2015 MBPC 43, 2015 MBPC 43

2015 MBPC 43 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) L. Carson for the Crown ) - and – ) ) K.M. ) W. Martin-White for the Young Person ) ) Judgment delivered: August 31, 2015 BAN 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). DEVINE, P.J. Introduction [ 1 ] Prior to the young person’s bail application the Crown made an application to have the Court order a forensic assessment of the young person for the purpose of the bail hearing.

The defence was opposed to the order and argued that the Court had no jurisdiction to make the order in the particular circumstances of the bail hearing, based on an

interpretation of sections 34(2)(

a) and 33 of the Youth Criminal Justice Act ( YCJA ). I ordered the forensic examination, with reasons to follow.

These are the reasons. [ 2 ] I note at the outset that it is not uncommon for the youth justice court to order forensic assessments on young persons at the bail stage, in order to give the Court more information necessary for the bail application. [ 3 ] Section 34(1) allows a youth justice court “at any stage of proceedings” to require a young person to be assessed by a qualified person (generally, a physician, psychiatrist or psychologist, as defined in s. 34(14)), who will provide a report to the youth justice court, with the consent of the young person.

The court is also authorized to order the forensic assessment without the consent of the young person in circumstances where the court believes that a medical, psychological or psychiatric report is necessary for considering detention or release from custody, among other things.

Additionally, before an assessment may be ordered, the court must have reasonable grounds to believe 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, they have a pattern or repeated findings of guilty or they are alleged to have committed a serious violent offence. s. 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 paragraph 2(

a) to (

g) and

i) the court has reasonable grounds 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 . [ 4 ] The “purposes” referred to in s. 34(1)(

b) are listed in s. 34(2) as follows:

(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) [5] The passage of contention is in subsection 34(2)(a), “considering an application under

section 33 (release from or detention incustody).” The wording at first blush is clear – that a youth court may order a forensic for the purpose of considering the young person’srelease or detention. It is the inclusion of the words “section 33” which is problematic.

Section 33 provides that where a decision aboutthe young person’s release or detention has been made by someone other than a youth court judge, an application may be made to ayouth court judge to hear the matter as an original application. 33.

(1) If an order is made under

section 515 (judicial interim release) of the Criminal Code in respect of a young person by a justice whois not a youth justice court judge, an application may, at any time after the order is made, be made to a youth justice court for the releasefrom or detention in custody of the young person, as the case may be, and the youth justice court shall hear the matter as an originalapplication. [6] Thus the defence argues that the youth justice court has no jurisdiction to order a forensic assessment without the consent of ayoung person at the bail stage unless that judge is reviewing the decision on detention or release of a judicial justice of the peace. [7] It appears, if one gives effect to the inclusion of the

section number “33”, that a youth court judge hearing a bail application atfirst instance does not have jurisdiction to order a forensic report. [8] The Crown advised that inclusion of the words “section 33” in s. 34(2)(

a) is a technical defect in the legislation that has beenidentified and tagged by a national Technical Amendments Committee. She advised that it is seen nationally as a drafting oversight. [9]

Section 33 is not the general bail provision for young persons. The YCJA does not contain a specific

section that deals withyouth bails. Instead it incorporates the bail provisions from the Criminal Code pursuant to

section 28 of the YCJA, which states: s. 28 Except to the extent that they are inconsistent with or excluded by this Act, the provision of

Part XVI (compelling appearance of anaccused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act. If any

section numbers should be referred to in s. 34(2)(a), they should be

section 28 of the YCJA and

section 515 of the Criminal Code. [10]

Section 33 is rarely utilized in Manitoba. Almost all bail applications proceed before Provincial Court Judges, who constitutethe “youth justice court” in Manitoba. [11] The Crown argued that the circumstances in which judges can order youth forensic assessments is broad, in keeping with thespirit and letter of the YCJA. [12] The defence argued that the spirit and letter of the YCJA is to avoid the detention of young people as much as possible and foras little time as possible. She also argued that giving a broader

interpretation to a non-consensual forensic assessment would necessitatekeeping young people in custody for as long as it takes to accomplish the assessment and provide a report, because section 34(3) allowsthat a judge can order the young person be remanded in custody for up to 30 days to allow for the assessment and report to beconducted. The defence argued that the Crown’s

interpretation would broaden the circumstances in which a young person could bedetained. [13] While it is true that the spirit and letter of the YCJA, among other things, is to avoid unnecessary detention of young people,section 34 is concerned primarily with forensic assessments of young people to assist courts in determining issues like sentence andrelease or detention. Statutory

