The Courts Say “Yes” to Direct Indictment of Youths and “No” to Joint Trials of Youths and Adults: R. v. S.J.L.-G.
The respondents in R. v. S.J.L.-G., 2009 SCC 14,, S and L (16 and 17 years of age respectively), were arrested along with 16 adults after a five-month long investigation into drug trafficking activities by a criminal organization. S and L were charged with numerous offences including criminal organization offences.
The Crown filed for a motion for a preliminary inquiry, which was dismissed by the Court of Quebec. After the dismissal, the Crown preferred a direct indictment against all co-accused, both young and adult. S and L countered this with a motion to quash the direct indictment. The Superior Court granted the motion and quashed the direct indictment. The Court of Appeal upheld that decision.
This decision gave rise to two main issues because of its repercussion on the legislation dealing with youths as compared to legislation for adults, that is:
1.) Whether the Crown may proceed by direct indictment in the case of young persons, and
2.) Whether a youth can be tried jointly with an adult.
Following the Court of Appeal’s decision, the preliminary proceedings took place leaving the issue of direct indictment moot. Nonetheless, the SCC continued to address the issue in light of Canadian legal system’s reactive approach to common law and the importance of addressing this issue for the future development of Canadian law.
Purposive approach taken to analyzing the statute
The courts used a purposive approach when interpreting the regulations as stated in the Youth Criminal Justice Act (YCJA). The main purpose of the YCJA as established by the court is to “lay down special rules for young persons” (para. 6 of the S.J.L.-G. decision). These special rules have to be applied in conjunction with the rules of general application for adults. Since the YCJA does not explicitly answer the two issues arising in this case, the Court determined that they must interpret both the general rules and the special rules “and determine to what extent the general rules are consistent with the special rules for young persons, and whether the rules for adults must be adapted when being applied to young persons” (para. 6)
Issue 1: Can the Crown proceed by direct indictment when trying young persons?
s.67(7) of the YCJA elaborates in detail the procedure that has to be followed to be able to have preliminary inquiry. By default, a youth will be prosecuted by way of summary conviction, that is, without preliminary inquiry. The exception to this rule arises in cases where the youth is charged with murder or he/she is liable to be sentenced as an adult. In such circumstances, he/she may elect a mode of trial, which many involve a preliminary inquiry if requested by the Crown or the young person. However, the YCJA does not provide any enlightenment with regard to direct indictment. When looking at the general rules of adults, by preferring a direct indictment, the prosecution may terminate or skip the preliminary inquiry stage.
The Supreme Court looked at the words of s.67(7) of the YCJA and found that the Court of Appeal erred by supporting the assertion that the words of s.67(7) of the YCJA make preliminary inquiry mandatory. The SCC determined that the words do not rule out the possibility of proceedings by direct indictment. The words simply state that the “courts have no discretion to refuse preliminary indictment if one is requested.” (para. 12)
Preliminary inquiry has the benefit of acting as a screening mechanism for determining whether the Crown has sufficient evidence to commit the accused to trial. Furthermore, a preliminary inquiry protects a youth from an unnecessary or abusive trial if the courts determine that there is insufficient evidence. However, the advantages of testing the credibility of witnesses and better appreciate the Crown’s evidence does not provide a constitutional right to these proceedings. In 2002, the Parliament made reforms that made preliminary inquiry optional, allowed agreements to limit the scope of the inquiry and authorized a pre-hearing conference to promote a fair and efficient inquiry.
The courts determined that the reforms imply the adoption of a flexible and adaptable mechanism and not imposition of inflexible procedures. These reforms were found to have no effect on direct indictment. Where a direct indictment is preferred, the Attorney General has the discretion to allow or not. The courts will only intervene in cases where there is an abuse of power. In this case, the SCC concluded that there is no reason to not allow direct indictment because preliminary inquiry would not be any more beneficial.
The SCC concluded that preliminary inquiries are optional. Where the Crown prefers a direct indictment, the option of preliminary inquiry is not available. The SCC further stated that “[t]he direct indictment is not inconsistent with the YCJA, since Parliament has not conferred special status on the preliminary inquiry and the direct indictment remains useful in both criminal justice systems.” (para. 41) The courts added that even though direct indictment is available, the process will have to be adjusted according to the objectives and principles of YCJA to ensure consistency.
Issue 2: Can a young person be tried jointly with an adult?
The Court of Appeal decided that adults and youths cannot be tried together as it would go against Parliament’s intent to create a separate youth criminal justice system. The SCC concurred with the Court of Appeal decision and concluded that a young person cannot be tried jointly with an adult.
The Attorney General of Manitoba, as an intervener for the appellant, submitted that separate trial gives rise to issues of inconsistency of decisions because of multiplicity of proceedings, which can be avoided in a joint trial.
The common law rule on joining trials states that “two or more accused persons may be prosecuted on a single indictment or information, and accused persons charged on separate indictments or informations may be joined for trial, if they committed an offence together”. (para 48) Nothing in this common law rule of joinder disallows the joint trial of a youth and an adult.
As mentioned earlier, joint trials do not give rise to practical difficulties such as those faced in separate trials. However, the courts determined that a joint proceedings would be inconsistent with the principles of the YCJA such as the need for a separate justice system for the youth and adults.
This principle of the YCJA was established because youths were considered to be less morally blameworthy and more vulnerable than adults. Because of distinction, they were afforded more leeway and were treated differently. Judges for youths were asked to “favor rehabilitation, reintegration and the principle of fair and proportionate accountability that is consistent with the young person’s reduced level of maturity” as compared to judges for adults who were asked to emphasize punishment with little or no deference. This “special” treatment would not be able to continue if the trial for adults and youths were joined.
This principle is codified in the preamble of the Juvenile Delinquents Act, which stated that “youthful offenders should not be classed or dealt with as ordinary criminals” (para. 65) This distinction between treatment of youths and adults does not support holding joint trials for adult and youths.
The SCC concluded that the only way to try adults and youths together was to transfer the youth to an adult court. However, special circumstances were required for such a transfer to take place. The transfer of youths to adult court has now been abolished, and replaced by the possibility of youths being given an adult sentence. This abolition further solidifies the separation of youth justice system and adult courts, thus, prohibiting joint trials of adults and youths. The appeal was allowed.