• Robson Crim

Young Offenders and the Automatic Right to Appeal to the SCC - A.T.

Is section 37(10) of the Youth Criminal Justice Act (YCJA) constitutional? The following blog will discuss the decision of R. v. C.P. as it relates to the constitutionality of section 37(10) of the YCJA.


R. v. C.P. is an appeal brought forth by a young person from a guilty finding on the ground that the finding was unreasonable.[1] It is also an appeal that challenges the constitutionality of section 37(10) of the YCJA.[2] The facts of the case are as follows. When C.P. was 15 years old, he went to a party with a group of young people.[3] R.D., who was 14 years old at the time, was also at the party.[4] Both the accused and the complaint had been drinking, and sexual intercourse took place.[5] C.P. was later charged with sexually assaulting R.D.[6] C.P. was tried before Justice Crosbie, who was sitting as the youth justice court judge under the YCJA.[7]


In C.P.’s testimony, he stated that R.D. asked him to have sex and that he thought that she was capable of giving consent.[8] Following the sexual act, C.P. said that he stood up and heard R.D.’s friend, E.G., arrive at the party.[9] On cross-examination, C.P. stated that E.G. went directly to R.D. when she arrived.[10] While R.D. did not testify, E.G.’s oral evidence indicated that when she arrived at the party, R.D. was lying on the ground and extremely intoxicated.[11] R.D. had been vomiting and was incapable of communicating.[12] In the court’s analysis, Justice Crosbie sought to address the capacity of R.D. to consent, as well as whether or not C.P. had an honest but mistaken belief in R.D.’s consent.[13]


The trial judge rejected some aspects of C.P.’s evidence, but accepted that E.G. attended to R.D. upon arriving at the party.[14] “Based on C.P.’s evidence that he heard E.G. arrive immediately after ejaculation and the evidence from E.G. and C.P. that E.G. went directly to R.D. when she arrived, Justice Crosbie concluded that R.D. was in an incapacitated state at the time of intercourse.”[15] Having determined that R.D. was too intoxicated to consent during the time of the sexual activity, Justice Crosbie assessed whether C.P. had an honest but mistaken belief in the communicated consent.[16] Ultimately, because C.P. did not take steps to ascertain R.D.’s consent, the trial judge concluded that C.P. knew or was willfully blind to R.D.’s incapacity to consent.[17] As a result, the trial judge found C.P. guilty of sexual assault.[18]


C.P. appealed, arguing that the verdict was unreasonable.[19] The appeal was dismissed, as Justice Macpherson found that “the trial judge’s careful and comprehensive reasons led to an entirely reasonable verdict.”[20] However, in the dissent, Justice Nordheimer wrote that he would have allowed the appeal on the basis that the trial judge erred in relying on only some of C.P.’s evidence while rejecting the rest.[21]


C.P. filed a notice of appeal pursuant to s. 691 of the Criminal Code, but the Crown filed a motion to quash the appeal based on s. 37(10) of the YCJA.[22] Then, “C.P. filed a notice of constitutional question and argued that section 37(10) of the YCJA was contrary to section 7 and 15 of the Charter of Rights and Freedoms” (the Charter).[23] The Supreme Court of Canada adjourned the Crown’s motion to quash C.P.’s right to seek leave to appeal and granted leave to both the verdict and the constitutional issue.[24]


In regard to the finding of guilt, the Supreme Court determined that the trial judge was both rational and logical in her reasoning to conclude that the incapacitated condition in which E.G. discovered R.D. was the condition she was in during the sexual activity.[25] The Court agreed with the majority of the Court of Appeal in concluding that there was no basis for finding Justice Crosbie’s verdict to be unreasonable and ultimately dismissed the appeal.[26]


In addition to the finding of guilt, C.P. also challenged the constitutionality of section 37(10) of the YCJA,which denies young people the automatic right of appeal to the Supreme Court under s. 691 of the Criminal Code.[27] He argued that section 37(10) of the YCJA violates sections 15 and 7 of the Charter.[28]


Section 691(1)(a) of the Criminal Code gives all adults convicted of an indictable offence and whose conviction is affirmed by the court of appeal the right to appeal to the Supreme Court of Canada “on any question of law on which a judge of the court of appeal dissents.”[29] Further, Section 691(2) gives a person acquitted of an indictable offence the right to appeal to the Supreme Court of Canada “on any question of law which a judge of the court of appeal dissents, or on any question of law, if the Court of Appeal enters a verdict of guilty against the person.”[30]


In contrast to sections 691(1)(a) and 691(2) of the Criminal Code, section 37(10) of the YCJA denies young offenders the right to appeal to the Supreme Court of Canada “when there is a dissent in the court of appeal on a question of law or when the court of appeal enters a finding of guilt on a Crown appeal from an acquittal at trial.”[31] While these rights are available to all adults under the Criminal Code, they are not available to youth in the criminal justice system under the YCJA.[32]


