R. v. A.M., 2020 ONCJ 477

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. . ONTARIO COURT OF JUSTICE CITATION: R. v. A.M., 2020 ONCJ 477 DATE: 2020 10 23 BETWEEN: HER MAJESTY THE QUEEN — AND — A.M. Before Justice D.M. Porter Heard on September 30, 2020 Reasons for Judgment released on October 23, 2020

P. Dostal............................................................................................... counsel for the Crown M. Henein ................................................................................ counsel for the accused A.M. Porter, J. Ⅰ Overview [1] The Applicant A.M. is charged with historical sexual offences in two separate proceedings. A youth justice court informationalleges that A.M. committed an indecent assault, acts of gross indecency, and sexual assault on J.A. in various periods beginning, at theearliest, March 1,1981 and ending at the latest, January 27,1984. An adult court information charges A.M. with

an act of grossindecency and sexual assault between January 28,1984 and August 31,1984. [2] A.M. turned 18 on January 28,1984. [3] This is an application for directions with respect to the application of s.16 of the Youth Criminal Justice Act (“YCJA”). [4] The issue on this application is the following: If the Crown amended the youth justice court information to charge the offencesfor the period March 1,1981 to August 31,1984, would the youth justice court have jurisdiction over offences found to have occurred throughout the entire time period, including on and after Jan 28,1984 when A.M. turned 18? [5] It is clear from the submissions of both counsel that if the court is of the view that s.16 gives the youth justice court jurisdiction over all alleged offences, including alleged offences on or after A.M.’s 18th birthday, if the youth justice court information is amendedas described above, then the Crown would make the amendment, with the consent of the defence, and the adult information would bewithdrawn. [6]

Section 16 of the YCJA in force April 1,2003 states: “When a person is alleged to have committed an offence during a period that includes the date on which the person attains the ageof eighteen years, the youth justice court has jurisdiction in respect of the offence and shall, after putting the person to their electionunder

section 67 (adult sentence) if applicable, and on finding the person guilty of the offence, (

a) if it has been proven that the offence was committed before the person attained the age of eighteen years, impose a sentence underthis Act; (

b) if it has been proven that the offence was committed after the person attained the age of eighteen years, impose any sentence thatcould be imposed under the Criminal Code or any other Act of Parliament on an adult who has been convicted of the same offence; and (

c) if it has not been proven that the offence was committed after the person attained the age of eighteen years, impose a sentence underthis Act” [emphasis added] [7] In my opinion, should the Crown choose to amend the youth justice court information to charge each of the offences during theperiod March 1, 1981 to August 31, 1984, the youth justice court would clearly have jurisdiction in respect of the offences over the entiretime period as the information would allege that A.M. committed offences “ during a period that includes the date on which [A.M.]attains the age of eighteen years”. [8] A review of cases preceding the enactment of s. 16 of the YCJA demonstrates the challenge for the administration of justice when persons were charged with offences alleged to have occurred before and after their 18th birthday.

In R. v. P.A.K. (NLSC), the accused was charged with 2 counts of sexual assault as an adult in the Newfoundland Supreme Court, but the evidenceraised an issue as to whether the accused was an adult at the time of the offences. The Crown could not establish that the offences occurred on or after the accused’s 18th birthday, with the result that the court held there was no jurisdiction to proceed, and the case wasreferred to the Crown to potentially commence a prosecution before the youth court: R. v.

P.A.K. , at para.65 (NLSC). [9] Similarly, in a youth court trial, if the evidence showed that the offence occurred on a date when the accused was 18 years old,or older, the youth court had no jurisdiction, and the accused would have to be tried in adult court: R. v. A.(E.A.) 1987 CarswellOnt 1082,at para.11 (Ont. C.A.) [10] In my opinion, s.16 of the YCJA was enacted as a remedial provision which provides a complete code for the prosecution of persons alleged to have committed an offence during a period that includes the person’s 18th birthday. [11] The purpose of s.16 is clear from its language.

It ensures that, when an accused is alleged to have committed an offence in a period that includes the accused’s 18th birthday, the youth justice court has jurisdiction. The provision is designed to ensure there is no loss of jurisdiction in the youth justice court in the event that the evidence proves the offence occurred on or after the accused’s 18th birthday when he or she is an adult.

