SUPREME COURT OF CANADA
Appeal Heard: November 10, 2020 Judgment Rendered: May 7, 2021 Docket: 38546
Between: C.P. Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Criminal Lawyers' Association (Ontario), Justice for Children and Youth and British Columbia Civil Liberties Association Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 120)
Abella J. (Karakatsanis and Martin JJ. concurring)
Concurring Reasons: (paras. 121 to 164)
Wagner C.J. (Moldaver, Brown and Rowe JJ. concurring)
Concurring Reasons: (paras. 165 to 216)
Kasirer J.
Dissenting Reasons: (paras. 217 to 304)
Côté J.
C.P. Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Criminal Lawyers' Association (Ontario),
Justice for Children and Youth and
British Columbia Civil Liberties Association Interveners
Indexed as: R. v. C.P.
2021 SCC 19
File No.: 38546.
2020: November 10; 2021: May 7.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Criminal law — Appeals — Unreasonable verdict — Accused young person convicted of sexual assault by judge sitting alone — Accused appealing conviction on basis that verdict was unreasonable — Conviction affirmed by majority of Court of Appeal — Whether verdict unreasonable.
Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Right to equality — Young persons — Appeals to Supreme Court of Canada — Accused young person convicted of sexual assault — Majority of Court of Appeal affirming conviction but one judge dissenting — Young person filing appeal as of right to Supreme Court under s. 691(1)(a) of Criminal Code — Section 37(10) of Youth Criminal Justice Act stating that no appeal lies to Supreme Court unless young person is granted leave to appeal — Whether s. 37(10) of Youth Criminal Justice Act infringes young person's right to equality and right not to be deprived of liberty except in accordance with principles of fundamental justice — Canadian Charter of Rights and Freedoms, ss. 1, 7, 15 — Youth Criminal Justice Act, S.C. 2002, c. 1, s. 37(10).
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.
Held (Côté J. dissenting): The appeal should be dismissed.
(1) Unreasonableness of the Verdict
Per Abella, Karakatsanis and Martin JJ.: The verdict was reasonable. The trial judge's reasons for finding P guilty of sexual assault are model trial reasons: rigorous and thoughtfully explained. There is no basis for finding the verdict to be unreasonable.
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. The inquiry is narrowly targeted at fundamental flaws in the reasoning process which means that the verdict was not reached judicially or in accordance with the rule of law.
Here, the reasoning that led the trial judge to conclude that G discovered D in her incapacitated state right after the intercourse was both logical and rational. The trial judge rejected P's evidence that he spoke with G before she attended to D because it was internally inconsistent with his own evidence on cross-examination, externally contradicted by the evidence of G, and because P was intoxicated, particularly in comparison to G, whose memory was not suspect. The trial judge provided sound reasons for what she believed and what she did not, explaining why she found that some of P's evidence did not suffer from the same flaws that led her to reject other aspects of his testimony. The verdict was clearly one that a properly instructed judge acting judicially, could reasonably have rendered. The trial judge was well aware that the time of intercourse could not be ascertained in absolute terms, and that what mattered was the relative time of G's arrival in relation to the sexual activity. The combination of G's evidence and P's evidence satisfied the trial judge that G went to D as soon as she arrived, and that, on P's own evidence, G's arrival at the party was right after intercourse had taken place. This entitled the trial judge logically to conclude that the totally incapacitated condition G found D in when she arrived was the condition she was in during the sexual activity.
Per Wagner C.J. and Moldaver, Brown and Rowe JJ.: There is agreement with Abella J. that the verdict was reasonable.
Per Kasirer J.: There is agreement with Abella J. that the verdict was reasonable.
Per Côté J. (dissenting): P's conviction for sexual assault is unreasonable. First, the trial judge's finding of D's incapacity to consent to sexual intercourse was reached illogically. The trial judge was well aware that the timing of the intercourse was the central issue of the case. The combination of the evidence of P and D's friend, G, was crucial to the trial judge's finding of incapacity. G's evidence alone was insufficient to support a finding of incapacity at the time of the intercourse and additional evidence was necessary to narrow the gap between the time of the intercourse and the time when G went to see D. It was only P's evidence that could address the timing of the intercourse in relation to G's arrival and her observation of D. The trial judge bridged that gap by rejecting the evidence that P spoke with G before she tended to D for three reasons: (1) P contradicted himself; (2) G was more reliable and credible; and (3) P's evidence was unreliable because he was intoxicated at this point in the evening. It was open to the trial judge to reject certain portions of P's evidence due to internal and external contradictions provided that the trial judge had a logical and reasonable basis for doing so. However, here, the source of the trial judge's illogical reasoning stems from her third reason. It was illogical for the trial judge to find, on the one hand, that P could not testify reliably about what had happened after the intercourse because he had been too intoxicated at that point in the night, while also finding, on the other hand, that P could nevertheless testify reliably about the fact that he had heard when G had arrived at the party. These findings are irreconcilable. If P was too intoxicated at that time to be subsequently able to testify reliably about the conversation, his testimony about having heard G arriving was also necessarily unreliable. These two events would have occurred at the same point in time, that is, at a time when, in the trial judge's view, P had been too drunk for his subsequent testimony to be reliable. The trial judge found that P had been too drunk at that time to subsequently remember some things yet not too drunk to subsequently remember other things that would have happened at the same time. The trial judge gave no reason to explain this inconsistency on a crucial piece of evidence. Without P's evidence that he heard G arriving after the intercourse, it was impossible to convict P of sexual assault. This logical flaw would suffice to order a new trial.
