Right to be Tried Within a Reasonable Time: R v KJM and Presumptive Ceilings for the Youth Justice System
How should the section 11(b) Charter right to a trial within a reasonable time be applied to the youth justice system? In R v KJM, 2018 ABCA 278 (KJM), the Alberta Court of Appeal (“ABCA”) grappled with whether the presumptive 18 month ceiling for offences to be tried in provincial courts, from Jordan, applies to youth offences. Each of the three Court of Appeal judges gave separate and differing judgments regarding the extent to which the Jordan framework applies to youth offenders. Despite the differing analyses, the majority found that KJM’s section 11(b) rights were not infringed because the time between the charges brought against him and his trial was not unreasonable. Consequently, his youth conviction was upheld. The dissent found that the delay was unreasonable and would have stayed the charges.
KJM was granted leave to appeal to the Supreme Court of Canada (“SCC”), as of right, on February 19, 2019 (SCC Docket No 38292). When the SCC renders its decision, KJM will represent an important development in youth criminal law, as it is expected that the SCC will provide guidance on how courts should properly uphold a youth’s right to be tried within a reasonable time. Below, I explain the Court of Appeal’s differing judgments, and argue that the Jordan framework should be modified to accommodate the unique position of youth offenders.
Section 11(b) of the Charter and Jordan
While R v Jordan 2016 SCC 27 [Jordan] has been discussed previously on TheCourt here, I will briefly describe section 11(b) and the critical developments in Jordan to contextualize my analysis to follow. Section 11(b) of the Charter states any person charged with an offence has the right to be tried within a reasonable time. The SCC described section 11(b) as a right that is “central to the administration of Canada’s system of criminal justice” (Jordan, para 19). A timely trial is a fair trial. It allows for an accused’s right to prepare and put forward a vigorous defence without the consequences that flow from a delay (such as forgotten memories, destroyed or lost evidence, or absent witnesses) (Jordan, para 20). There are other important considerations for preventing delay: victims and affected community members can have closure quickly, and public confidence is maintained that accused persons are held accountable in a timely and efficient manner (Jordan, paras 21-22).
In noting the importance of section 11(b) in Jordan, the SCC highlighted that the criminal justice system had developed a “culture of complacency,” in which lawyers and court officers were not incentivized to prevent delays. In part in order to effect a culture shift in the trial system, the SCC set “presumptive ceilings” for bringing cases to trial. Under the Jordan framework, if the time from charges laid to the anticipated end of trial exceeds either 18 months (for cases in provincial courts) or 30 months (for cases in superior courts), the delay would be presumptively unreasonable. The remedy for excessive delay, i.e. a breach of section 11(b), is an automatic stay of proceedings, no questions asked.
The Decision in KJM
The “presumptive ceilings” under Jordan apply for all criminal cases in adult courts. KJM appears to be the first case in which an appellate court will consider whether the presumptive ceilings also apply to youth offenders. This is because Jordan specifically considered the ceilings for provincial and superior courts (Jordan, para 46), but not in youth justice courts. By virtue of statute, youth courts are completely separate legal entities from provincial and superior courts dealing with adults (Youth Criminal Justice Act SC 2002 c 1, s 13(1) [“YCJA”], so the applicability of the Jordan ceilings remains an open question in law.
Before KJM, trial courts below were inconsistent with respect to their treatment of section 11(b) rights in youth justice cases. Several trial-level decisions presumed that the ceilings established in Jordan applied, and that the 18-month ceiling for provincial court offences were applicable for youth offenders in particular (see e.g. R v JM, 2017 ONCJ 4, R v DMB, 2018 ONCJ 51, R v DA, 2018 ONCJ 143). Other trial judges ruled that a lower presumptive ceiling of 15 months should apply to youth offences (R v JM, 2017 ONCJ 4).
In KJM, the youth was charged with offences related to a fight at a house party, where the youth was alleged to have seriously injured the complainant with a box cutter. The youth was 15 years old at the time. He pled not guilty, but his trial was postponed several times. He subsequently applied for a section 11(b) motion that his right to be tried within a reasonable time was infringed, which was denied by the trial judge. The youth was subsequently found guilty at trial and sentenced to custody and one year of probation.
Three Different Reasons
Each of the three judges of the Alberta Court of Appeal came to a different conclusion on two of the issues: 1) whether a presumptive ceiling applies to youth criminal justice proceedings; and, 2) if so, whether youth should receive a lower presumptive ceiling than adults.
Justice Wakeling, in the majority, concluded that the Jordan standards applied to youth justice courts, taking a broad interpretation of the statute that deems provincial and superior courts to become youth justice courts after a youth makes an election to be tried by judge and/or jury (YCJA section 13). Since KJM was tried in a provincial court, Justice Wakeling found the 18 month ceiling applied. Justice Wakeling refused to find that a different ceiling should apply for youth because there was no evidence provided to that effect. Instead, he found that Parliament would be in the best position to legislate a different presumptive ceiling for youth (KJM, para 63).