Its purpose is to avoid the loss of jurisdiction that is possible when separate adult and youth justicecourt proceedings are brought in these circumstances, a real issue of the age of the accused at the time of the offence arises in theevidence, and each court is unable to be satisfied it has jurisdiction to proceed.

[ 12 ]

Section 16 of the YCJA also avoids the unnecessary duplication of proceedings in both the adult and youth justice court, and the waste of court resources involved in dual proceedings. [ 13 ] At the same time, it is fair to both the accused and the Crown, by preserving the accused’s right to elect his mode of trial, where applicable, the right of the accused to be sentenced under the YCJA , if found guilty where it has not been proven that the offence was committed after the accused attained the age of 18 years, or where it was proven that the offence was committed before the accused attained the age of 18 years. [ 14 ] Furthermore, it is fair to the Crown in providing that, where it is proven the offence was committed after the accused attained the age of 18 years, the accused will receive an adult sentence under the applicable legislation. [ 15 ] In my opinion, the applicability of s.16 of the YCJA is not dependent upon a finding on a voir dire that the accused’s age at the time of the commission of the alleged offence is not ascertainable on the evidence.

By the clear language of s.16, it grants jurisdiction to the youth justice court “when a person is alleged to have committed an offence during a period that includes the date on which the person attains the age of eighteen years”.

An information in that form is sufficient, in my opinion, to give the youth justice court jurisdiction to conduct the trial on that information in relation to any offences alleged in the entire time period, both before, on, and after the accused’s 18 th birthday. Ⅱ Agreed Statement of Facts (ASF) [ 16 ] The parties filed agreed facts on this application summarized as follows in the overview of the ASF: 1. A.M.’s date of birth is January 28, 1966. He turned 18 on January 28, 1984. 2. The Crown alleges that for a period of time, A.M. babysat two of the children in the A family, including J.A. 3.

J.A. is the alleged victim in these proceedings. 4. J.A.’s date of birth is November 5, 1973. He passed away on August 31, 2017. 5. The Crown anticipates that members of the A family will testify that A.M. was a regular babysitter for the family for a period of time in the early 1980s. 6. A.M. finished high school in the spring of 1984 and commenced studies at the University of Toronto in the fall of 1984. 7.

When A.M. turned 18 on January 28, 1984, J.A. was 10 years old turning 11 years old on November 5, 1984. [ 17 ] The proposed Crown's case relies on hearsay statements made by J.A. to various witnesses that A.M. abused him while babysitting. [ 18 ] The anticipated hearsay evidence, if found to be admissible, is from family members, and some professionals, who received complaints from J.A. alleging sexual abuse by A.M. [ 19 ] J.A. spoke to a civil lawyer in 2004 whose notes indicate that J.A. alleged sexual abuse by A.M when A.M. was 15-17 years of age.

In a memo made by the civil lawyer, it is noted that J.A. “is not certain of his age at the time the abuse occurred”. [ 20 ] A psychiatrist who met with J.A. at about this time states in a report that J.A. believes the sexual abuse took place when he was eight years of age (i.e., 1981-1982 when A.M. would have been 15-16), although J.A. also said that he believed A.M. was 18 years of age at the time of the abuse (i.e., which would be on or after Jan 28,1984). [ 21 ] Family members would testify that they received reports from J.A. alleging abuse principally in years when A.M. was less than 18, with some reports of abuse as late as 1985 when A.M. would have been an adult. [ 22 ] For example, J.A.’s brother J would testify that J.A. told him he was 9 years old when the abuse started which would have been 1982 – 1983 and that the abuse went on “for a couple of years”. [ 23 ] J.A.’s father believes J.A. was 9 or 10 years old when the abuse took place which would have been 1982 – 1984, and that it happened every time he was babysat. [ 24 ] J.A.’s father would testify that A.M. babysat the boys when J.A. was 9,10,or 11, “somewhere in that area” which would have been 1982 – 1985. [ 25 ] J.A.’s oldest brother S believes that J.A. was 8, 9, 10 or 11 years of age when the alleged abuse took place which would have been 1981 – 1985 and that it was ongoing for as long as A.M. babysat. [ 26 ] J.A.’s mother would testify that she thinks A.M. stopped babysitting when he started to study at the University of Toronto (i.e., in the fall of 1984) but she cannot recall for a fact when A.M. stopped babysitting. [ 27 ] There is other anticipated hearsay evidence summarized in the ASF which would allege sexual abuse of J.A. by A.M. principally before A.M. turned 18 on Jan 28,1984, but also as late as 1985.

