R. v. K.J.M.

R. v. K.J.M.
Collection
Supreme Court Judgments
Date
2019-11-15
Neutral citation
2019 SCC 55
Report
[2019] 4 SCR 39
Case number
38292
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Alberta
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39
Appeal Heard: February 19, 2019 Judgment Rendered: November 15, 2019 Docket: 38292
Between:
K.J.M.
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario,
Director of Criminal and Penal Prosecutions,
Criminal Lawyers’ Association (Ontario),
Legal Aid Society of Alberta and
Justice for Children and Youth
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 120)
Moldaver J. (Wagner C.J. and Gascon, Côté and Rowe JJ. concurring)
Joint Dissenting Reasons: (paras. 121 to 202)
Abella and Brown JJ. (Martin J. concurring)
Dissenting Reasons: (paras. 203 to 235)
Karakatsanis J.
r. v. k.j.m.
K.J.M. Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Director of Criminal and Penal Prosecutions,
Criminal Lawyers’ Association (Ontario),
Legal Aid Society of Alberta and
Justice for Children and Youth Interveners
Indexed as: R. v. K.J.M.
2019 SCC 55
File No.: 38292.
2019: February 19; 2019: November 15.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Right to be tried within reasonable time — Young persons — Delay of almost 19 months between charges and end of youth accused’s trial — Whether presumptive ceilings established in Jordan apply to youth justice court proceedings — Whether youth accused’s right to be tried within reasonable time under s. 11(b) of Canadian Charter of Rights and Freedoms infringed.
M, a “young person” under the Youth Criminal Justice Act (“YCJA ”), was charged with various offences arising out of a fight in which he stabbed another youth. Almost 19 months after charges were laid, he was found guilty of aggravated assault and possession of a weapon for a dangerous purpose. Shortly before his convictions, he applied unsuccessfully for a stay of proceedings on the basis that the delay violated his right to be tried within a reasonable time under s. 11(b) of the Charter . The trial judge found that the total delay exceeded the 18‑month ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and was therefore presumptively unreasonable. The trial judge, however, dismissed the s. 11(b) Charter application and refused to enter a stay, reasoning that it was not the clearest of cases where a stay should be granted. The Court of Appeal dismissed the appeal, with one justice dissenting. The three justices wrote separate reasons, each taking a distinct approach as to whether the presumptive ceilings set out in Jordan apply to youth matters.
Held (Abella, Karakatsanis, Brown and Martin JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Gascon, Côté and Rowe JJ.: While Jordan did not explicitly answer the question of whether the 18‑ and 30‑month presumptive ceilings apply to youth justice court proceedings, the existing Jordan framework is capable of accommodating the enhanced need for timeliness in youth cases. This need is well established in the jurisprudence and codified in the YCJA . It can and should be considered in applying the test for a stay below the ceiling, which requires the defence to establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. An accused’s youthfulness should be considered in assessing the second branch of the test. But unless and until it can be shown that Jordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is no need to consider, much less implement, a lower constitutional ceiling for youth matters.
Canada’s youth criminal justice system stands separate from the adult criminal justice system. While every person charged with an offence has the right to be tried within a reasonable time under s. 11(b) of the Charter , this right has special significance for young persons, for at least five reasons. First, because young persons have a different perception of time and less well‑developed memories than adults, their ability to appreciate the connection between actions and consequences is impaired. Whereas prolonged delays can obscure this connection and dilute the effectiveness of any disposition, timely intervention reinforces it. Second, delay may have a greater psychological impact on a young person. Third, the increased rapidity with which a young person’s memory fades may make it more difficult for him or her to recall past events, which may in turn impair his or her ability to make full answer and defence, a right which is protected by s. 7 of the Charter . Fourth, adolescence is a time of rapid brain, cognitive, and psychosocial development. Where a prolonged delay separates the offending conduct from the corresponding punishment, the young person may experience a sense of unfairness, as his or her thoughts and behaviours may well have changed considerably since the offending conduct took place. Fifth, society has an interest in seeing young persons rehabilitated and reintegrated into society as swiftly as possible. For all these reasons, youth matters should proceed expeditiously and in a timely manner.