Although Justice O’Ferrall concurred with Justice Wakeling that the youth’s right to be tried within a reasonable time was not infringed, Justice O’Ferrall disagreed that the Jordan framework should apply to youth. He relied on the YCJA’s declaration of principle, which provides overarching principles behind the YCJA. He reasoned that since section 3(1)(b) of the YCJA stated that “the criminal justice system for young persons must be separate from that of adults,” a separate framework for assessing section 11(b) must be created for youth (KJM, para 70). Interestingly, he refused to set a presumptive ceiling for youth (KJM, para 75). Instead, he noted that courts must determine whether the time elapsed between the charges laid and the end of trial was “unreasonable.” Unreasonableness would depend on the circumstances of the case, including the youth’s age and the time it took to consider extrajudicial measures (any other measures that do not involve judicial proceedings to deal with youth and their offence, like diversion or counselling; YCJA section 2(1)).
Justice Veldhuis, writing for the dissent, concluded that the issue of presumptive ceilings for youth was a new issue at law, and thus it was well within the ABCA’s power to decide whether to create a new presumptive ceiling for youth offenders. The question did not need to be left to Parliament (KJM, para 97). She found that neither the 18 nor 30 month ceiling in Jordan should apply for youth. Instead, she found there should be a lower presumptive ceiling, as youth have three characteristics that can lead them to experiencing a “heightened degree of prejudice” from delay (KJM, para 104). First, a youth’s ability to connect their behaviour and the consequences is not as developed as the ability of adults to do the same, so a shorter time between a charge and trial can discourage rehabilitation. Second, youth have a distorted sense of time, and a length of time can feel longer for a youth than an adult, so delay can have a greater negative effect for youth. Third and finally, young people’s memories fade faster than adults, so delay can have a greater impact on decreasing the strength of a youth’s defence at trial. Justice Veldhuis concluded that these characteristics indicate a need for a lower presumptive ceiling than adults (KJM, paras 104-107).
A Different Framework is Needed
It is important to note that even though the majority agreed that the delay was unreasonable, two judges, Justice O’Ferrall and Justice Veldhuis, seemed to agree, and therefore to constitute a majority opinion, that a different section 11(b) framework should be created specifically for youth.
Barring any sort of empirical evidence that is likely going to be presented upon appeal, there is a strong legal basis to conclude that the Jordan framework should be adjusted to consider the unique circumstances of youth offenders. The YCJA recognizes that youth are more vulnerable to the consequences of being part of the judicial system and the criminal justice system as a whole. The YCJA‘s declaration of principles recognizes significant differences between a youth offender and an adult offender, such as youths’ diminished moral culpability (section 3(1)(b)), dependency and reduced level of maturity (section 3(1)(b)(ii)).
That is not to say that the concept of presumptive ceilings should not apply to youth at all. Jordan was meant to deal with a “culture of complacency” in the courtroom and to create a more efficient justice system (Jordan, para 45). This remains an important goal, and perhaps even more so for youth justice courts. A timely youth justice system facilitates rehabilitation, which is a key focus of the YCJA. Youth who are sentenced after trial, or who plead guilty, can be connected to the age-appropriate resources to learn from their behaviour and reintegrate into society. As noted by Justice Veldhuis, preventing unreasonable delay can assist a youth in connecting their behaviour with the consequences.
However, what remains unclear after the ABCA’s ruling is how long the presumptive ceiling should be. Justice Veldhuis suggested a ceiling of 15 months. As noted by Justice Wakeling, more empirical and expert evidence may be appropriate in deciding a ceiling, especially in the context of youth. Age may be an important factor to consider in setting a presumptive ceiling. Common sense would suggest that a youth who is age 12 is at a drastically different stage of development than a youth who is at age 17. A 15 month ceiling means a 13 year old could be 15 by the time they reach trial, which seems like a very different situation than a 17 year old who goes to trial at 18 or 19. But at the same time, there may be difficulty in distinguishing a presumptive ceiling for an older youth who is 16 or 17 and an adult offender who is 18. It is interesting to note that the Supreme Court in Jordan picked the 18 month and 30 month presumptive ceilings without providing much empirical evidence in their reasons to support their decision (Jordan, paras 56-57).
Overall, all three judges of the ABCA presented different but persuasive reasons on how section 11(b) rights should be interpreted for youth. It will be interesting to see how the SCC will rule. People interested in youth criminal justice will no doubt wait with particular anticipation to see whether the Court will decide on a completely different framework for mitigating delay in the youth criminal justice system, much like it did in the regular criminal system in the explosive Jordan decision.