Z.R.K. v. Alberta, 2011 ABQB 455

Court of Queen ’ s Bench of Alberta Citation: Z.R.K. v. Alberta, 2011 ABQB 455 Date: 20110711 Docket: 1101 08594 Registry: Calgary Between: Z.R.K. Applicant - and - Her Majesty the Queen Respondent Restriction on Publication: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act , s. 110(1) . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

See the Youth Criminal Justice Act , s. 111(1) . _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice T.F. McMahon _______________________________________________________

Appeal from the Order by The Honourable Judge Shaw Dated the 10 th day of June, 2011 (Action No. 110610334Y1) [ 1 ] This is an application for an Order in the nature of certiorari to quash an order for psychiatric assessment of a young person made pursuant to s. 34 of the Youth Criminal Justice Act , S.C. 2002, c.1. [ 2 ] On June 10 th 2011 the Applicant appeared before a judge of the Youth Justice Court for a show cause hearing in respect of charges he faced. [ 3 ] The Applicant had been arrested on May 29 th 2011 and had appeared before a justice of the peace on the same day.

The justice of the peace did not conduct a show cause hearing, no Order was made under s.515 of the Criminal Code and the matter was adjourned by the justice of the peace to May 30 th 2011 in Youth Justice Court.

Thereafter the matter was adjourned further to the Youth Justice Court for a show cause hearing on June 10 th . [ 4 ] During submissions by Crown counsel and prior to hearing any submissions from Defence counsel, the learned provincial judge on his own motion made an Order for a psychiatric assessment of the Applicant under s. 34(1) of the Youth Criminal Justice Act . [ 5 ] The Applicant did not consent to the Order.

The Applicant remains in detention at the Young Offenders Centre without a show cause hearing having been held as at the date of this appeal. [ 6 ] Counsel for the Applicant submits that the Order for a psychiatric assessment was made without jurisdiction and contrary to ss. 34(2) and 34(4) of the Youth Criminal Justice Act . It is argued further that the detention of the accused is unlawful and contrary to s. 34(4) of the Youth Criminal Justice Act . [ 7 ] The Respondent argues that s. 34 requires a modern purposive

interpretation. Citing the

preamble to the Act and the Declaration of Principle, the Respondent argues that a liberal

interpretation of s. 34 ought to be available to permit a Youth Court to exercise jurisdiction under s. 34 in the best interests of the young person and to determine whether the young person is suffering from a mental illness or psychological disorder before releasing that young person into society. [ 8 ]

Section 34 of the Youth Criminal Justice Act provides: Medical or psychological assessment 34.

(1) A youth justice court may, at any stage of proceedings against a young person, by order require that the young person be assessed by a qualified person who is required to report the results in writing to the court, (

a) with the consent of the young person and the prosecutor; or (

b) on its own motion or on application of the young person or the prosecutor, if the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(

a) to (

g) and

(

i) the court has reasonable rounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability, (ii) the young person’s history indicates a pattern of repeated findings of guilt under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) the young person is alleged to have committed a serious violent offence. Purpose of assessment

(2) A youth justice court may make an order under subsection (1) in respect of a young person for the purpose of (

a) considering an application under

section 33 (release from or detention in custody); (

b) making its decision on an application heard under

section 71 (hearing - adult sentences); (

c) making or reviewing a youth sentence; (

d) considering an application under subsection 104(1) (continuation of custody); (

e) setting conditions under subsection 105(1) (conditional supervision); (

f) making an order under subsection 109(2) (conditional supervision); or (

g) authorizing disclosure under subsection 127(1) (information about a young person). Custody for assessment

(3) Subject to subsection (4) and (6), for the purpose of an assessment under this section, a youth justice court may remand a young person to any custody that it directs for a period not exceeding thirty days. Presumption against custodial remand

(4) A young person shall not be remanded in custody in accordance with an order made under subsection (1) unless (

a) the youth justice court is satisfied that (

i) on the evidence custody is necessary to conduct an assessment of the young person, or

(ii) on the evidence of a qualified person detention of the young person in custody is desirable to conduct the assessment of the youngperson, and the young person consents to custody; or (

b) the young person is required to be detained in custody in respect of any other matter or by virtue of any provision of the CriminalCode. Analysis [9] The Youth Justice Court is a creature of statute and possesses no inherent power. Its authority is “circumscribed by theprovisions of the statute and must be found to have been thereby conferred either expressly or by necessary implication”: Doyle v. TheQueen (975), (SCC), 35 C.R.N.S. 1 at 6 (SCC); R. v. R.J.H., 2000 ABCA 111 (Alta. C.A.). [10] Section 34(1)(

a) has no application because the young person did not consent. [11] Section 34(1)(

b) provides jurisdiction on the Court’s own motion if the Court believes that a report is necessary for one of thepurposes in paragraphs 2(

a) to (g). [12] Both parties agree that the only relevant purpose in this case is to be found in (a): considering an application under

section 33 (release from or detention in custody) [13]

Section 33 provides that where a judicial interim release order has been made under s. 515 of the Criminal Code of Canada bya justice who is not a Youth Justice Court judge, an application may be made to a Youth Justice Court for the young person’s release ordetention and the Youth Justice Court shall hear the matter as an original application. [14] That is not what happened here. In this case, no judicial interim release order had been made when the matter came before thislearned Youth Justice Court judge.

As a result, on a plain reading of the Act s. 33 cannot be invoked as a foundation for an Order under s.34 for a psychiatric assessment or report. [15] The Respondent argues that s. 34(1) permits a Youth Justice Court to order the report “at any stage of the proceedings”. Thosewords cannot however be read in isolation to the balance of s. 34 which defines the only purposes for which a report may be ordered.Subsection (2) of s. 34 limited the purposes for which a report may be ordered. [16] One can readily understand the learned Youth Justice Court judge’s reasoning.

He was considering the young person’s releaseinto the community and observed “so, this is to help the Court make the most informed decision”. [17] Had an Order been made under s. 515 of the Criminal Code then the Youth Justice Court judge would have had clearjurisdiction to get the report he desired to make his informed decision. [18] A Youth Justice Court can hear a judicial interim release application either in the first instance (as an original application) orde novo pursuant to s. 33 when it has already been heard in another court. [19] If the judicial interim release application is pursuant to s. 33 then the report can be requested.

If, on the other hand, it is anoriginal judicial interim release application, as was the case here, then s. 34 does not provide the Youth Justice Court with the statutoryjurisdiction that it must have.

[ 20 ] If the words used in the statute created uncertainty one might have reference to the Declaration of Principle to reach a different conclusion. However I see no uncertainty in the words. [ 21 ] The Respondent refers to the

preamble to the Youth Criminal Justice Act and to s. 3 's Declaration of Principle to press for a broader

interpretation of s. 34. That argument would require me to read into s. 34 jurisdiction of the Youth Justice Court to make the Order in a judicial interim release application in the first instance in the face of the plain words of the statute and I decline to do that. Conclusion [ 22 ] The Order appealed from is set aside. In these circumstances I need not address the issues argues pursuant to s. 34(4) . Heard on the 29 th day of June, 2011. Dated at the City of Calgary, Alberta this 11 th day of July, 2011. T.F. McMahon J.C.Q.B.A. Appearances: James Conway, Q.C. for the Applicant Carla Ball for the Respondent