Summary

38546

C.P. v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)

(Publication ban in case) (Certain information not available to the public)

Keywords

Canadian charter (Criminal) - Right to liberty (s. 7), Right to equality - Charter of rights - Right to liberty - Right to equality - Criminal law - Sexual Assault - Reasonable verdict - Whether s. 37(10) of the Youth Criminal Justice Act infringes s. 7 of the Canadian Charter of Rights and Freedoms - Whether s. 37(10) of the Youth Criminal Justice Act infringes s. 15(1) of the Canadian Charter of Rights and Freedoms - If the answer to any of the questions above is “yes”, is the infringement demonstrably justified in a free and democratic society within the meaning of s. 1? - Was the finding of guilt in the appellant’s case unreasonable or unsupported by the evidence within the meaning of s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46? - Youth Criminal Justice Act, S.C. 2002, c. 1, s. 37(10).

Summary

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(PUBLICATION BAN IN CASE)

The appellant, a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), was convicted of sexual assault. It is alleged that he had non-consensual sexual intercourse with his 14-year-old friend, the complainant, while at a beach to celebrate a friend’s birthday. Central to a finding of guilt was whether the complainant had the capacity to consent to the sexual activity, and that depended largely on the timing of the sexual activity. The Crown alleged that the complainant could not have consented to the sexual activity because it had occurred late at night when she was severely intoxicated. The trial judge was satisfied beyond a reasonable doubt that the complainant was not capable of consenting and that the appellant could not rely on an honest but mistaken belief that she had consented. A majority of the Court of Appeal dismissed the appeal. Nordheimer J.A., dissenting, would have allowed the appeal, set aside the conviction and entered an acquittal. In his view, the trial judge’s conclusion that the complainant was not capable of consenting was demonstrably incompatible with the whole of the evidence, especially the uncontradicted evidence.

The appellant filed a notice of appeal as of right pursuant to s. 691(1)(a) of the Criminal Code. The respondent Crown moved to quash the appeal as of right on the basis that the appellant is a young person within the meaning of the YCJA and s. 37(10) of that act requires leave of this Court before an appeal can be heard. The Supreme Court of Canada adjourned the motion to quash, allowing the appellant to serve and file an application for leave to appeal that could include the constitutional issue as a ground. Leave to appeal was granted.