Interpretation [14] Much has advanced with respect to statutory

interpretation over the past forty years, when Elmer Driedger’s first edition ofDriedger on the Construction of Statutes was released in 1975. A second edition was published in 1983. Professor Ruth Sullivan tookwriting the third edition in 1994. The text is now known as Sullivan on the Construction of Statutes whose fourth edition was released in2002 and fifth edition was released in 2008. As is often stated, there is only one principle of statutory

interpretation in Canada now, the“modern principle,” coined by Professor Dreidger in his first edition and repeated by Professor Sullivan in the forward to her fifthedition, as follows: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [15] This method or approach to statutory

interpretation remains the approach taken by the Supreme Court of Canada. (Potter v.New Brunswick (Legal Aid Services Commission), 2015 SCC 10 at para. 124; R. v. Steele, SCC 2014 61; R. v. Telus, 2013 SCC 16;Schaeffer v. Wood, 2013 SCC 71 at para. 99) [16] The defence relied on the Supreme Court case of R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, in which theplain meaning rule was relied upon. According to that rule, if the words of a legislative text are clear and unambiguous, the court must

apply those words as written, notwithstanding any contrary evidence of legislative intent and regardless of the consequences.

Indeed, inthis case, it would mean that youth court judges would never order forensic assessments for the purpose of bail without the youngperson’s consent, unless the youth court judge was conducting a bail hearing after a magistrate had already made a determination as torelease or detention. [17] Professor Sullivan refers to the uncompromising character of the plain meaning rule, with the high water mark represented bythe Supreme Court decision in McIntosh, where Chief Justice Lamer, who wrote for the narrow majority, conceded that the applicationof the rule led to absurd results which Parliament did not intend, nonetheless: Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must beenforced however harsh or absurd or contrary to common sense the result may be. . . .

The fact that a provision gives rise to absurdresults is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretative analysis. (Sullivan,ibid at 5) [18] Professor Sullivan observed that the rule has been widely discredited, specifically so in Re Rizzo & Rizzo Shoes Ltd, (SCC), [1998] 1 S.C.R. 27, where the modern principle was adopted.

In that case, although the plain meaning of aprovincial statute seemed to be clear, the Supreme Court stated it was also important to give sufficient attention and weight to the contextof the words at issue, the scheme of the Act, its object, and the intention of the legislature. Justice Iacobucci also considered thenegative and absurd consequences of adopting the plain meaning. [19] The

interpretation of s. 34(2) relied on by the defence has previously been considered in a limited number of cases. In R. v. C.L.(27 February 2014), Vancouver (B.C.Prov.Ct.), Judge Ehrcke rejected the

interpretation, stating: In my view, restricting the application of the

section to that particular form of release, leads to an absurd result. The same considerationsapply whether a young person before the court is asking for release in the first instance or after there has been a detention by a justice ofthe peace. The concern is particularly, in this case, the safety of the public, and that concern arises now where this is a judicial interimrelease hearing in the first instance. (at para. 10) Judge Bahn agreed in R. v.

CB (13 May 2014), Vancouver, (B.C.Prov.Ct.) at para. 62. [20] Justice McMahon of the Alberta Court of Queen’s Bench granted an order of certiorari quashing a forensic assessment ordermade by a judge where the justice of the peace had not made a decision on bail or detention previously. He adopted the strict plainmeaning rule in R. v. Z.R.K., 2011 ABQB 455, where he rejected the youth court’s jurisdiction to order a report at first instance where theyoung person did not consent:

Section 33 provides that where a judicial interim release order has been made under s. 515 of the Criminal Code of Canada by a justicewho is not a Youth Court Judge, an application may be made to a Youth Justice Court for the young person’s release or detention and theYouth Justice Court shall hear the matter as an original application. That is not what happened here. In this case, no judicial interim release order had been made when the matter came before this learnedYouth 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. 34for a psychiatric assessment or report. . . . If the judicial interim release application is pursuant to s. 33 then the report can be requested. If, on the other hand, it is an originaljudicial 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. (at paras. 13–14 and 19) [21] This is a strict application of the plain meaning approach that has been eclipsed in Re Rizzo.

