A recent Supreme Court of Canada ruling released in May, reinforces criminal justice inequality between youth and adults.  In the case of CP, the Supreme Court upheld a law that denies youth the same opportunities as adults to appeal their cases to the Supreme Court of Canada. This inequality is an important issue, because it can increase young people’s vulnerability to being wrongfully convicted.

The Right to Appeal
Adults are charged and go through the justice process under the rules of the Canadian Criminal Code. S.691(a) of the Criminal Code states:
“691 (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.”[i]
This section means that any adult convicted of an indictable offence is entitled to an “automatic” right to appeal to the Supreme Court on a question of law if the Court of Appeal’s decision is split (if at least one judge in the Court of Appeal would have overturned an initial decision and dissented with the majority decision). This appeal as of right is an important tool in efforts to avoid wrongful convictions.
The procedures and rules for youth, however, are governed by the Youth Criminal Justice Act (YCJA). The YCJA’s law on appealing to the Supreme Court of Canada is found in section 37(10). This section specifically disallows an automatic right to appeal to the Supreme Court for youth, stating:

“No appeal lies under subsection (1) from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information or indictment to the Supreme Court of Canada unless leave to appeal is granted by the Supreme Court of Canada.”[ii]

According to this section, unlike in the case of adult accused persons, a young person is not entitled to an “automatic” right to appeal to the Supreme Court on a question of law, even if the Court of Appeal decision is split.  Instead, a young person must “seek leave to appeal” and the decision to grant an appeal is at the complete discretion of the court. Moreover, the leave to appeal process is most often based only on written materials, with no reasoning provided, and is not reviewable in any way.[iii]

The Current Case
R. v. C.P involved a 15-year-old male who was convicted of sexually assaulting a 14-year-old female at a party.[iv] The Trial Judge found that the 14-year-old female had been unable to give consent and convicted the accused.[v]  On appeal, the conviction was upheld, but one judge dissented, based on a lack of evidence to the main issue of when sexual intercourse occurred.[vi] C.P. filed an appeal to the Supreme Court to challenge his conviction as well the constitutionality of s.37(10), arguing that it violated, among other sections, s.15 of the Charter (which holds that every individual is equal before and under the law).  The Crown brought a motion to quash the appeal on the basis that there is no automatic right of appeal as per s. 37(10),[vii] but the Supreme Court granted leave to appeal.  One of the issues before the Court was the constitutionality of s. 37 (10) of the YCJA.

The Court’s Decision
The Majority in the Supreme Court found that this difference in the right to appeal between adults and youth did not create unacceptable inequality that violated section 15 of the Charter for youth offenders.[viii] In their opinion, while the law creates a difference in the treatment of young accused persons and adult accused persons, it does not create a disadvantage.[ix]  They reasoned that this difference is in place to balance a young person’s interest in appeal rights with the harm that long legal proceedings have on young persons, and with a recognition that prompt justice is more meaningful for young persons.[x] These recognitions are found in s. 3(b) of the YCJA. In other words, the Court felt that this difference protects a young person from a potential long appeal process. Justice Kasirer also added that the benefit of the timely conclusion offered by s.37 (10) outweighed the negative effect of imposing a leave requirement and that there was still the leave to appeal process that could guard against miscarriages of justice.[xi]  Finally, the Court stated that youth receive benefits as a result of this law and the YCJA as a whole that adults do not have.[xii] Namely, the Crown is not entitled to appeal as of right either, as they are for adults where one Court of Appeal Judge dissents.[xiii] They therefore concluded that it is not appropriate to compare the legislation from an equality perspective.[xiv]

Concerns over the Court’s Decision
The Court’s concern over timeliness and the psychological harm done to youth through a long justice process stems from the principles expressed under s. 3(b) of the YCJA. According to the section, the youth justice system must emphasize: “…promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time”.[xv] However, it is odd that a young person who claims innocence, or who feels injustice was done, and resultingly launches an appeal to the Supreme Court, would be denied that right in order to protect them from the harm of a drawn-out process, as presumably, the harm of being wrongfully convicted would be more damaging.

As Justice Abella, writing for the dissent stated, timeliness, rehabilitation and reintegration are not necessary to achieve if the youth is not guilty.[xvi] Justice Abella recognized that youth are particularly vulnerable to wrongful conviction and that while timeliness is a goal of the YCJA,  denial of an automatic appeal right does little to achieve this, as it only saves a few months of involvement in the justice system.[xvii] These few months, she continues, come at the expense of being able to thoroughly screen for miscarriages of justice, as there is a difference between the level of scrutiny afforded in an application for leave to appeal and in an actual appeal. Justice Abella reasoned that without a full appeal hearing, the leave to appeal process is “…screening for miscarriages of justice with one hand tied behind its back”.[xviii] A few months saved can hardly be said to protect youth from the psychological harm of a lengthy justice process and to be promoting reintegration, such that it is worth making youth more vulnerable to wrongful conviction.
On the matter of the benefit youth are said to receive from s. 37(10) because the Crown does not have an automatic right of appeal either, this denial does not rectify the equality violation that s.37(10) poses towards youth, as s.37(10) serves to take away an important safeguard for youth while providing a comparatively insignificant benefit in return.  The Crown is already limited by the considerations they must make in deciding whether to launch an appeal, including the YCJA’s principles of harm reduction, promptness, and re-integration.  In Ontario, at least, limits are also contained within the Crown Prosecution Manual which mandates that an appeal can only be launched with the express approval of the Director of Crown Law Office and that the Crown must consider the public interest, restraint, and the state of the law on the issues being raised before launching an appeal.[xix]