Second, the evidence available to the trial judge is not capable of supporting the finding of D's incapacity to consent and a verdict of acquittal should be entered instead of ordering a new trial. The trial judge should have accorded far less weight to P's evidence about the timing of the intercourse in relation to G's arrival than she did in her reasons. The trial judge attached significant weight to P's evidence that he had heard about G arriving shortly after the intercourse. It constituted the centerpiece of her reasons. This was, however, incompatible with her repeated findings to the effect that P had been quite intoxicated and was thus an unreliable witness. Once the reliability of 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. A reconstruction of the timeline indicates that the intercourse may have occurred at any time during a window of roughly two hours. As a result, the evidence did not permit the time of the intercourse to be determined beyond a reasonable doubt. The trial judge could not reasonably conclude that D's being incapable of consenting at the time of the intercourse was the only reasonable finding available on the evidence. Without the finding of incapacity, there was no case against P, because neither D nor any other witness had testified that D had not consented as a matter of fact. Consequently, the evidence is not capable of supporting the verdict that P is guilty of sexual assault, and an acquittal should be entered in its place.
(2) Constitutionality of Section 37(10) of the Youth Criminal Justice Act
Per Wagner C.J. and Moldaver, Brown and Rowe JJ.: Section 37(10) of the YCJA is consistent with ss. 7 and 15 of the Charter.
Two elements must be established in order to show a violation of s. 7 of the Charter: (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. Here, the requirements of the first step are satisfied, as a limit on young persons' right to appeal to the Court engages residual liberty interests under s. 7. The outcome hinges on whether this deprivation is in accordance with the proposed new principle of fundamental justice that young persons are entitled to enhanced procedural protections in the criminal justice system. For a principle of justice to be "fundamental" within the meaning of s. 7: (i) it must be a legal principle; (ii) there must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and (iii) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
If this proposed new principle entails a comparative assessment of procedural rights of young persons and those of adults, then it yields neither a meaningful standard nor one upon which any consensus is conceivable. If it is construed as a freestanding principle, the s. 7 argument depends on whether s. 37(10) deprives young persons of a liberty interest without adequate procedural safeguards. Denying young persons an automatic right to a hearing in the Court where a court of appeal affirms a conviction for an indictable offence, but a judge of that court dissents on a question of law, cannot in itself contravene their constitutional entitlement to adequate procedural protection in the youth criminal justice system because there is no constitutional right to an appeal, let alone an automatic one at the apex of the judicial system. The principles of fundamental justice could not require an automatic hearing in the Court in such narrow circumstances as this would have the effect of constitutionalizing the application of s. 691(1)(a) of the Criminal Code to young persons, thereby implying that Parliament would be under a positive obligation to enact such a provision if one did not already exist. Automatic appeals for young persons are not a foundational requirement for the dispensation of justice. The absence of an automatic appeal does not increase the likelihood of wrongful convictions or other miscarriages of justice. The dearth of evidence that there is an actual problem with the way the Court has been exercising its discretion to grant leave belies the conclusion that s. 37(10) denies young persons adequate procedural safeguards. The modern youth justice system provides young persons with enhanced procedural protections commensurate with their unique circumstances and inherent vulnerability in the justice system. Accordingly, s. 37(10) of the YCJA is consistent with s. 7 of the Charter.
With respect to s. 15 of the Charter, the question is whether s. 37(10) of the YCJA deprives young persons of a procedural benefit that is available to adults under s. 691(1)(a) of the Criminal Code. A law or a government action will contravene the guarantee in s. 15: (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. Section 37(10) of the YCJA creates a distinction based on age. The issue is whether it draws a discriminatory distinction by denying a benefit in a manner that reinforces, perpetuates or exacerbates young persons' disadvantage. Understanding the distinct legislative scheme underlying s. 37(10) is crucial to the assessment of the actual impact of the provision on young persons.
The YCJA is designed to balance multiple interests including promptness and enhanced procedural protection, which are both core tenets of the youth criminal justice system. While young persons are uniquely vulnerable to miscarriages of justice, they are also uniquely vulnerable to harms resulting from protracted legal proceedings. A contextual understanding of the place of young persons in the procedural scheme of the YCJA must therefore account for both of these interests: a structurally prolonged appellate review can be more prejudicial to them. Section 37(10) does not perpetuate any disadvantage but, rather, appropriately balances the overlapping interests of young persons in prompt resolution and in appellate review. Above all, the leave requirement in s. 37(10) applies equally to the Crown and confers the corollary procedural benefit for young persons of being protected from an as of right appeal by the Crown pursuant to s. 693(1)(a) of the Criminal Code, a safeguard that is not afforded to adults.
The benefits of the provision must also be considered in conjunction with the absence of evidence that the Court's leave process perpetuates a tangible disadvantage for young persons. The final bulwark against a miscarriage of justice is not a right to an automatic appeal, but the right of appeal itself. The vulnerability of young persons in the criminal justice system is not exacerbated simply because a provision of the YCJA fails to offer the maximum imaginable procedural benefit available to adults. In choosing to deny young persons an automatic right to appeal to the 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 criminal proceedings.
Per Kasirer J.: Section 37(10) of the YCJA is constitutionally valid. There is agreement with the Chief Justice that s. 37(10) is consistent with s. 7 of the Charter. There is also agreement with Abella J. that s. 37(10) constitutes a limit on s. 15(1) Charter rights; however, the limit to the equality right of young persons prescribed by s. 37(10), when read in conjunction with s. 691(1)(a) of the Criminal Code, is justified in a free and democratic society under s. 1 of the Charter.