There was no consideration of theabsurdity of the result – that a youth justice court may order a report to determine the issue of release or detention only when there hasalready been a decision made by a magistrate. Justice McMahon declined to consider the purpose and intention of the Act in the absence of any uncertainty in the wording of

section 33, consistent with a strict application of the plain meaning rule. (see paras. 20-21) [22] Although this argument was raised in a previous Manitoba case before Judge Stannard, she did not have to decide the issue, asthe young person agreed to the assessment on an out of custody basis. (R. v. T.B. (30 June 2014), Winnipeg (Man.Prov.Ct.) In the onlyother case where this issue was raised, Judge Sandhu determined that the youth court judge has jurisdiction to order the forensicassessment at first instance on the basis of the overall scheme of the Act and the purpose of the Act.

He stated that the defenceinterpretation would create an absurdity. In the end, he did not order the report because he did not think it was necessary to his decisionto determine bail. (R. v. J.D.H. (29 September 2014), Winnipeg (Man.Prov.Ct.) at 43 – 44) [23] Although the modern approach to statutory

interpretation resolves this issue in favour of youth court judges having jurisdictionto order forensic assessments at first instance bails, the same result would ensue even on an application of the plain meaning approach. Section 34(2)(

a) creates an ambiguity by referring both to “s. 33” and “release from or detention in custody,” because they are not thesame thing.

Section 33 in its entirety is concerned with de novo bail applications heard by youth court judges, with bail reviews and withbails to be heard by judges where the young person is charged with murder. It is not a

section dealing generally with release anddetention. As I indicated earlier,

section 28 of the YCJA incorporates the bail provisions from

section 515 of the Criminal Code. According to the plain meaning rule of statutory

interpretation, this ambiguity in section 34(2) allows for reference to the scheme andpurpose of the Act. [24]

Section 34 is concerned entirely with the circumstances where a youth court judge can order a forensic examination on a youngperson. Those circumstances include for the purpose of determining “release or detention”, determining whether the young personshould be sentenced as an adult, reviewing a youth sentence, determining whether there should be a continuation of custody pursuant to asection 104(1) application, setting conditions for a conditional supervision sentence, making a conditional sentence order and for thepurpose of authorizing disclosure of information about a young person under section 127(1).

The circumstances in which a judge mayorder such a report are consistent with the overall purpose and scheme of the Act. In situations where the Court has to make a decision or

determination about a young person’s risk and whether appropriate conditions can be fashioned to manage or alleviate the risk, one of the considerations is whether there is some underlying physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability that is relevant to these determinations.

Section 34 is consistent with of the overall purpose and scheme of the YCJA and reflects the principles animating it. The

Preamble to the Act emphasizes that the youth justice system should prevent crime by addressing its underlying causes and reduce over-reliance on incarceration for non-violent young persons. The scheme is intended to protect the public by holding young people accountable for their offences through measures that emphasize rehabilitation and reintegration. Sections 29 and 35 of the Act permit the Court to refer a young person to a child protection agency for a needs assessment rather than detaining them, where the bail issues relate to the need for support at home and in the community.

Generally speaking, those sections and s. 38(5) consider alternatives to custody for mental health and other social needs. 3.

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

a) the youth criminal justice system is intended to protect the public by: (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; [ 25 ] Thus the intrusiveness into the young person’s life that the forensic assessment represents is offset by the need to assist them by promoting their rehabilitation and reintegration (s. 3(1)(a)(ii)) and referring them to programs or agencies in the community to address the circumstances underlying their offending behavior (s. 3(1)(a)(iii).

Moreover, there is a presumption against custodial remand for the purpose and duration of conducting the forensic assessment, unless the court is satisfied that the young person must be kept in custody in order for the assessment to be conducted. (s. 34(4)) [ 26 ] An

interpretation that would allow for judges to have the information generated by a forensic assessment at the first instance bail stage is also supported by s. 29(1) which specifically prohibits detention of a young person as a substitute for appropriate child protection, mental health or other social measures. Such an

interpretation is also consistent with the strictly circumscribed circumstances in which a young person can be detained after a bail hearing in s. 29(2). [ 27 ] I am satisfied that a youth justice court hearing a first instance bail has the jurisdiction on its own motion or that of the prosecutor, to order a forensic assessment pursuant to s. 34(1)(

b) for the purpose of deciding the young person’s release from or detention in custody. This is not to be construed as a wide or broad jurisdiction or common order, as it is recognized that the young person’s privacy and security of the person is impacted by such an assessment and the report generated and shared by many people. Thus, such an order should only be made where it is necessary, as provided in the wording of section 34(1)(b).

Not only must it be necessary to determine the young person’s bail, but the judge must also have reasonable grounds 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. Finally, the young person either has a history or repeated findings of guilt or has been charged with a serious violent offence. It is not every young person who therefore is subjected to the intrusiveness of a forensic assessment. Original Signed by Devine, P.J.