Date: October 31, 2020
You are 13 years old charged for the very first time with an offence of assault. You have never been in trouble with the law before, and you are innocent of the crime alleged against you. Your friend contacted the police on you and falsely accused you of punching him, because he does not want you to bother him anymore about $2,500.00 that he owes you. He does not intend to pay you and is setting you up by raising a false allegation against you to prevent you from contacting him.
You hire a lawyer with the financial assistance of your parents to help you in fighting the case. The Crown does not want to withdraw the charge against you after a Crown pre-trial with your lawyer. The Crown says that there is insufficient evidence to support your story regarding the fabrication of allegations. Therefore, you opt to go to trial and scheduled a trial date.
Your trial date is scheduled 12 months from the time you have been charged. In this time, you feel that it is taking too long to get to trial. You are suffering from anxiety, stress and depression, due to the nature of the charge and the length of time it is taking to get to trial. You tell your lawyer this. Your lawyer intends to bring a Section 11(b) Charter Application at trial on your behalf arguing that the delay in your matter is excessive and seeking the remedy of a stay of proceedings. Section 11(b) of the Canadian Charter of Rights and Freedoms (hereinafter “Charter”) states:
“Any person charged with an offence has the right (b) to be tried within a reasonable time.”
Is 12 months too long?
In the decision of R v. JM [2017] (hereinafter “JM”), Justice D. Paciocco set out a lower presumptive ceiling within the range of 12 to 15 months in youth cases as follows:
In the decision of R v. JM [2017] (hereinafter “JM”), Justice D. Paciocco set out a lower presumptive ceiling within the range of 12 to 15 months in youth cases as follows:
“I am therefore inclined to the view that 12 months is, indeed, the appropriate presumptive ceiling for youth cases. Still, I am not in a position to make a firm decision that this is so. A credible case can also be made for a 15-month presumptive ceiling. This is because the question of a tolerable presumptive delay in youth cases is a functional one. As R. v. Jordan, supra illustrates, the presumptive ceiling must be set in a way that allows for the effective prosecution of cases. It must therefore be calibrated in a way that allows for the wide range of factual and legal complexity that exists, even among cases that do not qualify as "particularly complex." It must also accommodate the kinds of delay that are commonly encountered in an imperfectly funded, human system.”
To Justice D. Paciocco, sound reasons offered in support of this proposition included the following:
(1) The "ability of a young person to appreciate the connection between behavior and its consequences is less developed than in adults": R. v. M. (G.C.), supra at para 23;
(2) "For young persons the effect of time may be distorted.": R. v. M.(G.C.), supra at para 23; and
(3) "If treatment is required and is to be made part of the ... disposition process, it is best begun with as little delay as possible": R. v. M.(G.C.), supra at para. 23
(3)(1)(a) 116 These reasons, initially recognized as implicit under the Young Offenders Act, are now codified in the Youth Criminal Justice Act, section 3(1)(b). This section provides, in relevant part, that:
(3)(1)(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(4) timely intervention that reinforces the link between the offending behavior and its consequences, and
(5) the promptness and speed with which young persons are responsible for enforcing this Act must act, given young persons' perception of time.”
116 These reasons, initially recognized as implicit under the Young Offenders Act, are now codified in the Youth Criminal Justice Act, section 3(1)(b). This section provides, in relevant part, that:
Therefore, there is authority for the proposition that 12 months is too long to get to trial in a youth case by relying on the decision of JM.
The decision of JM is short-lived
In the Supreme Court of Canada decision of R v. Jordan [2016] (hereinafter “Jordan”), a presumptive ceiling of 18 months was applied for cases tried in the provincial court. The Jordan decision did not, however, discuss the presumptive ceiling in the context of youth cases, because Jordan was an adult case. A lower presumptive ceiling in youth matters was at heart of the decision of JM.
Recently, however, the Supreme Court of Canada in the decision of R v. K.J.M., 2019 (hereinafter “K.J.M.”), tackled the subject head on and did not agree with the idea that there should be a lower presumptive ceiling in youth cases. The Supreme Court of Canada did not want to alter the Jordan ceilings to apply differently to youth court proceedings.
Is the decision of K.J.M. correct?
It appears that the Supreme Court of Canada in K.J.M. is preferring and choosing certainty and uniformity in the decision making process, rather than adopting a position that “youths should be treated as youths and adults should be treated as adults” in the criminal justice system.
It can be said that youths are not able to appreciate the consequences of their conduct and behaviour as adults would. The impact of delay on a youth could be very different than an adult. It is for this reason that timely and speedy intervention is required in dealing with youths, because youths are less developed than adults. A lower presumptive ceiling for youth matters, therefore, makes sense. It made sense to Justice D. Paciocco in JM.
In the example above, it is very unlikely that the youth would be successful in its 11(b) Charter Application by arguing that 12 months is too long in bringing the matter to trial. K.J.M. is binding on the lower court. However, the Supreme Court of Canada in K.J.M. did leave us with the following statement:
“…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.”
Only time will tell how later Judges will apply the reasoning laid down in Jordan with respect to youth delay. The youth, in the example above, will have no choice, but to demonstrate his innocence before the trial court.
Anthony Rabba (Author)
Barrister & Solicitor
Barrister & Solicitor