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Young man behind bars

Supreme Court, leave to appeal for youth in face of dissent

Monday, May 10, 2021 @ 1:24 PM | By Nathan Baker

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Nathan Baker
Young people are different. They think differently, they act differently, and they are treated differently in the criminal law. The Youth Criminal Justice Act offers a number of protections for young people. It limits the availability of jail as a sentencing option. It encourages rehabilitation. It recognizes the different decision-making qualities of a young person. The Youth Criminal Justice Act is a codification of Canada’s commitments to the United Nations Convention on the Rights of the Child and Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”).

While generally, the Youth Criminal Justice Act provides additional protections for young persons, it also limits or disallows them of certain rights that might be available to an adult. For example, even on an indictable offence, a youth does not have the right to a jury trial or to proceed in the Superior Court of Justice having had a preliminary hearing.

In the case of R. v. C.P. 2021 SCC 19, the Supreme Court of Canada considered another right which had been similarly disallowed under the Youth Criminal Justice Act but which rarely arose. In this case, the Ontario Court of Appeal split 2-1 in its judgment on appeal. Typically, when the Court of Appeal splits its decision in a criminal matter there is an automatic right of appeal to the Supreme Court of Canada. This appeal, as of right, reflects the importance of avoiding wrongful convictions. If three learned judges of the court of appeal of a province cannot agree, it is thought that an accused should have the right to have the matter decided by the highest court. This right is codified in the Criminal Code at s. 691(1)(a). However, the Youth Criminal Justice Act specifically disallows this at s. 37(10).

As a result of this, an appeal as of right to the Supreme Court from a split court of appeal is not enshrined for youths. The section goes on to state that while this does not prevent an appeal from going to the Supreme Court, it does mean that a youth will be required to seek leave in the same way that an accused facing a unanimous decision would. The decision in C.P. is somewhat fractious. Three justices found that s. 37(10) is a breach of the accused’s rights and should be struck down. Four judges found that there was no breach of the accused’s right. One judge found that there was a breach of the accused’s right but that the breach was saved by s. 1 of the Charter.

The final judge found the point to be moot as leave had already been granted. The majority decision considered a contextual analysis as appropriate rather than seeking substantive equality. Basically, the other protections offered to youths balances the requirement to seek leave. Specifically, the majority found that there is a specific interest in prompt resolution and appellate review which has to be balanced against any right of appeal which would necessarily prolong matters.

Ruth Bader-Ginsburg said that a “dissent speaks to a future age.” It is not at all clear if this decision may be revisited at some point in the future. The Supreme Court’s earlier decision in R. v. K.J.M. 2019 SCC 55 applied Jordan guidelines of 18 months to complete youth matters paralleled time to trial requirements the same as adult matters proceeding in provincial court. The recognition of the requirement of prompt resolution in C.P. contrasts with the lack of a lower ceiling for unreasonable delay in K.J.M.

Justice Rosalie Silberman Abella, who wrote the main dissents in both C.P. and K.J.M., has maintained the importance of affording youths the broadest application of Charter protections. The very reasons we treat youth differently in criminal law justify such a view. A wrongful conviction is the worst possible outcome in a criminal trial and any protection which can be afforded to avoid this should be granted.

While the constitutionality of s. 37(10) was upheld, the real question will be how often it matters as the Supreme Court may still grant leave to appeal generously to youth matters, especially where a court of appeal could not reach unanimity.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at
Photo credit / Aleksei Morozov

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