R. v. S.J.L.

Deschamps J. — Two questions relating to youth criminal justice are before the Court: (1) May the Crown prefer a direct indictment? (2) Can a young person be tried jointly with an adult? For the reasons that follow, I would answer yes to the first question and no to the second.

On September 20, 2006, the respondents were arrested with 16 adults following a major police investigation into drug trafficking activities by a criminal organization. The investigation lasted over five months and required the interception of more than 100,000 telephone conversations. The respondents were charged with numerous offences, including criminal organization offences. At the beginning of the period in which the events were alleged to have occurred, S.J.L.‑G. and L.V.‑P. were 16 and 17 years old, respectively.

The Crown filed a motion in the Court of Québec, Youth Division, for a preliminary inquiry in respect of all the accused, both adults and young persons, to be held in the Court of Québec, Criminal and Penal Division, pursuant to s. 537(1) (i) of the Criminal Code , R.S.C. 1985, c. C‑46 (“Cr. C.”). Judge Brosseau of the Court of Québec dismissed the motion.

After this refusal, the Crown preferred a direct indictment against all the co‑accused, adults and young persons alike, pursuant to s. 577 Cr. C. One of the adults applied, unsuccessfully, to have the direct indictment quashed for abuse of process. The respondents filed their own motion to quash the direct indictment. The Superior Court granted the respondents’ motion, and the Court of Appeal upheld that decision.

A stay of proceedings was not granted. The respondents’ preliminary inquiry took place from September 18 to 26, 2007. The issue relating to the direct indictment has therefore become moot, but given its importance, it must be addressed.

The main purpose of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“YCJA ”), is to lay down special rules for young persons. It is not exhaustive. The YCJA does not set out all the procedures that apply to the prosecution of an accused young person, and it establishes very few offences. The techniques employed by Parliament in this regard are those of reference and exclusion. As is true of most special legislation, the rules provided for in the YCJA interact with the rules of general application. In the case at bar, the YCJA does not provide precise answers to the two questions before the Court. The Court must therefore interpret the general rules and the special rules and determine to what extent the general rules are consistent with the special rules for young persons, and whether the rules for adults must be adapted when being applied to young persons. Although all the provisions to which I will be referring in the course of this exercise of statutory interpretation are reproduced in the Appendix, I have also reproduced certain of them in the body of the text for ease of reference.

1. Direct Indictment

Unlike an adult accused, a young person will ordinarily be prosecuted by way of summary conviction under Part XXVII Cr. C. (that is, without a preliminary inquiry) (s. 142 YCJA). However, where a young person is charged with murder or is liable to be sentenced as an adult, he or she may elect a mode of trial. The elected mode of trial may then involve a preliminary inquiry if the Crown or the young person requests one. These situations are provided for in s. 67(7) YCJA :

67. . . .

(7) When a young person elects to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a court composed of a judge and jury, the youth justice court referred to in subsection 13(1) shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 17 or 155 or, if there are no such rules, by the youth justice court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be conducted

(a) before a judge without a jury or a court composed of a judge and jury, as the case may be; or

(b) in Nunavut, before a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be.

The YCJA is silent with respect to the direct indictment. Preferring a direct indictment is instead provided for in Part XX of the Cr. C., in s. 577, which reads as follows:

577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or

(b) in any other case, a judge of the court so orders.

Thus, a direct indictment is preferred only if the accused is or was entitled to a preliminary inquiry. By preferring a direct indictment, the prosecution can terminate or skip the preliminary inquiry stage. It can also put the accused on trial even if he or she was discharged following a preliminary inquiry. Where a direct indictment is preferred, the accused is deemed both to have elected to be tried by a judge and jury, and not to have requested a preliminary inquiry. He or she may nevertheless elect to be tried by a judge without a jury (s. 565(2) Cr. C. — Part XIX).

As can be seen, s. 67(7) of the YCJA does not expressly provide that a preliminary inquiry must be held unless a direct indictment is preferred. The equivalent provision of the Cr. C., s. 536(4), is worded differently:

536. . . .

(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.

This provision expressly states that if the accused or the prosecutor requests that a preliminary inquiry be held, the justice must hold one subject to s. 577, that is, unless a direct indictment is preferred. According to the Court of Appeal, the absence of this reservation from s. 67(7) shows that Parliament did not intend to allow a direct indictment to be preferred under the YCJA .

In my view, the difference in wording does not have the consequence the Court of Appeal considered it to have. The reservation regarding the direct indictment set out in s. 536(4) Cr. C. was added to the Cr. C. only in the Criminal Law Amendment Act, 2001 (S.C. 2002, c. 13, s. 25(2)), which came into force on June 1, 2004, SI/2003‑182. The possibility of preferring a direct indictment clearly existed in Canadian law long before the reference to it in s. 536(4) Cr. C. came into force. In fact, the Crown’s power to proceed by direct indictment existed even before the Cr. C. came into force in 1892; at the time of the codification of the rules, this power was limited, but the validity of proceeding by indictment without a preliminary inquiry was recognized: see McKibbon v. The Queen, [1984] 1 S.C.R. 131, at pp. 137‑40, and In re Criminal Code (1910), 43 S.C.R. 434. Over the years, other restrictions were introduced, but the Attorney General’s power to proceed by direct indictment survived: see McKibbon, at pp. 140‑52 and 155. When the YCJA came into force on April 1, 2003, the reservation did not appear in the Cr. C., and the wording of s. 67(7) of the YCJA was consistent with that of the corresponding provision of the Cr. C. Consequently, as the addition of this reference in s. 536(4) Cr. C. had no normative effect on the Cr. C., its absence from s. 67(7) YCJA cannot be regarded as evidence that Parliament intended to preclude the direct indictment in cases under the YCJA .

I also reject the respondents’ textual argument, which the Court of Appeal endorsed, that the wording of s. 67(7) YCJA , “the . . . court . . . shall . . . conduct a preliminary inquiry”, is mandatory. These words do not rule out the possibility of proceeding by direct indictment. They simply state that the court has no discretion to refuse to hold a preliminary inquiry if one is requested. There is nothing in them that would, in a case involving young persons, cast doubt on the Attorney General’s discretion in this respect under s. 577 Cr. C.

Moreover, there are two references to the Cr. C. that suggest that the direct indictment has been incorporated into the YCJA : a general one in s. 140 YCJA and a specific one in s. 67(9) YCJA . These provisions read as follows:

140. Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons.

67. . . .

(9) Proceedings under this Act before a judge without a jury or a court composed of a judge and jury or, in Nunavut, a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be, shall be conducted in accordance with the provisions of Parts XIX (indictable offences — trial without jury) and XX (procedure in jury trials and general provisions [which is where s. 577 Cr. C. is found]) of the Criminal Code , with any modifications that the circumstances require, except that

(a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code ; and

(b) the young person is entitled to be represented in court by counsel if the young person is removed from court in accordance with subsection 650(2) of the Criminal Code .

Owing to the generality of these references, the direct indictment is, at first glance, available. The question is whether the effect of the wording of s. 67(7) YCJA or the reservations provided for in the specific and general references in ss. 67(9) and 140 YCJA — according to which the provisions of the Cr. C. apply “with any modifications that the circumstances require” and except where they are inconsistent — is that the direct indictment has been excluded from the procedure applicable to young persons.