The burden is on the party seeking to rely on the impugned provision to establish that the limit on s. 15(1) is justified under s. 1 of the Charter. That party must demonstrate a pressing and substantial objective for the limit and that the means chosen to advance this objective do not disproportionately limit the s. 15(1) right. Proportionality demands that the limit be rationally connected to the stated pressing and substantial objective, that it be minimally impairing, and that its benefits outweigh its negative effects. The relationship between s. 15(1) and s. 1 requires careful attention. The focus of the inquiry must be on the seriousness of the discrimination and its relationship with the underlying values in a free and democratic society. A limit on s. 15(1) rights based on a person's age has been viewed in some contexts as less serious and thus more easily justified. The analysis must be attentive to the context of the legislative objectives at issue. The pressing and substantial objective must be scrutinized so that state conduct resulting in the most odious forms of discrimination is not excused. This does not preclude limits that promote other values and principles.
As the constitutional question before the Court is particularized to the s. 691(1)(a) appeal route, it is this narrow instance of prima facie age discrimination that the Crown must justify. Section 37(10) of the YCJA has a pressing and substantial objective of promoting timeliness, early rehabilitation and reintegration in youth criminal matters, which the youth criminal justice system is designed, in part, to promote. Providing for appeals by leave instead of by right favours early resolution of matters involving youth. Timeliness reinforces the connection between the actions and consequences, reduces psychological impact, avoids a sense of potential unfairness, and advances societal interest in seeing young persons rehabilitated and reintegrated into society as swiftly as possible.
Section 37(10) is rationally connected to the pressing and substantial objective of timeliness, early rehabilitation, and reintegration. By requiring leave in those circumstances where there would otherwise be appeals as of right, s. 37(10) serves the goal of timeliness as the leave requirement may be a disincentive to bringing an unmeritorious appeal. Moreover, leave applications are generally decided more quickly than appeals. While the appeal process may be longer on average for those young persons who are successful in their leave applications to the Court as compared to a scenario in which there was no leave requirement, this does not preclude a finding that s. 37(10) is rationally connected to the legislative objective, since it is designed to bring a rapid conclusion to those cases where there is no reason to hear the appeal which raises a question of law that is without merit.
Turning to minimal impairment, Parliament's imposition of a leave requirement in s. 37(10) does not go too far to achieve its objective of timeliness, early rehabilitation, and reintegration in youth criminal matters. While imposing a leave requirement on an otherwise meritorious appeal could raise a potential for miscarriage of justice that is not present in the case of adults who have an appeal as of right, the Court exercises its leave power in a manner that allows it to hear appeals in cases raising a potential miscarriage of justice. In criminal matters, the concept of public importance, the most important criterion for determining the success or failure of a leave application, is best understood as being engaged not only by jurisprudentially important legal issues that qualify as issues of public importance on that basis, but also by those that raise serious questions of law about the safety of the verdict in criminal matters. The issue of a wrongful conviction transcends the particular defendant and engages the integrity of our system of justice as a whole. The Court has the institutional capacity to identify possible miscarriages of justice through the leave to appeal process. Not only does it have the ability to exercise its power to grant leave mindful of Charter rights and the fundamental principles of justice, but it has a responsibility to do so. It follows that the leave process provides an effective safeguard for young persons in those cases where a similarly situated adult would have an appeal as of right under s. 691(1)(a).
Finally, the benefit in s. 37(10) of the timely conclusion of youth criminal matters outweighs the negative effect of the discriminatory impact of imposing a leave requirement for young persons in circumstances where adults can appeal as of right. In enacting s. 37(10) of the YCJA, Parliament did not choose to take away a young person's access to the Court, it only added a leave requirement. When deciding the leave application, the Court will have the benefit of the reasons offered in the dissent below on the question of law, the argument in support of leave and the required supporting materials. Most importantly, 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 would meet the public importance standard even if the matter does not transcend in jurisprudential importance the interest of the parties. Any enhanced risk of miscarriage of justice as a result of having to seek leave to appeal in these circumstances 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.
Per Abella, Karakatsanis and Martin JJ.: The limitation in s. 37(10) of the YCJA constitutes a prima facie breach of s. 15 of the Charter that cannot be justified under s. 1 of the Charter, making s. 37(10) unconstitutional.
To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law, on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Substantive equality requires attention to the full context of the claimant group's situation and to the impact of the limitation on that situation. But context must not be confused with justification. Neither stage of the s. 15(1) test permits the objectives of the legislation to infuse the analysis into whether the limitation itself is a distinction that has the effect of perpetuating, reinforcing, or exacerbating the disadvantage of the claimant group. Only at the s. 1 justificatory stage are the statutory objectives relevant, and then only to the extent that they justify the limitation.
Here, the parties acknowledge that the first step of the s. 15(1) test is satisfied because there is a distinction between the appeal rights to the Court available to adults and young people on the basis of age. The second step, determining whether depriving young people of the automatic rights to appeal that adults have reinforces, perpetuates or exacerbates their disadvantage, requires consideration of what benefit an automatic right to appeal to the Court provides.
The principal object of an appeal as of right to the Court in a criminal case is to rectify legal errors in the trial of serious offences. A dissent on a question of law in a provincial court of appeal, including an unreasonable conviction, or one that cannot be supported by the evidence, automatically triggers a right of appeal to the Court in order to guard against miscarriages of justice. Robust procedural protections against wrongful convictions are crucial. The history of wrongful convictions such as those of Steven Truscott, David Milgaard and Donald Marshall Jr. are evidence of the unconscionable consequences of their absence.
