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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Procedural rights - Trial within a reasonable time

Friday, November 15, 2019 @ 1:58 PM  


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Appeal from a judgment of the Alberta Court of Appeal affirming the convictions of the appellant for aggravated assault and possession of a weapon for a dangerous purpose. The appellant, 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 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 and possession of a weapon for a dangerous purpose. 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 (Charter). In R. v. Jordan, which was released nearly 15 months after the appellant was charged, this Court introduced a new s. 11(b) framework. The Court had to determine whether the post-Jordan presumptive ceilings applied to youth justice court proceedings and whether the delay in the appellant’s case was unreasonable. In her s. 11(b) ruling, the trial judge found that the total delay was somewhat uncertain, as the trial had yet to complete. She estimated that it fell somewhere between 18 and 19 months. The trial judge reasoned that because the delay exceeded the 18-month Jordan ceiling, it was presumptively unreasonable. However, she refused to enter a stay, reasoning that it was just not the clearest of cases. The appellant appealed the trial judge’s s. 11(b) ruling, raising for the first time the argument that the 18-month presumptive ceiling established in Jordan should be lowered in youth cases. The Alberta Court of Appeal dismissed the appeal.

HELD: Appeal dismissed. Canada’s youth criminal justice system stood separate from the adult criminal justice system. While every person charged with an offence had the right to be tried within a reasonable time under s. 11(b) of the Charter, this right had “special significance” for young persons for at least five reasons. First, because young persons had a different perception of time and less well developed memories than adults, their ability to appreciate the connection between actions and consequences was impaired. Whereas prolonged delays could obscure this connection and dilute the effectiveness of any disposition, timely intervention reinforced it. Second, delay might have a greater psychological impact on a young person. Third, the increased rapidity with which a young person’s memory faded might make it more difficult for him or her to recall past events, which might in turn impair his or her ability to make full answer and defence, a right which was protected by s. 7 of the Charter. Fourth, adolescence was a time of rapid brain, cognitive, and psychosocial development. Where a prolonged delay separated the offending conduct from the corresponding punishment, the young person might experience a sense of unfairness, as his or her thoughts and behaviours might well have changed considerably since the offending conduct took place. Fifth, society had 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. It was not shown that there was a problem regarding delay in the youth criminal justice system, let alone one that warranted the imposition of a new constitutional standard. Jordan established a uniform set of ceilings that applied irrespective of the varying degrees of prejudice experienced by different groups and individuals. There was no reason to alter the Jordan ceilings to apply differently to youth justice court proceedings. The enhanced need for timeliness in youth matters could and should be taken into account when determining whether delay falling below the presumptive ceiling was unreasonable. In this way, the existing Jordan framework was capable of accommodating the enhanced need for timeliness in youth cases. Ultimately, like the other factors identified in Jordan, the enhanced need for timeliness in youth matters was simply one “case-specific factor” to consider when determining whether a case took (or was expected to take) markedly longer than it reasonably should have. Ultimately, it was the appellant’s late appearance that created a need to find a date that would accommodate a five-hour, rather than two and one-half hour, trial. Accordingly, there was good reason to treat at least some of the delay between March 2, 2016 and July 28, 2016 as defence delay. Attributing a delay of two to three months to the defence was both fair and reasonable. This resulted in a net delay of 16 to 17 months. Further, the approximate one-month delay resulting from an administrative error had to be subtracted from the total delay. Here, the seriousness of the offences and the absence of any demonstrated prejudice were relevant in that they helped to explain why, in this transitional case, the Crown had good reason to believe the delay in this case would not have been found to be unreasonable. Taking a contextual approach that was sensitive to the parties’ reliance on the prior state of the law, it was not demonstrated that the case took markedly longer than it reasonably should have.

R. v. K.J.M., [2019] S.C.J. No. 55, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ, November 15, 2019. Digest No. TLD-November112019012-SCC