The Court of Appeal found that the direct indictment was inconsistent with the underlying principles of the YCJA , because it eliminated or short‑circuited the preliminary inquiry. The court held that as a result of the requirement of modifications that the circumstances require in s. 67(9) YCJA and that of consistency set out in the general reference in s. 140 YCJA , s. 577 Cr. C. did not apply: [translation] “[T]he principle of protection of young persons means that young persons should not be made to stand trial, and should not even be exposed to a risk of standing trial, unnecessarily” (2007 QCCA 1201, [2007] R.J.Q. 2197, at para. 40) and that the defence should not be deprived of the opportunity to take cognizance of the Crown’s evidence. The Court of Appeal concluded that if s. 577 Cr. C. were applied, this would neutralize s. 67 YCJA , and it questioned the constitutional validity of applying s. 577 Cr. C. in a case involving young persons, although it did not answer the question, which had not been argued by the parties. The constitutional question is not before this Court.

The respondents support the Court of Appeal’s position, adding that any ambiguity must be resolved in favour of the young person and of conformity with the principles set out in s. 3 YCJA . According to the respondents, the preliminary inquiry is a supplementary procedural guarantee in favour of young persons who are liable to a youth sentence for murder or to an adult sentence.

The appellant submits that as a result of the specific reference in s. 67(9) YCJA , the general reference in s. 140 YCJA , including its requirement of consistency, is inapplicable. In the alternative, she argues that the procedure provided for in s. 577 Cr. C. is not inconsistent with the provisions of the YCJA , that s. 577 Cr. C. has been held to be constitutional on several occasions and that the preliminary inquiry is not mandatory under the YCJA .

I cannot endorse the argument that the general reference in s. 140 YCJA is ousted by the specific reference in s. 67(9) YCJA . I agree with the Court of Appeal that the general reference is applicable. It is impossible to conclude that all the provisions in Parts XIX and XX Cr. C. apply regardless of the requirement of consistency. Indeed, it is clear from their very wording that several of the provisions in those parts are quite simply inapplicable, either because specific equivalent provisions have been included in the YCJA (for example, s. 67(5) YCJA , which is the counterpart of s. 567 Cr. C. regarding the procedure applicable where two or more young persons are charged with the same offence or charged jointly) or, in some cases, because of their nature (for example, s. 556 Cr. C., which sets out the procedure for appearances and preliminary inquiries for accused organizations, is not relevant to the YCJA, since the youth justice court’s jurisdiction is limited to young persons (s. 14 YCJA)). These are not measures to which “modifications that the circumstances require” could be made so that they would become applicable to young persons. Rather, they are measures that are inapplicable pursuant to the clause on inconsistency.

It seems to me that an interpretation involving a review of consistency is more consonant with the inherent philosophy of the scheme applicable to young offenders. The scheme’s specificity must not be undermined by importing procedures that are inconsistent with it under the cover of technical arguments.

Thus, it is my view that the rule in s. 140 YCJA applies to the entire Act and that the requirement of consistency accordingly applies to any provision incorporated by reference. I disagree, however, with the Court of Appeal’s view that the direct indictment is inconsistent with the principles of the YCJA.

It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30, and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14‑16. However, there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), 26 C.C.C. (3d) 474 (Man. C.A.). The principle of fundamental justice recognized by this Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, according to which young persons are entitled to a presumption of diminished moral blameworthiness has no bearing on the right to a preliminary inquiry. That is not the stage at which the guilt of the accused or the appropriate sanction is determined. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence: Ertel.

Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate the Crown’s evidence (Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105), such incidental benefits do not give rise to a constitutional right to this proceeding: Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.), leave to appeal refused, [1985] 1 S.C.R. v; Ertel and R. v. Sterling (1993), 113 Sask. R. 81 (C.A.).

Moreover, since R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. Egger, [1993] 2 S.C.R. 451, R. v. O’Connor, [1995] 4 S.C.R. 411, R. v. La, [1997] 2 S.C.R. 680, R. v. Dixon, [1998] 1 S.C.R. 244, and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown’s duty in this respect does not extend to producing a witness for discovery: R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: Department of Justice of Canada, working document prepared by D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. ix and 35‑36, and G. A. Martin and J. W. Irving, G. Arthur Martin: Essays on Aspects of Criminal Practice (1997), at p. 78.

The reforms effected by Parliament in 2002 — which made the preliminary inquiry optional, authorized agreements to limit the scope of the preliminary inquiry and authorized the holding of a pre‑hearing conference, inter alia to promote a fair and expeditious inquiry — also tend to reduce the number of preliminary inquiries and their length (S.C. 2002, c. 13, particularly ss. 25 and 27, which came into force on June l, 2004). These amendments show clearly that the trend is toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures. Furthermore, they do not affect the direct indictment. Whether a direct indictment should be preferred is at the Attorney General’s discretion, and the courts will intervene in such a case only if there is an abuse of process. In the case at bar, one of the adults implicated in the same events as the respondents attempted unsuccessfully to quash the direct indictment, and no argument on that subject is raised in this Court.

Moreover, I am not persuaded that Parliament could have considered the right to a preliminary inquiry to be a benefit in the particular case of young persons.

First of all, it is revealing that prosecution by way of summary conviction, which does not involve a preliminary inquiry, is the general rule for young persons (s. 142 YCJA). If Parliament had regarded the preliminary inquiry as an additional and special procedural guarantee that benefited young persons, it would surely not have provided, as a general rule, in both the Young Offenders Act , R.S.C. 1985, c. Y‑1 (“YOA ”), and the YCJA, for a procedure that does not include this “benefit”. What is more, the summary conviction procedure, which does not include the option of electing a jury trial preceded by a preliminary inquiry, has been held to be constitutional on several occasions: R. v. R.L. (1986), 26 C.C.C. (3d) 417 (Ont. C.A.); R. v. K.G. (1986), 31 C.C.C. (3d) 81 (Alta. C.A.); R. v. B. (S.) (1989), 50 C.C.C. (3d) 34 (Sask. C.A.).

It can also be seen from the provisions of the YOA and the YCJA that establish exceptional cases in which a young person may opt for a preliminary inquiry that the same rules apply to the preliminary inquiry as in the criminal justice system for adults; this is an indication that the direct indictment is compatible with the system for young persons.

Under the YOA, there were two situations in which a young person was entitled to a preliminary inquiry. The first was on being transferred to adult court. “[T]ransfer is based on the assumption that there are cases in which the general intent of the Juvenile Delinquents Act must be overridden because some aspect of the case demands an exception to the philosophy or practices of the juvenile court” (Report of the Solicitor General’s Committee on Proposals for new legislation to replace the Juvenile Delinquents Act, Young Persons in Conflict with the Law (1975), at p. 38, quoted in R. v. M. (S.H.), [1989] 2 S.C.R. 446, at p. 476). Once transferred, the young person was treated as an adult and could, if the offence with which he or she was charged was one entailing election of a mode of trial that involved a preliminary inquiry, choose to have a preliminary inquiry. If convicted, the young person was sentenced as an adult, that is, pursuant to the Cr. C. Under that system, after a young person had been transferred, a direct indictment could be preferred against him or her: R. v. J.T.J. (1986), 27 C.C.C. (3d) 574 (Man. Q.B.); R. v. Kennedy, [1991] B.C.J. No. 3726 (QL) (S.C.); R. v. Pelletier (1998), 129 C.C.C. (3d) 65 (B.C. Prov. Ct.); R. v. Chan (2003), 172 C.C.C. (3d) 349 (Alta. Q.B.).

Then, when Parliament raised the maximum youth sentences under the YOA for first and second degree murder to 10 and 7 years, respectively, it granted young persons who were now liable to sentences of five years or more the right, in conformity with s. 11(f) of the Canadian Charter of Rights and Freedoms , to elect a jury trial in the superior court and, at the same time, to request a preliminary inquiry (R. v. A.S., [1996] O.J. No. 188 (QL) (Prov. Div.), at para. 25). Where such an election was made, the Superior Court then applied the YOA (S.C. 1995, c. 19, ss. 12(2) and 13(3)). Thus, the possibility of electing the mode of trial and having a preliminary inquiry under the YOA was based either on the procedure for adults or on a constitutional right related to maximum sentences.

