJA when he made that election. In my view, these subsections do not give this Court jurisdiction to hear this matter.

[30] Section 14(7) of the YCJA reads as follows:

Powers of a judge of a superior court

(7) A judge of a superior court of criminal jurisdiction, when deemed to be a youth justice court judge for the purpose of a proceeding, retains the jurisdiction and powers of a superior court of criminal jurisdiction.

[31] The Crown argues that this Court has jurisdiction to hear this matter and, if I find that B.W. was a youth at the time of the offences, I can impose a youth sentence under s. 16 (c) of the YCJA.

[32] I do not agree. Section 14 of the YCJA grants exclusive jurisdiction over offences committed by young persons. Subsection 14(5) confirms that the YCJA applies to persons 18 years of age or older who are alleged to have committed an offence while a young person. I have found that neither s. 13(2) nor 13(3) of the YCJA apply to deem this Court to be a youth justice court.

Disposition

[33] I find that the Crown has not proved beyond a reasonable doubt that the alleged offences took place on or after B.W.’s 18th birthday.

[34] I conclude that this Court does not have jurisdiction to try B.W. on the charges in the indictment dated December 5, 2022. The indictment is quashed.

[35] The Crown shall decide whether to initiate proceedings under the Youth Criminal Justice Act.

E.L. Nakonechny J.

Footnotes

[i] (1) where the Attorney General has given notice under s. 64(2) of the intention to seek an adult sentence (s. 67(1)(b)); (2) where the young person is charged with first or second degree murder (s. 67(1)(c)); and (3) where s. 16 of the YCJA (status of accused uncertain) applies and the young person, after attaining the age of fourteen, is charged with an offence for which an adult would be entitled to an election under s. 536 of the Criminal Code or over which a superior court of criminal jurisdiction would have exclusive jurisdiction under s. 469 of the Code (s. 67(1)(d).