The foregoing notwithstanding, there is no need to introduce a lower presumptive ceiling for youth matters. It has not been shown that there is a problem regarding delay in the youth criminal justice system, let alone one that warrants the imposition of a new constitutional standard. There is no evidence that young persons who proactively request an expedited trial are not being accommodated in the post‑Jordan world, nor that actors within the youth criminal justice system are not taking Jordan to heart. Further, Jordan established a uniform set of ceilings that apply irrespective of the varying degrees of prejudice experienced by different groups and individuals. Setting new ceilings based on the notion that certain groups — such as young persons — experience heightened prejudice as a result of delay would undermine this uniformity and lead to a multiplicity of ceilings, each varying with the unique level of prejudice experienced by the particular category or subcategory of persons in question. This would quickly become impracticable. The mere fact that Parliament decided to create and maintain a separate youth criminal justice system does not by itself provide a sound rationale for establishing a separate ceiling for youth matters.
The decision not to alter the Jordan ceilings to apply differently to youth justice court proceedings does not mean that an accused’s youthfulness has no role to play under the Jordan framework. The enhanced need for timeliness in youth matters can and should be taken into account when determining whether delay falling below the presumptive ceiling is unreasonable. Like the other factors identified in Jordan, the enhanced need for timeliness in youth matters is simply one case-specific factor to consider when determining whether a case took (or is expected to take) markedly longer than it reasonably should have. This approach recognizes that while the presumptive ceiling remains the same whether the accused is a youth or an adult, the tolerance for delay differs. While the presumptive ceiling provides a hard backstop that offers certainty, predictability, and simplicity, the test for a stay below the ceiling affords the necessary flexibility to ensure case-specific features — such as the age of the accused — are not lost in the analysis. At the same time, Jordan will not deliver on its promise — whether for young persons or for adults — unless all participants in the criminal justice system work together and take a proactive approach from day one. Prosecutors have a strong incentive to be proactive because the failure to do so will be a factor in determining whether a case has taken markedly longer than it reasonably should have. Equally, the defence has a duty to be proactive, as well as an interest in doing so. If the defence hopes to satisfy the “meaningful steps” test set out in Jordan, it must engage in proactive conduct throughout and show that the accused is committed to having the case tried as quickly as possible. Resigned acquiescence will not do.
There is every reason to expect that young persons will enjoy stronger protection against prolonged delay than they did in the pre‑Jordan era. While the test for a stay for delay below the ceiling places the onus on the defence to establish that the delay was unreasonable, this does not disadvantage young persons vis‑à‑vis adults or place them in a less advantageous position than they were in pre‑Jordan. Jordan affords all accused persons, including youth, the benefit of a strong presumption of unreasonableness once the delay exceeds the presumptive ceiling. Given that both young persons and adults benefit from this strong presumption, they both must bear the onus of justifying a stay when the delay is below the ceiling. While the Court stated in Jordan that stays for delay below the ceiling will be rare and limited to clear cases, this statement must be read in light of the fact that the Jordan framework applies to all criminal proceedings, not just youth matters. While stays for delay below the ceiling may be rare when considered against the entire body of applications for a stay for delay under the ceiling, they may be less rare when considered against the smaller body of youth applications for a stay for delay under the ceiling. Thus, when Jordan is taken to heart and the test for a stay below the ceiling is properly applied to youth court proceedings, the Jordan framework affords young persons robust protection against unreasonable delay.
Any delay resulting from failed attempts at extrajudicial sanctions should be treated on a case‑by‑case basis. However, without foreclosing the theoretical possibility that such delay might in some rare instances be included in the Jordan calculation, it can reasonably be expected that it will be deducted as defence delay. Removing this type of delay from the Jordan calculation minimizes the risk that authorities will refrain from using extrajudicial sanctions in the first place out of a fear that they may be increasing the likelihood of a stay in the event such measures fail. Removing disincentives against extrajudicial sanctions is an important policy objective given the central role played by such measures in the youth criminal justice system. Furthermore, this approach makes sense at a conceptual level. When an attempt at extrajudicial sanctions is made, that effectively removes the matter from the court system and places it on a different track. It therefore makes good sense to stop the clock and to restart the clock only if and when the matter is placed back into the court system.