Justice for Children and Youth (JFCY) made submissions to the court in this case, arguing that s.37(10) creates arbitrary and unequal differences in procedural protections based on age.[xx] To address the Court’s statements regarding promptness and harm reduction, JFCY raised the fact that, while a sentence may be over by the time a youth’s appeal would be heard by the Supreme Court, youth records may persist longer than that and continue to negatively impact the young person’s life beyond the time it would take for an appeal process.[xxi] Records of indictable offenses are accessible for 8 years after sentencing, or 5 years after the completion of a sentence.[xxii] The young person’s record may remain accessible even longer, should they commit another offence while their previous record is still open.[xxiii] Furthermore, if a youth record is still open, and that individual commits an offence as a young adult (age 18 or older), that open youth record then forms part of their permanent criminal record because of s. 119(9) of the YCJA.[xxiv] Therefore, JFCY argued that being denied the right to appeal could have huge implications on a young person, as a result of the record they receive for that conviction.  JFCY argued that having an appeal as of right better insulates youth from wrongful convictions and the resulting stigma of involvement in the justice system; having this appeal may prevent lost employment opportunities where criminal records are considered.[xxv] This stigma and potential loss of opportunity are outcomes completely contrary to the YCJA’s stated goals of reintegration and harm-reduction.

Closing Thoughts
Peacebuilders is disappointed with the Supreme Court’s decision because it interferes with the goals of reintegration and rehabilitation we strive to promote. It puts young people at a disadvantage in the criminal justice system and it unnecessarily exacerbates their vulnerability to wrongful convictions.
We agree with JFCY’s assessment above and note that the implications of a guilty verdict for a young person are presumably far more damaging than a few extra months in the justice system would be. We share Justice Abella’s characterization of the Majority’s reasoning: “This is an argument that justifies an increased risk of wrongful findings of guilt as an acceptable cost of doing business within the youth justice system…”[xxvi] The Justice system must do better for youth. Youth are already recognized as more vulnerable to wrongful conviction than adults because they are less likely to understand or assert their rights, and they are more likely to succumb to the pressures of interrogation by authority figures.[xxvii] Absent a compelling benefit to youth, s.37(10) arbitrarily creates more difficulty for youth to fight against wrongful conviction.

[i] Criminal Code, R.S., 1985, c. C-46, s. 691

[ii] Youth Criminal Justice Act (S.C. 2002, c. 1) (YCJA), s.37(10).
[iii] Supreme Court of Canada, Guide (Modified in 2021). Retrieved from https://www.scc-csc.ca/unrep-nonrep/app-dem/guide-eng.aspx#q2.
[iv] R. v. C.P., 2021 SCC 19 (CanLII) at paras 6-8
[v] Ibid.
[vi] Ibid at para 24.
[vii] Ibid at para 25.
[viii] R. v. C.P., 2021 SCC 19 (CanLII) at para 162
[ix] Ibid at para 161.
[x] Ibid at para 162.
[xi] R. v. C.P., 2021 SCC 19 (CanLII)
[xii] Ibid at para 155.
[xiii] Ibid.
[xiv] Ibid at para 161.
[xv]  Youth Criminal Justice Act (S.C. 2002, c. 1), s.3(b).
[xvi] R. v. C.P., 2021 SCC 19 (CanLII) at para 108.
[xvii] Ibid at paras 86 & 102.
[xviii] Ibid at para 103.
[xix] Crown Prosecution Manual (n.d.). Ontario Ministry of the Attorney General. https://www.ontario.ca/document/crown-prosecution-manual at D1.
[xx] R. v. C.P., 2021 SCC 19 (factum of JCFY at para 4).
[xxi]  R. v. C.P., 2021 SCC 19 (factum of JCFY at para 28).
[xxii] Youth Criminal Justice Act (S.C. 2002, c. 1) (YCJA), s.119(2)(h)
[xxiii] Youth Criminal Justice Act (S.C. 2002, c. 1) (YCJA), s.119(2)(I).
[xxiv] Youth Criminal Justice Act (S.C. 2002, c. 1) (YCJA), s.119(9).
[xxv] R. v. C.P., 2021 SCC 19 (factum of JCFY at para 31).
[xxvi] R. v. C.P., 2021 SCC 19 (CanLII) at para 108.
[xxvii] R. v. L.T.H., [2008] 2 S.C.R. 739 at para 24