R. v. C.P.

R. v. C.P.
Collection
Supreme Court Judgments
Date
2021-05-07
Neutral citation
2021 SCC 19
Report
[2021] 1 SCR 679
Case number
38546
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679
Appeal Heard: November 10, 2020 Judgment Rendered: May 7, 2021 Docket: 38546
Between: C.P. Appellant
and
Her Majesty The Queen Respondent
- and -
Attorney General of Canada, Criminal Lawyers’ Association (Ontario), Justice for Children and Youth and British Columbia Civil Liberties Association Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 120)
Abella J. (Karakatsanis and Martin JJ. concurring)
Concurring Reasons: (paras. 121 to 164)
Wagner C.J. (Moldaver, Brown and Rowe JJ. concurring)
Concurring Reasons: (paras. 165 to 216)
Kasirer J.
Dissenting Reasons: (paras. 217 to 304)
Côté J.
C.P. Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Criminal Lawyers’ Association (Ontario),
Justice for Children and Youth and
British Columbia Civil Liberties Association Interveners
Indexed as: R. v. C.P.
2021 SCC 19
File No.: 38546.
2020: November 10; 2021: May 7.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Criminal law — Appeals — Unreasonable verdict — Accused young person convicted of sexual assault by judge sitting alone — Accused appealing conviction on basis that verdict was unreasonable — Conviction affirmed by majority of Court of Appeal — Whether verdict unreasonable.
Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Right to equality — Young persons — Appeals to Supreme Court of Canada — Accused young person convicted of sexual assault — Majority of Court of Appeal affirming conviction but one judge dissenting — Young person filing appeal as of right to Supreme Court under s. 691(1) (a) of Criminal Code — Section 37(10) of Youth Criminal Justice Act stating that no appeal lies to Supreme Court unless young person is granted leave to appeal — Whether s. 37(10) of Youth Criminal Justice Act infringes young person’s right to equality and right not to be deprived of liberty except in accordance with principles of fundamental justice — Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15 — Youth Criminal Justice Act, S.C. 2002, c. 1, s. 37(10) .
When P was 15, he went to a party at a beach to celebrate a friend’s birthday with a group of young people. The complainant, D, was 14. They had both been drinking. Sexual intercourse took place. P was charged with sexually assaulting D. The Crown’s position at trial was that P had sex with D when he knew she was too drunk to be capable of consenting. P’s defence was that D consented to having sex with him before there were any signs that she was too drunk to consent. One of D’s friends, G, came to the party later than the rest of the group. She saw D lying on the ground and went to her right away. D had been vomiting, could not get up, and was incapable of communicating. There was no dispute that D was intoxicated to the point of incapacity when G found her. The question was how soon after the sexual activity took place did G see D. The trial judge rejected P’s evidence in chief that he spoke with G before G attended to D, but accepted P’s evidence that he heard G arrive at the party right after he finished having sex with D, and his admission in cross-examination that G went directly to D when she arrived, which aligned with G’s evidence. The trial judge concluded that D was in an incapacitated state at the time of intercourse and therefore incapable of consenting at that time. The trial judge was satisfied beyond a reasonable doubt that P knew or was reckless or wilfully blind to the fact that D was so intoxicated that she could not have consented to sexual activity. She found P guilty of sexual assault.
P appealed to the Court of Appeal, arguing that the verdict was unreasonable. The majority dismissed the appeal, but one judge would have allowed the appeal, set aside the conviction and entered an acquittal. P filed a notice of appeal as of right to the Court pursuant to s. 691(1) (a) of the Criminal Code . The Crown filed a motion to quash the appeal, based on the fact that under s. 37(10) of the Youth Criminal Justice Act (“YCJA ”), young persons have no automatic right of appeal to the Court. While s. 37(1) of the YCJA incorporates the appeal routes for indictable offences under the Criminal Code into the youth justice system, s. 37(10) denies young persons the automatic rights to appeal to the Court available to adults, including those set out in s. 691(1) (a) of the Criminal Code . Leave is therefore required even when the court of appeal affirms a conviction for an indictable offence and there is a dissent on a question of law at the court of appeal. P argued that s. 37(10) of the YCJA is contrary to ss. 7 and 15 of the Charter . The Court adjourned the Crown’s motion to quash without prejudice to P’s right to seek leave to appeal, including on the question of the constitutionality of s. 37(10) of the YCJA . The Court granted leave to appeal.