This is an access to justice issue of fundamental importance to young people seeking to prevent wrongful convictions. The automatic appeal right available to adults under s. 691(1)(a) of the Criminal Code is premised on the understanding that a dissent on a question of law at the court of appeal raises a legitimate question as to the validity of the conviction, necessitating final review by the Court regardless of whether the case would otherwise meet the Court's standard for leave to appeal. Likewise, s. 691(2)(b) is an expression of the basic concept that it is essential to a fair criminal justice system that anyone convicted of an indictable offence is entitled to at least one appeal from the initial finding of guilt, whether that finding is first entered at trial or on appeal. These automatic appeal rights provide an automatic additional layer of judicial scrutiny and they offer a significant procedural safeguard.
Section 37(10) of the YCJA deprives young people of a significant procedural safeguard against wrongful convictions for adults, despite evidence that young people are more vulnerable to them than adults. Moreover, by virtue of its effect on s. 691(2) of the Criminal Code, s. 37(10) deprives young people who are found guilty for the first time by a court of appeal of the right to have their case reviewed at all. This deprivation demonstrably perpetuates young people's disadvantage within the criminal justice system. It is a holdover from an antiquated and paternalistic model of youth justice. It would be untenable to suggest that young persons are less worthy of protection from miscarriages of justice than adults. The very philosophy and purpose of the YCJA, with its emphasis on providing substantial procedural protections for young persons, argues for procedures to prevent the ultimate disadvantage, namely, a wrongful conviction. While the Court strives to detect any sign that a miscarriage of justice may have occurred at the leave to appeal stage, an application for leave to appeal does not involve a screening for error in the level of depth that characterizes an appeal on the merits. 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. There is therefore a prima facie breach of s. 15.
Turning to s. 1 of the Charter, even accepting that granting the Court the discretion to decide when criminal cases involving young persons merit a second level of appellate review is a pressing and substantial objective for s. 37(10)'s deprivation of an automatic right of appeal, it fails at the final stage of the proportionality analysis because any benefits of the denial are far outweighed by the deleterious effects. Promoting timeliness, early rehabilitation and reintegration are salutary goals, but s. 37(10)'s actual contribution to achieving them is minimal. The most that will be saved is a few months in those cases where leave is denied. On the other hand, requiring a young accused person to go through the leave to appeal process before they are entitled to a hearing has the effect of prolonging the process, since if leave is granted, the appeal will not be heard for several more months. This means that s. 37(10) exposes young people to a greater risk of miscarriages of justice in aid of the possibility of saving a few months of time. Denying young people the automatic full scrutiny of an appeal and accepting a less rigorous appeal process makes justice the servant of expedition for young people, rather than the other way around. The objectives of timeliness, rehabilitation and reintegration are meaningless if wrongful findings of guilt are tolerated in the service of speed. The YCJA is not intended to promote swift in justice. The profoundly harmful impact of fast-tracking rehabilitation and reintegration over the right to have the basic procedural appeal protection from miscarriages of justice as adults far outweighs the benefit of the potential shaving of a few months off the appeal process.
Per Côté J. (dissenting): It is not necessary to answer the constitutional questions pertaining to the validity of s. 37(10) of the YCJA because they are moot. The constitutional analysis of the denial of an automatic right of appeal to the Court would have no impact on the underlying criminal appeal in this case, as the Court granted leave to appeal.
Cases Cited
By Abella J.
Referred to: R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. Burke, [1996] 1 S.C.R. 474; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641; R. v. J. (J.T.), [1990] 2 S.C.R. 755; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Parks (1993), 15 O.R. (3d) 324; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Vriend v. Alberta, [1998] 1 S.C.R. 493.
By Wagner C.J.
Referred to: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; R. v. Lyons, [1987] 2 S.C.R. 309; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; R. v. R.L. (1986), 26 C.C.C. (3d) 417; R. v. K.G. (1986), 1986 ABCA 217, 31 C.C.C. (3d) 81; R. v. B. (S.) (1989), 50 C.C.C. (3d) 34; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. E. (A.W.), [1993] 3 S.C.R. 155; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. M. (J.S.), 2005 BCCA 417, 200 C.C.C. (3d) 400; R. v. D.F.G. (1986), 29 C.C.C. (3d) 451; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; Krishnapillai v. Canada, 2001 FCA 378, [2002] 3 F.C. 74; Bains v. Canada (Minister of Employment and Immigration) (1990), 47 Admin. L.R. 317; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426.
By Kasirer J.
Referred to: Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; R. v. Oakes, [1986] 1 S.C.R. 103; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. Hay, 2010 SCC 54, [2010] 3 S.C.R. 206; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641; Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
By Côté J. (dissenting)
R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; R. v. Mathieu (1994), 90 C.C.C. (3d) 415, aff'd, [1995] 4 S.C.R. 46; R. v. Cedeno, 2005 ONCJ 91, 27 C.R. (6th) 251; South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
Statutes and Regulations Cited
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Criminal Code, R.S.C. 1985, c. C-46, ss. 273.2(a)(ii), 677, 685(1), 691, 693(1)(a).
Criminal Code, 1892, S.C. 1892, c. 29, s. 750.
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Rules of the Supreme Court of Canada, SOR/2002-156, rr. 25(1), 26(1), 33(2).
Supreme and Exchequer Court Act, S.C. 1875, c. 11, s. 49.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 44.
Young Offenders Act, R.S.C. 1985, c. Y-1, ss. 3, 27(1) [rep. & sub. c. 24 (2nd Supp.), s. 20], (5) [idem].
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APPEAL from a judgment of the Ontario Court of Appeal (Feldman, MacPherson and Nordheimer JJ.A.), 2019 ONCA 85, 373 C.C.C. (3d) 244, [2019] O.J. No. 644 (QL), 2019 CarswellOnt 1642 (WL Can.), affirming a decision of Crosbie J., 2017 ONCJ 277, [2017] O.J. No. 2221 (QL), 2017 CarswellOnt 6476 (WL Can.). Appeal dismissed, Côté J. dissenting.
