The Constitutionality of Canada’s Youth Courts under the
Young Offenders Act
John P. McEvoy*
The author examines the constitutionality of
Canada’s Youth Courts as presently consti-
tuted under the Young Offenders Act. He ar-
gues that the fact that these courts are presided
over by provincially appointed judges con-
travenes section 96 of the Constitution Act,
1867. An historical inquiry leads to the de-
termination that powers of jurisdiction which
in 1867 were exclusively those of a superior,
district or county court have been conferred
on the Youth Courts by the Young Offenders
Act. Through an application of the test set
out in Reference Re The Residential Tenan-
cies Act, 1979, it is asserted that this juris-
diction cannot be exercised by a non-section
96 court.
Uauteur 6tudie la constitutionalit6 des tri-
bunaux pour adolescents, tels que pr~sente-
ment constitus dans les provinces canadiennes
par la Loi sur les jeunes contrevenants. Scion
l’auteur, l’article 96 de la Loi constitution-
nelle, 1867 est viol6 puisque ces tribunaux
sont pr~sid~s par des juges nomm~s par les
provinces. Une analyse historique r~v~le que
des pouvoirs qui 6taient en 1867 propres A
une cour sup~rieure, de district ou de comt6
ont W d~volus aux tribunaux pour adoles-
cents par la Loi sur les jeunes contrevenants.
A la suite d’une application du test mis de
l’avant dans l’arrt Renvoi relatif d la Loi de
1979 sur la location residentielle, l’auteur
soutient que ces pouvoirs ne peuvent
tre
exerc~s par des tribunaux dont les juges ne
sont pas nomm~s suivant la procddure de
l’article 96.
*Of the Faculty of Law, University of New Brunswick.
McGill Law Journal 1986
Revue de droit de McGill
REVUE DE DROIT DE McGILL
[Vol. 32
A new era in the administration of juvenile justice in Canada was
launched with the coming into force of the Young Offenders Act.’ Besides
tinkering with procedures, the Act significantly altered juvenile justice by
implementing a diversion system which allows deserving young persons in
conflict with the law to avoid the necessity of appearing before a court for
disposition. The purpose of this note is neither to discuss the merits of
diversion nor the other philosophical changes represented by the Act, but
to present a problem arising from the tinkering: the proposition advanced
is that the Young Offenders Act, as implemented, violates section 96 of the
Constitution Act, 1867,2 which requires the Governor General to appoint
the judges of the superior, district and county courts.
The Young Offenders Act repealed and replaced the Juvenile Delinquents
Act, which, although amended over time, remained in substance as originally
enacted in 1908. 3 Both Acts followed a similar philosophy by establishing
systems of juvenile justice separate and apart from that to which adult
offenders are subject. The adjudicative tribunal with jurisdiction under the
two Acts, a “juvenile court” under the former and a “youth court” under
the current scheme, are similarly defined. That tribunal is either a new court
established by the Legislature for the purpose, or an existing court designated
or authorized by the Legislature, the Governor in Council or the Lieutenant
Governor in Council to exercise jurisdiction under the Act.4 The present
“youth courts”, as with the former “juvenile courts”, in each province of
Canada are presided over by judges appointed by the respective Lieutenant
Governors in Council.5
One important distinction between the two schemes is the range of
offences covered. Under the Juvenile Delinquents Act, the omnibus offence
‘S.C. 1980-81-82-83, c. 110. The Act came into force on 2 April 1984, SI/84-56.
2Enacted as British North America Act, 1867 (U.K.), 30 & 31 Vict., c. 3.
-Juvenile Delinquents Act, S.C. 1908, c. 40; R.S.C. 1927, c. 108, as rep. The Juvenile Delin-
quents Act, 1929, S.C. 1929, c. 46; R.S.C. 1952, c. 160; Juvenile Delinquents Act, R.S.C. 1970,
c. J-3.
4Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 2(l); Young Offenders Act, supra, note 1, s.
2(1).
