Home / Due Process for All. Except Youth.

Due Process for All. Except Youth.

Youth involved in Canada’s criminal justice system are uniquely vulnerable.[1] Young people can be more susceptible to pressure from the police and other agents of the state. They also must navigate the difficulty of advocating for their legal rights.[2] Involvement in the criminal justice system at a young age can also have serious long-term consequences. For example, young people in prison face barriers in accessing education and may have reduced employment prospects for years to come. [3]  

The Supreme Court of Canada has recognized the significant vulnerability of youth on many occasions. [4] For example, in a 2008 judgment, the Court held that the Canadian Charter of Rights and Freedoms protects a presumption that young people are less blameworthy for crimes they commit than adults, [5] as they have “heightened vulnerability, less maturity and a reduced capacity for moral judgment.” [6]

Parliament has also recognized that young people need special rights and protection. Through the Youth Criminal Justice Act (YCJA), Parliament created a separate legal system for young people charged with criminal offences. [7] With a focus on promoting rehabilitation and reintegration,[8] the YCJA aims to grant young people “enhanced procedural protection to ensure that [they] are treated fairly and that their rights … are protected.”[9]

Shockingly, however, the YCJA also denies young people a critical procedural protection: the automatic right to appeal their case to the Supreme Court of Canada. If a young person wants the highest court in the country to review a finding of guilt, section 37(10) of the YCJA says they must first get the Court’s permission for their case to be heard. [10] In contrast, adults have an automatic right to appeal to the Supreme Court in many criminal cases. In cases involving serious crimes where there is a risk of a miscarriage of justice, there is no barrier to adults initiating an appeal. [11]

This double standard has not gone unchallenged. In November 2020, one young person went all the way to the Supreme Court of Canada to challenge the constitutionality of this section, arguing that it violated his Charter rights to liberty and equality.

The BCCLA intervened in this case, further arguing that section 37(10) of the YCJA was unconstitutional because it is procedurally unfair, arbitrary, and overbroad. We told the Court that young people are entitled to robust procedural protections because they are vulnerable. We explained that an automatic right to appeal would provide youth with a critical layer of protection against wrongful convictions. Appeal rights ensure that a higher court can review the decision and verify that it was not made in error. The BCCLA was represented in this intervention by pro bono counsel Alison Latimer and me.

In May 2021, the Supreme Court rendered its judgement in this challenge and, unfortunately, upheld the constitutionality of section 37(10) of the YCJA. Chief Justice Wagner explained that denying youth an automatic right of appeal was not discriminatory, but rather “responded to the reality of their lives”[12] because it ensured court proceedings could be over quickly and would prevent “unnecessary delay.”[13]

The BCCLA strongly disagrees with this conclusion. In our view, speedy legal proceedings for youth should not come at the cost of due process.

One Supreme Court judge, Justice Abella, wrote a scathing dissent, co-signed by Justice Karakatsanis and Justice Martin, in which she concluded that the YCJA violated the Charter right to equality. She explained that this law “deprives young people of what is acknowledged to be a significant safeguard against wrongful convictions for adults, despite the evidence that young people are more vulnerable to them than adults.”[14] She noted that “[t]here is no justification for a speedy resolution if the resolution is based on an unfair trial.”[15] Justice Abella highlighted that, while all young people involved in the criminal justice system are vulnerable, racialized youth are particularly vulnerable due to systemic discrimination. [16]

The BCCLA was very disappointed by the decision of the majority of the Supreme Court and hopes that Parliament will amend the YCJA to grant youth the same appeal rights that are available to adults. 


[1] R. v. D.B., 2008 SCC 25 at para. 41.

[2] Nicholas Bala and Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. Toronto: Irwin Law, 2012, p. 164. 

[3] Nicholas Bala, “Responding to Young Offenders: Diversion, Detention & Sentencing Under Canada’s Y.C.J.A.” Queen’s University Faculty of Law Research Paper Series (March 2015), p. 9.

[4] See ex: R. v. L.T.H., 2008 SCC 49 at para. 24; R. v. S.J.L., 2009 SCC 14 at para. 64; R. v. K.J.M., 2019 SCC 55 at para. 55.

[5] D.B. at paras. 45-69.

[6] D.B. at para. 41.

[7] Youth Criminal Justice Act, SC 2002, c 1 [YCJA], s. 3(1)(b).

[8] YCJA, s. 3(1)(b)(i).

[9] YCJA, s. 3(1)(b)(iii).

[10] YCJA, s. 37(10).

[11] Criminal Code, RSC 1985, c C-46, ss. 691(1)(a), 691(2); see also R. v. C.P., 2021 SCC 19 [C.P.] at para. 60.

[12] C.P. at para. 162.

[13] C.P. at para. 162.

[14] C.P. at para. 86.

[15] C.P. at para. 4.

[16] C.P. at para. 88.