Matthew R. Gourlay, for the appellant.
Grace Choi and Holly Loubert, for the respondent.
John Provart, for the intervener the Attorney General of Canada.
Michelle M. Biddulph, for the intervener the Criminal Lawyers' Association (Ontario).
Jane Stewart, for the intervener Justice for Children and Youth.
Alison M. Latimer, for the intervener the British Columbia Civil Liberties Association.
The judgment of Abella, Karakatsanis and Martin JJ. was delivered by
Abella J. —
[ 1 ] 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 ("YCJA"), 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.
[ 2 ] 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.
[ 3 ] 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.
[ 4 ] 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.
[ 5 ] As to the appeal from the finding of guilt, I agree with the majority in the Court of Appeal that the verdict was reasonable and would dismiss the appeal.
Prior Proceedings
[ 6 ] When C.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, R.D., was 14. They had both been drinking. Sexual intercourse took place.
[ 7 ] C.P. was charged with sexually assaulting R.D. He was tried before Crosbie J. sitting as a youth justice court judge under the YCJA.
[ 8 ] The Crown's position at trial was that C.P. had sex with R.D. when he knew she was too drunk to be capable of consenting. C.P.'s defence was that R.D. consented to having sex with him before there were any signs that she was too drunk to consent. He said he thought she was "fine" when they had intercourse.
[ 9 ] Crosbie J., in thorough and thoughtful reasons, addressed whether R.D. was too intoxicated to consent and whether C.P. had an honest but mistaken belief in R.D.'s consent (2017 ONCJ 277).
[ 10 ] R.D. did not testify. Her videotaped statement to the police was admitted at trial. She did not remember the sexual activity.
[ 11 ] One of R.D.'s friends, E.G., gave a videotaped statement to the police that was admitted at trial. She said that she came to the party with a friend later than the rest of the group. The very first thing she saw was R.D. lying on the ground. She went to her right away. She found R.D. extremely intoxicated. She had been vomiting, could not get up, and was incapable of communicating. In her oral evidence, E.G. reiterated that she immediately went to R.D. when she arrived at the party. E.G.'s evidence on this point was not challenged.
[ 12 ] The trial judge found that E.G. was a "credible and reliable witness" with "no animus towards C.P."
[ 13 ] C.P.'s evidence was that R.D. consented to sexual intercourse. He testified that he and R.D. arrived at the party with a group of friends. They sat on a mattress by a bonfire, where they talked and kissed. R.D. walked away from the bonfire by herself and sat by some rocks away from the group. C.P. talked to another friend for about five minutes, then returned to R.D. C.P. testified that he and R.D. started kissing, and that at one point she said "Fuck me". He said he was surprised at first, but he believed her and thought she was able to give consent. He did not use protection.
[ 14 ] C.P. said that after ejaculating, he stood up and heard E.G. and another young person arrive. He said he went to talk to them for 10 or 15 minutes before returning to R.D. On cross-examination, however, C.P. admitted that E.G. went "directly to [R.D.]" when she arrived.
[ 15 ] The trial judge did not believe certain critical aspects of C.P.'s evidence, including that R.D. was "fine" during intercourse and that she asked him for sex. On these points, she found that C.P. was "evasive and rattled" and "trying to downplay the impact of his drunken state on his ability to remember what happened and on his actions that evening". C.P.'s demeanour, based on his tone, manner and language, suggested to her that he was guessing about certain answers, and that at other times, he "desperately wanted it to be the case that something had happened, but in fact, it had not". She was aware, however, that C.P. was
remembering an event from a year ago. C.P. is also only 16 years old and I suspect, was nervous when testifying, especially under the skilled cross-examination of counsel. I am, by no means, criticizing his evidence in its entirety. What I have set out above are the many reasons upon which I rejected his evidence on certain, key points. [para. 114]
[ 16 ] Crosbie J. rejected C.P.'s evidence in chief that he spoke with E.G. for 10 to 15 minutes before E.G. attended to R.D., but she accepted his evidence that he heard E.G. arrive at the party right after he finished having sex with R.D., and his admission in cross-examination that E.G. went directly to R.D. when she arrived, which aligned with E.G.'s evidence.
[ 17 ] There is no dispute that R.D. was intoxicated to the point of incapacity when E.G. found her. The question, therefore, was how soon after the sexual activity took place did E.G. see R.D. Based on C.P.'s evidence that he heard E.G. arrive right after the intercourse and the evidence from E.G. and C.P. that E.G. went directly to R.D. when she arrived, the trial judge concluded that R.D. was in an incapacitated state at the time of intercourse:
This evidence . . . leads me to conclude beyond a reasonable doubt that R.D. was extremely intoxicated at the time C.P. admitted to being with her and admitted to having sex with her. E.G. found R.D. having already vomited. She was found unconscious and generally unresponsive — all within a very, very short period of time from when C.P., on his own evidence, had just ejaculated inside her. [para. 95]
[ 18 ] This led Crosbie J. to conclude beyond a reasonable doubt that R.D. was incapable of consenting at the time of intercourse.