5Newfoundland: Provincial Court, per Nfld Reg. 72/84; Nova Scotia: Family Court, per N.S.
Reg. 65/84 Schedule A, s. 2; Prince Edward Island: Provincial Court, per EC 282/84; New
Brunswick: Provincial Court, per O.C. 85-882; Quebec: Youth Court, per Courts ofJusticeAct,
R.S.Q. c. T-16, ss 110-14; Ontario: Unified Family Court (a superior court) Provincial Court
(Criminal Division) and Provincial Court (Family Division), per Courts of Justice Act, 1984,
S.O. 1984, c. 11, ss 47(b), 67(2) and 75(b); Manitoba: Provincial Court (Family Division), per
The Provincial CourtAct, S.M. 1982-83-84, c. 52, s. 19(l)(b) and per O.C. 283/84; Saskatchewan:
Provincial Court, per O.C. 378/84; Alberta: Provincial Court, per The Provincial Court Act,
R.S.A. 1980, c. P-20, as am. Young Offenders Act, S.A. 1984, c. Y-l, s. 38; British Columbia:
Provincial Court, per Provincial CourtAct, R.S.B.C. 1979, c. 341, s. 2(4), as am. Young Offenders
(B.C.) Act, S.B.C. 1984, c. 30, s. 59 and per O.C. 617/84.
1986]
NOTES
of “delinquency” was substituted for the myriad of possible violations of
federal and provincial statutes and municipal by-laws. 6 It also extended the
reach of the statute to include sexual immorality or “any similar form of
vice”. The Young Offenders Act, however, is limited to violations of federal
statutes or regulations and retains the character or identity of each offence
as the specific offence, characterized as being either an indictable or sum-
mary conviction offence. Thus a violation of the theft provisions of the
Criminal Code retains its identity as theft and is the offence with which the
young person is charged rather than, as under the former Act, being sub-
sumed within the general offence of “delinquency”. At minimum, it is this
retention of the character or identity of each federal offence which, it is
suggested, is fatal to the Young Offenders Act as implemented with prov-
incially appointed judges acting as youth court judges.
Over the eight decades of its existence, the Juvenile Delinquents Act
faced only two substantial challenges on constitutional grounds. The first
concerned the validity of subsection 20(2) of the Act which allowed a court
to impose liability upon a municipality for the financial support of a child
in care. This challenge was maintained over a twenty year period from its
initial rejection in 1962 by Schatz J. in Re Dunne7 to its ultimate acceptance
in 1982 by the Supreme Court of Canada in Regional Municipality of Peel
v. MacKenzie.8 The statutory imposition of this financial burden upon a
municipality was finally determined not to be supportable as, or necessarily
incidental to, the criminal law and procedure justification of the Act and
was found to encroach upon provincial jurisdiction in relation to municipal
institutions under subsection 92(8) of the Constitution Act, 1867. Accord-
ingly, the severance doctrine was applied to annul any reference to munic-
ipalities in the section, the imposition of such a financial burden being tra
vires the jurisdiction of Parliament.
The second challenge questioned the constitutional validity of the sub-
stitution of the procedures of the Juvenile Delinquents Act for those under
provincial legislation where a violation of provincial law was alleged against
a juvenile. The case arose out of an alleged speeding infraction under the
provincial Motor Vehicle Act of British Columbia. Rather than being pro-
ceeded against under the Juvenile Delinquents Act, the accused, a juvenile,
was tried by the magistrate as if he were an adult and upon conviction was
“Juvenile Delinquents Act, supra, note 4, ss 2(1) and 3(1).
7(1962), [1962] O.R. 595, 33 D.L.R. (2d) 190 (H.C.).
8(1982), [1982] 2 S.C.R. 9, 42 N.R. 572, Martland J. Three years earlier in A.G. Ontario v.
Regional Municipality of Peel (1979), [1979] 2 S.C.R. 1134, [1981] 2 W.W.R. 540, the Court
approved a construction of the Act such that a committal order to a private enterprise home
was not authorized by s. 20(l). This was sufficient to dispose of the case without addressing
the constitutional issue.
