CITATION: R. v. D.C., 2025 ONSC 3462

COURT FILE NO.: CR-24-30000035-0000

DATE: 20250612

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

D.C.

Defendant/Applicant

Matthew Shumka, for the Crown

Boris Bytensky and Kathryn Doyle, counsel for the Defendant/Applicant

HEARD: December 2, 4, and 5, 2024

MOLLOY J.:

REASONS FOR DECISION

(NOTICE OF CONSTITUTIONAL QUESTION)

A. INTRODUCTION

1D.C. is charged with two counts of incest and one count of sexual assault. The charges relate to sexual activity between D.C. and his younger biological sister over a period of approximately three years, commencing when she was 12 years old. At the times covered by the indictment, D.C. was over the age of 18, considered an adult for the purposes of the Criminal Code of Canada.¹

2Although chronologically an adult, the defence asserts that D.C. has an intellectual disability that affects his cognitive functioning and decision-making, such that his overall age equivalency would be 9 to 12 years old.

3The defence argues that given his age equivalency, D.C. should be entitled to the protections and benefits of the Youth Criminal Justice Act (YCJA) and that those provisions of the YCJA that restrict its applicability to him should either be read in a manner that includes him, or alternatively, be declared unconstitutional as contrary to the rights set out in ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.

4For the reasons set out below, I have concluded the following:

(i) The YCJA contains no ambiguity that would permit it to be interpreted in a manner that would include persons with intellectual disabilities equivalent to the age range of individuals;

(ii) The exclusion of D.C. from the protection of the YCJA because of his chronological age does not violate his equality rights under s. 15(1) of the Charter, because it is protected as an ameliorative program pursuant to s. 15(2);

(iii) The exclusion of D.C. from the protections provided under the YCJA does not constitute a violation of his rights under s. 7 of the Charter;

(iv) The procedural rights guaranteed to D.C. under s. 7 of the Charter must be applied in a manner that takes into account any special needs or vulnerabilities attributable to his disability, consistent with his right to the reasonable accommodation of his disability under s. 15 of the Charter.

B. FACTUAL CONTEXT

5In May 2022, D.C.’s sister (who was then 16 years old) disclosed to someone at her high school that her brother had been sexually assaulting her for years. The principal called the police, which led to charges being laid. According to the complainant, the sexual assaults started before D.C. was 18 years old. However, the Crown has now preferred an indictment which alleges assaults only after D.C.’s 18th birthday on May 12, 2018.

6The defence served its Notice of Constitutional Question on June 5, 2024. The application to determine this constitutional question proceeded before me in December 2024.

7At the hearing, the defence called as an expert witness, Dr. Josee Casati, who is a clinical psychologist at Surrey Place, which is an organization serving people with developmental disabilities and Autism Spectrum Disorder. Dr. Casati has special expertise in conducting assessments to diagnose individuals with intellectual and/or developmental disabilities.

8I accept that Dr. Casati is qualified as an expert for the purpose for which her evidence is tendered, which is limited to the area of clinical psychology and the assessment of developmental disabilities, including equivalent intellectual age.

9Having said that, I must immediately qualify the extent and scope of the evidence I consider to be admissible on this constitutional issue. Dr. Casati is not a forensic psychologist. Her evidence is not directed towards the issues raised in the charges themselves, nor whether D.C. fully understood his rights or the cautions given to him by the police at the time of his arrest. She interviewed D.C. and she administered some tests, from which she made some conclusions about his relative intellectual abilities. However, she did not consider anything related to the charges themselves and did not review the statement D.C. provided to the police. She did not set out to provide a forensic opinion, nor would she be qualified to give one. There are also some weaknesses in the report itself, but I will deal with those in my final analysis. They do not relate to Dr. Casati’s qualifications to provide expert opinion evidence to the court.

10Dr. Casati testified that based on the tests she administered and her assessment of D.C., he does have an intellectual disability. Under the DSM-5, she diagnosed him as having a “Mild Intellectual Development Disorder (Intellectual Disability).² She testified that classifications for the extent of this disorder are mild, moderate, severe, and profound. These categories are based on ranges into which numerical scores are slotted, based on the percentile scores in the general population. Only individuals scoring below the 4th percentile on the relevant standardized tests would meet the diagnosis criteria, after allowing for the margin of error.

11Dr. Casati further testified that in order to make this concept more understandable to lay persons, psychologists will often translate the classification into an “age range equivalent” or “mental age.” In her view, D.C. had the mental age equivalent of a child between the ages of 9 and 12. He scored significantly higher in tests reflecting perceptual reasoning and visual learning. His scores for reading skills were substantially lower. There were some areas in which he tested in the average range of abilities, notwithstanding that the overall assessment placed him within the criteria for an intellectual developmental disability.

12D.C. was 24 years old at the time Dr. Casati did her assessment. She testified that although D.C. had persistent learning difficulties throughout the time he was at school, he had never previously been diagnosed as having an intellectual disability. She did note that he was tested through the school system when he was six years old and at that time, he fell below the 6th percentile, but was not formally diagnosed. There was no formal testing after that. However, he was in a special education program throughout school and was noted to have learning disabilities. Notwithstanding these deficits, he did graduate from high school, acquired a driver’s license, and was working in a warehouse, driving a forklift. He was not receiving any form of government assistance.