[ 19 ] Having found that R.D. was too intoxicated to consent at the time of sexual activity, Crosbie J. turned to whether C.P. had an honest but mistaken belief in communicated consent. She made three key findings. First, she expressly found that "[R.D.] did not ask C.P. to 'fuck me'". Second, she concluded that there was "no room to doubt [C.P.'s] knowledge of how drunk" R.D. was when sexual intercourse took place:
. . . within a very short period of time of the sexual activity, R.D. was falling asleep, had vomit on her, did not appear to be comprehending what E.G. [her friend] was saying and was unable to meaningfully respond. In his testimony, C.P. put himself with R.D. during this time period. There is simply no room to doubt his knowledge of how drunk R.D. really was at the relevant time. [para. 120]
[ 20 ] Finally, she found that, despite his knowledge of her intoxicated state, C.P. failed to take steps to ascertain whether R.D. was consenting, instead choosing to "forg[e] ahead, knowing there existed a danger or risk that [R.D.] was too drunk". While he knew there was "a need for some inquiry", he "did not wish to pursue the truth — he preferred to remain ignorant".
[ 21 ] As a result, the trial judge was satisfied, "beyond a reasonable doubt that C.P. knew or was reckless or wilfully blind to the fact that R.D. was so intoxicated that she could not have consented to sexual activity".
[ 22 ] She found C.P. guilty of sexual assault.
[ 23 ] C.P. appealed to the Court of Appeal for Ontario, arguing that the verdict was unreasonable. MacPherson J.A., writing for the majority, dismissed C.P.'s appeal (2019 ONCA 85, 373 C.C.C. (3d) 244). He found that "the trial judge's careful and comprehensive reasons led to an entirely reasonable verdict". In his view, the trial judge did not commit any errors in her treatment of C.P.'s evidence or of the applicable law. Her finding, based on the evidence, that E.G. went directly to R.D. when she arrived at the party and that C.P. had heard her arrive as soon as he ejaculated and stood up, reasonably led to the conclusion both that R.D. was incapable of consenting and that C.P. knew she was unable to consent. The trial judge explained the bases for her negative assessment of C.P.'s credibility clearly, and why she expressly rejected key aspects of his evidence, such as his evidence that R.D. was "fine" during intercourse and that she had asked him for sex.
[ 24 ] Writing in dissent, Nordheimer J.A. would have allowed the appeal, set aside the conviction and entered an acquittal on the basis that "proof of the offence beyond a reasonable doubt was not an available verdict" on a "fair and balanced review of the evidence as a whole". In his view, the trial judge erred in relying on C.P.'s evidence that he heard E.G. arrive at the beach after he ejaculated, while rejecting all other aspects of his evidence. As C.P.'s evidence regarding the relative timing of his ejaculation and E.G.'s arrival was the "missing link" that tied the sexual activity to R.D.'s incapacitated state, it was incumbent on the trial judge to explain her rationale for relying on this single piece of evidence. He also found that there were significant problems with E.G.'s evidence about the time of her arrival.
[ 25 ] C.P. filed a notice of appeal pursuant to s. 691(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, which provides an automatic appeal as of right to an accused who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal with a dissent on a question of law. The Crown filed a motion to quash, based on the fact that under s. 37(10) of the YCJA young persons have no automatic right of appeal. Leave is therefore required even when there is a dissent on a question of law at the court of appeal (R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 35).
[ 26 ] C.P. filed a notice of constitutional question and argued that s. 37(10) of the YCJA was contrary to ss. 7 and 15 of the Charter.
[ 27 ] This Court adjourned the Crown's motion to quash without prejudice to C.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 both the verdict and the constitutional issue.
Analysis on Finding of Guilt
[ 28 ] When 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" (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, quoting R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185). In Biniaris, Arbour J. clarified that this standard, despite being expressed in terms of a verdict reached by a jury, also applies to the decisions of a judge sitting without a jury. She explained, however, that review for unreasonableness on appeal is "somewhat easier when the judgment under attack is that of a single judge", since judges give reasons whereby
the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [para. 37]
[ 29 ] Arbour J.'s comments in Biniaris led to the adoption, in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, of a narrowly expanded, second avenue of review for unreasonableness. A verdict reached by a judge may be unreasonable, even if supported by the evidence, if it is reached "illogically or irrationally" (Beaudry, at paras. 96-97, per Fish J. (dissenting in the result); Sinclair, at paras. 4 and 15-17, per Fish J. (dissenting in the result), and at para. 44, per LeBel J.). 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 (Sinclair, at paras. 4, 16 and 19-21; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9).
[ 30 ] The Beaudry and Sinclair inquiry into illogical or irrational findings or inferences is not an invitation for reviewing judges to substitute their preferred findings of fact for those made by the trial judge (Beaudry, at para. 98). As MacPherson J.A. noted in the Court of Appeal, the "fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable" (para. 67, quoting R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 29). Nor is it an invitation to unjustifiably interfere with a trial judge's credibility assessments. A court of appeal reviewing credibility assessments in order to determine whether the verdict is reasonable cannot interfere with those assessments unless they cannot be supported on any reasonable view of the evidence (R.P., at para. 10; R. v. Burke, [1996] 1 S.C.R. 474, at para. 7). The inquiry into the logic or rationality of a judge's essential findings under Beaudry and Sinclair is narrowly targeted at "fundamental flaws in the reasoning process" which means that the verdict was not reached judicially or in accordance with the rule of law (Sinclair, at paras. 4, 26 and 77).
[ 31 ] Relying on Beaudry and Sinclair, C.P. argued that it was illogical for the trial judge to find that E.G. discovered R.D. in a state of incapacity very shortly after the intercourse. Building on the reasons of Nordheimer J.A. in dissent, C.P. submitted that the fundamental flaw in the trial judge's reasoning was that she accepted his evidence that E.G. arrived right after the intercourse, but rejected his evidence on all other material points. Relying on the traditional Biniaris standard, C.P. also argued that the verdict was not one that a properly instructed trier of fact could reasonably have rendered based on the available evidence, because the evidence could not establish the timing of the intercourse with any precision.