McGILL LAW JOURNAL
[Vol. 32
fined $400. Under subsection 92(15) of the Constitution Act, 1867 the prov-
incial legislatures enjoy exclusive jurisdiction in relation to “the imposition
of punishment by Fine, Penalty, or Imprisonment for enforcing any Law
of the Province …”. The issue, therefore, was whether such provincial en-
forcement procedures and penalties in respect of violations of provincial
law could be ousted by the Parliament of Canada in the exercise of its
jurisdiction under subsection 91(27) of the Constitution Act, 1867 over “the
Criminal Law … including Procedure in Criminal Matters”. More specifi-
cally, was the creation of an all-encompassing offence of “delinquency” in
the Juvenile Delinquents Act a valid exercise of the criminal law power?
Fauteux J., for the Supreme Court of Canada in A.G. British Columbia v.
Smith,9 held that it was. Two well-accepted general propositions in respect
of federal power under subsection 91(27) of the Constitution Act, 1867 were
found to be controlling: subsection 91(27) confers upon Parliament juris-
diction in relation to criminal law in its widest sense,’ 0 and it includes the
power to create new crimes.”l Given the breadth of these propositions, his
Lordship did no more than merely accept that the Act was a proper exercise
of the criminal law power:
The primary legal effect of the Jurenile Delinquents Act … is the effective
substitution, in the case of juveniles, of the provisions of the Act to [sic] the
enforcement provisions of the Criminal Code or of any other Dominion statute,
or of a provincial statute … . [Tihis substitution of the provisions of the Act
to [sic] 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.12
His Lordship went on to say:
[I]n essence, [the operative provisions of the Act] are intended to prevent these
juveniles to become [sic] 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 …
deemed it necessary to create the offence of delinquency ….
13
In light of this characterization of the legislation for constitutional purposes,
the argument that the Act was merely a colourable use of the criminal law
power was rejected.
‘)(1967), [1967] S.C.R. 702, 2 C.R.N.S. 277, [1969] 1 C.C.C. 244, aff’g (1965), 53 D.L.R. (2d)
713 (B.C.C.A.), Davey and Norris JJ.A. dissenting [hereinafter Smith cited to S.C.R.].
“‘A.G. Ontario v. Hamilton Street Railway Co. (1903), [1903] A.C. 524, 24 O.A.R. 170.
1 ‘Proprietary Articles Trade Association v. A.G. Canada (1931), [1931] A.C. 310, 55 C.C.C.
241.
I2Smith, supra, note 9 at 708.
‘I bid. at 710.
1986]
NOTES
It bears repetition that the Young Offenders Act does not continue the
judicially approved offence of “delinquency”; rather, each offence under the
Criminal Code and other federal statutes and regulations retains its character
as such offence, including its nature as being either an indictable or summary
conviction offence. The result then is that a youth court under the new
scheme exercises jurisdiction in relation to all federal offences. It is, in other
words, a unified court of criminal jurisdiction in respect of young persons.
Where, as in each province, the youth court judge is not appointed by the
Governor General, the issue arises as to whether section 96 of the Consti-
tution Act, 1867 is violated.