13At some point during his early school years, there was some thought that he had hearing problems that could be negatively affecting his learning. He had an audiology assessment when he was five years old and again when he was ten. The tests showed some mild hearing impairments in higher frequencies. However, Dr. Casati testified that D.C. did not appear to have any difficulty hearing her or following instructions during the testing.

14There were some areas of weakness in Dr. Casati’s assessment and report. Her work was not peer-reviewed. However, this was not a forensic report and peer review would not be the norm for this kind of assessment. This type of report may be somewhat biased towards including a person within the disability group when matters are close to the line. This is also understandable given the usual scope and function of the work done at Surrey Place. Typically, these assessments are done for the purpose of determining needs and obtaining access to government programs and funding. Where there is ambiguity, the tendency will be to conclude that the person is eligible for the benefits, rather than the contrary.

15Of more concern is the fact that the entire assessment is based on testing and interviews only with D.C. and without any external input. Many of the tests would have benefitted from hearing from third parties as to their experience with D.C. and his level of performance in everyday living. However, D.C. refused to consent to other people being interviewed. Therefore, the source of information was quite limited.

16Notwithstanding these limitations in the report, I accept Dr. Casati’s evidence that D.C. has a developmental disability and that his cognitive abilities fall significantly below what one would expect for an adult person. I have considerable difficulty labelling D.C. as a person who functions at the level of a 9- to 12-year-old. He is not a child. He is an adult male who functions at an average level in many areas of his life. While he may be lacking in some cognitive skills as compared to most adults, he has many life skills that are beyond that of a nine-year-old, such as holding down a full-time job and driving a car.

17However, for the purpose of this application, I accept Dr. Casati’s opinion that D.C. has a developmental disability which places him at a level of cognitive functioning that would typically fall within the age range protected by the YCJA. That is sufficient to provide him with standing to challenge the constitutionality of those provisions of the YCJA that exclude him from the benefits of that legislation.

C. THE PURPOSE AND SCHEME OF THE YCJA

18Under current legislation, children under the age of 12 cannot be held criminally responsible for their acts or omissions. Section 13 of the Criminal Code states:

13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

19Young persons between the ages of 12 and 17 can be charged with a Criminal Code offence, but they are dealt with under the YCJA rather than the Criminal Code. The definition section of the YCJA states:

young person means a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act.³

20Canadian law has recognized for centuries that the moral reasoning of children differs from that of adults and that they cannot be held criminally responsible for their actions in the same way as adults. Initially, young children were shielded from criminal responsibility by the common law doctrine of doli incapax, or “incapacity to do wrong”.⁴ Under this defence, children under the age of seven were simply exempt from criminal responsibility. For youth between the ages of 7 and 14, there was a presumption of doli incapax, but this was rebuttable if the Crown led evidence to establish “that the child had sufficient intelligence and experience to ‘know the nature and consequences of the conduct and to appreciate that it was wrong’.”⁵

21The overlap between the test for the application of doli incapax for children between the ages of 7 and 14 and the common law defence of “insanity” for adults is more than coincidental. The underlying legal principle is that no person should be punished for a criminal act if he or she lacked the necessary capacity to make decisions based on intellect and moral reasoning. That capacity would include the ability to know right from wrong, to control impulses, and to engage in moral reasoning. As stated by Dickson J. (as he then was) in R. v. Schwartz:

The effect of s. 13 is to relieve certain children of criminal responsibility because they, like the insane, do not have the capacity to comprehend the moral implications of their harmful acts.⁶

22The common law defence of insanity is now codified in s. 16 of the Criminal Code, which provides for a verdict of “not criminally responsible by reason of a mental disorder” where an adult accused has a mental disorder that renders him or her “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”⁷

23The common law principle of doli incapax has also now been incorporated, at least to some extent, into modern statute law. In R. v. D.B., the Supreme Court of Canada reviewed the history of our country treating young offenders separately from adults, going back to 1857, and concluded that the “legislative history confirms that the recognition of a presumption of diminished moral culpability for young persons is a long-standing legal principle.”⁸

24In this case, the accused does not (at least at this point) claim the protection of s. 13 of the Criminal Code to argue that he should be completely exempt from criminal responsibility because his mental age is equivalent to a child under the age of 12. Although not specifically raised before me, it seems to me that the accused would have the option of an exemption from responsibility under s. 16 of the Criminal Code if there was evidence to suggest his developmental disability rendered him incapable of knowing right from wrong within the meaning of that provision. This is also not raised as an issue here. Rather, the accused asserts that his constitutional rights are violated by his exclusion from the protection of the YCJA, whose objects and purposes are to protect a vulnerable population based on their chronological age. It is important to this analysis to examine the purpose of the YCJA.

25The fundamental principle underlying the YCJA is that children are different from adults. They have particular vulnerabilities, and reduced moral blameworthiness and culpability. While they should be held accountable for their criminal conduct, it is neither constructive nor fair to deal with that conduct in a system designed for adult offenders.

