“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.”

The SCC (8:1, with the main reasons by three judges, separate concurring reasons by four judges, a separate set of reasons by one judge, and one judge in dissent) dismissed the appeal.

Justice Abella (with whom Justices Karakatsanis and Martin concurred) wrote as follows (at paras. 1-4, 114-120):

“This is an appeal by a young person from a finding of guilt of sexual assault on the ground that the verdict was unreasonable. It is also a challenge to the constitutionality of s. 37(10)  of the Youth Criminal Justice Act, S.C. 2002, c. 1 , which denies young persons rights of appeal available to all adults convicted of indictable offences, namely an automatic right to appeal to the Supreme Court of Canada when there is a dissent in the court of appeal on a question of law or when the court of appeal enters a finding of guilt on a Crown appeal from an acquittal at trial. These rights of appeal serve as a substantial safeguard against miscarriages of justice. Under the YCJA , they are not available to young persons in the criminal justice system.
The constitutional issue turns on whether this deprivation violates the rights of young people under the Canadian Charter of Rights and Freedoms , and, if so, whether it can be justified. The argument was based both on ss. 15  and 7  of the Charter , but in view of my conclusion under s. 15 , it is unnecessary to address the s. 7  issue. The essence of the s. 15  argument is that the deprivation perpetuates and reinforces young people’s disadvantage in criminal proceedings and there is therefore a breach of s. 15(1)  of the Charter .

The Crown’s position can be distilled into two main propositions:

  • The YCJA  is ameliorative legislation that provides young people other protections, making this particular safeguard against wrongful convictions for indictable offences unnecessary.
  • Appeals prolong the process, and young people need a speedy resolution to criminal proceedings. Under the YCJA , timeliness is a key objective so that young persons found guilty can be quickly rehabilitated and reintegrated into society.

The answer to these propositions can be summarized as follows and leads me to conclude, respectfully, that the limitation in s. 37(10)  constitutes a prima facie breach of s. 15  that cannot be justified under s. 1 :

  • The fact that the overall purpose of the legislation is ameliorative is of no relevance in determining whether a particular limitation represents a prima facie breach of s. 15 . It may factor contextually into the justificatory analysis in s. 1 , but what is at issue at the breach stage is the impact of the limitation on the claimant group, not the purpose of the legislation as a whole. The crucial fact remains that the YCJA  does not provide any analogous procedural substitute for a guaranteed right to appeal to this Court.
  • 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.


The purpose of the as-of-right appeal denied by s. 37(10) is straightforward — to ensure the safety of a verdict in circumstances where that verdict is called into question by a judge on the court of appeal, or when a guilty verdict is entered for the first time on appeal. The concern that a claim could be advanced for jury trials and preliminary inquiries if a young person wins an automatic appeal right in this case, ignores the significant differences between the procedures, differences best explored in a case where the issue is before the court and the parties have had the chance to argue the merits.

In this case, there is a direct link between the denial of a procedural protection available to adults, and youth vulnerability to miscarriages of justice. The denial has the effect of perpetuating that vulnerability. In examining whether a provision perpetuates a disadvantage under s. 15, it is far from obvious that there is anything like the same link with jury trials and preliminary inquiries that engages the risk of a miscarriage of justice. There is only one purpose of the procedural benefit denied here, namely to ensure the safety of a verdict in circumstances where that verdict is called into question by a judge on the court of appeal. This is simply not comparable to the multi-faceted complexity of jury trials. The attempt to speculatively analogize them emblemizes the fallacy of the slippery slope.

Ultimately, in my respectful view, this type of argument seems to me to be fundamentally incompatible with the purpose of the Charter . The Charter  was intended to impose a set of justiciable constraints and obligations on government that are enforceable by individuals and groups (see Jacob Weinrib, “The Modern Constitutional State: A Defence” (2014), 40 Queen’s L.J. 165). As this Court explained in Vriend v. Alberta, [1998] 1 S.C.R. 493, “[c]itizens must have the right to challenge laws which they consider to be beyond the powers of the legislatures. When such a challenge is properly made, the courts must, pursuant to their constitutional duty, rule on the challenge” (para. 56). Implicit in this statement is the proposition that the Court must rule on the case that is actually before it, not a hypothetical future claim.

The only question before us is whether s. 37(10)  of the YCJA  violates the Charter . In my respectful view, it does.

For all the foregoing reasons, the prima facie breach of s. 15 cannot be justified, making s. 37(10)  of the YCJA  unconstitutional.

Given this conclusion, it is unnecessary to address C.P.’s submission that s. 37(10)  of the YCJA  also breaches his s. 7  Charter  right as a violation of the suggested principle of fundamental justice that young persons are entitled to enhanced procedural protections in the criminal justice system.

This constitutional issue does not affect C.P.’s appeal from the finding of guilt. I would dismiss the appeal.”