Under the YCJA, the transfer to adult court was replaced with liability to an adult sentence. The primary objective of the new procedure remains to determine whether the interests of society are better served by a youth sentence or an adult sentence. It was how transfers were carried out, not whether they should be, that had been criticized, as transfers gave rise to significant delays and took place before a finding of guilt was made (Department of Justice Canada, A Strategy for the Renewal of Youth Justice (1998), at pp. 25‑27; N. Bala, Youth Criminal Justice Law (2003), at pp. 503‑5). To address these concerns, Parliament, in enacting the YCJA, changed the time when the court is to determine whether the young person should be sentenced as an adult. This decision is now made after conviction, at the commencement of the sentencing hearing (s. 71 YCJA). The new procedure enhances the procedural guarantees enjoyed by young persons at trial, since the YCJA continues to apply to them. According to Professor Bala, “[t]he real significance of this change is that under the YCJA young persons facing the prospect of adult‑length sentences will have their jury trials in youth justice court, conducted under a regime that gives them special protections, such as the prohibitions on the publication of identifying information and detention separate from adults” (p. 356).

Parliament also maintained the rights young persons had previously held when being transferred to the adult system: the right to elect a mode of trial and the right to request a preliminary inquiry. Under s. 67(1) YCJA, these rights exist in every case in which a young person is liable to be sentenced as an adult or is charged with murder. On this subject, Bala writes, “Essentially these provisions [s. 67 and the provisions respecting trial procedure] give youths facing the possibility of a sentence of five years or longer the opportunity to have the same rights in regard to the manner of trial as an adult, and in particular have the right to a jury trial as guaranteed by the Charter ” (p. 512 (emphasis added)). Thus, as was the case under the YOA , the right to elect the mode of trial under the YCJA is generally based on the constitutional right provided for in s. 11(f) of the Charter , whereas the right to a preliminary inquiry can be viewed as a recognition that young persons liable to adult sentences have rights similar to those held by adults.

Another indication that the rules applicable to the preliminary inquiry to which a young person is entitled are the same as those that apply to adults can be seen in the fact that in both cases, an inquiry is optional (s. 536(2) and (4) Cr. C., s. 67(2) and (7) YCJA, except in the case of a joint trial, as provided for in s. 536(4.2) Cr. C. and s. 67(7.1) YCJA). If Parliament had intended to confer special status on the preliminary inquiry under the YCJA and to make the right to one absolute, it would be surprising that young persons themselves have been given the right to disregard this procedure.

In the YCJA, the transfer hearing has been replaced by a hearing to determine whether the young person is liable to an adult sentence, which is held after a finding of guilt has been made. I cannot conclude that in so replacing the transfer hearing, Parliament intended to confer special status on the preliminary inquiry or change its function. Under the YCJA, as under the statutes that preceded it, a young person is entitled to two proceedings that have different purposes and different criteria to be met: R. v. R.V.B. (1994), 145 A.R. 384 (C.A.), at paras. 5‑6; R. v. L. (M.) (1995), 34 C.R.R. (2d) 147 (Alta. Prov. Ct.), at pp. 152‑53; R. c. J.W. (1989), 99 A.R. 257 (Prov. Ct.), at p. 258. A young person who requests a preliminary inquiry is entitled to one so that an unnecessary or abusive trial can be averted should the justice determine that there is insufficient evidence to put the young person on trial for the offence charged or any other indictable offence in respect of the same transaction (s. 548(1) Cr. C.). The young person is also entitled to a hearing to determine whether he or she should receive a youth sentence or an adult sentence. In the hearing to determine whether the young person is liable to an adult sentence, as in the former transfer hearing, there are a number of objectives that must be taken into consideration, including protection of the public, fair and proportionate accountability of young persons, rehabilitation and reintegration into society (s. 16(1.1) YOA ; ss. 3 , 38 , 39 and 72 YCJA). Thus, the factors to be considered in determining whether to impose an adult sentence under s. 72 YCJA are similar to those that were to be taken into account in determining whether to transfer a young person to adult court under s. 16(2) and (3) YOA : the seriousness and circumstances of the offence, the age, maturity and previous record of the young person, etc. Under the YCJA, the preliminary inquiry should not be confused with the hearing to determine whether the young person is liable to an adult sentence. The fact that a direct indictment deprives an accused young person of a preliminary inquiry has no impact on the decision to impose an adult sentence. A trial must first be held to determine whether the young person is guilty or innocent. Then, if the young person is found guilty, a hearing must be held to determine whether an adult sentence is appropriate. Moreover, it is clear from D.B. that the Crown always bears the burden of proving that a youth sentence would be inadequate.

The fact that s. 67(7) YCJA does not specifically preclude the direct indictment also suggests that Parliament did not intend to preclude it. Moreover, it is interesting to note that, in contrast, Parliament was quite explicit in s. 67(9) (a) and (b) YCJA when its intention was to provide special guarantees respecting the protection of privacy of young persons and the right of young persons to be represented by counsel.

In sum, no particular importance is attached in the YCJA to the right of young persons to a preliminary inquiry. Nor does the preliminary inquiry have a different function in this scheme that would make this right absolute. Young persons do not generally have a right to a preliminary inquiry, and where, in an exceptional case, the right is conferred on a young person, the same principles apply as where it is conferred on an adult: the preliminary inquiry is optional, and it is not available if the Crown prefers a direct indictment.

I am therefore satisfied that preferring a direct indictment is consistent with the spirit of the YCJA. This procedure is unrelated to the young person’s right to discovery and does not deprive him or her of any procedural guarantees.

Although I conclude that the preliminary inquiry does not have special status under the YCJA, this conclusion would perhaps not be determinative if the direct indictment did not also serve a useful purpose in the youth criminal justice system. The direct indictment provides needed flexibility in both the adult criminal justice system and the youth criminal justice system. In other words, it is no less relevant simply because the accused is a young person.

At this point, I should mention some of the reasons generally cited in support of the direct indictment by commentators (see Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), at pp. 91‑92; B. MacFarlane and J. Webster, “Preferred Indictments”, in V. M. Del Buono, ed., Criminal Procedure in Canada (1982), 319, at pp. 323‑24), and in the administrative guidelines of the federal Crown and the public prosecution services of various provinces:

1. delays in the trial could deprive the accused of the right to be tried within a reasonable time;

2. the physical or psychological health of witnesses, their age, their safety or that of their relatives, and the difficulties involved in having witnesses testify more than once;

3. preservation of the integrity of the Crown’s evidence by, for example, protecting informants and ongoing police investigations;

4. a risk that evidence could be destroyed;

5. public safety reasons;

6. the need to avoid multiple proceedings caused, for example, by delays in making arrests;

7. the accused was wrongly discharged following the preliminary inquiry because of errors, or new evidence has been discovered;

8. a preliminary inquiry would be unreasonably costly, complex or long, or would be inappropriate because of the nature of the issues or the evidence;

9. the alleged offence is so controversial that it is in the public interest to try the case as quickly as possible; and

10. certain guidelines set out additional, broader criteria, such as the need to maintain public confidence in the administration of justice, the public interest, or the fact that the case is notorious or of particular importance to the public, that the direct indictment is the most appropriate procedure in the circumstances, or that there is a special need to expedite proceedings.