26The purpose of the legislation can be found in the text of the statute itself, and in Canada’s international obligations under the United Nations Convention on the Rights of the Child, to which Canada is a signatory.⁹ The starting point is the preamble to the YCJA, which includes the following:

WHEREAS members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;

WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms;

AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons . . .

27After setting out the name of the Act (in s. 1) and a number of applicable definitions (in s. 2), the YCJA then specifically sets out in s. 3, under the heading “Declaration of Principle,” that the policy of Canada with respect to young persons is to deal with them under this legislation based on specified principles. For the purposes of the case now before me, the most important of these are:

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

28These stated principles are fully consistent with Canada’s international obligations, including para. 1 of Art. 40 of the United Nations Convention on the Rights of the Child as follows:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.¹⁰

29The Supreme Court held in D.B. that “a presumption of diminished moral blameworthiness for young persons is a legal principle” and that “this principle is fundamental to the operation of a fair legal system.”¹¹

30Based on these principles, the YCJA provides a number of substantive and procedural protections for the benefit of those subject to it, including:

• Privacy protections under s. 110, restricting the publication of the offender’s identity;
• A variety of detailed extrajudicial measures, such as warnings, cautions, referrals, and sanctions, outlined in ss. 4-10;
• A distinct sentencing regime based on different principles than those applicable to adults under the Criminal Code. Under the YCJA, general deterrence is not a factor in imposing a youth sentence, although it may be a factor when imposing an adult sentence on a young person. Youth sentences are determined in accordance with the principles under ss. 3 and 38, which require the Crown to consider all available sanctions other than custody that are reasonable for the offender;
• The involvement of parents, through notices to parents (s. 26) and the assistance of an adult where the young person is not represented by counsel (s. 25(7));
• Under ss. 118(1), a regime for restricted authorized access to and disclosure of youth records, including court records, police records, and records kept by government departments or agencies, which includes the Crown. Under s. 138, it is an offence to disclose youth records or contravene s. 110.

D. CAN THE YCJA BE INTERPRETED TO INCLUDE THE ACCUSED?

31Section 2(1) of the YCJA states:

young person means a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act.

32Also relevant to consider in interpreting these words is s. 30 of the Interpretation Act:

A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person’s birth.¹²

33The defence submits that on a proper interpretation of the definition of “young person” in the YCJA, D.C. falls within it. The definition at s. 2(1) of the Act refers to a person “who is, or appears to be” between 12 and 18 years old. The defence relies, in particular, upon the words “or appears to be” as an indication that these words should be read broadly, and not restricted to a rigid chronological age.

34In R. v. Bell ExpressVu, the Supreme Court of Canada referred with favour to Elmer Dreidger’s formulation of the modern approach to statutory interpretation, specifically adopting the following excerpt, as being “definitive”:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.¹³

35I accept that the YCJA is remedial legislation and that, as such, it should be given a broad and liberal construction, consistent with its purpose.¹⁴ However, that does not mean that the language of the Act can be strained beyond its natural meaning after applying the well-established principles of statutory interpretation.

36I also accept that, where possible, legislation should be interpreted in a manner consistent with the values enshrined in the Charter. However, as the Supreme Court of Canada made clear in Bell ExpressVu, that principle only arises where there is an ambiguity as to the meaning of a provision.¹⁵

37Read in its “grammatical and ordinary sense,” the reference to “age” in the YCJA appears to relate only to chronological age. In my view, the Interpretation Act reinforces that interpretation. The scheme and object of the YCJA, particularly when traced through to its roots many decades ago, is to provide separate treatment for children who commit criminal acts at an age when they are old enough to understand the difference between right and wrong and to be held accountable in some way for wrongdoing, but are still immature and without a developed sense of self-control and moral reasoning. There is nothing in the history of the legislation, nor anything else in the Act, to suggest that it was meant to apply to adults who have developmental or intellectual disabilities. Not every adult with some form of intellectual disability will have a deficit in moral reasoning equivalent to individuals under the age of 18. However, there is nothing in the YCJA that provides for assessment or determination of whether a particular individual would fall within it, or how such a test should be applied. This absence underscores the conclusion that the Act was never intended to apply to anyone not identified by chronological age.

38Similarly, the provisions dealing with the retention of youth court records under ss. 114-124 of the YCJA, and when youth entries can be converted to adult records, are clearly predicated on temporal points in time, defined by chronological age. The entire scheme would be unworkable if the definition of “young person” was anything but chronological.

39I see no ambiguity in the words used to define “young person” in the YCJA. I agree with the Crown’s submission that the phrase related to whether a person “appears to be” a particular age refers to a situation where a person claims to be between 12 and 18 years old, and “appears to be” that age, even though there is no confirmatory evidence, such as the testimony of a parent or a birth certificate. In those circumstances, where the individual claims to have “young person” status, they will receive the benefits of the YCJA unless there is evidence to the contrary. That is consistent with the remedial nature of the legislation and its underlying purpose. This does not create any ambiguity in relation to chronological as opposed to intellectual age.

40There is a conundrum raised in this case. If differential treatment for children based on reduced capacity for moral judgment is a fundamental principle of law, why is the same not true for reduced capacity for moral judgment because of a developmental intellectual disability rather than chronological age? Arguably, the accused in this case has the same or similar deficits, but based on his intellectual age rather than his chronological age.