Ⅲ The Positions of the Parties A The Applicant’s Position [28] On behalf of the applicant, Ms. Henein characterized the issue in this application for directions as whether s.16 of the YCJA canapply to the instant case in which, one youth justice court information would be filed alleging offences from March1, 1981 to August 31, 1984, and therefore approximately 7 months of the time period charged would cover the time period after A.M.’s 18th birthday. [29] Ms.

Henein submitted that the information in the youth justice court can be amended by the Crown to cover the period March 1,1981 to August 31, 1984 and the youth justice court would have jurisdiction over the entire period because of s.16 of the YCJA. Ms.Henein confirmed that the defence would agree that the youth justice court would have jurisdiction over the entire period, and thedefence would not be raising any jurisdictional issue with respect to the youth justice court’s jurisdiction. [30] Ms.

Henein submitted that if the case proceeded with two separate informations, one in the youth justice court, and the other inadult court, a possible result is that there could be a trial in adult court where the court is not satisfied that the events occurred after A.M.turned 18 years of age, and there would be a loss of jurisdiction in the adult court. [31] Ms.

Henein submitted that, alternatively, if separate prosecutions continue in the youth justice court, and the adult court, theevidence would be the same in each court, and the adult court may find it has jurisdiction and enter an acquittal or conviction in the adultcourt, and an inconsistent finding on the same evidence may occur in the youth justice court. [32] Ms. Henein submits that the language of s. 16 of the YCJA clearly confers jurisdiction on the youth justice court if the youthjustice court information is amended in the manner proposed.

In the applicant’s submission s. 16 was designed to deal with this specificscenario when there is one set of allegations and there is a question about whether the alleged offences occurred before or after the accused’s 18th birthday, and the youth justice court has clear jurisdiction over offences alleged prior to the accused’s 18th birthday.

Ms.Henein submits that s. 16 would have no value if it did not apply to the proposed amended information. [33] In the applicant’s submission, it makes perfect sense that s.16 would apply to the single information proposed, since if the accusedis convicted as a young person, he would be sentenced under the provisions of the YCJA, if he is convicted as an adult, he would receivean adult sentence, but if the court was uncertain as to whether an offence occurred on or after the age of 18, than the default is that theaccused benefits from the YCJA sentence.

It is the applicant’s submission that this is an eminently fair way to proceed and it makesperfect sense that s. 16 should confer jurisdiction on the youth justice court to try an information alleging the offences over the entire time period both before and after A.M.’s 18th birthday. B The Crown’s Position [34] On behalf of the Crown, Mr.

Dostal submits that the heading to s.16 of the YCJA which states “Status of Offender Uncertain”requires this court to find, as a precedent to having jurisdiction under s.16, that, on the facts submitted on the application, the age of theaccused at the time of the alleged offences is unascertainable. The Crown submits that, for the court to have jurisdiction under s.16, it isinsufficient that the age of the accused at the time of the alleged offence is a live issue at trial.

It is the position of the Crown that it isonly if this court determines, on this motion, that the age of the accused at the time of the alleged offence is unascertainable that s.16applies to give the youth justice court jurisdiction over the entire time period in the proposed amended information. [35] The Crown submits that given the exclusive jurisdiction of the youth justice court over persons under 18, where, as in this case, acase involves a series of events, not a discrete event, it is not unusual that separate youth justice court and separate adult trials arerequired. Ⅳ The Challenge to a Court’s Jurisdiction Based on the Accused’s Age [36] When an accused is charged as an adult, but leads evidence that, at the time of the alleged offence, he was less than 18 years ofage, the onus is on the Crown to prove that at the time of the offence the accused was 18 years of age or older, in order to maintainjurisdiction. [37] In R. v.

