Attorney General of British Columbia v. Smith

guilty and was sentenced to pay a fine of $400 and in default to be imprisoned for a term of 60 days. He applied to the Supreme Court of British Columbia for an order of certiorari to quash the conviction on the ground that the magistrate acted without jurisdiction or oPBrITSH exceeded its jurisdiction in dealing with the case in that manner rather than pursuant to the provisions of the Juvenile Delinquents Act, R.S.C. 1952, c. 160. The writ was issued and the conviction SMrrH quashed. This decision was affirmed by a majority judgment in the Court of Appeal. The Attorney General for British Columbia was granted leave to appeal to this Court. Leave to intervene was granted to the Attorney General for Canada, who supports the validity of the Juvenile Delinquents Act, and to the Attorneys General for Ontario and Quebec, who challenge it.

One of the questions in issue in this appeal was as to whether the

J.:-While a child, within the meaning of the Juvenile Delinquents Act, R.S.C. 1952, 160, respondent was, in July 1964, at the city of Prince George, B.C., tried, as though he were an adult, by magistrate G. 0. Stewart, in the ordinary courts and pursuant to the Summary Convictions Act, R.S.B.C. 1960, c. 373, for an offence under the Motor-Vehicle Act, R.S.B.C. 1960, c. 253, to wit, driving a motor vehicle at a speed exceeding the prescribed limits. In fact, before proceeding with the case, the magistrate was fully aware that respondent was a child; considering, however, the latter's prior convictions for similar offences, he deemed it to be in his best interest to deal with the case in the ordinary way rather than under the provisions of the Juvenile Delinquents Act and considered that such an alternative course was authorized under s. 39 thereof. Having then found respondent guilty, he disposed of the case, again as if the accused were an adult, by sentencing him to pay a fine of $400 and in default to be imprisoned for a term of 60 days.

Respondent then applied to the Supreme Court of British Columbia for an order of certiorari to quash the conviction on the ground that the magistrate acted without jurisdiction or exceeded his jurisdiction in dealing with the case in the manner aforesaid rather than pursuant to the provisions of the Juvenile Delinquents Act. The application was heard by Brown J. who ordered the writ to issue and quashed the conviction. His decision was subsequently affirmed by a majority judgment of the Court of Appeal of British Columbia', then constituted of Davey, Norris, Lord, Sullivan and Bull JJ.A. The latter three members of the Court, forming the majority, rejected the contention of the Attorney General of the province that the Juvenile Delinquents Act was ultra vires in whole or in part and that even if intra vires, the Act could not operate to prevent a child from being prosecuted in the ordinary courts, pursuant to the Summary Convictions Act, supra, for an offence against the Motor-Vehicle Act, supra. Dissenting, and accepting as well-founded the submissions of the Attorney General, Davey and Norris JJ.A. would have allowed the appeal and restored the conviction.

The constitutional problem arising in this case stems from the provisions of ss. 2(1) (h), 3(1) and 4 of the Juvenile Delinquents Act:

Section 9, referred to in s. 4, provides for an exceptional procedure when the act complained of is an indictable of- ATrrRNEY fence and, as will appear hereafter, has here no relevancy. Collectively, ss. 2(1) (h), 3(1) and 4 operate to prescribe, inter alia, that a juvenile who violates any provision, SMrrH not only of a Dominion statute, but also of a provincial Fauteux J. statute or of any by-law or ordinance of a municipality, be, if and when his act is complained of, dealt with in accordance with the Juvenile Delinquents Act.

The questions in issue, in this appeal, may then be concisely and fairly stated as follows:

(i) Whether the Juvenile Delinquents Act is intra vires of Parliament, as being legislation under head- 27 of s. 91, B.N.A. Act, to wit, legislation in relation to The Criminal Law... including the Procedure in Criminal Matters or ultra vires, either on the ground that it is legislation related to the Welfare of children within the purview of the Adoption Act case (1938) S.C.R. 398, or on the ground that collectively sections 2(1)(h), 3(1) and 4 infringe the right of a provincial legislature, under head 15, s. 92, B.N.A. Act to impose punishment for enforcing any law made in the province in relation to any matter within the scope of its legislative competency;

(ii) Whether or not, even if the Act is intra vires in its entirety as being legislation under head 27, s. B.N.A. Act, s. 4 of the Juvenile Delinquents Act operates to prevent a juvenile from being prosecuted under the provisions of the Summary Convictions Act (supra) for an offence under the Motor- Vehicle Act (supra) or any other offences validly created in the province.