41However, in my view, interpreting the YCJA as including protection for D.C. is not the appropriate resolution of this apparent conundrum. In the absence of an ambiguity, it is not correct to strain the language of the legislation in order to interpret it in a manner that is consistent with Charter values. There is no ambiguity here. The YCJA protects children according to their chronological age, but does not protect adults with disabilities who have similar needs and deficits. As stated in Bell ExpressVu:

To reiterate what was stated in Symes and Willick, supra, if courts were to interpret all statutes such that they conformed to the Charter, this would wrongly upset the dialogic balance. Every time the principle were applied, it would pre-empt judicial review on Charter grounds, where resort to the internal checks and balances of s. 1 may be had. In this fashion, the legislatures would be largely shorn of their constitutional power to enact reasonable limits on Charter rights and freedoms, which would in turn be inflated to near absolute status. Quite literally, in order to avoid this result a legislature would somehow have to set out its justification for qualifying the Charter right expressly in the statutory text, all without the benefit of judicial discussion regarding the limitations that are permissible in a free and democratic society. Before long, courts would be asked to interpret this sort of enactment in light of Charter principles. The patent unworkability of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance. As such, where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result.¹⁶ [Emphasis in original.]

42The interpretation of the YCJA urged upon me by the applicant is simply not viable. Applying the principles of statutory interpretation, I find that the definition section of the YCJA excludes D.C. from its protections because of his chronological age.

43This is an equality rights issue, and it is properly dealt with under the analysis of whether the legislation violates D.C.’s rights under s. 15 of the Charter.

E. DOES THE YCJA INFRINGE EQUALITY RIGHTS UNDER THE CHARTER?

[Section 15(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec15subsec1_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html): The Equality Rights Guarantee

44Section 15(1) of the Charter guarantees equality rights in the following terms:

15 (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.

45In R. v. Sharma the Supreme Court of Canada reiterated the two-step process required to establish a breach of s. 15(1), as it had established in many previous cases, stating:

The two‑step test for assessing a s. 15(1) claim is not at issue in this case. It requires the claimant to demonstrate that the impugned law or state action:

(a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and

(b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (R. v. C.P., 2021 SCC 19, at paras. 56 and 141; Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 27; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19‑20).¹⁷

46The Crown accurately cites Sharma for this proposition. However, care must be taken in applying these tests to the particular circumstances before the court. In particular, it is important to recognize that Sharma was a case involving indirect, or adverse impact, discrimination. The analysis of whether the test has been established for adverse impact discrimination is quite different from the application of the test in a case of direct discrimination. It must also be recognized that the YCJA is not legislation that overtly causes a disadvantage. Rather, it is legislation that confers a benefit, but only to a specified group. Also, the case before me is different from a situation where legislation provides a benefit or protection at large, but specifically excludes a group or individuals (whether directly or indirectly). The YCJA provides benefits and protections to a limited group identified by chronological age (an enumerated class in s. 15(1) of the Charter), but it excludes all people whose chronological age does not meet the definition in s. 2(1) of the YCJA.

47It is clear that D.C. is excluded from the benefit and protection of the YCJA because of his age. At the first step of the test under s. 15(1), D.C. does not need to establish anything about the impact of the legislation on people in his circumstances. The YCJA creates a distinction based on enumerated grounds (age) on its face. The first step of the test is clearly met.

48The second prong considers whether the impugned legislation “denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.”¹⁸ Here, the denial of the benefit does have the effect of exacerbating D.C.’s disadvantage, not because of his age, but because of the nature and extent of his disability. Conceptually, this is a complex issue. The exclusion from the benefit is because of one enumerated ground (age), but the disadvantage created is because of a different enumerated ground (disability). This does not fit neatly into the kind of analysis referred to in any of the cases cited by the Crown. In my view, the difficulty with this approach is that the analysis should not be conducted under s. 15(1), but rather, under s. 15(2).

49However, before turning to s. 15(2), I will address the case authorities relied upon by the parties.

50The Crown cited the Supreme Court of Canada’s 1984 decision in R. v. Ogg-Moss for the proposition that an adult person with an intellectual capacity equivalent to that of a child is nevertheless an adult.¹⁹ I agree that is a fundamentally sound proposition. Mr. Ogg-Moss was a counsellor/care-worker employed in an institution for persons with developmental disabilities. He was charged with assault for hitting a 21-year-old resident in the head five times with a large metal spoon as punishment for the resident spilling his milk on the table. Mr. Ogg-Moss claimed the protection of what was then s. 43 of the Criminal Code, which permitted a person standing in the position of a parent to use reasonable force by way of “correction” toward a “pupil or child.” Justice Dickson (for the unanimous court) held that this provision did not apply because the victim was 21 years old, and therefore not a child. Critical to this analysis was the fact that s. 43 of the Criminal Code protected one class of persons (those in authority) while at the same time removing the protection of the law from another class of persons (children). The Court reasoned that any derogation from an individual’s right to physical security and dignity must be strictly construed.