Held (Côté J. dissenting): The appeal should be dismissed.
(1) Unreasonableness of the Verdict
Per Abella, Karakatsanis and Martin JJ.: The verdict was reasonable. The trial judge’s reasons for finding P guilty of sexual assault are model trial reasons: rigorous and thoughtfully explained. There is no basis for finding the verdict to be unreasonable.
A verdict reached by a judge may be unreasonable, even if supported by the evidence, if it is reached illogically or irrationally. This may occur if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge. The inquiry is narrowly targeted at fundamental flaws in the reasoning process which means that the verdict was not reached judicially or in accordance with the rule of law.
Here, the reasoning that led the trial judge to conclude that G discovered D in her incapacitated state right after the intercourse was both logical and rational. The trial judge rejected P’s evidence that he spoke with G before she attended to D because it was internally inconsistent with his own evidence on cross-examination, externally contradicted by the evidence of G, and because P was intoxicated, particularly in comparison to G, whose memory was not suspect. The trial judge provided sound reasons for what she believed and what she did not, explaining why she found that some of P’s evidence did not suffer from the same flaws that led her to reject other aspects of his testimony. The verdict was clearly one that a properly instructed judge acting judicially, could reasonably have rendered. The trial judge was well aware that the time of intercourse could not be ascertained in absolute terms, and that what mattered was the relative time of G’s arrival in relation to the sexual activity. The combination of G’s evidence and P’s evidence satisfied the trial judge that G went to D as soon as she arrived, and that, on P’s own evidence, G’s arrival at the party was right after intercourse had taken place. This entitled the trial judge logically to conclude that the totally incapacitated condition G found D in when she arrived was the condition she was in during the sexual activity.
Per Wagner C.J. and Moldaver, Brown and Rowe JJ.: There is agreement with Abella J. that the verdict was reasonable.
Per Kasirer J.: There is agreement with Abella J. that the verdict was reasonable.
Per Côté J. (dissenting): P’s conviction for sexual assault is unreasonable. First, the trial judge’s finding of D’s incapacity to consent to sexual intercourse was reached illogically. The trial judge was well aware that the timing of the intercourse was the central issue of the case. The combination of the evidence of P and D’s friend, G, was crucial to the trial judge’s finding of incapacity. G’s evidence alone was insufficient to support a finding of incapacity at the time of the intercourse and additional evidence was necessary to narrow the gap between the time of the intercourse and the time when G went to see D. It was only P’s evidence that could address the timing of the intercourse in relation to G’s arrival and her observation of D. The trial judge bridged that gap by rejecting the evidence that P spoke with G before she tended to D for three reasons: (1) P contradicted himself; (2) G was more reliable and credible; and (3) P’s evidence was unreliable because he was intoxicated at this point in the evening. It was open to the trial judge to reject certain portions of P’s evidence due to internal and external contradictions provided that the trial judge had a logical and reasonable basis for doing so. However, here, the source of the trial judge’s illogical reasoning stems from her third reason. It was illogical for the trial judge to find, on the one hand, that P could not testify reliably about what had happened after the intercourse because he had been too intoxicated at that point in the night, while also finding, on the other hand, that P could nevertheless testify reliably about the fact that he had heard when G had arrived at the party. These findings are irreconcilable. If P was too intoxicated at that time to be subsequently able to testify reliably about the conversation, his testimony about having heard G arriving was also necessarily unreliable. These two events would have occurred at the same point in time, that is, at a time when, in the trial judge’s view, P had been too drunk for his subsequent testimony to be reliable. The trial judge found that P had been too drunk at that time to subsequently remember some things yet not too drunk to subsequently remember other things that would have happened at the same time. The trial judge gave no reason to explain this inconsistency on a crucial piece of evidence. Without P’s evidence that he heard G arriving after the intercourse, it was impossible to convict P of sexual assault. This logical flaw would suffice to order a new trial.