Dealing with the first question:-The principles governing as to the extent and 1limitation of the power of Parliament to legislate in relation to The Criminal Law. . .including Procedure in Criminal Matters have been stated at length in the various reasons for judgment, in the court of appeal, and need not be repeated here. Sufficient it is to point out concisely the following which, in my view, have a particular relevancy in this case, namely:-that, properly interpreted, the words criminal law in head 27 of s. 91, B.N.A. Act, mean criminal law in its widest sense: A.-G. of Ontario v. Hamilton Street Railway'; that the power assigned to Parliament in the matter includes the power to make new crimes: Proprietary Articles Trade Association v. A.-G. of Canada , as well as the power to enact legislation designed for the prevention of crime: Goodyear Tire 1 [19031 A.C. 524 at 528-9, 2 O.W.R. 672, 7 C.C.C. 326.

[1931] A.C. 310 at 334, 1 W.W.R. 552, 55 C.C.C. 241, 2 D.L.R. 1. & Rubber Co. of Canada et al. v. The Queen'; that it is the function of Parliament and not of the courts to decide what legislation is necessary for the efficient exercise of this plenary jurisdiction over the criminal law: Regina v. Goodyear Tire & Rubber Co. of Canada et al. ; and that, J though such legislation may incidentally affect the provincial legislative jurisdiction, it is not ultra vires of Parliament if its subject matter, purpose or object is, in its true nature and character, legislation genuinely enacted in relation to criminal law and not legislation adopted under the guise of criminal law and which, in truth and in substance, encroaches on any of the classes of subjects enumerated in s. 92: A.-G. for British Columbia v. A.-G. for Canada et al.8.

The primary legal effect of the Juvenile Delinquents Act,-hereafter also referred to as the Act,-is the effective substitution, in the case of juveniles, of the provisions of the Act to the enforcement provisions of the Criminal Code or of any other Dominion statute, or of a provincial statute validly adopted, under head 15 of s. 92, by a legislature for the enforcement of any law made in the exercise of its regulatory power with respect to any matters within its legislative competency which, in this case, is the control of highway traffic in the province. However, as it has often been held to be the case in the consideration of the validity of other Acts, the true nature and character of an Act cannot always be conclusively determined by the mere consideration of its primary legal effect. Indeed, a reference to the preamble, appended to the Act when originally adopted in 1908, 7-8 Edward VII, c. 40, as well as to the interpretation section and the main operative provisions of the Act, will show that this substitution of the provisions of the Act to the enforcement provisions of other laws, federally or provincially enacted, is a means adopted by Parliament, in the proper exercise of its plenary power in criminal matters, for the attainment of an end, a purpose or object which, in its true nature and character, identifies this Act as being genuine legislation in relation to criminal law. The preamble:

The interpretation section:

Surra The main operative provisions:

In addition to those quoted above, others provide for: the strict and complete separation of juvenile from adults, at any stage of the enforcement process; the prohibition, particularly, to confine any child, pending the hearing of his case, at any county or other gaols in which adults are or may be imprisoned; the conduct of the trials, without publicity, privately and, if possible, in the private office of the judge or in a private room; the abstention from formalities, in any proceedings under the Act, including the trial and the disposition of the case, as circumstances may permit consistently with the due administration of justice; the manner in which a child adjudged to have committed a delinquency shall be dealt with, namely: not as an offender but as one in a condition of delinquency and therefore requiring help, guidance and proper supervision; a variety of exceptional courses of action,-primarily meant to assist, help, encourage, supervise and reform the delinquent rather than to punish him,-which, upon the child being adjudged to be a juvenile delinquent, may be taken by the judge in the light of the opinion he forms as to both the child's own good and the community's best interest; the prohibition, unless special leave is granted by the court, of publication of a report disclosing or likely to disclose the identity of a juvenile concerned under the Act; the protection of juveniles against persons contributing to their delinquency; the promotion of reformation of juveniles by the establishment, inter alia, of Juvenile Court Committees, the appointment of probation officers and definition of the latter's duties, namely: to assist the court, represent the interest of the child when the case is heard and, as the court may direct or require, make investigations, furnish assistance to the child and take charge of him before and after trial. Consistent with the declared purpose of the Act and obviously designed for its attainment, these operative J. provisions are still more illustrative of the true nature and character of this legislation. They are directed to juveniles who violate the law or indulge in sexual immorality or any other similar form of vice or who, by reason of any other act, are liable to be committed to an industrial school or a juvenile reformatory. They are meant,-in the words of Parliament itself,-to check their evil tendencies and to strengthen their better instincts. They are primarily prospective in nature. And in essence, they are intended to prevent these juveniles to become prospective criminals and to assist them to be law-abiding citizens. Such objectives are clearly within the judicially defined field of criminal law. For the effective pursuit of these objectives, Parliament found it expedient to protect these juveniles from the ill-effects of publicity, from the dangerous influences that promiscuity with criminals or association with crime engender, and deemed it necessary to create the offence of delinquency, an offence embracing, inter alia, all punishable breaches of the public law, whether defined by Parliament or the Legislatures, and to adopt, for the prosecution of this offence, an enforcement process specially adapted to the age and impressibility of juveniles and fundamentally different, in pattern and purpose, from the one governing in the case of adults. Beyond the point of law enforcement, the Act does not affect the legislation which may be enacted by Parliament or Provincial Legislatures in the exercise of their regulatory power. Briefly, and in scope, the Act deals with juvenile delinquency in its relation to crime and crime prevention, a human, social and living problem of public interest, in the constituent elements, alleviation and solution of which jurisdictional distinctions of constitutional order are obviously and genuinely deemed by Parliament, to be of no moment.

It matters not, in my respectful view, contrary to what was contended, on behalf of the Provincial Attorneys General, that there be a lack of uniformity in the application or operation of the Act, either:- (i) ratione loci, in that ss. 42 and 43 substantially provide that the Act may be put into force, by proclamation, only in these territorial jurisdictions where the facilities for the due carrying out of its provisions are provided for, or (ii) ratione materiae, in that the proscribed conduct,-the holding of which constitutes, under the Act, the offence of delinquency,-may vary, throughout Canada, consequential to the lack of uniformity in provincial laws, by-laws and municipal ordinances, or (iii) ratione personae, in that the definition of a child, under s. 2(1) (a) may, as provided for by s. 2(2), be altered, from time to time, in any province, by proclamation of the Governor in Council. Desirable as uniformity may be in criminal law, it is not, per se, a dependable test of constitutionality as, indeed, is shown in the case of the Lord's Day Act, R.S.C. 1927, c. 123, cf. ss. 3, 7 and 15, the Canada Temperance Act, R.S.C. 1927, c. 196, cf. Part I, both judicially held intra vires, notwithstanding lack of uniformity. Lack of uniformity also appears in the Criminal Code of Canada, with respect to substantive law as well as to procedural matters, e.g., ss. 6, 7, 534, 541 and 552. In City of Fredericton v. The Queen', where the constitutionality of the Canada Temperance Act (1868) was in issue, Ritchie C.J., had this to say on the point, at p. 530:

In Gold Seal Limited and Dominion Express Company and A.-G. for the Province of Alberta , again, it was held, inter alia, that the Dominion Parliament can enact laws which may become operative only in certain provinces and also laws which may aid provincial legislation. Finally, in any respect in which it may be said that the Act lacks uniformity, I can find no indication suggesting that the above view, as to the true nature and character of the Act, should be varied.