51The Court also noted that unlike children defined by chronological age, individuals with an intellectual capacity equivalent to a child would typically have that capacity for the rest of their lives. Treating such individuals as “children” would therefore make them vulnerable to assault for the rest of their lives. This would apply not only to persons with intellectual disabilities but also to other adults who suffered from senility or other cognitive disorders. Ogg-Moss is a landmark decision on the protection of persons with disabilities from lifelong physical abuse by those who would treat them as children. However, as noted by Mr. Bytensky (for D.C.), the case must be treated with care, as it deals with protecting persons with disabilities by excluding them from a section of the Criminal Code, whereas the application before me relates to extending a benefit to a person with a disability from which he has been excluded by statute. I agree that these are fundamentally different concepts and that Ogg-Moss is not directly applicable. However, the underlying premise from Ogg-Moss is that adults with intellectual capacities similar to those of children are nevertheless adults. In my view, that premise still applies. However, it does not assist on the s. 15 analysis.

52The Crown also relies upon R. v. Sawchuk, a 1991 decision of the Manitoba Court of Appeal.²⁰ In that case, a 23-year-old accused sought a declaration that, because he had a mental age equivalent to a child under the age of 12, he was immune from prosecution by virtue of s. 13 of the Criminal Code. Relying on Ogg-Moss, the Court of Appeal held that “child” is a term measured by chronological age, not intellectual capacity. The Court rejected the s. 15 Charter argument in one paragraph, stating that s. 15 applies “where an individual or group is singled out for harsh or discriminatory treatment” and that in that case there was “no discrimination against the accused relative to his personal characteristics.”²¹ Without conceding that this analysis was a correct interpretation of equality rights under s. 15 of the Charter in 1991, it is certainly not consistent with modern jurisprudence. There is also virtually no analysis of the issue. Although not specifically addressed at the Court of Appeal level, the Manitoba Court of Queen’s Bench based its decision on the concept of “comparator groups,” reasoning that all offenders over the age of 12 were treated equally, without considering disparate impact.²² This type of analysis is no longer good law.²³ In any event, this decision is not binding on me and I have not followed it.

53In R. v. Picard, the Quebec Court of Appeal refused an extension of time to file a notice of appeal because the constitutional issue raised had “no chance of success”.²⁴ The issue was the constitutionality of not extending the protection of s. 13 of the Criminal Code to the accused who was an adult but, according to a “neurological assessment,” had a “mental age of around 12 years.” The Court’s reasoning on this point consists of two paragraphs and, in essence, relies on Ogg-Moss and Sawchuk. Ogg-Moss involved the interpretation of a defence in the Criminal Code for assaulting a “child.” The interpretation urged by the accused in that case would have provided a benefit to him, but would be detrimental to all persons with intellectual disabilities for the rest of their lives. This was an issue of statutory interpretation. There was no issue of constitutional rights involved. I have already commented on the Sawchuk decision above. I am not bound by Picard, and I decline to follow it. I consider it to be based on incorrect legal reasoning.

54Finally, the Crown relies on R. v. DeSousa, a 2018 decision of McLeod J. in the Ontario Court of Justice.²⁵ The Crown concedes that under principles of stare decisis, I am not required to follow this case. This was also a case of a person with an intellectual disability (assessed as having a mental age of 12) claiming immunity from prosecution based on s. 13 of the Criminal Code. I agree with some aspects of this decision, but not others. There is little analysis of the s. 15 argument, except to say that the accused was not excluded based on his disability, but rather because of his age, which is not an answer to the issue, since age-based discrimination is also contrary to s. 15 of the Charter. In my view, the s. 7 analysis with respect to s. 13 of the Criminal Code is quite different from the situation before me. Since the decision is not binding on me in any event, I do not propose to go any further than that.

[Section 15(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec15subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html): Protection for Ameliorative Programs

55Section 15(2) of the Charter states (under the heading “Affirmative action programs”):

15 (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

56The YCJA is special legislation designed to protect a disadvantaged group identified by age, and whose disadvantage stems from that characteristic. As such, it is not precluded from providing that benefit to a limited class, even though that would otherwise be a violation of s. 15(1).

57It is useful to consider practical examples of how this works. Conceptually, it is easy to conclude that a 50-year-old with no disability or disadvantage could never claim the protection of the YCJA simply by claiming that the 18-year-old age limit discriminated against him because of his age. This would clearly be blocked by s. 15(2). That is because the legislation is designed to protect young persons, who are disadvantaged by reason of their age as compared to adults. What complicates the issue here, is that D.C. has the same or similar intellectual deficits as the individuals protected by the legislation, and the defence argues that it is therefore discriminatory to exclude him from the benefits of the legislation, for all the same reasons that the legislation was implemented in the first place.

58Another example would be an affirmative action program designed to assist women in obtaining managerial positions in sectors where they are significantly under-represented. The purpose of that special program would be to ameliorate disadvantage connected to a woman’s gender, which is a prohibited ground of discrimination. Under s. 15(2), that program would be protected from attack by males identified by an additional enumerated ground (such as colour, or disability, or religion), even if they could show that the class to which they belonged was equally, or even more, under-represented. When the government sets up a special program to address historic disadvantage, it is not required to start with the most disadvantaged group in society and cast the umbrella of protection up from there. As long as the program is legitimately directed towards the amelioration of disadvantage, it is protected from incursion by other groups seeking the same protection.