(Justice Canada, Public Prosecution Service, The Federal Prosecution Service Deskbook, Part V, c. 17, “Direct Indictments” (2000) (online); Ontario, Ministry of the Attorney General, Criminal Law Division, Practice Memorandum, “Direct Indictments” (September 28, 2005), incorporated in Crown Policy Manual on March 31, 2006; Justice Québec, Directeur des poursuites criminelles et pénales, Directive No. ACC‑2, “Accusation — Acte d’accusation direct et nouvelle dénonciation” (online); New Brunswick, Ministry of the Attorney General, Public Prosecutions, Public Prosecution Services Operational Manual, DPP Guideline 16, “Direct Indictments” (March 10, 2003) (online); Newfoundland and Labrador, Department of Justice, Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, “Direct Indictments” (October 1, 2007) (online); British Columbia, Ministry of Attorney General, Criminal Justice Branch, Crown Counsel Policy Manual, “Direct Indictment” (November 2004) (online); Saskatchewan, Department of Justice, Public Prosecutions, Policy Manual, Policy and Practice Directive DIR1, “Direct Indictments” (June 1994); Manitoba, Department of Justice, Prosecutions, Crown Policy Manual, Policy Directive, Guideline No. 2:DIR:1, “Direct Indictments” (March 2008))

Although some of the reasons, particularly those that are vaguely worded or based on the public importance of the case, may not be directly relevant to a given accused, maintaining the direct indictment nevertheless appears to be legitimate. And the reasons listed above are no less important where the accused is a young person. The Law Reform Commission of Canada, while proposing changes related, inter alia, to the use of the direct indictment after an accused has been discharged, acknowledged this legitimacy in its 1990 working paper, recommending that the Attorney General be allowed to prefer charges even if a preliminary inquiry has not yet been held (pp. 92‑95). I cannot believe that it would be inconsistent with the YCJA to proceed by direct indictment in order, for example, to avoid making a minor testify more than once if so testifying could endanger his or her health.

Furthermore, it could even be said that there will be cases in which a direct indictment will advance the objectives and principles of the YCJA. To preclude prosecutors from ever using it might place those objectives and principles in jeopardy. For example, the reason related to the psychological state of witnesses is especially significant in light of the special rule set out in s. 3(1) (d)(ii) of the YCJA that “victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system”. Similarly, it is recognized that the preliminary inquiry lengthens the judicial process, which has a greater impact on accused young persons, “given [their] perception of time”, and given that holding a preliminary inquiry could conflict with the objectives of promptness and speed provided for in s. 3(1) (b)(v) YCJA.

In conclusion, where an adult is entitled to a preliminary inquiry, that right, although not absolute, is denied only in exceptional circumstances. As to whether, contrary to the rule applicable to adults, the right to a preliminary inquiry is absolute in the youth criminal justice context, I find that it is not. The direct indictment is not inconsistent with the YCJA, since Parliament has not conferred special status on the preliminary inquiry and the direct indictment remains useful in both criminal justice systems. On the contrary, instead of adding protections, as it did, for example, in respect of privacy, Parliament decided that the circumstances in which a young person may have a preliminary hearing would be narrower than in the case of an adult. The direct indictment is therefore available as a result of the reference in s. 67(9) YCJA.

Although I conclude that the direct indictment is available, I should add that the process will sometimes have to be adjusted to ensure consistency with the objectives and principles of the YCJA. Any such adjustments will be among the modifications that the circumstances require that are provided for in s. 67(9) YCJA. It is therefore possible that there will be cases — where, for example, the justification given for preferring a direct indictment does not involve important practical considerations — in which the use of the direct indictment will require greater circumspection where young persons are concerned. This procedure not only remains an exceptional one in cases involving adults, but requires even greater care in those involving young persons. However, these considerations affect the Crown’s discretion, not the validity of the procedure.

The Court of Appeal concluded that adults and young persons cannot be tried together, as that would be contrary to Parliament’s intention to create a separate youth criminal justice system. It held that a direct indictment cannot be used to circumvent the abolition of the transfer to adult court. It found support for this conclusion in the fact that the Act provides for joint trials of co‑accused young persons only.

The respondents submit that the abolition of the transfer to adult court gives the youth justice court exclusive jurisdiction and that it would make no sense to allow the Crown to do indirectly what it cannot do directly. They argue that a Superior Court judge cannot sit as a youth justice court judge and an adult court judge at the same time and that the possibility of laying joint charges is not a source of jurisdiction. In their view, to try adults and young persons together would be contrary to the principle of a separate justice system and would jeopardize the presumption of diminished moral blameworthiness to which young persons are entitled throughout the proceedings. The respondents stress that wherever the adult system applies to young persons, Parliament has taken care to say so clearly, and that it is significant that the YCJA does not provide for joint trials of co‑accused adults and young persons.

The appellant contends that a joint trial is possible where a young person is liable to an adult sentence. She submits that the rule respecting joint trials is incorporated into the youth criminal justice system by s. 67(9) YCJA and that the abolition of the transfer of young persons to adult court did not render inapplicable the common law rule that accused persons may be charged and tried together.

According to the appellant, a joint trial is not inconsistent with the separateness of the criminal justice system under the YCJA, and it eliminates the risk of inconsistent verdicts. Common provisions would apply to such a trial, and wherever different treatment is required, the special rules of the YCJA could be applied to the young persons, since they would be being tried in a youth justice court. In the appellant’s view, there is no impediment to a person’s sitting simultaneously as a youth justice court judge and an adult court judge. Proceeding in this way would make it possible both to take witnesses’ needs into account and to make judicious use of judicial resources.

The Attorney General of Manitoba intervened in support of the appellant’s position. He points out that separate trials give rise to practical problems, citing as an example R. v. Cansanay, Man. Q.B., April 23, 2007, and R. v. S., Man. Q.B., June 19, 2007, in which an adult and a minor were directly indicted separately; the minor was convicted, while the adult was acquitted. The difference between the verdicts resulted from conflicting decisions on the admissibility of certain evidence. Both judgments have been appealed, and the Court of Appeal has yet to decide those appeals as of the date of this judgment.

The rule that two or more accused persons may be tried together is a common law rule. According to it, two or more accused persons may be prosecuted on a single indictment or information, and accused persons charged on separate indictments or informations may be joined for trial, if they committed an offence together (Phillips v. The Queen, [1983] 2 S.C.R. 161, at pp. 164‑65; R. v. Clunas, [1992] 1 S.C.R. 595, at pp. 610‑11). Thus, the issue in this appeal is not limited to the application of s. 577 Cr. C.: it concerns, more generally, the application of the common law rule on joinder of accused persons in a single indictment, information or trial.

In R. v. Crawford, [1995] 1 S.C.R. 858, this Court noted that there are strong policy reasons favouring joint trials:

[Q]uite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved. [para. 30]

(Quoting D. W. Elliott, “Cut Throat Tactics: the freedom of an accused to prejudice a co‑accused”, [1991] Crim. L. Rev. 5, at p. 17.)

More recently, in R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, the Court reiterated that separate trials are the exception, not the rule. (See also the comments of McIntyre J. in Phillips, at p. 169.)

The Criminal Code refers only indirectly to the rule respecting joint trials. For instance, s. 591(3) Cr. C. codifies a court’s discretion to order the severance of accused persons where the interests of justice so require, which shows, a contrario, that a power to join accused persons exists. There are also references to joint trials in s. 567 Cr. C., according to which a judge may decline to record an accused person’s elected mode of trial to permit a joint trial to be held, and s. 536(4.2) Cr. C., which provides for a common preliminary inquiry.

Thus, it must be noted that nothing in the common law or in the Criminal Code bars either the joinder of young persons and adults in a single indictment or a request for a joint trial. The question, therefore, is whether as a result of the creation of a separate youth criminal justice system, the common law rule is inapplicable and such joinders are accordingly inconsistent with the procedures that must be followed in cases involving young persons.