P.A.K. (NLSC) the accused was charged with 2 counts of sexual assault as an adult. [38] The defence argued that, on the evidence, the alleged incidents giving rise to the charges occurred before his 18th birthday, so thatthe adult court had no jurisdiction to conduct the trial: (para.5): [39] Green, J. concluded that, while the Crown does not generally have the onus of proving the age of the accused to prove jurisdiction,once the defence meets an evidentiary burden challenging whether the accused was an adult at the date of the alleged offences, theCrown must prove beyond a reasonable doubt that the accused was at least 18 years of age at the date of the alleged offences to prove jurisdiction to try the accused:(para.65) [40] Green, J. stated at para. 65: “1.

The Crown bears the legal burden of proving, beyond a reasonable doubt, that this court has jurisdiction to try the accused; hence, theCrown bears the legal burden of proving that at the time of the alleged offences, the accused was 18 years of age or older. 2. The defence bears an evidential burden of proof to raise, by evidence, an issue regarding the age of the accused at the time of theoffence which would affect the jurisdiction of the court and which, if true, would entitle this court to conclude that it does not have

jurisdiction to try the accused; in the absence of the raising of any issue as to jurisdiction or in the absence of satisfying this evidentialburden of proof, the Crown is not required to lead any positive evidence to establish the age of the accused at the time of the commissionof the offence and hence the jurisdiction of this court.” [41] The court concluded at paras.65-66 that: “The Crown has not satisfied me beyond a reasonable doubt that the incidents which constitute the alleged offences occurred on or after the accused’s 18th birthday.

Accordingly, I find that the Crown has not established beyond a reasonable doubt that this Court hasjurisdiction to try the accused. I therefore have no alternative but to decline jurisdiction” [42] An identical result was reached in R. v. P. ( P.) 1998 CarswellNfld 70 by O’Regan, J. in a trial in which the accused was chargedwith one count of sexual assault in 1994, and the evidence showed that the accused may have been under the age of 18 years at the timeof the offence.

The court concluded that as it was impossible to prove the age of the accused at the time of the offence beyond areasonable doubt, and as the youth court had exclusive jurisdiction to hear charges for offenders under the age of 18, the Superior Courtdeclined jurisdiction, and left it to the Crown to decide whether to proceed with the charge in youth court: (paras. 6-7). [43] Recent jurisprudence in Ontario and other provinces has confirmed that, where the defence meets an evidentiary burden thatchallenges the court’s jurisdiction based on the age of the accused, the Crown bears the onus of proving the age of the accused beyond areasonable doubt. [44] In R. v.

B.F. 2016 ONSC 2840 Bielby, J. followed R. v. P.A.K., supra, and dismissed an information charging the accusedwith historical sexual offences as an adult on the basis that “the Crown has not proven beyond a reasonable doubt that the offencesoccurred when the accused was at least 18 years of age”(para.76).See also R. v. Zarif 2013 MBPC 65 at para. 5; R. v. A.M.2013 MBPC 12 ,at para. 8; R. v. Hailemolokot et al 2013 MBQB 261 at para. 6. (Man. Q.B.); R. v. M.(L.), 2011ONCJ 465 at pp. 3-4; R. v.

I.C. 2010 ONSC 3330 , at para. 8. [45] Prior to the enactment of s.16 of the YCJA, when an information charged an offence over a time period in which the accusedturned18,and the evidence was unclear whether the offence occurred before or after the accused turned 18, the courts adopted a policythat, where this occurred, the youth court had jurisdiction to try the offence as this was the more favourable forum for the accused. [46] In R. v.

A.(E.A.) 1987 CarswellOnt 1082 the Court of Appeal considered a case in which the accused was charged with sexualassault between 9 p.m. on July 25, 1985 and 1 a.m. on July 26, 1985. The accused turned 18 on July 26, 1985. The trial proceeded in theyouth court. However, the Crown was unable to prove whether the offence had been committed before or after midnight, with the resultthat the youth court ruled it had no jurisdiction to continue with the case. The trial was ordered to proceed in the youth court in amandamus order from which the accused appealed.

The Court of Appeal dismissed the accused’s appeal and ordered the trial to proceedin the youth court. [47] The Court of Appeal noted that if it had been shown that the offence was committed after midnight when the appellant was 18years of age, the youth court would have had no jurisdiction to try him and he would have to be tried in adult court:(para.11). [48] However, in this case the court noted that there was “no proof as to the exact time at which the offence was committed “ andaccordingly “the facts should be viewed in a manner most favourable to the appellant.