DLR.

Nor am I able to accept, as being well-founded, the contention that, in pith and substance, the Act is legislao tion in relation to welfare and protection of children within the purview of the Adoption Act case supra. The true objects and purposes of the statutes considered in the latter case are quite different from the true object and purpose of the Juvenile Delinquents Act. They are, as pointed out by Bull J.A., directed to the control or alleviation of social conditions, the proper education and training of children, and the care and protection of people in distress including neglected children. Obviously, one can say that the Act gives a special kind of protection to misguided children and that it should incidentally operate to ultimately enhance their welfare. A similar view may also be taken of the following provisions of s. 157 of the Criminal Code of Canada; yet, no one has ever questioned that they were enactments in relation to criminal law.

A very wide discretion is given to the judge, under the Act, and it is significant that, in the exercise of such discretion, the interest of the child is not the sole question to consider. On the contrary, the matters which, in principle, must receive the attention of the judge and which he must try to conciliate are the child's interest or own good, the community's best interest and the proper administration of justice. This, I think, qualifies the nature of the protection which the Act is meant to give to juveniles alleged or found to be delinquents and supports the proposition that the Act is not legislation in relation to protection and welfare of children within the meaning envisaged in the Adoption Act case, supra.

With deference to those who entertain a contrary view, I am clearly of opinion that, in its true nature and character, the Act, far from being legislation adopted under the guise of criminal law to encroach on subjects reserved to the provinces, is genuine legislation in relation to criminal law s or in its comprehensive sense.

Fauteux J. Dealing with the second question:-It was submitted that assuming the Act to be valid legislation in toto, it does not affect the right to proceed under the Summary Convictions Act, supra, against a child for a violation of the Motor-Vehicle Act, supra. Section 39 of the Act, it is said, shows that Parliament intended that the Act and the Motor-Vehicle Act should operate side by side and that the best interests of the child be the decisive factor as to the course to be elected in any particular case. Section 39 reads as follows:

In my view, this section has no application in this case, for the Motor-Vehicle Act, supra, is not a statute of the class of statutes to which s. 39 is directed, namely: statutes intended for the protection or benefit of children. It was not seriously contended that the Motor-Vehicle Act, supra, is a provincial statute of that class; such a contention is palpably untenable. What was urged is that, as a matter of construction, the words provincial statute and such Act or statut provincial and de ce statut, appearing in the latter part of the sentence, are not referable to the words provincial statute intended ... or statut provincial en vue de. . ., appearing in the first part thereof, but to O any provincial statute. In my opinion, the wording of the sentence does not permit this interpretation but just the opposite one and as such, shows that the will of Parliament is (i) to leave untouched the provisions of any provincial statute intended for the protection or benefit of children,-such as, e.g., The Protection of Children Act, R.S.B.C. 1948, c. 47,-and (ii) to authorize that a child, coming within the provisions thereof, be dealt with either under the latter or under the Juvenile Delinquents Act, as his best interests may be deemed to be in any particular case. Construed as suggested on behalf of appellant, s. 39 would be in conflict with the provisions of the Act which give exclusive jurisdiction to the Juvenile Court in matters of delinquency and would completely defeat the whole purpose of the Act and render it futile.

The Act and the Motor-Vehicle Act, supra, cannot operate side by side, for their provisions clash at the level of law enforcement and to this extent, the latter statute is inoperative according to the rule that a legislation of Parliament which strictly relates to subjects of legislation expressly enumerated in s. 91,-as the Juvenile Delinquents Act is assumed to be for the purpose of the second question,-is of paramount authority, even though it trenches upon matters assigned to the provincial legislatures by s. 92: A.-G. for Canada v. A.-G. for British Columbia.' With deference to those who entertain a different view, I must conclude that the majority of the Court of Appeal rightly decided that the Juvenile Delinquents Act is intra vires of Parliament and that the case of respondent Smith should have been dealt with under the provisions of this Act.

I would dismiss the appeal and make no order as to costs.

Appeal dismissed; no order as to costs.