The delay in this case fell below the 18‑month presumptive ceiling. The total delay was 18 months and 28 days. In line with Jordan, any delay caused by the defence must be subtracted from total delay. For example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. Here, on one occasion, the court and Crown were ready at the scheduled start time, but M did not show up on time. This created a need to reschedule the hearing, and the earliest available date was five months later. While it is difficult to quantify with precision the extent of the delay caused by the defence, attributing a delay of two to three months to the defence is both fair and reasonable. In addition, delay caused by discrete exceptional events that are reasonably unforeseeable or reasonably unavoidable must also be deducted to the extent such delay could not reasonably have been mitigated by the Crown or the justice system. Such an event occurred when an administrative error in the transcript ordering process resulted in approximately one month of delay. This leaves a net delay of 15 to 16 months, falling below the applicable ceiling.
Although this case is close to the line, it does not meet the test for a stay below the ceiling. In a transitional case such as this one, both requirements — that the defence took meaningful and sustained steps, and that the case took markedly longer than it reasonably should have — must be applied contextually, sensitive to the parties’ reliance on the previous state of the law. As to the first requirement, while the defence acted responsibly throughout the proceeding, it did not engage in the necessary proactive conduct. Its approach was more one of resigned acquiescence. However, given that about 80 percent of the trial took place before Jordan was released, the defence should have the benefit of the doubt and the first requirement has been met. As to the second requirement, although some factors suggest that this case should reasonably have completed in less time, the issue is whether it took markedly longer than it reasonably should have. The vast majority of this trial took place at a time when the tolerance for institutional delay — the primary cause of delay in this case — was high across the country. It is clear from the record that overbooking and systemic delay in the jurisdiction in question were endemic. Further, the seriousness of the offences and the absence of any demonstrated prejudice are relevant in that they help to explain why the Crown had good reason to believe the delay in this case would not have been found to be unreasonable. The persistent systemic delay discussed above also constrained the Crown’s ability to move this case through the system in a timely manner. While the delay here was excessive, a contextual approach leads to the conclusion that the case did not take markedly longer than it reasonably should have. Therefore, a stay is not warranted.
Per Abella, Brown and Martin JJ. (dissenting): Section 11(b) of the Charter requires a distinct and lower presumptive ceiling for proceedings brought under the YCJA , reflecting the distinct character of young accused and the recognized distinct prejudice they suffer from delay in the youth justice system. Doing so gives effect to Parliament’s intention in enacting a separate youth criminal justice system, to Canada’s international commitments, to the recognition in pre-Jordan case law that youth proceedings must be expeditious, and to the consideration that led to setting the presumptive ceilings for adults in Jordan. Just as the Court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings. That analysis leads to a presumptive ceiling of 15 months for youth proceedings in the provincial court.
When Parliament created a separate youth criminal justice system over a century ago, it sought to achieve two fundamental objectives: to provide young persons with enhanced procedural protections throughout the criminal process in recognition of their youth, and to create less formal and more expeditious proceedings. Such enhanced procedural protections which recognize that youth proceedings must proceed more expeditiously than proceedings against adults are codified in s. 3(1) (b)(iv) and s. 3(1) (b)(v) of the YCJA , which crystallized the prior state of the common law. Since the enactment of the YCJA , courts have consistently maintained that criminal proceedings against youth should be resolved more quickly than adult proceedings and that reasonable delay in the adult criminal justice system may not be reasonable in youth proceedings. Given the heightened vulnerability of young persons in the justice system and their diminished moral blameworthiness, enhanced — and robust — procedural protections have been built into this separate system.