[ 32 ] In my respectful view, the reasoning that led the trial judge to conclude that E.G. discovered R.D. in her incapacitated state right after the intercourse was both logical and rational.
[ 33 ] C.P. argued that the trial judge's "selective reliance" on his evidence regarding E.G.'s arrival was illogical because her reason for rejecting other parts of his evidence was that he was too drunk to be relied upon. In particular, C.P. argued that the judge could not logically reject his evidence, based on his drunkenness, that he spoke with E.G. for 10 or 15 minutes before she went to R.D., while accepting his evidence, in the same sequence of events, that E.G. arrived right after the intercourse.
[ 34 ] This argument misapprehends the trial judge's reasons. She rejected C.P.'s evidence that he spoke with E.G. before she attended to R.D. because it was internally inconsistent with his own evidence on cross-examination, externally contradicted by the evidence of E.G., and because C.P. was intoxicated, particularly in comparison to E.G., whose memory was "not suspect". More broadly, C.P.'s intoxication and his dishonesty about his intoxication were among numerous factors relevant to the trial judge's assessment of C.P.'s credibility. At no point did the judge find that C.P. was so drunk that his memory was categorically unreliable. The effect of intoxication on a witness's testimony is not all or nothing.
[ 35 ] It is a well-established principle that a judge or jury may "believe some, none, or all of the testimony of any witness, including that of an accused" (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 10). Here, the trial judge rejected certain key points in C.P.'s evidence but believed his evidence that he heard E.G. arrive right after intercourse. She provided sound reasons for what she believed and what she did not, explaining why she found that some of his evidence did not suffer from the same flaws that led her to reject other aspects of his testimony.
[ 36 ] The verdict was also clearly one that "a properly instructed [judge or] jury acting judicially, could reasonably have rendered" (Biniaris, at para. 36, quoting Yebes, at p. 185). There was evidence to support the trial judge's finding that E.G. discovered R.D. in an incapacitated state shortly after the intercourse occurred. Crosbie J. was well aware that the time of intercourse could not be ascertained in absolute terms. She understood that "there was a lack of clarity with respect to the timing of the sexual activity". The Crown witnesses were only able to "make a guess" about when the group arrived at the beach, and none of the Crown witnesses could "pinpoint the time" the intercourse happened. But what mattered, as the Court of Appeal majority explained, was not the precise time, but the "relative time of [E.G.'s] arrival in relation to the sexual activity" (para. 56 (emphasis added)).
[ 37 ] The combination of E.G.'s evidence and C.P.'s evidence satisfied the trial judge that E.G. went to R.D. as soon as she arrived, and that, on C.P.'s own evidence, her arrival at the party was right after intercourse had taken place. This entitled the trial judge logically to conclude that the totally incapacitated condition E.G. found the victim in when she arrived was the condition she was in during the sexual activity.
[ 38 ] For these reasons, I agree with the majority in the Court of Appeal that there is no basis for finding the verdict to be unreasonable. Crosbie J.'s reasons for finding C.P. guilty of sexual assault are model trial reasons: rigorous and thoughtfully explained.
[ 39 ] I would therefore dismiss the appeal.
The Constitutionality of Section 37(10) of the YCJA
[ 40 ] There remains the issue of the constitutionality of s. 37(10) of the YCJA, which deprives young persons of the automatic rights of appeal to this Court in s. 691 of the Criminal Code.
[ 41 ] On March 11, 2019, C.P. filed a notice of appeal pursuant to s. 691(1)(a) of the Criminal Code, which grants an automatic right of appeal to persons convicted of an indictable offence when there is a dissent on a question of law in the court of appeal.
[ 42 ] In response, the Crown filed a motion to quash pursuant to s. 44 of the Supreme Court Act, R.S.C. 1985, c. S-26, which says:
44 The Court may quash proceedings in cases brought before it in which an appeal does not lie, or whenever such proceedings are taken against good faith.
[ 43 ] It based its motion on the requirement, under s. 37(10) of the YCJA, that a young person obtain leave before they can appeal to this Court. In response to the Crown's motion to quash, C.P. filed a notice of constitutional question pursuant to r. 33(2) of the Rules of the Supreme Court of Canada, SOR/2002-156. After receiving written submissions, the Court adjourned the Crown's motion to quash "without prejudice to C.P.'s right to serve and file an application for leave to appeal" (Bulletin of Proceedings, November 15, 2019, at p. 36). The Court's order stated that C.P. could "raise as a ground for leave to appeal any constitutional issue in respect of s. 37(10) of the Youth Criminal Justice Act" (p. 36).
[ 44 ] C.P. filed an application for leave to appeal in which he raised two grounds: the reasonableness of his verdict and the constitutionality of s. 37(10) of the YCJA.
[ 45 ] The Crown filed a response to the leave application, submitting that this Court did not have jurisdiction to hear the constitutional issue because there was no final order or judgment with respect to the constitutionality of s. 37(10) for C.P. to appeal from. Secondly, while acknowledging that this Court has discretion to consider new constitutional issues raised for the first time before it, the Crown submitted that this discretion should only be exercised when there is a meaningful nexus between the constitutional issue and the judgment or order under appeal.
[ 46 ] This Court granted leave to appeal. The Attorney General of Canada intervened on the constitutional question.
[ 47 ] At the hearing, the Crown again asserted its position that the Court had no jurisdiction to decide the constitutional issue, but it did not press the point since all parties were present and prepared to argue the constitutional question.
[ 48 ] This Court's decision in Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, governs. In Guindon, the majority held that once an appeal is before the Court, the decision about
[w]hether to hear and decide a constitutional issue when it has not been properly raised in the courts below is a matter for the Court's discretion, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by this Court, its suitability for decision and the broader interests of the administration of justice.
