• Featured in Robson Crim

Automatic right to appeal not unconstitutional for youth SCC finds - N Boggs

Automatic right to appeal not unconstitutional for youth despite such right existing for adults, SCC finds.

By Nikki Boggs


In R. v. C.P., the Supreme Court of Canada denied a youth’s automatic right to appeal a conviction finding that the legislation is constitutional. Although a decision such as this is not a-typical for the highest court in Canada, what is difficult to accept is the split amongst the Justices. There was a 5/3/1 divide on the constitutional question raised before them, leaving a somewhat unsettled feeling on the strength behind the majority(ish) decision.


After C.P. was found guilty of sexual assault, the conviction was appealed to the Ontario Court of Appeal. C.P. claimed the verdict was unreasonable based on the evidence. However, the appeal was lost. Nevertheless, one of the three Court of Appeal judges disagreed with their colleagues on a point of law.[1] If this were the case for an adult convicted of such a serious crime under the Criminal Code, an automatic right to appeal to Canada’s Supreme Court would be allowed, as there was a dissent on a question of law.[2] Unfortunately, this is not the case for a youth convicted of crimes under the Youth Criminal Justice Act [YCJA].[3]


Part of C.P.’s challenge to the Supreme Court was that section 37(10) of the YCJA violated the rights of a young offender under the Canadian Charter of Rights and Freedoms (Charter). Specifically, section 7 which protects an individual’s right to life, liberty and security, and section 15 which protects groups from discrimination, including on the basis of age.[4] Although C. P. also appealed the reasonableness of the lower court’s decision, the focus will be on the Charter for the purposes of this post.

Why is an automatic right to appeal such a contentious issue amongst the Justices? The concept that the right to appeal prevents wrongful convictions is a point all the Supreme Court Justices reference in their decisions.


The Decisions

Justices Brown, Moldaver, and Rowe, concurring with Chief Justice Wagner, found no Charter breaches of sections 7 or 15. In contrast, Justice Kasirer found s. 15 was breached; however, he found it was saved by s. 1, indicating it was a justifiable breach in a free and democratic society.


Chief Justice Wagner and Justice Kasirer consider the significance of the appellate process in avoiding wrongful convictions. They find the leave process for young offenders is sufficiently flexible to allow the court to review cases where a risk of wrongful conviction exists. Chief Justice Wagner notes that Justice Abella’s concern regarding the dangers of wrongful convictions is “entirely theoretical.” Additionally, it had not been shown that an actual problem with how the Court exercises discretion to grant leave, let alone one that warrants a finding of a constitutional violation.[5]


Chief Justice Wagner wrote, in his view, “denying young persons an automatic right to a hearing in this Court where a court of appeal judge has dissented on a question of law cannot in itself contravene their constitutional entitlement to adequate procedural protections in the youth criminal justice system.”[6] Furthermore, the majority explains there is no automatic statutory right to appeal to the Supreme Court in a summary conviction case for an adult. Therefore, even with dissent on a matter of law, this is not unconstitutional.[7]


Justice Abella, with Justices Martin and Karakatsanis agreeing, found that s. 15 had been breached. Additionally, Abella noted there is no good reason to deny a young person the right to an automatic appeal.


In her persuasive argument, Abella notes the question is not whether young people should be afforded all procedural rights given to adults, but rather whether s. 15(1) of the Charter is breached by not allowing a youth an automatic right to appeal, which is available to an adult. The answer to this question should factor in whether the deprivation of the right to appeal reinforces, perpetuates, or exacerbates a young person’s disadvantage within the criminal justice system.[8] Finding by the very nature of its effect on s. 691(2) of the Criminal Code,[9]s. 37(10) deprives young people of the right to have their matter reviewed at all when found guilty for the first time by a court of appeal. Justice Abella wrote, “This deprivation demonstrably perpetuates young people’s disadvantage within the criminal justice system. It is a holdover from an antiquated and paternalistic model of youth justice and deprives young people of a procedural safeguard designed to reduce the risk of miscarriages of justice.”[10]


Justice Côté found it was unnecessary to decide the constitutionality of s. 37(10) of the YCJA. Noting the question became moot after the Supreme Court granted leave to appeal. However, he reiterated the importance of dissent on a question of law. Writing, “More particularly, in matters involving young persons, I am of the view that such a dissent, especially a powerful one like that of Nordheimer J.A. in this case, clearly indicates that an appeal has some merit and that the conviction must be reviewed.”[11]


So why is this such a big issue? First, Canada’s legislative history and jurisprudence recognize that those under 18 have special legal status; this reflects their developmental stage and vulnerability and is further recognized in Canada’s international commitments, as seen in the Convention on the Rights of the Child.[12]

Secondly, young people are different. They think differently, act differently, and rightfully are treated differently in the justice system. In this case and K.J.M.,[13] Abella has reiterated the importance of affording youths the broadest Charter protections by the courts. The reasons we treat youth differently in criminal law justifies such a position. So why not allow an automatic right of appeal.


A wrongful conviction is the worst possible outcome, and any safeguard which can be afforded to avoid this should be. The fact that the YCJA emphasizes substantial procedural protections suggests that a method to prevent the worst possible outcome is crucial. It would be untenable to suggest that a young person is less worthy of protection from such a miscarriage of justice than an adult.[14] The majority disagrees. Time will tell the impact this has as the Supreme Court may still grant leave to appeal generously to youth matters. The question is, will they.


[1] R. v. C.P., 2021 SCC 19 [C.P.]. [2] Criminal Code, R.S.C. 1985, Chap. C-46 at s. 691.1(1) [Criminal Code]. [3] Youth Criminal Justice Act S.C. 2002, C. 1, in force April 1, 2003 s. 37(10) [4] Canadian Charter of Rights and Freedoms, enacted as Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s 7 and s 15. [5] C.P. supra note 1 at para 136 [6] Ibid at para 133. [7] Ibid at para 134. [8] Ibid at para 85 [9] Criminal Code supra note 2 at s. 691(2). [10] C.P. supra note 1 at para 90. [11] C.P. supra note 1 at para 221. [12] Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 40(2)(b)(iii) [13] R v. K.J.M. 2019 Supreme Court 55. [14] C.P. supra note 1 at para 91.

Check out the Robson Crim MLJ
  • Facebook Basic Black
  • Twitter Basic Black