The role of prejudice in connection with young persons was not considered by the Court in setting the Jordan ceilings because Jordan did not fix ceilings for youth justice court proceedings. Therefore, the unique prejudice that young persons suffer as a result of delay was not accounted for in Jordan. The only outcome that is consistent with the reasoning in Jordan is to recognize that, in light of the separate court system created by Parliament and the greater prejudice that has been acknowledged in the case of young persons, there should be a lower presumptive ceiling for youth proceedings. Lowering the presumptive ceiling for youth does not confer enhanced Charter protections on them. Rather, it acknowledges the more profound impact of delay on young persons, and sets a ceiling that aims to confer on them the same protections that adults receive. When it comes to prejudice arising from delayed criminal proceedings, equal protection as between young persons and adults requires differential treatment. This is not a departure from Jordan; indeed, it is the very application of Jordan’s principles to the youth criminal justice system. Refusing to create a separate ceiling would result in the principles underlying Jordan to furnish less protection for young people than they had before Jordan.
To rely on the absence of any reference to the youth justice system in Jordan as the basis for inferring that the Jordan framework applies to it, obliterates the historic distinction between the adult and youth criminal justice systems, to the prejudice of young persons. A framework for adjudicating a constitutional right that is directed to the criminal justice system for adults should not be inferentially taken as having been also directed to be considered in the context of the separate criminal justice system for young persons, particularly when inferring that young persons are captured by the adult framework will lead to less protection than they have received and are constitutionally entitled to. Furthermore, tacking young people onto the adult framework set by Jordan changes Jordan itself, and erodes the clarity it created. Following Jordan, prejudice is no longer an independent consideration and is instead a factor in the setting of the ceilings, and a stay will be granted in response to delay below the ceiling only in rare and clear cases. By changing Jordan so that stays will theoretically be more readily available where necessary to account for the prejudice experienced by young persons, the clarity of Jordan’s instruction that a stay will be granted below the ceiling only in rare and clear cases is undermined and the predictability of the presumption that delay below the ceiling is reasonable dissipates. This results in the worst of both worlds: the rigidity of ceilings that offer youth less protection than they previously received and were entitled to, coupled with a lack of clarity and predictability about if and when a stay will be granted when the delay is below the ceiling. The “below the ceiling test” set out in Jordan is not capable of recognizing young persons’ differential tolerance for delay. To ask youth accused to prove special circumstances to show that delay below the ceiling is unreasonable imposes a disproportionately high burden on them.
The total delay in this case from the time M was charged to the end of his trial was 18 months and 28 days, above the 15‑month presumptive ceiling. It is inappropriate to deduct two to three months as defence delay arising from the fact that M was 2½ hours late to one of his numerous court appearances. The transcript error was the result of an administrative oversight that the justice system could reasonably have mitigated. None of the delay in M’s case should be characterized as defence delay or delay due to a discrete exceptional circumstance. Further, the delay in M’s case is not justified by the transitional exception and the Crown has not demonstrated that the delay in this case was reasonable. Therefore, M’s constitutional right to stand trial within a reasonable time was infringed, and a stay of proceedings should be granted.
Per Karakatsanis J. (dissenting): There is agreement with the majority that a separate presumptive ceiling in the YCJA context is neither warranted nor necessary to accommodate the distinct characteristics of young accused and the youth criminal justice system. Rather, the presumptive ceilings set out in Jordan apply in the context of the youth criminal justice system and adopting a more robust approach to examining the reasonableness of delays falling below the presumptive ceiling provides protection for the rights of young accused pursuant to s. 11(b) of the Charter . However, as no part of the total delay in this case can be characterized as defence delay or delay resulting from discrete exceptional circumstances, the delay suffered by M breaches the 18-month presumptive ceiling. The delay cannot be justified under the transitional exception as the Crown has failed to demonstrate on the evidence that the delay in this case was reasonable based on a reliance on the previous state of the law and therefore, a stay should be granted.
