Professor Lisa Kelly’s article, “Judging Youth Time,” which contextualizes and critiques the Supreme Court of Canada’s decision on youth appeals in R. v. C.(P.), has been published in the Supreme Court Law Review (Lexis Nexis, 2023, 2nd Series, Volume 108). 

In R. v. C.P. (2022), the Supreme Court of Canada upheld section 37(10) of the Youth Criminal Justice Act, which requires young people to seek leave from the Supreme Court in cases where adults enjoy an automatic right of appeal. 

“C.P. is a curious decision because so little was at stake in practice,” she says. “The Court already grants leave in virtually every youth case where a judge of a provincial court of appeal dissents on a question of law, effectively adopting the standard set for adults. 

“Why did the majority work so hard, often at the expense of logic, to deny a formal equality challenge that would change so little in reality?” is the question Kelly set out to answer.

“Tracing the history of youth appellate rights from the founding of juvenile courts to the present,” she explains, “this paper argues that even as the youth system underwent a ‘rights revolution’ that tracked and eventually exceeded that of the adult system, historical framings of the youth criminal system as welfarist, rehabilitative, and even familial continue to influence judicial deference to Parliament.” 

The article was based on a presentation that Kelly delivered at the 2022 annual Osgoode Constitutional Cases conference. 

Professor Kelly’s article is available online. 

For information and to order a copy of the Supreme Court Law Review volume, which is a collection of papers reviewing noteworthy constitutional law decisions released by the Court in 2021, visit the LexisNexis website.