Criminal Law: Young Accuseds; Bail

R. v. T.J.M., 2021 SCC 6 (38944) 

“M, a young person, was charged with second degree murder, an offence listed in s. 469  of the Criminal Code . The Crown gave notice of its intention to seek an adult sentence, entitling M to elect the mode of trial. He elected trial by a superior court judge sitting without a jury, requested a preliminary inquiry, and sought judicial interim release before a justice of the Court of Queen’s Bench of Alberta. The application judge held that he had no jurisdiction to grant judicial interim release to a young person, finding that the Provincial Court of Alberta, which is the designated youth court for the province, had exclusive jurisdiction. M appeals to the Court from the application judge’s decision.”

The SCC (9:0) allowed the appeal.

Justice Brown wrote as follows (at paras. 1-3, 20, 25, 27):

“The narrow issue before us is this: does a justice of a superior court of criminal jurisdiction have jurisdiction to hear and adjudicate an application for judicial interim release of a young person charged with an offence listed in s. 469  of the Criminal Code, R.S.C. 1985, c. C‑46 ? And, if so, (1) under what circumstances? and (2) is such jurisdiction exclusive, or is it held concurrently with judges of the designated youth justice court for the province?

This appeal is brought by T.J.M., a young person, who was charged with an offence listed in s. 469  of the Criminal Code . The Crown gave notice of its intention to seek an adult sentence for second degree murder, entitling T.J.M. to elect the mode of trial. He elected trial by a superior court judge sitting without a jury, requested a preliminary inquiry, and sought judicial interim release before the application judge, who is a justice of the Court of Queen’s Bench of Alberta. The application judge held that he had no jurisdiction to grant judicial interim release to a young person, finding that Parliament had vested exclusive jurisdiction in the designated youth court for the province ⸺ in this case, the Provincial Court of Alberta (Provincial Court Act, R.S.A. 2000, c. P‑31, s. 11).

Upon examination of the pertinent provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), and of the Criminal Code , and for the reasons that follow, I respectfully draw the opposite conclusion: a superior court justice has jurisdiction to hear and decide an application for judicial interim release brought by a young person charged with an offence listed in s. 469  of the Criminal Code . Further, that jurisdiction is held concurrently with the judges of the designated youth justice court for the province. I would therefore allow the appeal, but would make no further order. Both the Crown and the appellant, T.J.M., agree that this appeal is moot, the Crown having entered a stay of proceedings, but say that it is open to this Court to exercise its discretion to hear the merits of the appeal in accordance with Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pp. 358‑63. I agree.

As a final point, I observe that there is a subtle, but important, difference between the text of s. 13(2) and of s. 13(3) that supports the correctness of interpreting “the proceeding” more broadly. Section 13(2) deems a superior court to be a youth justice court and deems a superior court justice to be a youth justice court judge for the purpose of the proceeding. But while s. 13(3) also deems a superior court to be a youth justice court for the purpose of the proceeding, it deems a superior court judge to be a youth justice court judge without qualification. That is to say, s. 13(3) does not, on its face, confine the jurisdiction of a superior court judge who is deemed to be a youth justice court judge to the purpose of the proceeding. Interpreting “the proceeding” to mean only the trial proper would, therefore, create an anomalous situation whereby a superior court justice who is deemed by s. 13(3) to be a youth justice court judge would have jurisdiction to hear T.J.M.’s application, while a superior court judge deemed by s. 13(2) to be a youth justice court judge would not. Yet, the only distinction between the two is that at trial the former sits with a jury, and the latter sits alone. Parliament could not have intended such a result.

It follows from the foregoing that while, as I have explained, a superior court justice deemed under s. 13(2) or s. 13(3) of the YCJA to be a youth justice court judge has jurisdiction to hear and adjudicate an application for judicial interim release of a young person charged with an offence listed in s. 469  of the Criminal Code  and who has elected to be tried in the superior court, so does a judge of a court that has been designated by the province as a youth justice court. In other words, the jurisdiction is concurrent, and not exclusive to either of them.

A final word of caution. This appeal concerned only the question of jurisdiction over judicial interim release before the start of trial. Of course, once the trial has started, it will typically be the case that a judicial interim release application would be brought before the trial judge. Whether it must be brought before the trial judge, however ⸺ for example, where the trial has adjourned ⸺ is a question that I need not decide here, and I am content to leave it open for another day when it is properly before the Court.”

Full Decision