There is no evidence that the youth criminal justice system suffers from endemic delays that would justify taking the exceptional judicial step of setting a new presumptive ceiling. A failure to lower the ceiling does not put young accused at a disadvantage compared to their adult counterparts and deprive them of the benefits that Jordan extended through the implementation of presumptive ceilings for delay. Young accused benefit from the presumptive 18‑month ceiling set out in Jordan for cases going to trial in provincial courts and it is reasonable to presume that the entire criminal justice system, including the youth system, will ultimately benefit from positive initiatives generated in response to the presumptive ceilings established in Jordan. Further, a lower presumptive ceiling is not required to account for the unique prejudice that young persons suffer as a result of delay as the increased prejudice and the special considerations for young persons codified in the YCJA are both best accounted for through the below‑ceiling test in Jordan.
Adapting Jordan in the context of the youth criminal justice system by way of the below‑ceiling test gives effect to the s. 11(b) rights of young accused in two ways. First, it gives them the benefit of a presumptive ceiling and second, the below‑ceiling test is sufficiently flexible to incorporate general considerations concerning the unique impact of delay on young accused and the greater need for timeliness in the youth criminal justice system. The greater need for timeliness, including the unique prejudicial impact of delays on youth, are not simply case‑specific factors — such as the personal attributes, characteristics or circumstances of a specific young accused — used to determine whether the delay in a given case was markedly longer than it reasonably should have been. Rather, these considerations play a larger role: they must suffuse and inform the entire analysis in order to give effect to the statutory mandates in the YCJA . Thus, both steps of the below‑ceiling test must take into account, and be adapted to incorporate, the increased need for timeliness in the youth criminal justice system.
Jordan was referring to the criminal justice system as a whole when the Court explained that it expects stays beneath the ceiling to be rare, and limited to clear cases. Given the legislatively mandated and greater need for timeliness in the youth criminal justice system, it necessarily follows that delay in a proceeding against a young accused will become markedly longer than it reasonably should have been sooner, perhaps significantly so, than it will in a proceeding against an adult. Therefore, stays below the ceiling in the youth context will not be rare or limited to clear cases.
It is particularly important that the conduct of the defence be examined liberally and generously in the youth context. While more than resigned acquiescence is required, the defence is not required to engage in proactive conduct throughout and show that the accused is committed to having the case tried as quickly as possible. This requires too much from the defence and thereby risks undermining the state’s general s. 11(b) obligation to try all accused without undue delay. Jordan imposed no requirement on the defence to engage in proactive conduct or to take steps to have the case tried as quickly as possible. Rather, the defence is required to act reasonably and expeditiously throughout the proceedings and take meaningful, sustained steps to expedite the proceedings. Further, the defence initiative required at the first step of the test will necessarily be less in the youth context than in the adult context.
Nothing in the jurisprudence before or after Jordan suggests that delays caused by failed attempts at extrajudicial sanction programs should be attributed to the defence. It is wrong to attribute these delays to the accused. It would have the practical effect of extending the presumptive ceiling for young accused beyond the 18‑month ceiling that was set in Jordan. It would also undermine the emphasis on timeliness that must be accommodated in the below‑ceiling test for matters in the youth criminal justice system.
Cases Cited
By Moldaver J.
Applied: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; referred to: R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; R. v. M. (J.), 2017 ONCJ 4, 344 C.C.C. (3d) 217; R. v. M. (G.C.) (1991), 3 O.R. (3d) 223; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. H.R., 2006 BCCA 211, 225 B.C.A.C. 127; R. v. R.R., 2011 NSCA 86, 307 N.S.R. (2d) 319; R. v. P.R., 2018 SKCA 27, 365 C.C.C. (3d) 120; R. v. R. (T.) (2005), 75 O.R. (3d) 645; R. v. D. (S.), [1992] 2 S.C.R. 161; R. v. L.B., 2014 ONCA 748, 325 O.A.C. 371; R. v. M. (K.), 2017 ONCJ 8, 373 C.R.R. (2d) 234; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Ashraf, 2016 ONCJ 584, 367 C.R.R. (2d) 30; R. v. Zilney, 2017 ONCJ 610, 390 C.R.R. (2d) 209; R. v. Lavoie, 2017 ABQB 66; R. v. Mamouni, 2017 ABCA 347, 58 Alta. L.R. (6th) 283; R. v. King, 2018 NLCA 66, 369 C.C.C. (3d) 1; R. v. K.G.K., 2019 MBCA 9, 373 C.C.C. (3d) 1; R. v. Vader, 2019 ABCA 191; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625.