59In this case, the defence argues that D.C. is similarly situated to young persons charged with criminal offences and should not be excluded from the protection of the YCJA. I have considerable sympathy with that position, and I readily accept that D.C. is disadvantaged in similar ways as young persons are when the criminal law is applied to him without the protections provided by the YCJA. However, that is not an answer to the shield provided by s. 15(2).

60In my view, the Supreme Court of Canada’s decision in R. v. Kapp is a complete answer to the applicant’s position here.²⁶ In that case, the government had granted a communal fishing license for a specified time to three aboriginal bands, as part of a program to enhance aboriginal involvement in the commercial fishery and alleviate economic disadvantage. Non-aboriginal commercial fishermen challenged the program, claiming it discriminated against them based on their race. The Supreme Court held that the program did not violate s. 15(1) of the Charter, stating:

Sections 15(1) and 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole. Section 15(1) is aimed at preventing discriminatory distinctions that impact adversely on members of groups identified by the grounds enumerated in s. 15 and analogous grounds. This is one way of combatting discrimination. However, governments may also wish to combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. Through s. 15(2), the Charter preserves the right of governments to implement such programs, without fear of challenge under s. 15(1). This is made apparent by the existence of s. 15(2). Thus s. 15(1) and s. 15(2) work together to confirm s. 15’s purpose of furthering substantive equality.²⁷

61The Supreme Court accepted that the program in question treated the non-aboriginal claimants differently based on their race, which would otherwise violate s. 15(1). The Court went on to consider the impact of s. 15(2) and two previous lines of authority that read s. 15(2) as either of the following: (1) an interpretative aid to s. 15(1); or (2) an exemption from the operation of s. 15(1). The Court then suggested a third option as follows:

In our view, there is a third option: if the government can demonstrate that an impugned program meets the criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis at all. As discussed at the outset of this analysis, s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. Section 15(2) supports a full expression of equality, rather than derogating from it. “Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it”: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. 2007), vol. 2, at p. 55-53.²⁸ [Emphasis in original.]

62The Court then held:

We would therefore formulate the test under s. 15(2) as follows. A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. In proposing this test, we are mindful that future cases may demand some adjustment to the framework in order to meet the litigants’ particular circumstances. However, at this early stage in the development of the law surrounding s. 15(2), the test we have described provides a basic starting point — one that is adequate for determining the issues before us on this appeal, but leaves open the possibility for future refinement.²⁹

63The YCJA clearly has an ameliorative purpose: to protect children who have been charged with criminal offences. The system created by the YCJA targets a group, which is a disadvantaged group identified by an enumerated ground (age). As such, the legislative scheme does not violate s. 15(1) of the Charter, notwithstanding that it excludes individuals like D.C., who are similarly disadvantaged.

[Section 1](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec1_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html): Reasonable Limits

64Having reached the conclusion that the YCJA does not breach s. 15(1) of the Charter, it is not necessary for me to consider whether, if I had found it to be unconstitutional on its face, it would be saved under s. 1 of the Charter. However, I will address that issue briefly. The question is whether the age restrictions in the YCJA fall within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”³⁰ To be justified under s. 1, the government must demonstrate the following: (1) the objective of the limit imposed must be “pressing and substantial”; and (2) the means by which the objective is furthered must be proportionate. The proportionality analysis includes a consideration of whether there is a rational connection between the objective and the limit imposed and whether there is minimal impairment of any right violated. Finally, there must be proportionality between the effects of the challenged legislation and its objective, including a weighing of the salutary and deleterious effects of the limits involved.³¹

65In my view, the Oakes test under s. 1 of the Charter is clearly met. The objective of the YCJA is to protect the rights of children between the ages of 8 and 18 who are accused of criminal offences. This is a pressing and substantial objective, well-recognized in free and democratic societies across the world. There can be no doubt that this is a vulnerable group in need of protection, and there is a rational connection between the objective and the age parameters imposed. There is minimal impairment of the rights of others who are over the age of 18 because their rights under the criminal law have ample protection under the common law, the Criminal Code, and the Charter (as I have developed more fully in the section of these Reasons dealing with the alleged s. 7 violation). I recognize that there will be children under the age of 18 who might be fully mature and less in need of the protections in the YCJA than would be the case for some individuals who are over 18. However, the system would be completely unworkable if every young person charged had to undergo psychological assessment to determine his or her level of intellectual and emotional maturity before determining whether they qualified for the protections under the Act. This is a case where clear borders are essential, notwithstanding that they are, by their nature, arbitrary. The same holds true of individuals over the age of 18 who might be equally entitled to protection for whatever reason (e.g., mental illness short of a “not criminally responsible” standard, senile dementia, acquired brain injury, intellectual disability). Nevertheless, the system would simply fail, as too cumbersome and vague, if its protections depended on having an assessment. The salutary aspects of protections for people who fall within a chronological age range outweigh the deleterious effects for those who fall above that range.

66Therefore, if I had found the legislation to have infringed s. 15(1) of the Charter, I would nevertheless have upheld its validity under s. 1 of the Charter.