Section 96 is an institutional provision of the Constitution. As such, it
overrides the distribution of powers provisions in Part VI of the Constitution
Act, 1867, sections 91 to 95. This was already recognized by the Supreme
Court of Canada in the 1879 decision, Valin v. Langlois.14 In upholding the
validity of conferring jurisdiction upon provincial superior courts in relation
to controverted federal elections, Ritchie C.J. stated:
[B]efore these specific powers of legislation were conferred on Parliament and
on the Local Legislatures, all matters connected with the constitution of Par-
liament and the Provincial Constitutions had been duly provided for, separate
and distinct from the distribution of legislative powers, and, of course, over-
riding the powers so distributed; for, until Parliament and the Local Legislatures
were duly constituted, no legislative powers, if conferred, could be exercised.’ 5
In 1929, a comment to the same effect was made by Duff J. in Reference
Re Waters and Water-Powers:
In considering the effect of the phrase “notwithstanding anything in this
Act” [in section 91 of the Constitution Act, 1867] one must not overlook the
fact that it is only the “exclusive authority” of the Dominion under the enum-
erated heads of s. 91 which is accorded the primacy intended to be declared
by those words.’ 6
These restrictive judicial views of federal power were largely ignored
in favour of an expanded approach to federal legislative jurisdiction until
the reasons for decision of the majority of the Supreme Court in the 1982
case of Reference Re Exported Natural Gas Tax.17 In the context of the
referred facts, federal taxation jurisdiction under subsection 91(3), “[t]he
raising of Money by any Mode or System of Taxation”, was squarely set
against the institutional provision in Part VII of the Constitution Act, 1867,
section 125, “[n]o Lands or Property belonging to Canada or any Province
shall be liable to Taxation”. This opposition of constitutional provisions
14(1879), 3 S.C.R. 1, 5 Q.L.R. 1 [hereinafter cited to S.C.R.].
15lbid. at 11.
16(1929), [1929] S.C.R. 200 at 217, [1929] 2 D.L.R. 481.
17(1982), [1982] 1 S.C.R. 1004, 37 A.R. 541 [hereinafter cited to S.C.R.].
REVUE DE DROIT DE McGILL
[Vol. 32
resulted from the finding that the export tax was a revenue tax simpliciter,
without additional constitutional anchoring in the federal trade and com-
merce power, and in the assumed fact of provincial ownership of the natural
gas resource until transfer to the foreign purchaser outside of the territory
of Canada. The majority opinion of Martland, Ritchie, Dickson, Beetz, Estey
and Chouinard JJ. resolved the conflict between the institutional provision
and the distribution of powers provision in favour of the former, stating:
The immunity conferred by s. 125 must override the express powers of
taxation contained in ss. 91(3) and 92(2). The legislative powers conferred by
Part VI (ss. 91 to 95) must be regarded as qualified by provisions elsewhere
in the Act.18
The institutional provision under present consideration, section 96, has
been a popular basis of constitutional challenge; it has however been less
than popular with the judiciary. The late Chief Justice Laskin, long of the
view that section 96 did not bind Parliament, evidenced an apparent frus-
tration with the provision, stating on one occasion:
It is not for this court, by deploring the presence in the Canadian Constitution
of such an anomalous provision as s. 96, to reduce it to an absurdity through
an interpretation which takes it literally as an appointing power without func-
tional implications.’ 9
And on another occasion he is reported as having said: “I for one would
like to see s. 96 repealed.”’20 However, a federal discussion paper on a pro-
posed amendment to section 96 has not, to date, developed into serious
action.2′
The threshold test for a violation of section 96 was synthesized by
Dickson J. (as he then was) in Reference Re The Residential Tenancies Act,
197922 as a three-step inquiry. The first step involves consideration of the
historical powers or jurisdiction exercised by superior, district or county
courts in 1867 to determine whether the power or jurisdiction of the prov-
incial tribunal in issue broadly conforms to such powers or jurisdiction. If
‘Ilbid. at 1067.
19Reference re Section 6 of the Family Relations Act, S.B.C. 1978, c. 20 (1982), [1982] 1
S.C.R. 62 at 72, 40 N.R. 206 [hereinafter Re B.C. Family Relations Act cited to S.C.R.].
211E.R.A. Edwards, “Section 96 of The Constitution Act, 1867-The Call for Reform” (1984)
42 Advocate 191 at 191, quoting Laskin C.J.C. from argument in Reference Re The Residential
Tenancies Act, 1979, infra, note 22.
21See Canada, Department of Justice, The Constitution of Canada: A Suggested Amendment
Relatingto ProvincialAdministrative Tribunals by the Honourable Mark MacGuigan ([Ottawa]:
Dept. of Justice, August, 1983).
22(1981), [1981] 1 S.C.R. 714, 37 N.R. 158 [hereinafter Residential Tenancies cited to
S.R.C.].