By Abella and Brown JJ. (dissenting)
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Morin, [1992] 1 S.C.R. 771; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. M. (G.C.) (1991), 3 O.R. (3d) 223; R. v. D. (S.), [1992] 2 S.C.R. 161; R. v. J. (M.A.), [1992] 2 S.C.R. 166; R. v. R. (T.) (2005), 75 O.R. (3d) 645; R. v. H.R., 2006 BCCA 211, 225 B.C.A.C. 127; R. v. R.R., 2011 NSCA 86, 307 N.S.R. (2d) 319; R. v. L.B., 2014 ONCA 748, 325 O.A.C. 371; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. J.O.B., 2005 ABCA 296; R. v. M.A.B., 2011 ABPC 87; R. v. S.M., 2003 SKPC 39, 230 Sask. R. 25; R. v. J. (S.), 2009 ONCJ 217, 192 C.R.R. (2d) 266; R. v. H. (M.), 2008 ONCJ 643; R. v. F. (T.), 2005 ONCJ 413; R. v. L.S., 2005 ONCJ 113, 130 C.R.R. (2d) 81; R. v. C. (Q.Q.), 2005 BCPC 89, 129 C.R.R. (2d) 189; R. v. M. (J.), 2017 ONCJ 4, 344 C.C.C. (3d) 217; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3.
By Karakatsanis J. (dissenting)
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. D. (S.), [1992] 2 S.C.R. 161; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; R. v. M. (G.C.) (1991), 3 O.R. (3d) 223; R. v. L.B., 2014 ONCA 748, 325 O.A.C. 371.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11(b) .
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 38(3).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 88(1) , (2) (a), 268 , 691(1) (a).
Juvenile Delinquents Act, 1908, S.C. 1908, c. 40.
Provincial Court Act, R.S.A. 2000, c. P‑31, ss. 11, 12.
Provincial Court Act, R.S.B.C. 1996, c. 379, s. 2(5).
Young Offenders Act, R.S.C. 1985, c. Y‑1 .
Youth Criminal Justice Act, S.C. 2002, c. 1 , preamble, ss. 2(1) , 3 , 4 to 12, 13 , 25 , 26 , 27 , 29 , 30 , 31 , 32 , 33 , 37(10) , 38 to 82 , 146 .
Treaties and Other International Instruments
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Preamble, art. 40(1), (2)(b).
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33, November 29, 1985, Rule 20.1.
Authors Cited
Bala, Nicholas. “Youth as Victims and Offenders in the Criminal Justice System: A Charter Analysis — Recognizing Vulnerability” (2008), 40 S.C.L.R. (2d) 595.
Bala, Nicholas, and Sanjeev Anand. Youth Criminal Justice Law, 3rd ed. Toronto: Irwin Law, 2012.
Butts, Jeffrey A., Gretchen Ruth Cusick and Benjamin Adams. Delays in Youth Justice. Chicago: University of Chicago, 2009.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (June 2017) (online: https://sencanada.ca/content/sen/committee/421/LCJC/reports/Court_Delays_Final_Report_e.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC55_1_eng.pdf).
Davis‑Barron, Sherri. Canadian Youth & the Criminal Law: One Hundred Years of Youth Justice Legislation in Canada. Markham, Ont.: LexisNexis, 2009.
Grisso, Thomas. “Adolescents’ Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases” (2006), 32 New Eng. J. Crim. & Civ. Confinement 3.
Harris, Peter, et al. “Working ‘In the Trenches’ with the YCJA ” (2004), 46 CJCCJ 367.
