Questions of time, culpability and rehabilitation permeate youth criminal law. This paper examines competing claims about time and justice in R. v. P. (C.), a recent decision of the Supreme Court of Canada upholding a leave requirement for youth appeals in circumstances where adults enjoy an appeal as of right. In light of the relatively low stakes of the case in terms of actual appellate practice, I question why the majority worked so hard, often at the expense of logic, to deny a formal equality claim that would have changed little in reality. I argue that an enduring, if unstated, sense that the state’s relationship to young people is qualitatively different to its relationship to adults helps to explain the outcome in P. (C.). If a prevailing vision of the adult criminal system is one of a “battle” pitting the state against individuals, with the accused afforded procedural protections to offset state power, an alternative vision of the youth system as welfarist, rehabilitative, even “familial,” exists alongside it. This paper develops this argument by tracing the genealogy and evolution of youth appellate rights and expediency claims over the course of the 20th and 21st centuries. I show how even as the youth system underwent a “rights revolution” that tracked and eventually exceeded that of adults, the system’s paternalistic moorings continue to yield unexpected exercises of deference to Parliament.
Kelly, Lisa M..
"Judging Youth Time."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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