F. DOES THE YCJA INFRINGE SECTION 7 OF THE CHARTER?

67Section 7 of the Charter provides that “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

68The defence argues that s. 7 liberty rights are invoked because if D.C. is not brought within the YCJA, he will be dealt with as an adult under the Criminal Code. This would include being subject, if convicted of incest, to a mandatory minimum sentence of five years in prison.³² At this point, the defence’s constitutional challenge is only to s. 2(1) of the YCJA and not to the mandatory minimum sentence for this offence. However, the defence factum indicates that D.C. will challenge the constitutionality of the mandatory minimum sentence if he is convicted. That issue is not before me on this application.

69That said, I agree that the liberty and security interest of D.C. is engaged by his exclusion from the YCJA and the numerous procedural protections provided therein, as well as potential exposure to a higher sentence if convicted under the Criminal Code as an adult.

70Nevertheless, I do not agree that the exclusion of D.C. from the YCJA because of his chronological age constitutes a breach of s. 7 rights under the Charter. In my view, the provisions of the Criminal Code and existing jurisprudence under ss. 7-12 of the Charter provide ample safeguards with respect to D.C.’s rights under s. 7 of the Charter. These are individual rights and their content and ambit depend substantially on the particular circumstances in which they arise. As a person with a disability, D.C. is entitled to be accommodated if he has needs or vulnerabilities that require different treatment than might be the case for other persons charged with an offence. There is ample scope for individualizing the protections provided under ss. 7-12 of the Charter within the existing legislation and case law. For example, for a person with an apparent intellectual disability, extra steps might need to be taken to ensure rights to counsel are understood, just as would be the case for someone who did not speak English. Likewise, questions of voluntariness and the tests for admissibility of statements by an accused already take into account the particular circumstances of the accused. Considering the impact of an intellectual disability on those tests would simply be a logical extension. The YCJA does not shield young people from accountability for offences they commit. The situation for D.C. would be no different. The actus reus of any offence is typically entirely objective. However, the issue of mens rea is individualized, and D.C.’s intellectual abilities might well be a factor in determining his level of criminal intent. The concept of moral blameworthiness is already built into the framework for sentencing under the Criminal Code and is also highly individualized.

71I will not attempt to itemize all the ways in which the existing criminal law regime would adapt and accommodate the individual circumstances of persons in a similar situation to D.C. These are merely examples. My point is that human rights legislation and the Charter require the accommodation of persons with disabilities up to the point of undue hardship. This includes the way they are treated in the criminal justice system. In my view, that accords with principles of fundamental justice. There is no breach of s. 7 rights simply because those protections are not provided under the YCJA or the protections provided are not identical to the protections given to young persons. The protections provided do not have to be identical to the rights provided to others, nor do they have to be “the most favourable procedures that could possibly be imagined”; they need only provide “adequate procedural protections”.³³

72In my view, this is really an equality rights issue, not a s. 7 issue. In R. v. C.P., the Supreme Court of Canada dealt with a constitutional challenge to the YCJA that is the reverse of the situation before me. In that case, a 15-year-old was found guilty of sexual assault under the YCJA. He appealed to the Court of Appeal for Ontario. The majority dismissed the appeal, but one judge dissented. If C.P. had been an adult, he would have had an automatic right of appeal to the Supreme Court of Canada because of the dissent at the appeal level, by virtue of s. 691(1)(a) of the Criminal Code. However, this provision was not carried forward into the YCJA. C.P. argued that the provision of the YCJA that did not give young people the same appeal as of right to the Supreme Court of Canada was unconstitutional as a violation of ss. 7 and 15 of the Charter. This is a young person arguing that because he was under the YCJA, he was denied a right which he would have had if he had been an adult prosecuted under the Criminal Code, in breach of his s. 7 and s. 15 Charter rights. The situation before me is an adult arguing that prosecuting him under the Criminal Code rather than under the YCJA breached his s. 7 and s. 15 Charter rights. In C.P., the Supreme Court found no violation of ss. 7 or 15. Chief Justice Wagner (for the majority on this issue) held that the analysis of this issue required considering whether there is a free-standing principle of fundamental justice that there be an automatic right of appeal to the Supreme Court or whether this is only an issue because of adults having that procedural right but young persons under the YCJA not having it. The Chief Justice then held:

If the content of the principle is indeed strictly contingent on a comparative assessment, one that fluctuates depending on the procedural benefits Parliament sees fit to extend to or withhold from adults at a given time, then it yields neither a meaningful standard nor one upon which any consensus is conceivable. To the extent that the concern is solely how young persons are treated in comparison to adults, the argument appears better suited to a s. 15 Charter analysis, not to one that engages principles of fundamental justice under s. 7.³⁴ [Emphasis added.]

73Accordingly, I find no breach of D.C.’s s. 7 rights as a result of his exclusion from the YCJA. That does not mean that there have been no s. 7 violations with respect to how D.C. was dealt with in the criminal justice system, both in the normal course, and with respect to the accommodation of any special needs attributable to his intellectual disability. However, those issues are fact-specific and individualized and are for another day.