. . . The Court's discretion to hear and decide new issues should only be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties. [paras. 20 and 23]
[ 49 ] In this case, there is no prejudice to the parties. All Attorneys General were given notice of the constitutional question and the Attorney General of Canada exercised its right to intervene. As in Guindon, no party "suggested that any additional evidence is required, let alone requested permission to supplement the record" (para. 35).
[ 50 ] But of particular relevance is the fact that it is clearly in the interests of the administration of justice for this Court to exercise its discretion to hear and decide the issue, since it is one which could only come before this Court for the first time on an appeal from a court of appeal. Declining to hear C.P.'s constitutional argument would mean leaving an access-to-justice issue of fundamental importance to young persons in jurisdictional limbo.
[ 51 ] The procedural history in this matter provides further support for the Court's jurisdiction to decide the constitutional issue. It is beyond dispute that it would have been necessary for the Court to determine the validity of s. 37(10) in order to properly dispose of the Crown's motion to quash C.P.'s initial notice of appeal as of right. By adjourning that motion and permitting C.P. to raise the constitutional question in his application for leave to appeal, the Court retained the jurisdiction to decide the question, which it had acquired as a result of the motion to quash, on the appeal proper.
[ 52 ] Turning then to the merits of the constitutional question, namely, whether s. 37(10) of the YCJA is a breach of ss. 15 or 7 of the Charter.
[ 53 ] Section 691 of the Criminal Code sets out the appeal routes to this Court for indictable offences. It gives an accused the benefit of automatic rights to appeal to this Court in specific circumstances. Section 691(1)(a) gives a person whose conviction for an indictable offence is upheld at the court of appeal an automatic right to appeal to this Court on any question of law on which a judge at the court of appeal dissents. Additionally, s. 691(2) gives a person whose acquittal is overturned at the court of appeal an automatic right to appeal to this Court on any question of law on which a judge of the court of appeal dissents, or on any question of law if the court of appeal enters a verdict of guilty against that person.
[ 54 ] Section 37(1) of the YCJA incorporates the appeal routes for indictable offences under the Criminal Code into the youth justice system. But s. 37(10) of the YCJA denies young persons the automatic rights to appeal to this Court set out in ss. 691(1)(a) and 691(2) of the Criminal Code, and instead requires them to seek leave before they can appeal. Section 37(10) states:
(10) No appeal lies under subsection (1) from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information or indictment to the Supreme Court of Canada unless leave to appeal is granted by the Supreme Court of Canada.
[ 55 ] That brings us to whether this provision violates s. 15 of the Charter. Section 15(1) states:
- (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[ 56 ] This Court recently reaffirmed the test for identifying breaches of s. 15(1) in Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113. To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law:
- on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
- imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. [para. 27]
[ 57 ] Substantive equality requires attention to the full context of the claimant group's situation and to the impact of the limitation on that situation (Fraser, at para. 42). But context must not be confused with justification. Neither stage of the test for determining whether there is a breach of s. 15 under our jurisprudence permits the objectives of the legislation to infuse the analysis into whether the limitation itself is a distinction that has the effect of perpetuating, reinforcing, or exacerbating the disadvantage of the claimant group. Only at the s. 1 justificatory stage are the statutory objectives relevant, and then only to the extent that they justify the limitation (Fraser, at para. 79).
[ 58 ] The parties acknowledge that the first step of the s. 15(1) test is satisfied because there is a distinction between the appeal rights to this Court available to adults and young people on the basis of age. As a result, the dispute in this appeal revolves around whether the second step of the test has been met. Does depriving young people of the automatic rights to appeal that adults have reinforce, perpetuate or exacerbate their disadvantage? If it does, a prima facie breach of s. 15 is made out.
[ 59 ] Determining this constitutional issue requires us to first consider what benefit an automatic right to appeal to this Court provides. An appeal as of right to this Court when a judge of the court of appeal dissents on a question of law in a criminal case has existed since this Court was established in 1875 (Supreme and Exchequer Court Act, S.C. 1875, c. 11, s. 49). The right was transferred to the Criminal Code in 1892 (see Criminal Code, 1892, S.C. 1892, c. 29, s. 750). Professor Peter H. Russell explains that the "principal object" of an appeal as of right to this Court in a criminal case is to rectify legal errors in the trial of serious offences. Disagreement between members of the provincial court of appeal is considered sufficient evidence of the possibility of such an error, providing grounds for this Court's review ("The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform" (1968), 6 Osgoode Hall L.J. 1, at pp. 13-14).
[ 60 ] In Biniaris, Arbour J. echoed this view in her discussion of why a dissent on a question of law, including an unreasonable conviction, or one that cannot be supported by the evidence, automatically triggers a right of appeal to this Court:
Criminal appeals on questions of law are based in part on the desire to ensure that criminal convictions are the product of error-free trials. Error-free trials are desirable as such, but even more so as a safeguard against wrongful convictions. [para. 26]
No one before us challenged the merits of this proposition, namely, that the purpose of these automatic appeal rights is to guard against miscarriages of justice. The Criminal Code provisions themselves reflect Parliament's acknowledgment that a dissent on a question of law in a court of appeal, or a conviction entered for the first time on appeal, demands automatic review.
Appeal dismissed, Côté J. dissenting.
Solicitors for the appellant: Henein Hutchison, Toronto.
Solicitor for the respondent: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Toronto.
Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Greenspan Humphrey Weinstein, Toronto.
Solicitor for the intervener Justice for Children and Youth: Justice for Children and Youth, Toronto.
Solicitor for the intervener the British Columbia Civil Liberties Association: Alison M. Latimer, Vancouver.