THE ADVOCATE 135
VOL. 78 PART 1 JANUARY 2020
I did not think that there would be much trouble in asking the Court of
Appeal to reduce the boy’s sentence under the circumstances, but I wanted
to quash the conviction if I could.
It seemed to me bizarre to take a 16-year-old out of a well-organized
Indian village like Bella Bella and transport him to the provincial prison system.
The lay magistrate said that (a) he wanted to teach the parents and
Indian band leadership a lesson and (b) teach the boy a trade. Father Fagan,
chaplain to the forestry camps, felt that he should be extracted from the system
at the earliest opportunity. Mind you it was fashionable to talk about
teaching prisoners a trade in the 1960s.
As I drove back to Vancouver in my 1950 green Plymouth four-door
sedan, I fretted about the problem. He had pleaded guilty. It is rather hard
to persuade the Court of Appeal to help you when your client has already
pleaded guilty to the offence.
I remember watching Mr. Justice Angelo Branca sitting on the Court of
Appeal when a young Indian man came up on a sentence appeal. He had
stolen a pair of cowboy boots off a sleeping man’s feet in the Cariboo. I suppose
that in that part of British Columbia it was equivalent to stealing a
man’s horse. They made him stand up, but he said absolutely nothing; in
reply to questions, he remained mute. He was undefended.
Justice Branca then said dramatically “His silence speaks more elegantly
than words”. He then persuaded his two fellow justices to reduce the man’s
sentence. I have always known that it does not pay to say too much, either
at trial or in the Court of Appeal.
While driving back to Vancouver from the forest camp, I still fretted
about the current case. Where was the defence in law? I then remembered
a lecture given by Mr. Angelo Branca, as he then was, on criminal law procedure.
He reminded his students that criminal courts have no jurisdiction
to try a juvenile unless there has been a formal order to elevate the juvenile
from juvenile court to adult court and a formal order to that effect is filed in
the adult court. There must also be on the face of the record clear reasons
for such elevation based upon the wording of what was then s. 9 of the Juvenile
Delinquent Act. That was the technical defence! The real defence was
that a boy of 16 should not have been in the prison system for a sneak theft
when he had no previous criminal record or evidence of delinquency, and
he should not have been transported 300 miles from his home at taxpayers’
Time was short. I did my legal research and felt sufficiently secure in my
technical argument that I did not need to try and rehash the facts, even if
the Court of Appeal would permit me to do so.