Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. C.P., 2021 SCC 19, May 7, 2021, the accused, a young offender, was convicted of the offence of sexual assault.  He appealed from conviction, arguing that the verdict was unreasonable.  He also argued that section 37(10) of the Youth Criminal Justice Act, which denies young persons a right of appeal, which is available to adults, of an automatic right to appeal to the Supreme Court of Canada in certain circumstances, violates section 7 and 15(1) of the Charter and is therefore unconstitutional. 

The appeal was dismissed.  The Supreme Court of Canada held that the verdict was not unreasonable and that section 37(10) Youth Criminal Justice Act does not violate section 7 or 15(1) of the Charter.

Unreasonable Verdict:

The Supreme Court of Canada indicated that “[w]hen a verdict is reached by a judge sitting alone and explained in reasons for judgment, there are two bases on which a court of appeal may find the verdict unreasonable. First, a verdict is unreasonable if it is not one that a ‘properly instructed jury acting judicially, could reasonably have rendered’ [and] 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” (at paragraphs 28 and 29).

The Supreme Court concluded that “there is no basis for finding the verdict to be unreasonable” (at paragraph 38).

Section 7 of the Charter:

The Court noted that two elements “must be established in order to show a violation of s. 7: (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… In this appeal, the requirements of the first step are readily satisfied, as a limit on young persons’ right to appeal to this Court engages residual liberty interests that are cognizable under s. 7…The outcome thus hinges on whether this deprivation is in accordance with the principles of fundamental justice” (at paragraphs 125 and 126).

The Supreme Court concluded that “denying young persons an automatic right to a hearing in this Court where a court of appeal judge has dissented on a question of law cannot in itself contravene their constitutional entitlement to adequate procedural protection in the youth criminal justice system. This Court has steadfastly affirmed in various contexts that ‘there is no constitutional right to an appeal’, let alone an automatic one at the apex of the judicial system, including in circumstances that unequivocally engaged liberty interests and principles of fundamental justice that are cognizable under s. 7” (at paragrah133).

Section 15(1) of the Charter:

The Court indicated that “[a] law or a government action will contravene this 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 a disadvantage… The issue is whether it draws a discriminatory distinction by denying a benefit in a manner that reinforces, perpetuates or exacerbates young persons’ disadvantage. In this respect, it should also be borne in mind that age-based distinctions are generally a ‘common and necessary way of ordering our society’ and are ‘not strongly associated with discrimination and arbitrary denial of privilege’” (at paragraphs 141 and 142).

The Supreme Court concluded that “[i]n choosing to deny young persons an automatic right to appeal to this 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 proceedings, particularly proceedings of a criminal character’…The fact that one specific feature of the youth system does not mirror a feature of the adult system is not a basis for a finding of discrimination” (at paragraph 162).