Second, the evidence available to the trial judge is not capable of supporting the finding of D’s incapacity to consent and a verdict of acquittal should be entered instead of ordering a new trial. The trial judge should have accorded far less weight to P’s evidence about the timing of the intercourse in relation to G’s arrival than she did in her reasons. The trial judge attached significant weight to P’s evidence that he had heard about G arriving shortly after the intercourse. It constituted the centerpiece of her reasons. This was, however, incompatible with her repeated findings to the effect that P had been quite intoxicated and was thus an unreliable witness. Once the reliability of P’s testimony is approached coherently with the trial judge’s repeated findings to the effect that he had been quite intoxicated and that his memory of the crucial events was unreliable, it is simply impossible to pinpoint, even roughly, the time when the intercourse occurred on the basis of the rest of the circumstantial evidence. A reconstruction of the timeline indicates that the intercourse may have occurred at any time during a window of roughly two hours. As a result, the evidence did not permit the time of the intercourse to be determined beyond a reasonable doubt. The trial judge could not reasonably conclude that D’s being incapable of consenting at the time of the intercourse was the only reasonable finding available on the evidence. Without the finding of incapacity, there was no case against P, because neither D nor any other witness had testified that D had not consented as a matter of fact. Consequently, the evidence is not capable of supporting the verdict that P is guilty of sexual assault, and an acquittal should be entered in its place.
(2) Constitutionality of Section 37(10) of the Youth Criminal Justice Act
Per Wagner C.J. and Moldaver, Brown and Rowe JJ.: Section 37(10) of the YCJA is consistent with ss. 7 and 15 of the Charter .
Two elements must be established in order to show a violation of s. 7 of the Charter : (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. Here, the requirements of the first step are satisfied, as a limit on young persons’ right to appeal to the Court engages residual liberty interests under s. 7. The outcome hinges on whether this deprivation is in accordance with the proposed new principle of fundamental justice that young persons are entitled to enhanced procedural protections in the criminal justice system. For a principle of justice to be “fundamental” within the meaning of s. 7: (i) it must be a legal principle; (ii) there must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and (iii) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
If this proposed new principle entails a comparative assessment of procedural rights of young persons and those of adults, then it yields neither a meaningful standard nor one upon which any consensus is conceivable. If it is construed as a freestanding principle, the s. 7 argument depends on whether s. 37(10) deprives young persons of a liberty interest without adequate procedural safeguards. Denying young persons an automatic right to a hearing in the Court where a court of appeal affirms a conviction for an indictable offence, but a judge of that court dissents on a question of law, cannot in itself contravene their constitutional entitlement to adequate procedural protection in the youth criminal justice system because there is no constitutional right to an appeal, let alone an automatic one at the apex of the judicial system. The principles of fundamental justice could not require an automatic hearing in the Court in such narrow circumstances as this would have the effect of constitutionalizing the application of s. 691(1) (a) of the Criminal Code to young persons, thereby implying that Parliament would be under a positive obligation to enact such a provision if one did not already exist. Automatic appeals for young persons are not a foundational requirement for the dispensation of justice. The absence of an automatic appeal does not increase the likelihood of wrongful convictions or other miscarriages of justice. The dearth of evidence that there is an actual problem with the way the Court has been exercising its discretion to grant leave belies the conclusion that s. 37(10) denies young persons adequate procedural safeguards. The modern youth justice system provides young persons with enhanced procedural protections commensurate with their unique circumstances and inherent vulnerability in the justice system. Accordingly, s. 37(10) of the YCJA is consistent with s. 7 of the Charter .
