Criminal Law: Delay; Youth
R. v. K.J.M., 2019 SCC 55 (38292)
“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,  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.”
The S.C.C. (5:4) dismissed the appeal.
Justice Moldaver wrote as follows (at paras. 3-5, 50-55, 68, 84, 89, 119):
“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?
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.
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.
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 (N. Bala and S. Anand, Youth Criminal Justice Law (3rd ed. 2012), at p. 439). This is so for at least five reasons.
Reinforcing the connection between actions and consequences. First, because young persons have “a different perception of time and less well-developed memories than adults” (Bala and Anand, at p. 144), 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 (P. Harris et al., “Working ‘in the Trenches’ with the YCJA ” (2004), 46 CJCCJ 367, at p. 369). This better enables the young person to learn from the experience, which in turn promotes his or her rehabilitation and overall social development. Thus, it has been said that “[t]he effectiveness of the juvenile justice process depends at least in part on its timeliness” (J. A. Butts, G. R. Cusick and B. Adams, Delays in Youth Justice (2009), at p. 8).
Reducing psychological impact. Second, bearing in mind that any time spent awaiting trial occupies a greater proportion of a young person’s life than an adult’s, and that young persons perceive time differently than adults do, delay may have a greater psychological impact on a young person. As this Court stated in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.),  2 S.C.R. 165, “[a] few months in the life of a child, as compared to that of adults, may acquire great significance” (p. 206). Thus, the same period of delay may weigh more heavily on a young person than on an adult, which may in turn increase the overall feelings of stress, anxiety, and (where applicable) loss of liberty associated with that delay. To minimize this impact, youth matters should, as a general rule, proceed expeditiously.
Preserving the right to make full answer and defence. Third, memories tend to fade faster for young persons than for adults (see N. Bala, “Youth as Victims and Offenders in the Criminal Justice System: A Charter Analysis — Recognizing Vulnerability” (2008), 40 S.C.L.R. (2d) 595, at p. 616, citing C.J. Brainerd, “Children’s Forgetting with Implication for Memory Suggestibility” in Memory for Everyday and Emotional Event, N.L. Stein et al., eds. (1997), at pp. 213-17). 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 (see Dersch v. Canada (Attorney General),  2 S.C.R. 1505, at p. 1514; R. v. Khelawon, 2006 SCC 57,  2 S.C.R. 787, at para. 47; R. v. Bjelland, 2009 SCC 38,  2 S.C.R. 651, at para. 20). Furthermore, it has been suggested that because “[a]dolescents have less ability to take long-term consequences into consideration and a greater propensity for shortsighted decision-making”, they may be less able to assist in their defence as delay accumulates, as “[t]heir primary motivation may be for court proceedings to end, regardless of outcome” (Butts, Cusick and Adams, at p. 10). Therefore, to preserve the right to make full answer and defence as fully as possible, it is essential that young persons be tried in a timely manner.
Avoiding potential unfairness. Fourth, adolescence is a time of rapid brain, cognitive, and psychosocial development (see L. Steinberg, “Adolescent Development and Juvenile Justice” (2009), 5 Annu. Rev. Clin. Psychol. 459, at pp. 465-71; T. Grisso, “Adolescents’ Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases” (2006), 32 New Eng. J. on Crim. & Civ. Confinement 3, at pp. 7-9; M. Levick 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, at pp. 293-99). 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. Therefore, to avoid punishing young persons for “who they used to be”, delay should be minimized.
Advancing societal interests. Fifth, trying young persons in a timely manner advances societal interests. Society has an interest in seeing young persons rehabilitated and reintegrated into society as swiftly as possible. When that happens, we all benefit, as our society becomes richer. Moreover, some studies suggest that prompt intervention in youth matters may reduce the likelihood of recidivism, which advances society’s interest in the prevention of crime (see Butts, Cusick and Adams, at p. 9). And given that youth have been described as “the most vulnerable members of our community” (R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36, citing G. J. Fitch, Q.C., “Child Luring” in Substantive Criminal Law, Advocacy and the Administration of Justice, vol. 1, presented to the National Criminal Law Program (2007)), it seems axiomatic that society has a particularly strong interest in ensuring young persons do not suffer prolonged delays.
For these reasons, I would not alter the Jordan ceilings to apply differently to youth justice court proceedings. But that does not mean an accused’s youthfulness has no role to play under the Jordan framework. In particular, as I will develop, 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. In this way, the existing Jordan framework is capable of accommodating the enhanced need for timeliness in youth cases.
Stated succinctly, if we are to make the culture of complacency towards delay identified in Jordan a thing of the past, all criminal justice system participants must take a proactive and cooperative approach with a view to fulfilling s. 11 (b)’s important objectives (see Jordan, at para. 5). While this principle certainly applies in adult cases, it applies with even greater force in youth cases.
In my view, any delay resulting from failed attempts at extrajudicial sanctions should be treated on a case-by-case basis. That said, 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. There are sound policy reasons for this. 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 that clock only if and when the matter is placed back into the court system.
In the final analysis, this case is close to the line. The delay here was excessive, particularly given the enhanced need for timeliness in youth cases. Had 80 percent of the trial taken place after Jordan, rather than before it, I would have been inclined to grant a stay. However, taking a contextual approach that is sensitive to the parties’ reliance on the prior state of the law, I am not persuaded that the case took markedly longer than it reasonably should have.”