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The Supreme Court of Canada.Adrian Wyld/The Canadian Press

Young people convicted of a crime can be denied an automatic right of appeal to the country’s highest court, even though adults have that right, the Supreme Court of Canada ruled on Friday.

The 5-3 ruling set out two different visions of youth justice – one emphasizing Parliament’s right to create a distinct system stressing timeliness and rehabilitation, and the other stressing legal rights as a protection against wrongful conviction.

The ruling came in a case in which a 15-year-old boy was convicted of sexually assaulting a 14-year-old girl at a beach party in Toronto in 2016. When the Ontario Court of Appeal upheld the conviction in 2019, a dissenting judge said the guilty verdict was “illogical,” and based on an error of law.

An adult would have had an automatic right to an appeal at the Supreme Court of Canada when an appellate court finds a legal error. The purpose is to prevent miscarriages of justice. But the youth-criminal justice system for those 12 to 17 includes no such right. The 15-year-old needed to seek the court’s permission to appeal his conviction. It was granted, and his case included a bid to have the lack of an automatic right to appeal declared unconstitutional.

Canada created its first separate criminal-justice system for youth in the 1908 Juvenile Delinquents Act, in which they had few procedural rights. In 1984, with the Young Offenders Act, and later with its successor, the Youth Criminal Justice Act, they received due-process rights, such as to legal counsel and fixed sentences. (Previously, teenagers were often held until they were 21.)

Friday’s ruling on appeal rights was noteworthy for the competing visions offered by Justice Rosalie Abella, who retires on July 1, and who has a long record on youth-justice issues, and Chief Justice Richard Wagner.

Chief Justice Wagner said that Parliament’s purpose in denying young people an automatic appeal to the Supreme Court was to promote timely justice for accused and victims, and reintegration and rehabilitation of offenders. He said the lack of an automatic appeal is a benefit in another way, as it applies also to the Crown if a youth is found not guilty and a judge dissents. And he said the court has no record of any case where the Supreme Court denied a hearing to a youth seeking to appeal a conviction.

“Young persons have different needs and vulnerabilities than adults, which is precisely why Canada’s youth justice system ‘stands separate’ from that of adults,” Chief Justice Wagner wrote. His view was endorsed by Justice Michael Moldaver, Justice Malcolm Rowe, Justice Russell Brown and, in a separate concurrence, Justice Nicholas Kasirer.

Justice Abella, who early in her career was a judge in family and youth court, wrote in a dissent that the denial of the automatic appeal saves just a few months, and that rehabilitation and timeliness are unnecessary if an offender is not guilty. She called the Chief Justice’s approach “an argument that justifies an increased risk of wrongful findings of guilt as an acceptable cost of doing business within the youth justice system.” She added that even youths who receive an adult sentence are denied an automatic appeal.

Her views were endorsed by Justice Andromache Karakatsanis and Justice Sheilah Martin.

In a subtle jab, Justice Wagner said Justice Abella’s position “equates equal treatment with identical treatment.” It was a jab because her legal career from the time she headed a 1984 commission on equality in employment has been built on the opposite proposition: that equality may require accommodations, and not the same treatment. (She made that point last year in Fraser v Canada, on women’s entitlement to pensions in the RCMP. The Chief Justice signed on to her 6-3 ruling in that case.)

A ninth judge, Justice Suzanne Côté, said she would not have ruled on the constitutional issue, calling it moot, as the youth’s appeal was heard.

In the sexual-assault part of the case, the court upheld the conviction 8-1. Justice Abella wrote for the majority that the guilty verdict was not illogical, but soundly reasoned. The question was whether the victim had the capacity to consent because of intoxication, and the case turned on the timing of the act. Justice Côté dissented.

Jane Stewart, who represented a legal clinic, Justice For Children and Youth, that intervened, said she was disappointed by the ruling on automatic appeal. “I think in a lot of ways there’s this paternalistic hangover” from earlier days, she said, adding that the majority ruling “doesn’t account for the rights of young people in the criminal-justice system.”

Jessica Magonet, a lawyer with the B.C. Civil Liberties Association, which also intervened, said youths require enhanced procedural protections, and urged Parliament to address the disparity and give them a right to an automatic appeal in the same circumstances as adults.

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