With respect to s. 15 of the Charter , the question is whether s. 37(10) of the YCJA deprives young persons of a procedural benefit that is available to adults under s. 691(1) (a) of the Criminal Code . A law or a government action will contravene the guarantee in s. 15: (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 a disadvantage. Section 37(10) of the YCJA creates a distinction based on age. The issue is whether it draws a discriminatory distinction by denying a benefit in a manner that reinforces, perpetuates or exacerbates young persons’ disadvantage. Understanding the distinct legislative scheme underlying s. 37(10) is crucial to the assessment of the actual impact of the provision on young persons.
The YCJA is designed to balance multiple interests including promptness and enhanced procedural protection, which are both core tenets of the youth criminal justice system. While young persons are uniquely vulnerable to miscarriages of justice, they are also uniquely vulnerable to harms resulting from protracted legal proceedings. A contextual understanding of the place of young persons in the procedural scheme of the YCJA must therefore account for both of these interests: a structurally prolonged appellate review can be more prejudicial to them. Section 37(10) does not perpetuate any disadvantage but, rather, appropriately balances the overlapping interests of young persons in prompt resolution and in appellate review. Above all, the leave requirement in s. 37(10) applies equally to the Crown and confers the corollary procedural benefit for young persons of being protected from an as of right appeal by the Crown pursuant to s. 693(1) (a) of the Criminal Code , a safeguard that is not afforded to adults.
The benefits of the provision must also be considered in conjunction with the absence of evidence that the Court’s leave process perpetuates a tangible disadvantage for young persons. The final bulwark against a miscarriage of justice is not a right to an automatic appeal, but the right of appeal itself. The vulnerability of young persons in the criminal justice system is not exacerbated simply because a provision of the YCJA fails to offer the maximum imaginable procedural benefit available to adults. In choosing to deny young persons an automatic right to appeal to the Court, Parliament did not discriminate against them, but responded to the reality of their lives by balancing the benefits of appellate review against the harms inherent in that process, in keeping with the dictum that there should not be unnecessary delay in the final disposition of criminal proceedings.
Per Kasirer J.: Section 37(10) of the YCJA is constitutionally valid. There is agreement with the Chief Justice that s. 37(10) is consistent with s. 7 of the Charter . There is also agreement with Abella J. that s. 37(10) constitutes a limit on s. 15(1) Charter rights; however, the limit to the equality right of young persons prescribed by s. 37(10) , when read in conjunction with s. 691(1) (a) of the Criminal Code , is justified in a free and democratic society under s. 1 of the Charter .
The burden is on the party seeking to rely on the impugned provision to establish that the limit on s. 15(1) is justified under s. 1 of the Charter . That party must demonstrate a pressing and substantial objective for the limit and that the means chosen to advance this objective do not disproportionately limit the s. 15(1) right. Proportionality demands that the limit be rationally connected to the stated pressing and substantial objective, that it be minimally impairing, and that its benefits outweigh its negative effects. The relationship between s. 15(1) and s. 1 requires careful attention. The focus of the inquiry must be on the seriousness of the discrimination and its relationship with the underlying values in a free and democratic society. A limit on s. 15(1) rights based on a person’s age has been viewed in some contexts as less serious and thus more easily justified. The analysis must be attentive to the context of the legislative objectives at issue. The pressing and substantial objective must be scrutinized so that state conduct resulting in the most odious forms of discrimination is not excused. This does not preclude limits that promote other values and principles.
As the constitutional question before the Court is particularized to the s. 691(1)(a) appeal route, it is this narrow instance of prima facie age discrimination that the Crown must justify. Section 37(10) of the YCJA has a pressing and substantial objective of promoting timeliness, early rehabilitation and reintegration in youth criminal matters, which the youth criminal justice system is designed, in part, to promote. Providing for appeals by leave instead of by right favours early resolution of matters involving youth. Timeliness reinforces the connection between the actions and consequences, reduces psychological impact, avoids a sense of potential unfairness, and advances societal interest in seeing young persons rehabilitated and reintegrated into society as swiftly as possible.