The Chief Justice (with whom Justices Moldaver, Brown and Rowe concurred) wrote as follows (at paras. 123, 136-139, 153-154, 161-162):

” I agree with the conclusion of my colleague Abella J. on the preliminary matter of jurisdiction. However, for the reasons that follow, I would dismiss the constitutional challenge.


It also bears emphasizing at this juncture that the threat of wrongful conviction which my colleague Abella J. seeks to address is, on the record before us, entirely theoretical. The appellant has provided no evidence that the absence of an automatic appeal in any way increases the likelihood of wrongful convictions or other miscarriages of justice for young persons tried for indictable offences. Nor is there any evidence before us suggesting that the Court’s leave process affords inadequate procedural protection. In other words, it has not been shown that there is an actual problem with the way the Court has been exercising its discretion to grant leave, let alone one that warrants a finding of a constitutional violation.

On the contrary, the leave process in this Court is rigorous. While it is true that leave applications are not subject to the same in-depth screening for errors as is the case in an appeal on the merits, the Court has a wide discretion to consider factors that might suggest a possibility of error, including the fact that a judge dissented on a question of law or a conviction entered for the first time on appeal. There is no basis to believe that a serious argument pointing to a miscarriage of justice would not meet the public interest standard for leave to appeal to the Court. As former Justice Iacobucci observed, “even where there has been no dissent or reversal of an acquittal at the Court of Appeal, leave to appeal in criminal cases often is granted given that criminal cases are frequently considered to raise issues of public importance because they involve the liberty of the subject” (F. Iacobucci, “The Supreme Court of Canada: Its History, Powers and Responsibilities” (2002), 4 J. App. Prac. & Process 27, at pp. 34-35). The Supreme Court would and does exercise its leave requirement in accordance with the principles of fundamental justice.

In my view, the dearth of evidence of a problem in this regard belies the conclusion that s. 37(10)  denies young persons adequate procedural safeguards as was the case under past youth justice legislation, which did indeed provide for paternalistic practices and left young persons vulnerable to miscarriages of justice. On the contrary, our modern youth justice system has long left those problematic practices behind, providing young persons with enhanced procedural protections commensurate with their unique circumstances and inherent vulnerability in the justice system.

For these reasons, I conclude that s. 37(10)  of the YCJA  is consistent with s. 7  of the Charter  even in a case in which a court of appeal judge has dissented on a question of law. Nonetheless, I would not foreclose the theoretical possibility that s. 7  may guarantee an appeal as of right where a court of appeal has entered a conviction for the first time, but this is an issue which need not be decided on the facts of this case.


I hasten to emphasize, however, that in considering the relevance of timeliness to the question whether s. 37(10)  perpetuates a disadvantage faced by young persons, I am not seeking to justify any such disadvantage on the basis that it is relevant to a legitimate state objective or on the basis of the ameliorative effect of the YCJA  as a whole — such concerns are properly left to the inquiry under s. 1  of the Charter , and then only to the extent that they can specifically justify the impugned limitation (Fraser, at para. 69). Rather, I am simply giving full effect to the contextual analysis mandated by this Court’s approach to substantive equality (Fraser, at para. 42). The inquiry under s. 15(1)  of the Charter  into the perpetuation of a disadvantage requires attention to “the full context of the claimant group’s situation” and to “the actual impact of the law on that situation” (Withler, at para43; see also Taypotat, at para. 17). The result of this contextual inquiry may in turn be to reveal that differential treatment is discriminatory because it perpetuates disadvantage, that it is neutral, or “that differential treatment is required in order to ameliorate the actual situation of the claimant group” (Withler, at para. 39). This Court must, therefore, in assessing the actual impact of a leave requirement, have regard to the full context of the situation of young persons, which, I find, includes the fact that a structurally prolonged appellate review can be more prejudicial to them.

With respect, Abella J.’s analysis on s. 37(10)  does the opposite, as it deviates from the contextual approach mandated by substantive equality. In my view, considered in context, s. 37(10)  does not perpetuate any disadvantage but, rather, appropriately balances the overlapping interests of young persons in prompt resolution and in appellate review, given the common sense understanding that there will be an inherent and inevitable trade-off between these interests.


My colleague Abella J. and I agree that it is trite to say that the Charter ’s guarantee of equality requires neither a sameness or formal equality nor line-by-line parity with the Criminal Code , but rather a search for substantive equality. Young persons have different needs and vulnerabilities than adults, which is precisely why Canada’s youth justice system “stands separate” from that of adults (K.J.M., at para. 49; R.C., at para. 41). In my view, a leave requirement corresponds to that reality.

In 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” (Kourtessis, at p. 70). 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.”