According to the appellant, there is no provision that would prevent a joint trial from being held where an application is made for an order that a young person is liable to an adult sentence. For example, in Quebec, the youth justice court — the Youth Division of the Court of Québec — must ask an accused young person to elect a mode of trial before entering a plea. In the case of a joint trial, the court can then decline to record the young person’s election. The same procedure will be followed in the case of an adult charged with the same offence, except that the proceeding will take place in that court’s Criminal and Penal Division. Once the elected modes of trial have been harmonized, a single preliminary inquiry can be held at the request of one of the co‑accused, since the same court — the Court of Québec in our example — is the court of competent jurisdiction for both the young person and the adult. The same common jurisdiction might exist if the accused were committed to trial: a joint trial could be held in the Superior Court or the Court of Québec, depending on the elected mode of trial and the offence.

Although the appellant’s argument is limited to cases in which an application is made for an adult sentence, it would also apply to a joint trial in any case in which the trial court had jurisdiction to hear the cases of both an adult and a young person, regardless of the sentence being sought. Thus, a joint information could be filed for a prosecution by way of summary conviction. Such proceedings generally fall within the jurisdiction of the provincial court (s. 785 Cr. C.). In Quebec, therefore, the trial court would be the Court of Québec, which has jurisdiction to try both adults and young persons being prosecuted by way of summary conviction. The appellant’s argument would also have been applicable in the contexts of the Juvenile Delinquents Act, R.S.C. 1970, c. J‑3 (“JDA, 1970”), and the YOA .

The appellant submits that in a joint trial such as this, whether in the Court of Québec or the Superior Court, the judge sitting for the two courts would act in two capacities: as an adult court judge and as a youth justice court judge.

Although a joint trial of young persons and adults does not present insurmountable difficulties in practical terms, such a proceeding would be inconsistent with the governing principle of the YCJA, which maintains a justice system for young people that is separate from the system for adults.

The practical difficulties of a joint trial of adults and young persons were considered in R. v. X, 2007 QCCQ 2076, [2007] J.Q. no 2118 (QL). In that case, Judge Bonin listed the differences between the two systems. Those differences are many, but none of them are determinative.

As the question before us concerns the trial stage, I will begin by excluding all the differences that relate to extrajudicial measures or to criteria and principles applicable to release, custody facilities, the review of orders for DNA analysis, or sentencing. A number of other differences relate to rules that a judge can apply to a young person and that raise no problems in terms of respect for the young person’s rights or of the holding of a trial, such as the young person’s right to retain and instruct counsel (s. 25 YCJA), election of the mode of trial (s. 67 YCJA), and the duties and powers of the court in respect of parents as regards notice and orders (ss. 26 , 27 and 85(7) YCJA). Regarding procedure, I note that, apart from the special rules provided for in the YCJA, in a case in which a young person is liable to an adult sentence or is charged with murder and in which the elected or imposed mode of trial is by judge and jury or by a judge without a jury, the procedure at his or her preliminary inquiry and trial is the same as at those of an adult, that is, the procedure provided for in Parts XVIII, XIX and XX Cr. C., which are applicable as a result of the references to that effect in s. 67(8) and (9) YCJA, with, of course, such modifications as the circumstances require. Finally, it would be quite possible to comply with the rules respecting evidence or the protection of privacy in the course of a joint trial, although this would of course require some modifications and involve greater complexity (ss. 110 to 125 , 146 , 147 and 151 YCJA).

Likewise, it is not impossible for a judge or a court to wear two hats at once. There are several situations in which a judge’s jurisdiction extends to more than one subject matter. For example, municipal court judges and judges of the Court of Québec and the Superior Court, in addition to exercising their respective jurisdictions, are also justices of the peace (s. 44 of the Act respecting municipal courts, R.S.Q., c. C‑72.01, s. 2 Cr. C., ss. 70 and 128 of the Courts of Justice Act, R.S.Q., c. T‑16). Thus, a judge of the Court of Québec presiding at a preliminary inquiry as a justice of the peace (s. 535 Cr. C.) may, on a change of plea, for example, immediately enter the guilty plea, terminate the trial and pass sentence in his or her capacity as a Court of Québec judge (P. Béliveau and M. Vauclair, Traité général de preuve et de procédure pénales (15th ed. 2008), at p. 662).

The simultaneous exercise of more than one jurisdiction is therefore not unprecedented, and has even been considered by the courts in the past. For example, before 1992, joint trials of summary conviction offences and indictable offences were considered to be prohibited. The arguments relied on in support of that position were similar to those raised in the case at bar. In R. v. Grant (1992), 52 O.A.C. 244, the Ontario Court of Appeal had stated the following:

From a jurisdictional point of view they are heard in different courts (even though the judge may be the same person), the procedure governing them is not the same (although under the 1985 amendments it is the same in many respects), and the applicable appeal routes are different. . . .

. . .

As a matter of policy, it may, in some situations, be convenient and desirable to try indictable and summary conviction offences together, as where the offences are alleged to arise out of the same transaction or events. In my opinion, the legislation, as it is now drawn, lacks the clarity and completeness to carry out this purpose. [paras. 13 and 39]

(See also T. Quigley, Procedure in Canadian Criminal Law (2nd ed. loose-leaf), at p. 17‑17.)

Shortly after that judgment, this Court rendered its decision in Clunas and opened the door to trying summary conviction offences and indictable offences together where the trial is to take place, without a preliminary inquiry, in a provincial court or before a judge without a jury, provided that the accused consents to the joinder or that joinder is in the interests of justice. Rejecting a formalistic approach, the Court relied on the wording of s. 591(1) Cr. C., which refers generally to “offences”. If both types of offences can be included in a single indictment, they can be tried together. Regarding any conflicts that might arise in following the procedure provided for in Part XXVII Cr. C. and that applicable to indictable offences, the Court stated that “indictable offence procedures should apply” (p. 612). It concluded by inviting Parliament to resolve the problem of appeals as follows: “There remains the problem of appeals. Of course, in cases where an issue common to both informations has gone to the Summary Conviction Appeal Court and the Court of Appeal, common sense would dictate that the Summary Conviction Appeal Court should await decision by the higher court” (p. 613). Parliament responded by enacting ss. 675(1.1) and 676(1.1) Cr. C. (S.C. 1997, c. 18, ss. 92(1) and 93(2), which came into force on June 16, 1997, SI/97‑68 and SI/97‑62). Consequently, where a judge has the authority to exercise two different jurisdictions, there is no general objection to his or her exercising them simultaneously.

A joint trial of adults and young persons would create difficulties, of course. Thus, it might be asked what rules of practice would apply, whether a single judgment would suffice or whether two would be needed, what style of cause should be used in the proceedings and what rules would apply on appeal (compare s. 37(10) YCJA and ss. 691 to 693 Cr. C.). However, these problems are not insurmountable, and I must agree with the Crown that it would not, in practice, be impossible to hold a joint trial of an adult and a young person that would be consistent with the formal requirements set out in the YCJA.

But this analysis, which is limited to the practical aspects, is not sufficient. Clearly, joint trials of summary conviction offences and indictable offences involving adults alone do not raise the same policy issues as a joint trial of adults and young persons. The proposal to hold such a trial will require us to consider the reasons for the creation, more than 100 years ago now, of a justice system dedicated to young persons.

The appellant’s proposal is inconsistent with the spirit and objectives of the YCJA, those resulting from the abolition of the transfer to adult court in particular. In addition, the absence of a procedure for joinder of a trial of adults with a trial of young persons shows that Parliament’s intention was that the common law rule on joint trials should not apply.