Under such circumstances, it would be mostfavourable to the appellant to conclude that the time of the commission of the offence was when he was a young person since thedisposition and the alternative remedies available under the Young Offenders Act are more favourable to the appellant than if he weretried in an adult court”:(para.11). [49] In R. v.

P.A.K., supra, in finding that the Superior Court lacked jurisdiction, and in referring the matter back to the Crown todecide whether to proceed with the case in youth court, Green, J. noted the challenge that these jurisdictional issues raised for trials inthese circumstances when he stated at paragraph 69: “If this matter were proceeded with in youth court, and the issue of the accused’s age at the time of the commission of the offences wasraised there, it may well be that depending on the evidence led, the Crown would equally have difficulty in establishing beyond areasonable doubt that the age of the accused was less than 18 at the time of the alleged offences.

Lest that situation be used by thedefence to argue that the youth court does not have jurisdiction to try the accused, I would draw attention to the discussion of this issue inR. v. E.A.A……. Applying the policy approach adopted by the Ontario Court of Appeal in R. v.

EA.A, namely, that where there is doubtas to an accused’s jurisdiction-giving age, he should be tried in the forum which was most favourable to him, and given the fact that thiscourt has concluded that the case is not properly before this court because of lack of proof of jurisdiction, I do not believe it would bevery difficult for a youth court, in such circumstances, to conclude that it should assume jurisdiction and proceed to try the accused.” Ⅴ The Principles of Statutory

Interpretation [50]

Section 12 of the

Interpretation Act R.S. c. I-23 states: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects.” [51] In Re Rizzo & Rizzo Shoes Ltd. (SCC), [1998] 1 S.C.R. 27 at p. 41 Iacobucci, J. adopted Driedger’s modernprinciple of statutory

interpretation which states:

“Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” [52] In summarizing the application of the modern principle of statutory

interpretation, Ruth Sullivan in Sullivan on the Construction of Statutes ,6th ed. states at s. 2.9: “At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an

interpretation that isappropriate. An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with thelegislative text;(

b) its efficacy, that is, its promotion of legislative intent; and (

c) its acceptability, that is, the outcome complies withaccepted legal norms; it is reasonable and just”. [53] The purpose of a statutory provision may be inferred from several sources including the language of the legislation, the externalcontext, and a consideration of the problem the legislation was intended to address. [54] As Ruth Sullivan states in Sullivan on the Construction of Statutes, supra, at ss. 9.56 and 9.59: “In many cases purpose is inferred by the court simply from reading the legislation to be interpreted.

In such cases the role played bynorms of plausibility in determining purpose is especially evident….. … legislative purpose is often thought of in terms of the mischief or social ill it is designed to remedy or the problem it is meant toaddress. This mischief or problem may be identified in an authoritative source such as the

preamble to legislation, a Commission report,or a scholarly text. It may also be inferred by matching provisions in the legislation to conditions which existed at the time of theenactment and to which the provisions are a plausible response.” Ⅵ

Section 16 of the YCJA as Remedial Legislation [55] In my opinion, s 16 of the YCJA is a remedial provision intended to address the risk of a failure of jurisdiction in both the youth justice court, and adult court, when prosecutions of an offence allegedly occurring before and after an accused’s 18th birthday areconducted in both courts, the evidence raises issues about the age of the accused at the time of the offence, and each court concludes itlacks jurisdiction because the Crown cannot prove beyond a reasonable doubt that the offence occurred when the accused was at least 18years old (in the adult court prosecution),or under 18 (in the youth justice court prosecution). [56] In my opinion, the purpose of s.16 is to remedy this problem by granting the youth justice court clear jurisdiction for the entireperiod covered by an information in any case where the information charges an offence “during a period that includes the date on whichthe person attains the age of eighteen years” [57] As decisions such as R. v.