1986]
NOTES
it does not, then the inquiry is over and the power or jurisdiction may be
exercised by the non-section 96 tribunal. If, however, the answer is in the
affirmative the second step in the inquiry is necessary. The power or juris-
diction is examined in its institutional setting to determine if it remains a
“judicial function”. If the answer is in the negative, the inquiry is over but
if in the affirmative, the third step must be addressed. In this final step, the
tribunal itself is examined to determine whether the power or jurisdiction
in issue can be said to be the central function of the tribunal or whether it
is merely subsidiary or ancillary to its administrative functions. If the ju-
dicial power is the sole or central function, then its exercise by a tribunal
not appointed by the Governor General violates section 96, as the tribunal
is determined to be acting as a section 96 court. 23
An historical inquiry leads clearly to the determination that powers of
jurisdiction which in 1867 were exclusively those of a superior, district or
county court have been conferred on the youth courts established under the
Young Offenders Act. In 1867, offences were generally categorized as being
either felonies or misdemeanors with a restricted jurisdiction being allowed
to magistrates, normally over the misdemeanor category of offences. A core
of exclusive superior court criminal jurisdiction was recognized over the
most serious crimes. In 1842, the Parliament of the United Kingdom passed
An Act to Define the Jurisdiction of Justices in General and Quarter Sessions
of the Peace24 which prohibited the justices from trying “any Person or
Persons for any Treason, Murder, or Capital Felony, or for any Felony which
… is punishable by Transportation beyond the Seas for Life”. There followed
eighteen groupings of offences which were excluded from the jurisdiction
of justices. Similar restrictive legislation was adopted in New Brunswick, 25
Nova Scotia 26 and Canada 27 prior to the 1867 union. After union, the new
federal Parliament enacted in 1869 the first Criminal Procedure Act 28 which
made the following provision in section 12:
No Court of General or Quarter Sessions or Recorder’s Court, nor any
Court but a Superior Court having criminal jurisdiction shall have power to
try any treason, or any felony punishable with death, or any libel.
Though the number of offences within the exclusive jurisdiction of a su-
perior court has been reduced over time, section 427 of the present Criminal
231bid. at 734-36.
24(U.K.), 5 & 6 Vict., c. 38.
25An Act to Consolidate and Improve the Laws Relative to the Administration of Criminal
Justice, S.N.B. 1849, c. 30, s. 24; R.S.N.B. 1854, c. 158, s. 3.
26An Act to Improve the Administration of the Law and to Reduce the Number of Courts of
Justice Within This Province and to Diminish the Expense of the Judiciary Therein, S.N.S.
1841, c. 3.
27An Act to Abolish the Right of Courts of Quarter Sessions and Recorders to Try Treasons
and Capital Felonies, S.C. 1861, c. 14, s. 1.
28S.C. 1869, c. 29.
McGILL LAW JOURNAL
[Vol. 32
Code continues to reserve treason, alarming her Majesty, intimidating Par-
liament or a legislature, inciting to mutiny, sedition, piracy, piratical acts,
murder, and associated offences such as attempts and conspiracies, as well
as bribery by a judicial officer, for the exclusive jurisdiction of superior
courts of criminal jurisdiction.