Since the enactment of the Juvenile Delinquents Act in 1908 (S.C. 1908, c. 40 (“JDA, 1908”)), young persons have, unless they were transferred to adult court, benefited from a separate criminal justice system that has its own principles. The creation of this system was based on recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system (D.B., at paras. 41 et 127; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, at paras. 3 and 93; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 41; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025; P. J. Harris and M. H. Bloomenfeld, Youth Criminal Justice Act Manual (2003), vol. 2, Part Ten: Adult Sentence Hearing Cases, at p. 10‑6.1; “Historically, transfer was predicated on the existence of a justice system for youth that was wholly separate and distinct from that applicable to adults”: P. Platt, Young Offenders Law in Canada (2nd ed. 1995), at p. 235).

The rationale for a separate youth criminal justice system was set out very clearly in the preamble to the JDA, 1908:

WHEREAS it is inexpedient that youthful offenders should be classed or dealt with as ordinary criminals, the welfare of the community demanding that they should on the contrary be guarded against association with crime and criminals, and should be subjected to such wise care, treatment and control as will tend to check their evil tendencies and to strengthen their better instincts . . . .

It was clear from this legislation that young persons were not considered to be ordinary criminals (see also s. 31 JDA, 1908 and s. 38 JDA, 1970). Although young persons were generally tried in the same courts as adults, that is, before a justice of the peace or a judge of the court designated as the Juvenile Court (ss. 2(f) and (g) and 4 JDA, 1908, which later became ss. 2 and 4 JDA, 1970) (Bala, at p. 7), to hold a joint trial of adults and young persons would have been inconsistent with the clear wording of the preamble.

The coming into force of the YOA in 1984 represented a change in approach, as objectives parallel to the promotion of the well‑being of young persons — namely the protection of society and accountability — were officially introduced and accused young persons were afforded enhanced legal protection. This legislation was broader in scope than the JDA in that it regulated every stage of the youth justice process in greater detail (N. Bala, Young Offenders Law (1997), at pp. 7‑9). The YOA did not have a preamble, but it nevertheless showed that Parliament intended to maintain a separate justice system, subject to the possibility of transfer to adult court.

According to the Ontario Court of Appeal’s interpretation of the YOA in R. v. J.M.J. (1999), 120 O.A.C. 294, leave to appeal refused, [1999] 3 S.C.R. xi, it was impossible to try co‑accused young persons and adults together unless the young persons were transferred to the adult justice system: “. . . the issue of severance already exists where an adult and a youth are charged in connection with the same incident, but must be tried separately, one in youth court and the other in adult court. . . . Therefore, the issue of severance is one that already exists as a result of the separate regime for young offenders” (para. 4). In my view, the only way to try adults and young persons together was to transfer the young persons to adult court, and that possibility disappeared with the abolition of the transfer procedure.

Under the statutes that preceded the YCJA, the transfer procedure enabled the Crown to apply to have a young person tried in adult court (s. 16 YOA ; s. 7 JDA, 1908, which later became s. 9 JDA, 1970). The primary purpose of the transfer to adult court was not to try young persons together with adults, but to allow them to be sentenced as adults (A Strategy for the Renewal of Youth Justice, at pp. 25‑27). The fact that this procedure made it possible to hold such joint trials does not appear to have been the result of a specific intention to that effect on Parliament’s part. And s. 16(2) YOA did not expressly mention the possibility of holding a joint trial as a factor the court could take into account in deciding whether to order a transfer.

Despite this silence, the courts had held that the possibility of avoiding a multiplicity of proceedings and that of ensuring equal treatment by holding a joint trial were factors in favour of transferring a young person to the justice system for adults (s. 16(2)(f) YOA): R. v. Smith (1975), 28 C.C.C. (2d) 368 (Man. C.A.), at p. 371, rendered in the context of the JDA; R. v. E.S.R. (1985), 49 C.R. (3d) 88 (Man. C.A.), at p. 92; Protection de la jeunesse — 350, [1988] R.J.Q. 2395 (C.A.), at p. 2406; R. v. D.M. (1990), 46 O.A.C. 77; Bala, Youth Criminal Justice Law, at p. 536; Platt, at pp. 283 and 285‑86. However, since Parliament had provided that the decision to order a transfer should be an individualized one, special circumstances were required for an argument based on the practical benefits of a joint trial to succeed: Protection de la jeunesse — 350, at p. 2406; R. v. J.E.L. (1987), 4 W.C.B. (2d) 97 (Alta. C.A.); E.S.R., at p. 92. And nothing guaranteed that a transfer would actually result in a joint trial: the Crown’s strategy, long delays associated with the transfer procedure or a successful motion for severance could ultimately cause separate trials to be held: R. v. M.T., [1993] Y.J. No. 97 (QL) (Terr. Ct.), at paras. 80‑83. Moreover, as the appellant mentioned, such trials, although theoretically possible, were quite rare because of the inherent delays in the transfer procedure.

Although under the YCJA the approach and objectives are still the same as those under the YOA , the procedure has been changed. The transfer to adult court has now been replaced by liability of the young person to an adult sentence.

While it is true that the purpose of the transfer to adult court was not to authorize joint trials of young persons and adults, Parliament could not have been unaware that this procedure might in fact be used for this secondary purpose. Indeed, in the course of the preparation and passage of the YCJA, Ontario had expressly recommended the addition of a provision granting the youth justice court jurisdiction to hold joint trials of co‑accused adults and young persons (Ministry of the Attorney General, “No‑More‑Free‑Ride for Young Offenders Act”: Protecting the Public and Holding Young Offenders Accountable (2001), at p. 7). This proposal was rejected, as is clear from the fact that the YCJA contains no such provision, as well as from the following comments of John Maloney, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, at the third reading of Bill C‑7 on May 29, 2001:

Ontario recommends that co‑accused adults and a young person be tried together. Bill C‑7 is based on the fundamental principle that young persons aged 12 to 17 are not adults and they are entitled to separate rules and procedures to take into account their reduced level of maturity.

For nearly 100 years in Canada, young persons charged with offences have been tried separately from adults. A separate trial for young persons and youth courts are a cornerstone of the youth justice system in Canada and throughout the western world.

Although joint trials are possible under the Young Offenders Act , if a young person is transferred to an adult court they are rarely used, and the current transfer process has many problems, including complexity, long delays and unfairness. These problems are addressed in Bill C‑7 through the new adult sentencing provisions. All youths would be tried in youth court and only if and when the youth has been found guilty does a court turn its mind to the appropriate sentence. This is fairer and more efficient.

(House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 29, 2001, at p. 4314)

In sum, the consequence of the abolition of the transfer to adult court was to completely seal off the system; this is confirmed by s. 3(1) (b) YCJA, which provides that the criminal justice system for young persons must be separate from that of adults. As a result of the abolition of the transfer procedure, it can be stated definitively that “[t]he youth justice system is separate from the adult system, with separate courts, judges and rules” (L. Tustin and R. E. Lutes, A Guide to the Youth Criminal Justice Act (2005), at p. 29). It is therefore undeniable that the abolition of the transfer to adult court and the absence of any words authorizing continuation of the practice that had previously been adopted are indications that Parliament intended to prohibit joint trials of adults and young persons.

Another indication of this can perhaps be found in the fact that two provisions on joint trials were added to the YCJA that apply only to co‑accused young persons. The provisions in question read as follows:

67. . . .