Jones, Brock, Emma Rhodes and Mary Birdsell. Prosecuting and Defending Youth Criminal Justice Cases: A Practitioner’s Handbook, in Brian H. Greenspan and Vincenzo Rondinelli, eds., Criminal Law Series. Toronto: Emond, 2016.
Levick, Marsha, et al. “The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of Childhood and Adolescence” (2012), 15 U. Pa. J.L. & Soc. Change 285.
Steinberg, Laurence. “Adolescent Development and Juvenile Justice” (2009), 5 Annu. Rev. Clin. Psychol. 459.
APPEAL from a judgment of the Alberta Court of Appeal (O’Ferrall, Veldhuis and Wakeling JJ.A.), 2018 ABCA 278, 74 Alta. L.R. (6th) 217, [2018] 10 W.W.R. 415, 364 C.C.C. (3d) 313, 417 C.R.R. (2d) 243, [2018] A.J. No. 1021 (QL), 2018 CarswellAlta 1767 (WL Can.), affirming the convictions of the accused for aggravated assault and possession of a weapon for a dangerous purpose. Appeal dismissed, Abella, Karakatsanis, Brown and Martin JJ. dissenting.
Graham Johnson and Tania Shapka, for the appellant.
Robert A. Fata, for the respondent.
Eric Siebenmorgen and Joanne Stuart, for the intervener the Attorney General of Ontario.
Justin Tremblay and Marie Vauclair, for the intervener the Director of Criminal and Penal Prosecutions.
Howard L. Krongold and Meaghan McMahon, for the intervener the Criminal Lawyers’ Association (Ontario).
Dane Bullerwell and Susan Haas, for the intervener the Legal Aid Society of Alberta.
Jane Stewart, Samira Ahmed and Mary Birdsell, for the intervener Justice for Children and Youth.
The judgment of Wagner C.J. and Moldaver, Gascon, Côté and Rowe JJ. was delivered by
Moldaver J. —
I. Overview
[1] On April 12, 2015, the appellant, a “young person” under the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA ”), was charged with various offences arising out of a fight in which he stabbed another youth in the face and the back of the head with a box cutter. He maintained his innocence, claiming self-defence. On November 9, 2016, almost 19 months after charges were laid, he was found guilty of aggravated assault contrary to s. 268 of the Criminal Code, R.S.C. 1985, c. C-46 , and possession of a weapon for a dangerous purpose contrary to s. 88(1) of the Criminal Code . This followed not long after he had applied unsuccessfully for a stay of proceedings on the basis that the delay violated his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms .
[2] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which was released nearly 15 months after the appellant was charged, this Court introduced a new s. 11(b) framework, replacing the one established in R. v. Askov, [1990] 2 S.C.R. 1199, and R. v. Morin, [1992] 1 S.C.R. 771. This new framework sought to address a “culture of complacency towards delay” that had emerged in the criminal justice system (para. 40). At its heart are two presumptive ceilings beyond which delay is presumed to be unreasonable: (1) an 18-month ceiling for single-stage provincial court proceedings; and (2) a 30-month ceiling for proceedings conducted in the superior court (para. 49).
[3] This appeal raises two main issues. First, do these presumptive ceilings apply to youth justice court proceedings? Second, was the delay in the appellant’s case unreasonable?
[4] I would answer the first issue in the affirmative. While the enhanced need for timeliness in youth matters is well established in the jurisprudence and codified in s. 3(1) (b)(iv) and (v) of the YCJA , this factor is accounted for within the existing Jordan framework. In particular, it can and should be considered in applying the test for a stay below the ceiling, which requires the defence to establish that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (Jordan, at para. 48 (emphasis in original)). An accused’s youthfulness should be considered in assessing the second branch of the test, assuming the first branch has been met. But unless and until it can be shown that Jordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is in my view no need to consider, much less implement, a lower constitutional ceiling for youth matters.