Beginning the Court’s analysis, Justice Wagner provided a section 7(1) analysis. Section 7(1) of the Charter states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[33] In order to determine a violation of section 7(1), two elements must be established: “(1) that the impugned law or government action deprives the claimant of the right to life, liberty or security of the person; and (2) that the deprivation in question does not accord with the principles of fundamental justice.”[34]


The Court found that the first step of the section 7(1) test was already satisfied, since denying young people the right to appeal to the Court engages liberty interests.[35] Regarding the second step, the appellant asked the Court to recognize the principle of “enhanced procedural protections” as a right to which young people are entitled.[36] However, the Court found that section 37(10) of the YCJA provides young people with enhanced procedural protections in accordance with their vulnerability in the justice system and, thus, is consistent with section 7(1) of the Charter.[37]


Next, the Court provided a section 15(1) analysis. Section 15(1) of the Charter guarantees that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”[38] In order to identify a breach of section 15(1), the Court applied the test reaffirmed in Fraser v. Canada.[39] The test states that a law or a government action will contravene the section 15(1) guarantee “(1) if, on its face or in its impact, it creates a distinction based on enumerated or analogous grounds; and (2) if it imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.”[40]


Both parties acknowledged that step one of the section 15(1) test was satisfied, as there is a distinction between the appeal rights granted to adults and young people based on age.[41] Accordingly, the appeal centers around whether section 37(10) draws a discriminatory distinction.[42] The court decided that section 37(10) does not draw a discriminatory distinction, but responds to the interest of timeliness in the youth criminal justice system.[43] The Court decided that section 37(10) of the YCJA is in accordance with section 15 of the Charter and is thus constitutional.[44]


Overall, I was surprised that the majority decided section 37(10) of the YCJA is constitutional, as I believed Justice Abella’s dissent to be more persuasive. I would argue in a similar manner to Justice Abella, in that it is important to consider that the criminal justice system places youth, particularly racialized youth, in Canada at a disadvantage when determining the benefits of section 37(10).[45]


In answering step 2 of the section 15(1) test, Justice Abella explained that section 37(10) of the YCJA does deprive young people of significant safeguards against wrongful convictions for adults, effectively reinforcing young people’s inherent vulnerability in the criminal justice system.[46] She found that section 37(10) of the YCJA is a prima facie breach of section 15 of the Charter.[47] In coming to her finding, Justice Abella explained that section 37(10) places racialized youth at an amplified level of vulnerability due to direct and systematic racial discrimination within the criminal justice system.[48]


Similar to Justice Abella, I believe that section 37(10) places young, racialized people at a further disadvantage and significantly limits their access to justice. Since Indigenous youth in Canada are disproportionately represented in the youth criminal justice system, I believe that providing the additional safeguards allotted under section 691 of the Criminal Code to young people is necessary to address systematic issues within the justice system. For this reason alone, I would stress that section 37(10) should not be considered constitutional.




[1]R v CP, 2021 SCC 19 at para 1. [2]Ibid at para 1. [3]Ibid at para 6. [4]Ibid. [5]Ibid. [6]Ibid at para 7. [7]Ibid. [8]Ibid at para 13. [9]Ibid. [10]Ibid at para 14. [11]Ibid at paras 10-11. [12]Ibid. [13]Ibid. [14]Ibid at paras 15-16. [15]Ibid at para 17. [16]Ibid at para 19. [17]Ibid at paras 20-21. [18]Ibid at para 22. [19]Ibid at para 23. [20]Ibid. [21]Ibid at para 24. [22]Ibid at para 25. [23]Ibid at para 26. [24]Ibid at para 27. [25]Ibid at paras 32, 37. [26]Ibid at paras 38-39. [27]Ibid at para 40, 26. [28]Ibid at para 26. [29]Criminal Code, RSC 1985 c C-26, s 691(1)(a); CP, supra note 1 at para 53. [30]Criminal Code, RSC 1985 c C-26, s 691(2); CP, supra note 1 at para 53. [31]Youth Criminal Justice Act, SC 2002, c 1, 37(10); CP, supra note 1 at para 1. [32]CP, supra note 1 at para 1. [33]Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; CP, supra note 1 at para 124. [34]CP, supra note 1 at para 125. [35]Ibid at para 126. [36]Ibid at para 127. [37]Ibid at paras 138, 139. [38]Charter of Rights and Freedoms, supra note 33, s 15; CP, supra note 1 at para 140. [39]CP, supra note 1 at para 56. [40]Ibid at para 141. [41]Ibid at paras 58, 142. [42]Ibid at para 142. [43]Ibid at paras 149, 154. [44]Ibid at para 163. [45]Ibid at paras 88-89. [46]Ibid at paras 85-86, 90, 99. [47]Ibid at para 99. [48]Ibid at para 88.

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