(5) [Mode of trial where co‑accused are young persons] When two or more young persons who are charged with the same offence, who are jointly charged in the same information or indictment or in respect of whom the Attorney General seeks joinder of counts that are set out in separate informations or indictments are put to their election, then, unless all of them elect or re‑elect or are deemed to have elected, as the case may be, the same mode of trial, the youth justice court judge

(a) may decline to record any election, re‑election or deemed election for trial by a youth justice court judge without a jury, a judge without a jury or, in Nunavut, a judge of the Nunavut Court [of] Justice without a jury; and

(b) if the judge declines to do so, shall hold a preliminary inquiry, if requested to do so by one of the parties, unless a preliminary inquiry has been held prior to the election, re‑election or deemed election.

. . .

(7.1) [Preliminary inquiry if two or more accused] If two or more young persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (7), a preliminary inquiry must be held with respect to all of them.

These provisions are revealing when considered in combination with the history of a separate youth justice system and the abolition of the transfer to adult court.

If the common law rule allowing joint trials of all “persons” — whether adults or young persons — continued to exist, there would have been no need to introduce s. 67(5) and (7.1) YCJA, which set out the circumstances in which a joint preliminary inquiry will be held with respect to co‑accused young persons. The only way the existence of s. 67(5) and (7.1) can be explained is by concluding that Parliament intended to establish a youth criminal justice system that is hermetic, and completely separate from the system for adults, and thus to make it impossible to hold joint trials of adults and young persons.

Finally — and this comment concerns the overall approach to youth justice — the effect of the objectives of the Act is that the judge is asked to favour rehabilitation, reintegration and the principle of a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity. As for the adult criminal justice system, it places greater emphasis on punishment. There is no doubt that how the judge conducts the trial will reflect these different objectives. It would be much more difficult to maintain an approach favourable to a young person if he or she were being tried together with an adult, and the presumption of diminished moral blameworthiness to which the young person is entitled could be undermined as a result.

In conclusion, the history of the separate youth criminal justice system, the abolition of the transfer to adult court, the content of s. 67(5) and (7.1) YCJA, and the fact that neither the YCJA nor the Criminal Code contains specific provisions authorizing joint trials of adults and young persons are indications that Parliament intended to prohibit such trials. What is more, the adoption of this solution will make it easier for the youth justice court to perform its special role and will avert the practical difficulties inherent in a joint trial of young persons and adults. On this point, I therefore agree with the Court of Appeal that co‑accused young persons and adults cannot be tried together.

For these reasons, I would allow the appeal and set aside the Court of Appeal’s judgment upholding the decision to quash the direct indictment with respect to the young persons. Preferring a direct indictment under s. 577 Cr. C. is consistent with the YCJA. Because the issue is moot for the purposes of this case, the Court will make no further order.

The reasons of Fish and Abella JJ. were delivered by

Abella J. (dissenting) — I agree with Justice Deschamps that young persons should not be tried jointly with adults. With great respect, however, I do not share her view that a direct indictment is available under the Youth Criminal Justice Act , S.C. 2002, c. 1 (“YCJA ”).

Under the Young Offenders Act , R.S.C. 1985, c. Y-1 , the predecessor legislation to the YCJA, a young person could not be exposed to an adult sentence unless he or she was transferred to the adult court pursuant to a proceeding in the juvenile court. It was the most serious tool then available to the Crown in the juvenile justice system. The burden on the Crown was a stringent one, commensurate with the severity of the consequences of the transfer for the young person. The screening function of the transfer proceeding was replaced in the YCJA by a young person’s right to have a preliminary inquiry when faced with the prospect of an adult sentence.

The issue in this appeal is whether this right can be extinguished by interpreting the YCJA in a way that imports the possibility of direct indictments into the youth justice process. Unlike the majority, I am unable to agree with the interpretive conclusion that direct indictments are possible. In my view, this approach is inconsistent with the articulated principles and underlying philosophy of the YCJA because bypassing the preliminary inquiry leads to the elimination of the main gate to an adult sentence, the most serious consequence possible for a young person. I agree instead with the Quebec Court of Appeal (2007 QCCA 1201, [2007] R.J.Q. 2197, per Hilton, Bich and Dufresne JJ.A.) that direct indictments are not available to the Crown in the youth justice context.

Section 140 of the YCJA states that the Criminal Code , R.S.C. 1985, c. C-46 , applies except where it is inconsistent with the YCJA:

140. Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons.

This is a self-explanatory provision. The Criminal Code is applied to young people through the filter of the YCJA. When provisions of the Criminal Code are imported into the YCJA, therefore, they are deemed to be applicable only to the extent that they are consistent with the provisions and objectives of the YCJA.

This then is the lens through which to observe the relevant provisions of the YCJA and the Criminal Code . The relevant provisions of the YCJA are ss. 64(2), 67(7) and 67(9):

64. . . .

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), or by establishing that the offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

67. . . .

(7) When a young person elects to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a court composed of a judge and jury, the youth justice court referred to in subsection 13(1) shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 17 or 155 or, if there are no such rules, by the youth justice court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be conducted

(a) before a judge without a jury or a court composed of a judge and jury, as the case may be; or

(b) in Nunavut, before a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be.

. . .

(9) Proceedings under this Act before a judge without a jury or a court composed of a judge and jury or, in Nunavut, a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be, shall be conducted in accordance with the provisions of Parts XIX (indictable offences — trial without jury) and XX (procedure in jury trials and general provisions) of the Criminal Code , with any modifications that the circumstances require, except that

(a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code ; and

(b) the young person is entitled to be represented in court by counsel if the young person is removed from court in accordance with subsection 650(2) of the Criminal Code .

In sum, therefore, when the Attorney General gives notice under s. 64(2) of the YCJA of an intention to seek an adult sentence, a young person may elect, pursuant to s. 67(1) of the YCJA, to be tried by a judge alone or by a judge and jury. If the young person makes (or is deemed to have made) an election, he or she may request a preliminary inquiry in accordance with s. 67(7). If requested, the court “shall” conduct the preliminary inquiry. If the election is for a youth justice court judge alone, there is no preliminary inquiry.

As previously noted, if a young person was transferred to adult court under the predecessor legislation, the Young Offenders Act , the young person was treated as an adult and subject to adult procedures and sentences. Neither a preliminary inquiry nor direct indictments were possible while the young person remained under the jurisdiction of the Young Offenders Act . Rather than the transfer procedure, the YCJA has a different screening process for determining if the road to an adult sentence should be travelled: a preliminary inquiry.

While s. 67(7) instructs the judge to hold a preliminary inquiry when requested, s. 67(9) states that proceedings before a judge alone or a judge and jury shall be conducted in accordance with Parts XIX and XX of the Criminal Code , “with any modifications that the circumstances require”. Part XX includes s. 577, which allows the Attorney General to foreclose the holding of a preliminary inquiry by preferring a direct indictment. It states:

577. Despite section 574 [outlining who may prefer an indictment and what charges may be included in it], an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or

(b) in any other case, a judge of the court so orders.

This appears to create a potential conflict between s. 67(7) of the YCJA, which mandates that a preliminary inquiry take place if requested by the young person facing an adult sentence, and s. 577 of the Criminal Code , which permits a direct indictment under certain conditions.

Resolving this tension involves looking first at the purpose of the provisions dealing with preliminary inquiries in the YCJA, an exercise that starts, like all interpretive exercises under the Act, with the declaration of principles set out in s. 3.

Section 3(2) of the YCJA directs that the provisions of the YCJA be construed liberally “so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1)”. Section 3(1) states:

3. (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long‑term protection of the public;

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

Of particular significance to the question of how — or whether — s. 577 of the Criminal Code should be applied to s. 67(7) of the YCJA, is s. 3(1)(b)(iii), whereby young persons are entitled to “enhanced procedural protection”. This provision, when read together with s. 3(1)(d)(i) stating that young persons “have special guarantees of their rights and freedoms”, confirms that Parliament intended that procedural rights of young people be emphatically protected, and supports an interpretive approach that respects, rather than derogates from, their enhanced protection and special guarantees.