[5] On the second issue, I am not persuaded that a stay is warranted in this case. After deducting two to three months of defence delay and about one month of delay resulting from an administrative error leading to the unavailability of a hearing transcript — a “discrete exceptional circumstance” (Jordan, at para. 75) — the delay in this case fell below the 18-month presumptive ceiling. Considering the test for a stay below the ceiling — which, in a transitional case such as this, must be applied in a manner that is “sensitive to the parties’ reliance on the previous state of the law” (ibid., at para. 99) — I am not persuaded that this case took markedly longer than it reasonably should have. Accordingly, I would dismiss the appeal.
II. Background
[6] On April 11, 2015, the appellant, then 15 years old, got in a fight with the complainant, then 16 years old, at a house party. During the fight, the appellant stabbed the complainant in the face and the back of the head with a box cutter, causing serious injuries. The appellant would later claim he acted in self-defence.
[7] On April 12, 2015, the appellant was arrested and charged with a number of offences, including aggravated assault contrary to s. 268 of the Criminal Code , and possession of a weapon for a dangerous purpose contrary to s. 88(1) of the Criminal Code . Bail was initially denied, but on April 21, 2015, the Crown consented to the appellant’s release on his own undertaking, with minimal conditions.[1]
[8] On May 19, 2015, the appellant pleaded not guilty to all charges. Defence counsel hoped to schedule the trial for June 29, 2015, but this was not a sitting day due to judicial vacations. Instead, the trial was scheduled to be heard in Provincial Court in Fort McMurray on September 16, 2015.
[9] On September 16, 2015, the Crown advised that it would be seeking to tender a statement made by the appellant to the police, reversing its previous position on the matter. This necessitated a voir dire to determine the admissibility of the statement under s. 146 of the YCJA . However, there was insufficient time to complete the voir dire that day, so it was put over to March 2, 2016, the earliest date available. Defence counsel indicated that there was no s. 11 (b) waiver.
[10] On the morning of March 2, 2016, while the Crown and its witnesses were ready to proceed at the scheduled start time, the appellant did not show up on time. In the interim, the Crown dealt with other matters, and the voir dire did not commence until the afternoon. The court sat for about 2½ hours that afternoon. However, as the Crown predicted earlier that morning, more time was needed to complete the voir dire. A continuation date was set for July 28, 2016 (the earliest date available) for five hours. Defence counsel reiterated that there was no s. 11(b) waiver, and the trial judge indicated that any s. 11(b) application should be brought before the July 28 continuation date.
[11] On July 8, 2016, nearly 15 months after the appellant was charged, this Court’s decision in Jordan was released.
[12] On July 28, 2016, the voir dire concluded and the trial judge asked the court clerk to order a transcript of the proceedings. The Crown was not involved in ordering the transcript and did not request a copy. The matter was then adjourned to September 6, 2016, for a ruling on the admissibility of the appellant’s statement to the police.
[13] On September 6, 2016, the trial judge advised the parties that the transcript had appeared in her box that morning; she acknowledged, however, that it may have arrived in the office the week before while she was away on vacation. Unfortunately, it was incomplete. Accordingly, she adjourned the matter to October 4, 2016, so that she could re-order and review the full transcript before issuing a ruling.
[14] On October 4, 2016, the trial judge ruled that the appellant’s statement to the police was inadmissible. In addition, defence counsel advised of his intention to file a s. 11(b) Charter application, which he did the next day. The next court date was eventually scheduled for October 19, 2016.
[15] On October 19, 2016, the appellant testified and the defence closed its case. The matter was then set over to October 24, 2016 for argument on the s. 11(b) application.
[16] On October 24, 2016, approximately 18½ months post-charge, the trial judge heard argument on the appellant’s s. 11(b) application and dismissed it.
[17] On November 2, 2016, final submissions concluded and the trial judge reserved judgment.
[18] On November 9, 2016, the trial judge issued her decision rejecting the appellant’s claim of self-defence and convicting him of aggravated assault and possession of a weapon for a dangerous purpose. The remaining charges were dismissed.
[19] On February 1, 2017, the appellant was sentenced to 160 days in custody on the aggravated assault charge and 20 days on the weapon possession charge, less time spent in custody before and after conv