Young offenders are a particular part of society who need equal, if not more, protection than adults. Cases involving young people, guilty or not, create many lasting concerns for the youth involved and the outcomes of these cases may potentially determine and shape the rest of their lives. In a situation which requires utmost support and access to justice, and where it is so important to enable the accused to utilise every opportunity to disprove the accusations against them, provisions such as s. 37(10) of the Youth Criminal Justice Act (YCJA) create a hindrance to a significant right. This issue recently came up before the Supreme Court in the case of C.P. v Her Majesty the Queen.
This case revolved around the proposition that section 37(10) of the YJCA creates an added burden on young offenders as it bars “appeals as of right”, simply on the basis of their age; and parties seeking to appeal a decision to the Supreme Court must seek leave.
Even though pursuant to s.37(1) of the YCJA appeal provisions contained in Part XXI of the Criminal Code are applicable in general to youth cases, s. 37(10) bars appeal as of right under s. 691(1)(a) of the Criminal Code, stemming from a dissent in the court of appeal. This hindrance to the basic right of appeals that is most crucial and a final step for any defendant to attempt to disprove a finding of guilt, is curbed solely on the basis of age. Whereas, the stigma and repercussions for the young people are not in any manner less than that suffered by adults, if not more.
Decision on Appeal
The appellant C.P. was found guilty of sexual assault. The decision hinged on the finding of whether the victim was so intoxicated at the time of the sexual act so as to have been incapable of giving consent and any mistaken belief by C.P. of consent was barred by his own self-induced intoxication.
The issues in Appeal
On appeal three main issues were raised: whether s. 37(10) of the YCJA infringes s.7 and/or s. 15(1) of the Charter; if the infringement is justified within the meaning of s.1; and whether the finding of guilt was unreasonable and unsupported by the evidence within the meaning of s. 686(1)(a)(i) of the Criminal Code.
There were four intervenors: the Attorney General of Canada, the Criminal Lawyers’ Association (Ontario), Justice for Children and Youth, and the British Columbia Civil Liberties Association.
Legal Analysis: s. 37(10) of the YCJA contradicts s. 7 of the Charter rights
It was put forward that Section 37(10) of the YCJA infringes s. 7 of the Charter due to being contrary to established principles of fundamental justice. The reasons for this have been identified as the section offending procedural fairness; and being arbitrary, or in the alternative, overbroad, as it hinders youth in particular of their right to their liberty.
The principles of fundamental justice include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion of life, liberty or security. For a process to be fair, it must be in compliance with the procedural fairness requirements in common law. It was presented to the Court that even though the facts of this particular case revolved around an appeal under the YCJA, focusing on the aspect of procedural fairness would allow the Court flexibility and influence the outcomes in cases involving young person’s rights under s.7.
The case of Baker v Canada (“Baker”) was cited, including many other cases, in discussion of the duty of fairness. It was noted that proceedings being conducted under the YCJA necessitate the maximum procedural protections, which includes the right to appeal to the Superior Court, as of right, on a question of law on which a court of appeal judge dissents. It was cited that the most significant factors of Baker which are relevant to this appeal are (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory scheme; and (iii) the importance of the decision to the individuals affected. Moreover, it also propounded that the factors contained in Baker were not exhaustive. Other factors such the characteristics of the affected individuals are also significant in this appeal, especially the vulnerable position of the young people as well as their developmental issues.
The young accused persons have to go through the youth criminal trial process entirely, which is then followed by an appeal to at least three Court of Appeal judges and a dissenting judgment then creates the need for further appeal. For young persons, being found guilty comes with a lot of repercussions. Moreover, even though the YCJA broadly aims to protect the identities and records of young offenders, that changes with certain offences, which result in them being treated as adults.
Furthermore, in cases where adult sentence is imposed, it becomes a conviction. As a result of this, young people who are sentenced as adults are deprived of the YCJA protections of privacy as well as the caps on sentences that are warranted by the YCJA. This has been elaborated to have far reaching consequences for young persons.
Parliament’s intent in creating YCJA as a distinct criminal justice system designed for youth, was to ensure young persons were provided with enhanced procedural protections due to their age and certain vulnerabilities, and to create less formal and more expeditious proceedings that reflect this understanding. However, the cost of achieving expeditiousness should not be the denial of granting the full array of procedural protections that can be afforded to youth.
Legal Analysis: s. 15 of the Charter
Section 15 of the Charter seeks to ensure equality before the law, providing equal protection and benefit without discrimination. The stance of the Courts, as pointed out, with regard to the unique vulnerabilities and development issues of youth has been to provide protection. Equal access to an appeal as of right at the highest level as well as the ability to challenge findings of guilt which might be wrongful might play as a mitigating factor in the repercussions and negative impacts of being sentenced, the effects of which may as well continue for a lifetime.
The Crown in this case, however, addressing the issues raised under s.15, put forward that s. 37(10) of the YCJA does not perpetuate the pre-existing disadvantage of young people but is responsive to their needs since the youth justice system is separate and very different from that of adults, youth have a different perception of time, findings of guilt for youth are less serious than adult convictions, and finally, rehabilitation and reintegration are emphasized.
Legal Analysis: s. 37(10) is arbitrary or overbroad
It was put forward in the appeal that s.37(10) of the YCJA is a provision that is arbitrary. This was said to be due to the lack of a rational connection between the object of the law and the limit it consequently imposes on the life, liberty, or security of the person. Alternatively, the section can also be deemed as being overbroad, which entails that even though the provision of the law is supportive of the objective, but cross over the threshold of fairness by denying rights to some individuals which is not supported by the objective.
The objective of s. 37(10) is apparently to facilitate early resolution of disputes, in order to trigger the process of rehabilitation, but also ensure that young people are able to receive better procedural protections which ensure fair treatment and protection of their rights. Therefore, no rational connection can be found between the objective of s. 37(10) and its impacts on the liberty of young people. This is due to the fact that what s.37(10) essentially does is it denies a right of appeal that is available for adults to young persons, instead of providing them with enhanced protection in the procedural process. The right to appeal, however, is not completely foregone as there is still provision to seek a leave to appeal, which nonetheless makes the process much longer than needed or intended.
The Crown’s position
The Crown in their submission purported the section does not violate s. 7 or s.15 of the Charter. It has been explained and reiterated in the argument that fundamental justice does not require the provision of a second level of appellate review in the form of an automatic appeal to the Supreme Court. The reasons being that there is no constitutional entitlement to an appeal and as-of-right access to a second level of appellate review has never been fundamental to the justice system. It was also said this case does not warrant an exception and neither the leave process of the Supreme Court nor the way it is exercised is contrary to the principles of fundamental justice.
Furthermore, it was put forward that the exercise of the provision does not deny young offenders their access to the Supreme Court. Rather it allows the Court to exercise their authority to judge whether a case merits review and only denies cases which they do not deem to have merit.
Judgement has not been given yet on the decision, but this case involves a very intricate area of protection of youth. It sheds light on the significance and sensitivity of time in youth cases. Being found guilty and a strenuous appeal process takes an immense toll on the lives of the young persons. Time, when important educational milestones pass, societal development occurs and their possibilities of rehabilitation go by. Furthermore, it has been pointed out that while faster resolution of cases is desirable for ensuring that overall, more cases are resolved, this should not be achieved through curbing appeal rights and creating more steps towards achieving a fair trial.
About the author
Farhana Hossain is an internationally trained lawyer with experience in corporate, commercial, banking and employment law. Farhana is a Candidate of the LLM in Canadian Common Law at Osgoode Hall Law School, York University, and currently in the lawyer licensing process in Ontario.
 Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817
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