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YOUNG PERSONS - Legislation - Youth Criminal Justice Act - Rights of young person

Friday, May 07, 2021 @ 2:55 PM  


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Appeal by CP, a young person, from a decision of the Ontario Court of Appeal that affirmed his conviction for sexual assault. When CP was 15 years old, he attended a beach party. He and the 14-year-old complainant, RD, had sexual intercourse. Both had been drinking. CP testified RD consented to the sexual activity before there were any signs that she was too drunk to consent. RD did not remember the sexual activity. One of her friends, EG, testified that when she arrived at the party she immediately found RD lying on the ground extremely intoxicated. RD had been vomiting, could not get up and was incapable of communicating. CP admitted he heard EG arrive immediately after the sexual activity had concluded and that she went directly to RD. The trial judge did not believe CP’s evidence that RD was fine during the intercourse but accepted his evidence about when EG arrived and his admission EG went directly to RD. The trial judge concluded RD was in an incapacitated state at the time of intercourse and was incapable of consenting. She found CP did not have an honest but mistaken belief in communicated consent. The majority of the Ontario Court of Appeal found the verdict was reasonable. CP challenged the constitutionality of s. 37(10) of the Youth Criminal Justice Act (YCJA), which denied young persons an automatic right to appeal to the Supreme Court of Canada when there was a dissent in the court of appeal.

HELD: Appeal dismissed. Per Justice Abella: The verdict was reasonable. The trial judge provided sound reasons for what she believed and did not believe and explained why she found that some of CP’s evidence did not suffer from the same flaws that led her to reject other aspects of his testimony. The reasoning that led the trial judge to conclude that EG discovered RD in her incapacitated state right after the intercourse was both logical and rational. The verdict was clearly one that a properly instructed judge or jury acting judicially, could reasonably have rendered. Per Chief Justice Wagner: Section 37(10) of the YCJA was consistent with sections 7 and 15 of the Charter. Denying young persons an automatic right to a hearing in the Supreme Court where a court of appeal judge had dissented on a question of law could not in itself contravene their constitutional entitlement to adequate procedural protection in the youth criminal justice system. Automatic appeals for young persons were not a foundational requirement for the dispensation of justice. Section 37(10) did not perpetuate any disadvantage but rather appropriately balanced the overlapping interests of young persons in prompt resolution and in appellate review. Further, the leave requirement in s. 37(10) applied equally to the Crown. The leave requirement was one of several legitimate ways in which the youth justice system provided different procedural avenues than the ones available to adults without degrading young persons’ equal worth or reinforcing their disadvantage. Dissenting reasons were provided.

R. v. C.P., [2021] S.C.J. No. 19, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., May 7, 2021. Digest No. TLD-May32021013-SCC