Section 37(10) is rationally connected to the pressing and substantial objective of timeliness, early rehabilitation, and reintegration. By requiring leave in those circumstances where there would otherwise be appeals as of right, s. 37(10) serves the goal of timeliness as the leave requirement may be a disincentive to bringing an unmeritorious appeal. Moreover, leave applications are generally decided more quickly than appeals. While the appeal process may be longer on average for those young persons who are successful in their leave applications to the Court as compared to a scenario in which there was no leave requirement, this does not preclude a finding that s. 37(10) is rationally connected to the legislative objective, since it is designed to bring a rapid conclusion to those cases where there is no reason to hear the appeal which raises a question of law that is without merit.
Turning to minimal impairment, Parliament’s imposition of a leave requirement in s. 37(10) does not go too far to achieve its objective of timeliness, early rehabilitation, and reintegration in youth criminal matters. While imposing a leave requirement on an otherwise meritorious appeal could raise a potential for miscarriage of justice that is not present in the case of adults who have an appeal as of right, the Court exercises its leave power in a manner that allows it to hear appeals in cases raising a potential miscarriage of justice. In criminal matters, the concept of public importance, the most important criterion for determining the success or failure of a leave application, is best understood as being engaged not only by jurisprudentially important legal issues that qualify as issues of public importance on that basis, but also by those that raise serious questions of law about the safety of the verdict in criminal matters. The issue of a wrongful conviction transcends the particular defendant and engages the integrity of our system of justice as a whole. The Court has the institutional capacity to identify possible miscarriages of justice through the leave to appeal process. Not only does it have the ability to exercise its power to grant leave mindful of Charter rights and the fundamental principles of justice, but it has a responsibility to do so. It follows that the leave process provides an effective safeguard for young persons in those cases where a similarly situated adult would have an appeal as of right under s. 691(1)(a).
Finally, the benefit in s. 37(10) of the timely conclusion of youth criminal matters outweighs the negative effect of the discriminatory impact of imposing a leave requirement for young persons in circumstances where adults can appeal as of right. In enacting s. 37(10) of the YCJA , Parliament did not choose to take away a young person’s access to the Court, it only added a leave requirement. When deciding the leave application, the Court will have the benefit of the reasons offered in the dissent below on the question of law, the argument in support of leave and the required supporting materials. Most importantly, the criteria for granting leave as relevant to youth criminal matters means that when the liberty of the young person is at stake, a prima facie meritorious appeal on the question of law would meet the public importance standard even if the matter does not transcend in jurisprudential importance the interest of the parties. Any enhanced risk of miscarriage of justice as a result of having to seek leave to appeal in these circumstances is minimized by the leave to appeal process. Imposing a leave requirement in service of the broader goals of youth criminal justice is consistent with the place of equality in a free and democratic society.
Per Abella, Karakatsanis and Martin JJ.: The limitation in s. 37(10) of the YCJA constitutes a prima facie breach of s. 15 of the Charter that cannot be justified under s. 1 of the Charter , making s. 37(10) unconstitutional.
To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law, on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Substantive equality requires attention to the full context of the claimant group’s situation and to the impact of the limitation on that situation. But context must not be confused with justification. Neither stage of the s. 15(1) test permits the objectives of the legislation to infuse the analysis into whether the limitation itself is a distinction that has the effect of perpetuating, reinforcing, or exacerbating the disadvantage of the claimant group. Only at the s. 1 justificatory stage are the statutory objectives relevant, and then only to the extent that they justify the limitation.
Here, the parties acknowledge that the first step of the s. 15(1) test is satisfied because there is a distinction between the appeal rights to the Court available to adults and young people on the basis of age. The second step, determining whether depriving young people of the automatic rights to appeal that adults have reinforces, perpetuates or exacerbates their disadvantage, requires consideration of what benefit an automatic right to appeal to the Court provides.
The principal object of an appeal as of right to the Court in a criminal case is to rectify legal errors in the trial of serious offences. A dissent on a question of law in a provincial court of appeal, including an unreasonable conviction, or one that cannot be supported by the evidence, automatically triggers a right of appeal to the Court in order to guard against miscarriages of justice. Robust procedural protections against wrongful convictions are crucial. The history of wrongful convictions such as those of Steven Truscott, David Milgaard and Donald Marshall Jr. are evidence of the unconscionable consequences of their absence.