A youth court under the Young Offenders Act enjoys jurisdiction over
all federal offences including those reserved by the present Criminal Code
for the superior courts of criminal jurisdiction. The question then becomes
whether or not in 1867, or prior thereto, there existed a separate justice
regime for young persons. The answer to this is “yes”, though the scheme
was not as broad as Duff C.J. apparently believed, as is indicated by his
statement in Reference Re Adoption Act of Ontario:
Jurisdiction under the old law of the Province of Canada in respect of
offences by juvenile delinquents was exercisable by two justices of the peace,
by a recorder, or by a stipendary magistrate.29
The legislation referred to by Duff C.J. was An Act respecting the trial and
punishment of juvenile offenders adopted by pre-Confederation Canada in
1857.30 It provided that any accused not exceeding the age of sixteen years
who was charged with an offence being “simple larceny or punishable” as
such was, in lieu of prescribed penalty, to be punished upon conviction with
imprisonment, “with or without hard labor, for any term not exceeding
three months” or a fine, not exceeding twenty dollars. 3′ This Act had no
counterpart in New Brunswick. In Nova Scotia, a minimum of five justices
sitting in a court of general sessions of the peace could try ajuvenile offender
under the age of fourteen years for any offence except capital felonies. 32
To determine the scope of offences included within the ambit of the
Canadian juvenile justice scheme, one must turn to another consolidated
statute, An Act respecting Offences against Person and Property.33 That Act
provided that the penalty upon conviction for simple larceny or a felony
punishable as such was imprisonment “in the Penitentiary for any term not
less than two years, or … in any other prison or place of confinement for
any term less than two years”. 34 Though not defined in the Act, simple
larceny was understood as being “the felonious taking, and carrying away,
2′)(1938), [1938] S.C.R. 398 at 422, [1938] 3 D.L.R. 497. See also comments of Laskin C.J.C.
in Re B.C. Family Relations Act, supra, note 19 at 75-76.
,’S.C. 1857, c. 29; C.S.C. 1859, c. 106.
3hlbid., s, 1. See also An Act for the more speedy Trial and Punishment ofJuvenile Offenders
(U.K.), 10 & I I Vict., c. 82.
32Of Petty Offences, Trespasses, and Assaults, R.S.N.S. 1864, c. 147, s. 1.
X.C.S.C. 1859, c. 92. (Other statutes have not been thoroughly canvassed in search of other
.141bid., s, 20.
possible felonies punishable as if simple larceny.)
1986]
NOTES
of the personal goods of another”, 35 for which, it should be added, no penalty
had been specified. Felonies punishable as simple larceny, as provided by
the Act, were the theft of fixtures or parts of buildings, 36 and of growing
plants from gardens. 37 These then were the offences for which an accused
aged sixteen years or younger was to receive a lesser sentence upon con-
viction. In 1869, this same restricted regime of juvenile justice was enacted
by the new federal Parliament for post-Confederation Canada.38 It is im-
portant to note that the scheme did not extend to include all criminal or
other offences but was confined to a specific field of petty offences.
This historical inquiry leads to the conclusion that a youth court, as
presently constituted in each province of Canada, as a court exercising plen-
ary criminal jurisdiction and presided over by a judge appointed by the
Lieutenant-Governor in Council meets the first step in the Residential Ten-
ancies test.
Further, it cannot be doubted that the exercise of such powers or ju-
risdictions by a youth court remains judicial; therefore, the second step in
the test is adverse to validity of the youth court. Similarly, it cannot be
doubted that, when exercised, the judicial jurisdiction is the sole or core
jurisdiction of the youth court and is not altered in its institutional setting
by administrative functions. The exercise of historically exclusive superior
court criminal jurisdiction by the youth court, as presently constituted, is
accordingly unconstitutional.
The matter may be adversely determined in a second authoritative
manner. There is a controlling decision of the Supreme Court of Canada
on point which, it is suggested, is not distinguishable. In 1981, the Lieutenant
Governor in Council of New Brunswick referred to the Court of Appeal the
question of the constitutional validity of a proposed unified criminal court
to be composed of provincially appointed judges exercising jurisdiction over
all criminal offences. This scheme, if implemented, would have been the
result of federal-provincial co-operation, with Parliament feeding the juris-
diction under its criminal law and procedure power and the province ap-
pointing the judges. Before the Supreme Court of Canada, as McEvoy v.
A.G. New Brunswick,39 the scheme ran aground on the shoals of section 96.
35J.S. James, ed., Stroud’s Judicial Dictionary, 4th ed., vol. 5 (London: Sweet and Maxwell,
1974) at 2556, quoting W. Blackstone, Commentaries on the Laws of England, vol. 4 (Oxford:
Clarendon Press, 1769) at 230.