While it is true that there is no constitutional right to a preliminary inquiry — and that its utility for adults has been increasingly questioned — this does not minimize its significance in the context of youth justice. The Criminal Code describes the role of the preliminary inquiry as being to determine whether “there is sufficient evidence to put the accused on trial” (s. 548(1)(a)). In R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, Major J. wrote that “[t]he purpose of the preliminary inquiry is to ensure that there is sufficient evidence to commit the accused to trial. The preliminary inquiry is therefore a pretrial screening procedure that also serves as a discovery mechanism to the accused” (para. 14). And in R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30, McLachlin C.J. confirmed that the paramount purpose of the preliminary inquiry, as enunciated in Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105, is “to protect the accused from a needless, and indeed, improper, exposure to public trial where the [Crown] is not in possession of evidence to warrant the continuation of the process”. A secondary role, as she points out, is to permit discovery. (See also Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.).)

Both the central screening function of a preliminary inquiry and the ancillary benefit as a discovery mechanism are congruent with the goals in the YCJA of affording young persons enhanced procedural protection. One of the most basic of those protections is to limit the possibility of needlessly exposing a young person to a proceeding involving the prospect of an adult sentence.

It seems to me to be inconsistent with Parliament providing access to a protective screening process for the most serious consequences a young offender can face, to so interpret the YCJA that this screening can be overridden at the discretion of the Crown.

Most of the arguments favouring the interpretation that direct indictments are possible under the YCJA relate to convenience and to the expediency of the trial process. These arguments include not wanting to expose witnesses to potentially multiple examinations and the desire to have trials take place as soon as possible, both legitimate goals. But the procedural protection found in s. 67(7) should not so easily be sacrificed on the altar of expediency.

Parliament’s intent to protect access to the preliminary inquiry is also evident, it seems to me, from s. 67(7.1) of the YCJA which prescribes that when two or more young persons are jointly charged, if one of them elects to have a preliminary inquiry and the other elects not to, a preliminary inquiry must be held:

67. . . .

(7.1) If two or more young persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (7), a preliminary inquiry must be held with respect to all of them.

I am aware that s. 536(4.2) in the Criminal Code is a similar provision for adults, but the implications for young persons faced with an adult sentence are dramatically different.

Parliament’s intent can also be gleaned from comparing the provisions in the Criminal Code on preliminary inquiries with those in the YCJA. Section 536(4) of the Criminal Code mandates the holding of a preliminary inquiry for any indictable offence, or in the case of hybrid offence, when the Crown elects to proceed by indictment. It states:

536. . . .

(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor . . . hold a preliminary inquiry into the charge.

In contrast to such wide‑ranging application for adults, the availability of a preliminary inquiry to a young person is restricted to circumstances when the charge can lead to an adult sentence. As the Court of Appeal trenchantly observed in its reasons:

[translation] . . . the principle of protection of young persons means that young persons should not be made to stand trial, and should not even be exposed to the risk of standing trial unnecessarily. According to the Supreme Court of Canada, the dominant purpose of the preliminary enquiry is precisely “to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process” (Skogman v. R., [1984] 2 S.C.R. 93, at p. 105), and this purpose is all the more dominant in the case of a young person, who is to be shielded from the stigma attached to criminal prosecution. [para. 40]

As is clear, s. 536(4) is “subject to section 577”, which permits direct indictments. On the other hand, and significantly in my view, the phrase “subject to section 577” is absent from s. 67(7) of the YCJA. The absence of this exception in the case of young persons is another reflection, it seems to me, that Parliament did not intend to have direct indictments apply to young persons.

The phrase “subject to section 577” was added to s. 536(4) of the Criminal Code in 2002. This was the same year the YCJA was enacted. The legislative history of s. 536(4) and s. 67(7) confirms that they were before Parliament during the same legislative session (1st Sess., 37th Parl.) and were proposed by the same Minister of Justice, the Hon. Anne McLellan.

Bill C‑7: The Youth Criminal Justice Act

Bill C‑15A: An Act to Amend the Criminal Code and to Amend Other Acts

First Reading

5 February 2001

14 March 2001

Second Reading

26 March 2001

26 September 2001

Third Reading

29 May 2001

18 October 2001

Royal Assent

19 February 2002

4 June 2002

Statute

Statutes of Canada 2002, c. 1

Statutes of Canada 2002, c. 13

In the second reading debate on Bill C-15 (later becoming Bill C-15A) on May 3, 2001, the Justice Minister said:

The objectives . . . are to simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with [C]harter requirements.

(House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 3, 2001, p. 3583)

In response to a question about preliminary inquiries before the Standing Committee on Justice and Human Rights, on October 2, 2001, she said:

Regarding preliminary inquiries, this is an instalment. I think the provinces and territories would like us to look at more radical reform as it relates to preliminary inquiries. You rightly identified that there is grave concern from the criminal defence bar, and that is something we will continue to work on. What we’re doing here is streamlining the use of the preliminary inquiry.

(House of Commons, Standing Committee on Justice and Human Rights, Minutes of Proceedings and Evidence, 1st Sess., 37th Parl., October 2, 2001 (online: http://www2.parl.gc.ca/HousePublications/Publication. aspx?DocId=%20652651&Mode=1&Parl=37&Ses=1&Language=E))

It is therefore evident that the issue of narrowing the scope and availability of preliminary inquiries was a live one for the government. Bill C-15A included amendments to s. 67 of the YCJA including ss. 67(2), 67(4) and 67(7), yet the government declined the opportunity to amend the YCJA as it had the Criminal Code by adding the phrase “subject to section 577” to the YCJA. The fact, therefore, that s. 67(7) contains no exceptions to the holding of a preliminary inquiry, despite the coterminous consideration and implementation of the two provisions in the two different statutes, is, to me, a cogent indicator that Parliament did not intend that the preliminary inquiry for young persons facing an adult sentence be eliminated through direct indictments.

In any event, if there is doubt as to the proper interpretation of s. 67(7), this doubt should be resolved in favour of the young person. As Bastarache J. affirmed in R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668, “where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation” (para. 50, aff’g R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 29).

Moreover, this Court’s jurisprudence has consistently directed that young persons are uniquely entitled to enhanced procedural protections, whether or not they are available to adults. In Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252, Lamer C.J. wrote that “what distinguishes this legislation from the Criminal Code is the fact that it creates a special regime for young persons. The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction” (p. 268). As Fish J. notably observed in R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, “Parliament has considered it right and necessary to afford young persons rights and procedural safeguards which they alone enjoy” (para. 46).

Section 140 of the YCJA states that the Criminal Code applies “[e]xcept to the extent that it is inconsistent with” the YCJA. And s. 67(9) of the YCJA states that proceedings in which a preliminary inquiry is contemplated are to be conducted in accordance with Parts XIX and XX of the Criminal Code “with any modifications that the circumstances require”. Together, these are clear statutory directions that the Criminal Code is not to be applied in a way that derogates from the unique conceptual, procedural and substantive legal terrain inhabited by the YCJA.

If s. 577 of the Criminal Code overrides s. 67(7) of the YCJA, the young person would be denied access to the only possible screening mechanism before being subject to an adult sentence. It seems odd to me to think that Parliament would have intended that the YCJA, despite its muscular rhetoric protecting the singular procedural entitlements of young persons, would at the same time have intended such an unobstructed and unscrutinized route to the most onerous of possible penalties under the statutory scheme.

I would therefore dismiss the appeal.