P.(P.), supra, demonstrated, if the case proceeded in adult court, and the Crown could not prove the offence occurred on or after the accused’s 18th birthday, the adult court had no jurisdiction to decide the case. [58] Furthermore, as seen in the Court of Appeal decision in R. v A.(E.A.) supra, prior to the enactment of the YCJA in 2003,where theoffence allegedly occurred before or after the accused turned 18, and the trial proceeded in youth court, and the Crown could not provewhen the offence occurred, the Court established a policy of assuming facts favourable to the accused to give the youth courtjurisdiction. [59] As noted by Vertes, J. in R. v.

Beaulieu 2008 NWTSC 13 at para.16,after referring to R. v. P.(P.),supra, and R v A. (E.A),supra: “It was because of this case law that s.16 was enacted as part of the Youth Criminal Justice Act in 2003” [60] In the language of s.16, the youth justice court has jurisdiction when the information before the court alleges that the person“committed an offence during a period that includes the date on which the person attains the age of eighteen years”.

An informationcharging an offence in that form is all that is required for the youth justice court to have jurisdiction pursuant to s.16 of the YCJA. [61] In its submission that jurisdiction under s. 16 requires this court to find, on the evidence before it on this motion, that the age ofthe accused at the time of the alleged offence is unascertainable, the Crown seeks to import a requirement which does not exist in thestatute. [62] The Crown relies upon the heading to s. 16 which reads “Status of Offender Uncertain” in support of its submission.

While it isclear from the jurisprudence that headings may be considered in determining the meaning of a statutory provision, they are given limitedweight, and will not operate to change the clear and unambiguous meaning of the statutory provision. [63] In Law Society of Upper Canada v. Skapinker (SCC), [1984]1 S.C.R. 357 the Supreme Court of Canadaconsidered the use of headings to interpret the Charter.

Estey, J. stated for the Court at pp.376-377 concerning the use of headings tointerpret the meaning of s.6 of the Charter: “The extent of the influence of a heading in this process will depend upon many factors including (but the list is not intended to be all-embracing) the degree of difficulty by reason of ambiguity or obscurity in construing the section; the length and complexity of theprovision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; thepresence or absence of a system of headings which appear to segregate the component elements of the Charter; and the relationship ofthe terminology employed in the heading to the substance of the headlined provision….

At a minimum the heading must be examined and some attempt made to discern the intent of the makers of the document from thelanguage of the heading. It is at best one step in the constitutional

interpretation process. It is difficult to foresee a situation where theheading will be of controlling importance…..

For the purpose of examining the meaning of [the

section at issue], I conclude that an attempt must be made to bring about areconciliation of the heading with the

section introduced by it. If, however, it becomes apparent that the

section when read as a whole isclear and without ambiguity, the heading will not operate to change that clear and unambiguous meaning.” [64] This approach to the use of headings in statutory

interpretation has been applied in interpreting other federal legislation, not just the Charter: Sullivan on the Construction of Statutes,6th ed, at s. 14.52. [65] As noted by Kellock, J. in Canada (Attorney General) v Jackson (SCC), [1946] S.C.R. 489,at 495-496,cited byEstey, J. in LSUC v Skapinker, supra, at p.371: “Where the language of a

section is ambiguous, the title and the headings of the statute in which it is found may be resorted to to restrainor extend its meaning as best suits the intention of the statute, but neither the title nor the headings may be used to control the meaning ofenacting words in themselves clear and unambiguous.” [66] In light of the unambiguous language in s.16, in my opinion all that the heading “Status of Offender Uncertain” is intended to convey is that since the information before the court charges an offence allegedly committed during a period that includes the 18th birthday of the accused, there is some uncertainty whether it was committed before or after the accused’s 18th birthday.

The headingadds nothing to the simple requirement that an information, charging an offence in this form, establishes the jurisdiction of the youthjustice court to try the offence. [67] As summarized by Nicholas Bala and Sanjeev Anand in Youth Criminal Justice Law, Third edition at page 198: “Section 16 of the YCJA largely codifies the approach of A.(E.A.) [in the Ontario Court of Appeal] providing that, if a person is“alleged to have committed an offence during a period which includes the date on which the person attains the age of 18” then the youthcourt has jurisdiction.” [68] Brock Jones, Emma Rhodes, and Mary Birdsell, the authors of Prosecuting and Defending Youth Criminal Justice Cases,2ndEdition (Emond,2019), interpret the jurisdiction established by s.16 of the YCJA in the same manner when they state at p.77: “Where an accused person is charged with offences during a period that includes his or her 18th birthday, but it remains unclear exactlywhen (or if) the offences occurred, the youth justice court retains jurisdiction. … For example, an accused person might be alleged to have committed a sexual assault on another person at some point between January 1, 1980 and January 1, 1985 with the person’s 18th birthday falling in between those dates.