This is an access to justice issue of fundamental importance to young people seeking to prevent wrongful convictions. The automatic appeal right available to adults under s. 691(1) (a) of the Criminal Code is premised on the understanding that a dissent on a question of law at the court of appeal raises a legitimate question as to the validity of the conviction, necessitating final review by the Court regardless of whether the case would otherwise meet the Court’s standard for leave to appeal. Likewise, s. 691(2)(b) is an expression of the basic concept that it is essential to a fair criminal justice system that anyone convicted of an indictable offence is entitled to at least one appeal from the initial finding of guilt, whether that finding is first entered at trial or on appeal. These automatic appeal rights provide an automatic additional layer of judicial scrutiny and they offer a significant procedural safeguard.
Section 37(10) of the YCJA deprives young people of a significant procedural safeguard against wrongful convictions for adults, despite evidence that young people are more vulnerable to them than adults. Moreover, by virtue of its effect on s. 691(2) of the Criminal Code , s. 37(10) deprives young people who are found guilty for the first time by a court of appeal of the right to have their case reviewed at all. 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. It would be untenable to suggest that young persons are less worthy of protection from miscarriages of justice than adults. The very philosophy and purpose of the YCJA , with its emphasis on providing substantial procedural protections for young persons, argues for procedures to prevent the ultimate disadvantage, namely, a wrongful conviction. While the Court strives to detect any sign that a miscarriage of justice may have occurred at the leave to appeal stage, an application for leave to appeal does not involve a screening for error in the level of depth that characterizes an appeal on the merits. The objective of timeliness is not a justification for denying access to a procedural protection that has historically served to guard against miscarriages of justice. There is no justification for a speedy resolution if the resolution is based on an unfair trial. There is therefore a prima facie breach of s. 15.
Turning to s. 1 of the Charter , even accepting that granting the Court the discretion to decide when criminal cases involving young persons merit a second level of appellate review is a pressing and substantial objective for s. 37(10)’s deprivation of an automatic right of appeal, it fails at the final stage of the proportionality analysis because any benefits of the denial are far outweighed by the deleterious effects. Promoting timeliness, early rehabilitation and reintegration are salutary goals, but s. 37(10)’s actual contribution to achieving them is minimal. The most that will be saved is a few months in those cases where leave is denied. On the other hand, requiring a young accused person to go through the leave to appeal process before they are entitled to a hearing has the effect of prolonging the process, since if leave is granted, the appeal will not be heard for several more months. This means that s. 37(10) exposes young people to a greater risk of miscarriages of justice in aid of the possibility of saving a few months of time. Denying young people the automatic full scrutiny of an appeal and accepting a less rigorous appeal process makes justice the servant of expedition for young people, rather than the other way around. The objectives of timeliness, rehabilitation and reintegration are meaningless if wrongful findings of guilt are tolerated in the service of speed. The YCJA is not intended to promote swift injustice. The profoundly harmful impact of fast-tracking rehabilitation and reintegration over the right to have the basic procedural appeal protection from miscarriages of justice as adults far outweighs the benefit of the potential shaving of a few months off the appeal process.
Per Côté J. (dissenting) : It is not necessary to answer the constitutional questions pertaining to the validity of s. 37(10) of the YCJA because they are moot. The constitutional analysis of the denial of an automatic right of appeal to the Court would have no impact on the underlying criminal appeal in this case, as the Court granted leave to appeal.
Cases Cited
By Abella J.
Referred to: R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. Burke, [1996] 1 S.C.R. 474; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641; R. v. J. (J.T.), [1990] 2 S.C.R. 755; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Parks (1993), 15 O.R. (3d) 324; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Vriend v. Alberta, [1998] 1 S.C.R. 493.
By Wagner C.J.
