R v SAC Is Interesting No Matter How You Say It

Some jurisprudential issues are relatively unique to Canada. Canada’s legal tradition of bilingualism is notable in this regard; very few countries are required to render laws in more than one language, regardless of how many languages might be spoken in the country or even how many the government might officially recognize. (This writer’s favorite multilingual curiosity: Luxembourg, where parliamentary debate is conducted in Luxembourgish, legislation is drafted in German, and statutory law written in French.) R v SAC, [2008] 2 SCR 675 [SAC], is a recent example of a case brought before the Supreme Court of Canada on the basis of legal conflict between the English and French versions of Canadian law.

The accused, S.A.C., pled guilty to numerous charges under both the Criminal Code, RSC 1985, c C-46 and Youth Criminal Justice Act, SC 2002, c 1: nine assorted counts of motor vehicle theft, three counts of breaking and entering and theft, breach of an undertaking and breach of probation. S.A.C. had prior to these charges also been convicted of nine various offences under both acts. The judge sentenced him to 200 days in secure custody followed by 100 days of supervision in the community.

The issue arises with a discrepancy in the English and French versions of the Youth Criminal Justice Act. The English version of s.39(1)(c) of the Act stipulates that the court shall not commit a young person to custody unless “the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt.” The French version, however, says that the court shall not commit a young person to custody unless the young person “a commis un acte criminel pour lequel un adulte est passible d’une peine d’emprisonnement de plus de deux ans après avoir fait l’objet de plusieurs déclarations de culpabilité.

(For readers not fluent in French, that translates as “[if the young person] committed a criminal act for which an adult would be liable to imprisonment for more than two years after having been the subject of more than one declaration of guilt.”)

This incongruity between the two translations leaves two areas open for interpretation: whether or not the offences being committed should be considered for determination under s.39(1)(c), and how to (and whether to) determine the “pattern of the findings of guilt.”

The sentencing judge concluded from his reading of the text that he was not required to consider only those indictable offenses carrying a maximum punishment of more than two years in establishing a pattern of findings of guilt. He also took the position that it was reasonable to consider the charges for which S.A.C. had just been found guilty as part of this pattern.

S.A.C. appealed, arguing that the sentencing was incorrect. The Nova Scotia Court of Appeal agreed with the sentencing judge, reasoning that “history” meant “time prior to the date of sentencing.” By this definition, the offences to which S.A.C. had just pled guilty qualified, as they happened before the date of sentencing. Bateman J.A. also agreed that in establishing the pattern of findings of guilt, non-indictable offences might be used, but took care to point out that indictable offences weren’t necessary to establish a pattern of findings of guilt in S.A.C.’s case.

The Supreme Court of Canada dismissed S.A.C.’s appeal, reasoning as follows:

Canadian jurisprudential tradition, in instances where the English and French versions of a law conflict but are not irreconcilable, is to follow the narrowest possible interpretation of the law in question (as exemplified in R v Daoust, [2004] 1 SCR 217).

The English use of “history” in this instance could mean either the history including the offences for which the individual was being sentenced, or the history up to but not including those offences. The French version, however, narrows this by using the word “après,” indicating that the offences for which the invidivual is being sentenced should not be considered. The French version is narrower, and thus for this part of the law, it prevails.

The second issue, the patterns of findings of guilt, flips narrowness around; where the French version of the law demands only one conviction (for a crime where an adult would be charged for more than two years’ imprisonment) to commit a young person to custody, the English version requires what amounts to a history of significant criminal behaviour. Since this latter is obviously more difficult for the state to prove, it is the narrower reading and thus prevails.

S.A.C. also argued that the pattern of findings of guilt should not include non-indictable offences, but Justice Deschamps strongly disagreed:

I am not convinced by this argument. The word “pattern” relates to prior findings of guilt, not to the finding in respect of which the young person is being sentenced. To hold that only prior convictions for indictable offences are to be considered would be to impose a limit that is not provided for in the English version and is totally absent from the French. Although similarity can be relevant to the determination whether a pattern exists, the threshold is a pattern of findings of guilt, not a pattern of findings of guilt for the same type of offence as the one for which the young person is being sentenced.

Since a harmonious interpretation had been derived from the conflicting English and French readings, it then fell to the Supreme Court to determine whether or not this new interpretation of the conflicting passages was in line with Parliament’s original intent (as was done in Schreiber v Canada, [2002] 3 SCR 269). Since Parliament’s intent in passing the Youth Criminal Justice Act was to reduce the number of youth incarcerations, and since the new interpretation will offer less opportunity to incarcerate young people than other readings (despite Deschamps J.’s willingness to consider non-indictable offenses in the pattern of findings of guilt), the Court found that it passed this test.

However, in an unfortunate conclusion for S.A.C., the Supreme Court of Canada then found that despite the higher threshold for sentencing a minor to custody, he satisfied the requirements necessary under the new interpretation to qualify. Which just goes to show you that sometimes, you just can’t beat the system – nor battez le système.

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