This often happens when the Crown prosecuteshistorical sexual assault cases where the victim has difficulty remembering exactly when the offences occurred. If, after the person has been found guilty, the court determines that the offence was committed before the person attained the age of 18years, he or she shall be sentenced as a young person. If it is proven that the offence was committed after the person attained the age of18 years, he or she shall be sentenced under the Criminal Code (or any other act of Parliament) as an adult.

If the court is unable to determine the age of the person at the time the offence was committed, but the Crown has proven the accusedperson committed the offence beyond a reasonable doubt, the court shall sentence the offender as a young person under the YCJA” [69] In R. v. A.M. 2004 ABPC 10 the accused, who turned 18 on January 1, 2004, was charged that he committed murder “onor about January 1, 2004”.

The court held at paras.18-19 that the youth justice court had jurisdiction in the circumstances on the basisthat: “Framing the charge using the terminology “on or about” clearly satisfies the ”period” requisite in that the allegation states that theevents took place on, before, or after January 1, 2004, clearly an unbroken continuum of dates which includes the date which byagreement of counsel, included the date on which the accused attained the age of 18 years. I therefore conclude that the Youth JusticeCourt has jurisdiction to hear the case”. [70] In R. v.

Hurley 2006 ABPC 148 the accused was charged in adult court in a four count information alleging that he “between the 9th day of February 2003 and the 18th day of March 2004” committed various sexual offences contrary to the CriminalCode. [71] The accused turned 18 on August 19, 2003. Upon the accused raising the issue of his age in his examination in chief, the Crownapplied to amend the counts in the information so they only covered the time after the accused became an adult.

In the course of grantingthe Crown’s application to amend the information, Fradsham, J. considered s.16 of the YCJA and stated at para.11: “At the very least, I interpret that

section as meaning that the youth justice court has jurisdiction to conduct the trial of the person for thealleged offence”. [72] Notably, the court was not required to make a finding that the date of the alleged offence was unascertainable, but simply that theinformation charged an offence within a time period which included the date on which the accused turned 18. Ⅶ Conclusion [73] As this prosecution is presently structured, the Crown has chosen to charge A.M. in separate informations alleging, inter alia, the same offences in both the youth justice court, for the period of time prior to the accused’s 18th birthday, and in the adult court for a period of time commencing on his 18th birthday.

[ 74 ] If the youth justice court information remains unamended, the prosecution, as it is currently structured, runs the risk of having each court potentially decline jurisdiction, in the event that the Crown is unable to prove beyond a reasonable doubt in the youth justice court trial that an offence occurred when the accused was younger than 18, and in the adult court trial if the Crown is unable to prove beyond a reasonable doubt that an offence occurred when the accused was 18 or older. [ 75 ] It is my opinion that, should the Crown choose to amend the youth justice court information to cover the entire period from March 1, 1981 to August 31, 1984, the youth justice court would have jurisdiction to try the alleged offences within that time period both before and after the accused turned 18 on January 28,1984. [ 76 ] In my opinion, this

interpretation of s.16 is an appropriate

interpretation consistent with the modern principle of statutory

interpretation. It is true to the grammatical and ordinary sense of the words of the section, and is consistent with the identified statutory purpose of ensuring that in prosecutions of persons for offences allegedly occurring before and after their 18 th birthday, a single court, the youth justice court, will have jurisdiction to try the accused.

It preserves the ability of the court, if a finding of guilt is made, to sentence the person as a young person, where the offence is proven to have occurred before the accused attained the age of 18 years, or if it was not proven that the offence was committed after the accused attained the age of 18 years, and as an adult where it was proven that the offence occurred after the accused attained the age of 18 years:s.16(a)-(

c) YCJA. [ 77 ] In my opinion, this

interpretation is appropriate as it is consistent with the purpose of the section, the legislative text, and results in an outcome which complies with accepted legal norms as it is reasonable and just. _______________________ Justice D.M. Porter