Justice Kasirer wrote as follows (at paras. 166-167, 212-214):

“To be most plain on the various matters before the Court, I agree with Abella J.’s reasons, and with those of the majority of the Court of Appeal, that the guilty verdict rendered against the appellant, C.P., was not unreasonable. In respect of the second issue bearing on the constitutionality of s. 37(10)  of the YCJA , I agree with Abella J. that this Court has jurisdiction to decide the constitutional questions. I also share the Chief Justice’s view that s. 37(10)  is consistent with s. 7  of the Canadian Charter of Rights and Freedoms . Like him, I would leave the matter of whether s. 7  requires a first right to appeal from a conviction entered by a court of appeal — a question not before this Court — to another day.

My reasons differ from those of my colleagues on whether s. 37(10)  of the YCJA  infringes the equality guarantee in s. 15(1)  of the Charter . Our differences bear, in particular, on the application of s. 1  of the Charter  to the requirement that a young person seek leave to appeal to this Court where a court of appeal affirms a conviction on an indictable offence but there is a dissent on a question of law. Like Abella J., and based in particular on the judgments of this Court in Fraser v. Canada (Attorney General), 2020 SCC 28, and Ontario (Attorney General) v. G, 2020 SCC 38, I conclude that s. 37(10)  of the YCJA  does constitute a limit on s. 15(1)  Charter  rights. But in my respectful opinion the Crown has shown here that the limit to the equality right of young persons prescribed by s. 37(10)  of the YCJA , when read in conjunction with s. 691(1) (a) of the Criminal Code, R.S.C. 1985, c. C‑46 , is justified in a free and democratic society. In the result, I would conclude that s. 37(10)  is constitutionally valid.

To summarize on this point, I recall that Parliament, in enacting s. 37(10)  of the YCJA , did not choose to take away a young person’s access to this Court, it only added a leave requirement. When deciding the leave application, this Court will have the benefit of the reasons offered in the dissent below on the question of law on appeal, as isolated by s. 677  of the Criminal Code . The Court will have the argument in support of leave and the required supporting materials, including evidence at trial, that will allow the Court to measure whether the question of law raises a meritorious appeal. Most importantly, and contrary to what C.P. and some of the interveners have argued before us, 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 — including an unreasonable verdict argument — would meet the public importance standard even if the matter does not, on its face, transcend in jurisprudential importance the interest of the parties. Where, in such cases, the leave application discloses a reasonable prospect of success, this Court can grant leave.

For the reasons outlined above, I am confident that the leave process provides a safeguard for youth in circumstances where an adult would have an appeal as of right. It was open to Parliament to seek a legislative path that places greater weight on the negative effect of longer appellate proceedings that have no utility while simultaneously maintaining access for meritorious appeals through the leave process.

For these reasons, I conclude that the benefits in terms of timeliness outweigh the negative effects of the prima facie discrimination at issue. Any enhanced risk of miscarriage of justice as a result of having to seek leave to appeal in the circumstances raised in the notice of constitutional question 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.”

Justice Côté (in dissent) wrote as follows (at paras. 220-221, 295-303):
“A majority of the Court of Appeal for Ontario (2019 ONCA 85, 373 C.C.C. (3d) 244) upheld C.P.’s conviction. Nordheimer J.A., dissenting, would have entered an acquittal. C.P. is asking this Court to set aside his conviction and to enter a verdict of acquittal. In the alternative, he asks us to order a new trial. I agree with C.P. that the verdict is unreasonable.

C.P. also submits that s. 37(10)  of the YCJA , which deprives young persons of the automatic right of appeal that is available to adults where there is a dissent on a question of law in a court of appeal, violates ss. 7  and 15  of the Canadian Charter of Rights and Freedoms  and that the violations are not justified under s. 1  of the Charter . Given that leave has been granted in this case, and given the conclusion I reach on the merits of the appeal, I decline to take a position on the Charter  arguments. However, I feel a need to reiterate the importance of a dissent on a question of law. More particularly, in matters involving young persons, I am of the view that such a dissent, especially a powerful one like that of Nordheimer J.A. in this case, clearly indicates that an appeal has some merit and that the conviction must be reviewed.

Full Decision


This timeline shows that there was roughly a two-hour window between (1) the group’s arrival at the beach between 10:00 and 11:00 p.m. and (2) E.G.’s observation of R.D. sometime after 12:30 a.m. The evidence as a whole cannot reasonably be interpreted in such a way that R.D.’s being incapable of consenting is the only reasonable conclusion. The trial judge should have acquitted C.P. Once the reliability of C.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. In fact, the available circumstantial evidence indicates that the intercourse may have occurred at any time in the two-hour window. R.D.’s level of intoxication changed considerably during that time from not being drunk, according to G.G., upon arriving at the beach to being passed out later on. The trial judge herself acknowledged that, without C.P.’s evidence, the rest of the circumstantial evidence could not on its own pinpoint the time of the intercourse in that window:

  • As the trial unfolded, it seemed there was a lack of clarity with respect to the timing of the sexual activity. As noted in the review of the evidence, the Crown witnesses were only able to make a guess about when the group arrived at the beach. E.G. and G.G. did not witness any sexual activity and therefore could not help pinpoint the time it happened. R.D. had fragments of memory but certainly was not able to specify the timing of the incident. . . . The combination of E.G.’s and C.P.’s evidence, however, has answered the question of when during the evening the sexual activity took place. [Emphasis added; para. 90.]

