R v S (S) [1990] 2 S.C.R. 254: Discrimination on the basis of province of residence -- Ontario failing to implement alternative measures programmes pursuant to s. 4 of the Young Offenders Act

Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law -- Young offenders -- Alternative measures -- Ontario choosing not to implement alternative measures programmes -- Whether s. 4 of Young Offenders Act imposes mandatory obligation on provinces to authorize such programmes -- Whether s. 4 intra vires Parliament -- Whether Ontario's failure to implement alternative measures programmes infringes a young offender's right to equality before the law under s. 15 of Canadian Charter of Rights and Freedoms -- Young Offenders Act, S.C. 1980-81-82-83, c. 110, ss. 3, 4.

Constitutional law -- Distribution of legislative powers -- Young Offenders Act -- Alternative measures -- Provinces permitted under s. 4 of Young Offenders Act to implement alternative measures programmes for young offenders -- Whether s. 4 intra vires Parliament -- Whether s. 4 encroaches upon provincial jurisdiction over child welfare -- Whether s. 4 is unconstitutional delegation of Parliament's authority over criminal law -- Constitution Act, 1867, ss. 91(27), 92(13) -- Young Offenders Act, S.C. 1980-81-82-83, c. 110, s. 4.

Constitutional law -- Charter of Rights -- Equality before the law -- Discrimination on the basis of province of residence -- Ontario failing to implement alternative measures programmes pursuant to s. 4 of the Young Offenders Act -- Whether Ontario's failure to implement such programmes infringes s. 15(1) of Canadian Charter of Rights and Freedoms -- Whether s. 4 of the Act infringes s. 15(1) of the Charter -- Impact of s. 15(1) of Charter on distinctions based upon province of residence in the application of a valid federal law.

The respondent, a young offender, was charged with possession of stolen goods. Before he entered a plea, his counsel brought a motion alleging that Ontario's failure to designate "alternative measures programmes" for the purposes of s. 4 of the Young Offenders Act resulted in a violation of the respondent's right to equality before the law, as guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 4 provides that "alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if" a number of conditions are met. The judge held that the Attorney General for Ontario was under a positive duty to authorize alternative measures programmes in the province by virtue of s. 3(1)(d) and (f) of the Act, and that the failure to implement such programmes, which were available to young offenders in all the other provinces, infringed the respondent's s. 15(1) right. He concluded that the infringement could not be justified under s. 1 of the Charter and dismissed the charge. Before the Court of Appeal, the appellant submitted that s. 4 of the Act was, in pith and substance, legislation in relation to child welfare, a matter falling within the sphere of provincial legislative competence under s. 92(13) of the Constitution Act, 1867. The court rejected this argument, upheld the trial judge's decision on the s. 15(1) issue and dismissed the appeal.

Held: The appeal should be allowed.

(1) Section 4 of the Young Offenders Act

Section 4(1) of the Act does not oblige the provinces to implement alternative measures programmes; rather, the legislation leaves the decision to the discretion of each province. The use of the word "may" in s. 4(1) and the absence of an obligation expressed in unequivocally mandatory language lead to that conclusion. The word "should" in s. 3(1)(d) of the Act, which states that "taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences", does not provide evidence of a mandatory duty. In the context of s. 3(1)(d), the word "should" denotes simply a "desire or request" and not a legal obligation. Section 4(1) thus gives to the provincial Attorneys General a power, but not a duty, to develop and implement alternative measures programmes.

(2) Section 91(27) of the Constitution Act, 1867

Section 4 of the Act is intra vires Parliament. The Act as a whole is valid criminal law. It addresses the commission of offences contrary to the Criminal Code and other federal criminal law statutes. While s. 4(1) differs from most criminal law remedial statutes in that the focus is on alternatives to more traditional criminal sanctions, the federal legislative power over criminal law is sufficiently flexible to recognize new developments in methods of dealing with offenders. Indeed, Parliament's jurisdiction under s. 91(27) of the Constitution Act, 1867 extends beyond the confines of creating offences and establishing penalties. The discretion to create an alternative measures programme pursuant to s. 4 represents a legitimate attempt to deter young offenders from continued criminal activity. There is a concern with preventing recidivism and with balancing the interests of the offending `young person' with those of society. Section 4, therefore, was a valid exercise of Parliament's legislative authority under s. 91(27).

Section 4 of the Act is not an unconstitutional delegation of Parliament's authority over criminal law and procedure. There is no limitation imposed by the Constitution Act, 1867 on Parliament's ability to leave the implementation of alternative measures programmes to the discretion of the provincial Attorneys General. The provinces have accepted a delegation of responsibility from Parliament in respect of prosecutions, including the prosecution of young offenders (s. 2 of the Criminal Code and s. 2(4) of the Act). The discretion to establish alternative measures programmes is clearly incidental to that legitimate delegation.

(3) Section 15 of the Charter

Since s. 4 of the Act does not impose a mandatory duty on the province to establish alternative measures programmes, the Attorney General for Ontario's decision not to authorize such programmes cannot contravene the respondent's equality rights under s. 15(1) of the Charter. His decision was made in accordance with the permissive terms of s. 4. That section, and not the discretionary determination made by the Attorney General pursuant to its provisions, constitutes "the law" for the purposes of a s. 15 challenge. Further, once it is determined that there is no duty on the Attorney General for Ontario to implement alternative measures programmes, the non-exercise of discretion cannot be constitutionally attacked simply because it creates differences among provinces. To find otherwise would potentially open to Charter scrutiny every jurisdictionally permissible exercise of power by a province, solely on the basis that it creates a distinction in how individuals are treated in different provinces. The constitutionality of s. 4, in terms of compliance with the Charter, was not in issue in this appeal.

The outcome of this appeal would be no different had s. 4 been challenged directly. As a result of the discretion granted by Parliament to the provincial Attorneys General, alternative measures programmes were available to young offenders in all the provinces of Canada except Ontario. The absence of this benefit in that province must be considered a legal disadvantage imposed upon young offenders resident in Ontario. However, while the respondent has established that he was not receiving equal treatment before and under the law or that the law has a differential impact on him in the protection or benefit accorded by law, he did not establish that s. 4 was discriminatory. In a federal system of government, the values underlying s. 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. Unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based upon province of residence. A case-by-case approach is appropriate to determine whether province-based distinctions which arise from the application of federal law contravene s. 15(1). Here, the legislation does not amount to a distinction which is based upon a "personal characteristic" for the purposes of s. 15(1) of the Charter. Differential application of federal law can be a legitimate means of forwarding the values of a federal system, especially in the context of the administration of the criminal law, where differential application is constitutionally fostered by ss. 91(27) and 92(14) of the Constitution Act, 1867. The area of criminal law and its application is one in which the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal-provincial cooperation. Further, although s. 4 of the Act is valid federal law, it is not wholly unconnected to child welfare -- a matter of provincial jurisdiction. Differential application of the law through federal-provincial cooperation is a legitimate means whereby governments can overcome the rigidity of the "watertight compartments" of the distribution of powers with respect to matters that are not easily categorized or dealt with by one level of government alone.

| Return to Topic Menu | Return to Main Menu |