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Supreme Court of Canada

Appeal—Application for leave to appeal—Time. for making application—Interpretation—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 37(3)—Official Languages Act, R.S.C. 1970, c. O-2, s. 8.

On July 22, 1977 respondent, who was then 17 years 11 months old (“the accused”), appeared before Judge Thériault of the Sherbrooke Social Welfare Court on a charge of murder, having been found by a coroner criminally responsible for the death of his brother. Counsel for the appellant (“the prosecution”), before the accused made his plea, submitted a motion pursuant to s. 9 of the Juvenile Delinquents Act for him to be proceeded against “by indictment in the ordinary courts in accordance with the provisions of the Criminal Code in that behalf”. On September 30, 1977 the judge dismissed the motion.

On October 7, 1977 the prosecution, after service on the interested parties, filed at the office of the Superior Court in Sherbrooke a notice of appeal from this decision and an application for leave to appeal. The application included a notice that it would be made (“présentée”) on October 12. It was in fact made on that date, that is twelve days after the date of the judgment which was the subject of the application for leave. Counsel for the accused objected that the application was not “presented” within ten days in accordance with s. 37(3) of the Juvenile Delinquents Act, and that accordingly the judge of the Superior Court lacked jurisdiction to hear it. Carrier Fortin J. of the Superior Court held that although the word “présentée” provided some basis for the arguments of the accused, on the other hand, interpretation of the English phrase “shall be made” has evolved along less strict lines. Citing R. v. K. (1977), 36 C.C.C. (2d) 446, s. 8 of the Official Languages Act and s. 11 of the Interpretation Act, he concluded that the application “was made within the time limit set by the Act” and dismissed the objection. In support of his conclusion, the judge went on to say that in light of the circumstances existing in the Sherbrooke district (where the criminal division only sits on Mondays) a strict

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interpretation would give priority to the proceeding on the substantive law and, in certain cases, might lead to negating the right of appeal. Having dismissed the preliminary objection, the judge considered the case on its merits and reversed the trial judgment.

The accused appealed from the decision of the Superior Court to the Court of Appeal. The latter unanimously held that it considered to be peremptory the argument that s. 37(3) of the Juvenile Delinquents Act required “as a necessary condition to the judge having jurisdiction to hear an application for leave to appeal that such an application be made (“présentée”) within ten days”. Monet J., who wrote the reasons of the Court of Appeal, further stated that: “We are very far here from provisions conferring a discretionary power on courts or the judges. The wording of the independent and peremptory provisions of s. 37(3) is clear. This is how it was interpreted in R. v. Martin (1952), 103 C.C.C. 240 and R. v. Hipke, [1968] 1 C.C.C. 111, and at least by implication in R. v. P., [1964] 2 C.C.C. 27 and R. v. Corkum, (1971), 2 C.C.C. (2d) 497”. The appeal was allowed on this question of law, and the prosecution appealed to this Court.

Held: The appeal should be allowed.

APPEAL from a decision of the Court of Appeal of Quebec[1], reversing a judgment of the Superior Court[2] which had given leave for and allowed an appeal from a judgment of the Social Welfare Court. Appeal allowed and case referred back to the Court of Appeal to be decided on the merits.

Michel Ayotte, for the appellant.

Hubert Couture and Gilles Ouellet, for the respondent.

English version of the judgment of the Court delivered orally by

MARTLAND J.—We will not need to hear you in reply, Mr. Ayotte.

The Court of Appeal set aside the judgment of the Superior Court for the sole reason that the application for leave to appeal made pursuant to s. 37 of the Juvenile Delinquents Act had not been “presented” to the judge within the time limit of ten days therein specified but had only been filed

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with the Clerk of the Court and served upon the respondent within said time limit.

This interpretation in our opinion does not conform with the text when considered in the two official languages and we are in agreement with the reasons and the conclusion of the judge of the Superior Court on this point.

The judgment of the Court of Appeal of the Province of Quebec is set aside and the case is referred back to the Court of Appeal for its decision on the merits of the appeal which has been brought before it.

Appeal allowed.

Solicitor for the appellant: Michel Ayotte, Sherbrooke, Quebec.

Solicitors for the respondent: Gilles Ouellet, Thetford Mines, Quebec and Hubert Couture, StJoseph de Beauce, Quebec.


[1] C.A.M. 500-10-000134-781, January 22, 1979.

[2] [1978] C.S. 456.

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