Referred to: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; R. v. Lyons, [1987] 2 S.C.R. 309; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; R. v. R.L. (1986), 26 C.C.C. (3d) 417; R. v. K.G. (1986), 31 C.C.C. (3d) 81; R. v. B. (S.) (1989), 50 C.C.C. (3d) 34; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. E. (A.W.), [1993] 3 S.C.R. 155; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. M. (J.S.), 2005 BCCA 417, 200 C.C.C. (3d) 400; R. v. D.F.G. (1986), 29 C.C.C. (3d) 451; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; Krishnapillai v. Canada, 2001 FCA 378, [2002] 3 F.C. 74; Bains v. Canada (Minister of Employment and Immigration) (1990), 47 Admin. L.R. 317; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426.
By Kasirer J.
Referred to: Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. `629; R. v. Oakes, [1986] 1 S.C.R. 103; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. Hay, 2010 SCC 54, [2010] 3 S.C.R. 206; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641; Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
By Côté J. (dissenting)
R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; R. v. Mathieu (1994), 90 C.C.C. (3d) 415, aff’d [1995] 4 S.C.R. 46; R. v. Cedeno, 2005 ONCJ 91, 27 C.R. (6th) 251; South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 15 .
Criminal Code , R.S.C. 1985, c. C-46, ss. 273.2 (a)(ii), 677 , 685(1) , 691 , 693(1) (a).
Criminal Code, 1892, S.C. 1892, c. 29, s. 750.
Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, s. 31.
Juvenile Delinquents Act, 1929, S.C. 1929, c. 46, s. 37(1), (2).
Rules of the Supreme Court of Canada, SOR/2002-156, rr. 25(1), 26(1), 33(2).
Supreme and Exchequer Court Act, S.C. 1875, c. 11, s. 49.
Supreme Court Act , R.S.C. 1985, c. S-26, s. 44 .
Young Offenders Act , R.S.C. 1985, c. Y-1, ss. 3 , 27(1) [rep. & sub. c. 24 (2nd Supp.), s. 20], (5) [idem].
Youth Criminal Justice Act , S.C. 2002, c. 1 , preamble, ss. 3 [am. 2012, c. 1, s. 168(2)], 37, 142.
Treaties and Other International Instruments
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 40(2)(b)(iii).
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, A/RES/40/33, November 29, 1985, Rule 20.1.
Authors Cited
Bala, Nicholas. “Changing Professional Culture and Reducing Use of Courts and Custody For Youth: The Youth Criminal Justice Act and Bill C-10” (2015), 78 Sask. L. Rev. 127.
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Bolton, Janet, et al. “The Young Offenders Act : Principles and Policy — The First Decade in Review” (1993), 38 McGill L.J. 939.
Bredt, Christopher D. “The Right to Equality and Oakes: Time for Change” (2009), 27 N.J.C.L. 59.
Butts, Jeffrey A., Gretchen Ruth Cusick and Benjamin Adam. Delays in Youth Justice. Chicago: University of Chicago, 2009.
Canada. Department of Justice. Committee on Juvenile Delinquency. Juvenile Delinquency in Canada: The Report of the Department of Justice Committee on Juvenile Delinquency. Ottawa, 1965.
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Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C‑53, No. 1, 2nd Sess., 33rd Parl., October 5, 1987, p. 17.
Canada. Library of Parliament. Parliamentary Information and Research Service. Wrongful Convictions in Canada, Background Paper 77-E, by Robert Mason, Legal and Social Affairs Division, September 23, 2020.
Cesaroni, Carla, Chris Grol and Kaitlin Fredericks. “Overrepresentation of Indigenous youth in Canada’s Criminal Justice System: Perspectives of Indigenous young people” (2019), 52 Austl. & N.Z. J. Crim. 111.
Davis-Barron, Sherri. Youth and the Law in Canada, 2nd ed. Toronto: LexisNexis, 2015.
Drizin, Steven A., and Greg Luloff. “Are Juvenile Courts a Breeding Ground for Wrongful Convictions?” (2007), 34 N. Ky. L. Rev. 257.
Fitzgerald, Robin T., and Peter J. Carrington. “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011), 53 C.J.C.C.J. 449.
Flemming, Roy B. Tournament of Appeals: Granting Judicial Review in Canada. Vancouver: UBC Press, 200