Furthermore, there is other evidence that, although not necessary to a finding that the verdict was unreasonable, should have reinforced the existence of a reasonable doubt in the trial judge’s mind.

Although the intercourse occurred at a distance of only 5 to 10 feet from the fire pit where a dozen or so young people were assembled, the Crown did not call a single witness who had seen it happen. The Crown called E.G., who had arrived after it occurred, and G.G., who also had not seen it happen. Yet there were obviously some people who had witnessed the intercourse, as can be seen from the messages exchanged on social media the next morning in which teenagers shared the information that R.D. and C.P. had had sex together. Also, there were some who told E.G., after her arrival, that R.D. and C.P. had had intercourse earlier in the night, which makes clear that their sexual activity had not gone unnoticed.

The phone conversation between R.D. and L.L. that occurred after 1:00 a.m. should also have reinforced the existence of a reasonable doubt. During that conversation, R.D. kept apologizing to L.L., whom she was seeing romantically. When considered together with the rest of the evidence, it tends to indicate that R.D. was aware of and sorry for what had happened. In the same vein, the fact that R.D. remembered kissing C.P. by the rocks and pulling up her pants after the intercourse were further signs that she had been aware of what was happening, which constitutes fertile ground for a reasonable doubt.

Finally, the Crown’s case appears to have been constructed on a narrative informed by rumours and double hearsay. As I noted above, R.D.’s mother may not have forced her daughter to report to the police, but she convinced her to do so on the premise that R.D. had been assaulted while being passed out. It is this narrative based on the rumour R.D. heard from her friends that appears to have informed the case built by the police and the prosecution. Obviously, this alone does not mean that the Crown’s case could not stand, but a trial judge drawing on his or her judicial experience should have approached the theory of the case with an extra layer of caution.

In conclusion, without the crucial finding of incapacity, the Crown could not prove its case, because there was no evidence of absence of consent. The verdict is unreasonable, and the trial judge should have acquitted C.P.

C.P.’s third ground of appeal is that the trial judge erred in law by rejecting his defence of honest but mistaken belief in communicated consent. He argues that she should have considered his youth in assessing the circumstances known to him for purposes of the quasi-objective standard for determining whether an accused can rely on that defence. In C.P.’s view, the principle of diminished moral blameworthiness imposes the application of a lower standard. Although everyone is presumed to know the law, it is absurd to propose that an intoxicated teenager is presumed to know the intricacies of the jurisprudence pertaining to what constitutes valid consent. Therefore, the trial judge should have considered C.P.’s limited understanding of criminal law principles in analyzing his defence.

Despite the question being a matter of doctrinal interest, I do not believe that it should be answered in this case. Doing so would have no impact on the outcome of this appeal. C.P. asks us to rule on this legal issue in order to provide guidance to the court below should a new trial be ordered. Because I have concluded that a verdict of acquittal should be entered, such guidance is not necessary. In any event, even if I had concluded that a new trial should be ordered, the answer to this question would have had no impact on the outcome of the appeal. The question would be purely theoretical. C.P. does not challenge the trial judge’s finding that R.D. did not say “Fuck me, [C.]” — this alleged communicated consent constituted the condition precedent to his defence. Nor does he challenge the trial judge’s finding that his level of intoxication barred him legally from relying on the defence — this is another hurdle that made this defence unavailable to him. In brief, the error of law, if any, would be of no consequence. Lastly, it seems that C.P. is raising this issue for the first time in his appeal to this Court.

 

As mentioned above, I am of the opinion that it is not necessary to answer the constitutional questions pertaining to the validity of s. 37(10)  of the YCJA , because they are now moot. Given that this Court has granted leave to appeal, the constitutional analysis of the denial of an automatic right of appeal to this Court would have no impact on the underlying criminal appeal in this case. Therefore, I decline to take a position on those questions.”

As mentioned above, I am of the opinion that it is not necessary to answer the constitutional questions pertaining to the validity of s. 37(10)  of the YCJA , because they are now moot. Given that this Court has granted leave to appeal, the constitutional analysis of the denial of an automatic right of appeal to this Court would have no impact on the underlying criminal appeal in this case. Therefore, I decline to take a position on those questions.”