G. CONCLUSION

74I agree with the premise of the applicant that persons with intellectual disabilities are disadvantaged in their interactions with the criminal justice system. Sadly, there is abundant evidence to support that proposition.³⁵ The areas of greatest danger for these individuals are typically at the time of arrest, with respect to understanding their rights, how they behave when interviewed, suggestibility and acquiescence to persons in authority (such as police officers), and false confessions. Studies also suggest that such individuals also tend to be denied bail and are sentenced to incarceration more frequently than persons without such disabilities.

75I also agree that this is not an acceptable state of affairs. However, the answer is not to include individuals with disabilities within the YCJA, regardless of their chronological age. Adults with intellectual disabilities are nevertheless adults. They are not children, and they should not be treated like children by the criminal justice system. Some accommodations to reflect their individual circumstances will often be required. This is a constitutional right under s. 15 of the Charter. While such accommodations might often be similar to those afforded under the YCJA, adults with such disabilities are simply not the equivalent of children. The range of intellectual disability is vast and will vary greatly from individual to individual. Similarly, some persons with intellectual disabilities will have strengths in some areas, but not in others. A universal solution of simply placing them under the coverage of the YCJA is not appropriate. It undercuts the efficacy of the YCJA for the chronological age group it was designed to benefit, and it is an awkward fit for an adult offender. While intellectual ability may be a common denominator with many individuals covered within the YCJA, there are also many dissimilarities.

76In my opinion, the solution lies in the individual accommodation of persons with intellectual disabilities, depending on their individual needs and abilities. While this has its difficulties, particularly where the disability may not be immediately obvious to the police or other justice system participants, the same assessment problems would arise in determining whether the individual should be included in the YCJA. Treating adults with intellectual disabilities as adults who need particular accommodations in order to afford them the rights to which they are entitled under the Charter, is preferable to considering them as the equivalent of children and therefore included within the YCJA.

77In the result, this application is dismissed.

Footnotes

1. 1Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA); Criminal Code, R.S.C., 1985, c. C-46.
2. 2American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (2013), at p. 37.
3. 3YCJA, s. 2(1).
4. 4R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 47.
5. 5R. v. D.B., at para. 47.
6. 6R. v. Schwartz, 1976 CanLII 165 (SCC), [1977] 1 S.C.R. 673, at p. 680 (in dissent, but not on this point).
7. 7Criminal Code, at s. 16.
8. 8D.B., at paras. 47-59.
9. 9United Nations Convention on the Rights of the Child, November 20, 1989, Can. T.S. 1992 No. 3 (UNCRC).
10. 10UNCRC, at art. 40, para. 1, cited in D.B., at para. 60.
11. 11D.B., at para. 61.
12. 12Interpretation Act, R.S.C., 1985, c. I-21, at s. 30.
13. 13R. v. Bell ExpressVu, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A. Dreidger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983).
14. 14Interpretation Act, at s. 12; R. v. Sheik-Qasim, 2007 CanLII 52983 (ON SC), 230 C.C.C. (3d) 531; Re J.D., 2009 ONCJ 505.
15. 15Bell ExpressVu, at para. 28.
16. 16Bell ExpressVu, at para. 66.
17. 17R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 28.
18. 18Sharma, at para. 28.
19. 19R. v. Ogg-Moss, 1984 CanLII 77 (SCC), [1984] 2 S.C.R. 173.
20. 20R. v. Sawchuk (1991), 1991 CanLII 11752 (MB CA), 75 Man. R. (2d) 311 (Man. C.A.).
21. 21R. v. Sawchuk.
22. 22R. v. Sawchuk (1991), 1991 CanLII 11737 (MB QB), 74 Man. R. (2d) 59 (Man. Q.B.).
23. 23Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 41.
24. 24R. v. Picard, 2022 QCCA 1724.
25. 25R. v. De Sousa, [2018] O.J. No. 514.
26. 26R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483.
27. 27Kapp, at para. 16.
28. 28Kapp, at para. 37.
29. 29Ibid, para. 41.
30. 30Charter, at s. 1.
31. 31R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at paras. 38-39, 46, 59, 66, 76.
32. 32Criminal Code, at s. 155(2).
33. 33R. v. C.P., 2021 SCC 19, 2021 SCC19, [2019] 1 S.C.R. 679, at paras. 132-133.
34. 34C.P., at para. 130.
35. 35I.C.H. Clare, & G.H. Gudjonsson, “The vulnerability of suspects with intellectual disabilities during police interviews: A review and experimental study of decision- making” (1995) 8:2 J. Applied Research in Intellectual Disabilities 110-128, at p. 120; Leanne Gosse et al., “Legal rights and persons with intellectual disabilities” in Dorothy Griffiths & Frances Owen, eds, Challenges to the human rights of people with intellectual disabilities: Historical, legal, policy and theoretical issues (London, UK & Philadelphia, PA: Jessica Kingsley, 2008) 124-154; Jessica Jones, “Persons with Intellectual Disabilities in the Criminal Justice System: Review of Issues” (2007) 51:6 Int’l J. Offender Therapy & Comp. Criminol. 723-733, at p. 726; and Michael Michel, “Mental Age v Chronological Age: Rethinking Our Approach to Criminal Responsibility for Developmentally Delayed Young Persons under the Youth Criminal Justice Act” (2022) 31 Dal. J. Leg. Stud. 53.