36’Supra, note 33, ss 34-35.
371bid., s. 39.
3″An Act respecting the trial and punishment of Juvenile Offenders, S.C. 1869, c. 33; An Act
respecting Larceny and other similar Offences, S.C. 1869, c. 21.
-19(1983), [1983] 1 S.C.R. 704,48 N.R. 228, rev’g (1981), 36 N.B.R. (2d) 609 (C.A.)[hereinafter
cited to S.C.R.]. The author acted as intervening counsel in this Reference.
REVUE DE DROIT DE McGILL
[Vol. 32
In a per curiain opinion, the Court applied the Residential Tenancies test
by noting with respect to the historical inquiry that “jurisdiction to try
indictable offences was part of the Superior Court’s jurisdiction in 1867” 40
and that the considerations involved in the other two steps of the test were
not applicable as the proposed court remained a court exercising judicial
powers. The Supreme Court then expressly recognized the overriding nature
of section 96 as an institutional provision of the Constitution:
Parliament can no more give away federal constitutional powers than a
province can usurp them. Section 96 provides that “The Governor General
shall appoint the Judges of the Superior, District and County Courts in each
Province”. The proposal here is that Parliament transfer the present Superior
Courts’ jurisdiction to try indictable offences to a provincial court. The effect
of this proposal would be to deprive the Governor General of his power under
s. 96 to appoint the judges who try indictable offences in New Brunswick. That
is contrary to s. 96. Section 96 bars Parliament from altering the constitutional
scheme envisaged by the judicature sections of the Constitution Act, 1867just
as it does the provinces from doing so. 4′
The proposed unified criminal court was therefore determined to be un-
constitutional. There is perhaps a suggestion by the Court that a distinction
is constitutionally justifiable between the complete conferral of superior
court criminal jurisdiction upon an inferior court and a gradual expansion
over time of inferior court jurisdiction into the realm of superior court
criminal jurisdiction:
What is being contemplated here is not one or a few transfers of criminal
law power, such as has already been accomplished under the Criminal Code,
but a complete obliteration of Superior Court criminal law jurisdiction.42
Such a suggestion must be considered, with all due respect, to have been
made per incuriarn. Having determined that Parliament is bound by section
96, it cannot have been intended that the criminal law power under sub-
section 91(27) is to be specially treated to allow erosion of the historical
superior court exclusive criminal jurisdiction in 1867. Rather, it must be
remembered that the questions referred by the Lieutenant Governor in
Council concerned the exercise of complete criminal jurisdiction by a unified
court with a provincially appointed judge. The Court responded to that
question and did not have before it the issue of the expansion of inferior
court criminal jurisdiction. It is in this light that the above comment should
be construed and the expansion of inferior court criminal jurisdiction cannot
be assumed to be constitutionally valid.
4 Ibid. at 717.
41Ibid. at 720.
42Ibid. at 719.
1986]
NOTES
Both the youth court referred to in the Young Offenders Act, as con-
stituted in each province, and the unified criminal court held invalid in
McEvoy share a common defect in regards to constitutional validity –
the
complete criminal law jurisdiction exercisable by the provincially appointed
judge violates section 96. That being so, it necessarily follows that the youth
court, as constituted, is unconstitutional.43 The merits of a separate scheme
for youth justice are entirely irrelevant to a determination of validity where
section 96 is involved. Unlike the Canadian Charter of Rights and Free-
doms, 4 4 there is no controlling principles of “reasonable limits … demonstra-
bly justified in a free and democratic society” to overcome the constraints
of the Constitution Act, 1867.
If the analysis presented here is correct, one may well ask why did
Parliament pass the Young Offenders Act in such form. The answer appears
to be quite simply that the Act was approved and received Royal Assent
on 7 July 1982, but the decision of the Supreme Court in McEvoy came
eleven months later, on 7 June 1983.
always unconstitutional, though never challenged on a section 96 basis.
430n the same analysis, the former juvenile courts under the Juvenile Delinquents Act were
44part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.),
1982, c. 11.
