The Supreme Court Says No to Lowering Presumptive Trial Delay Ceilings for Young Accused in R v KJM
Emma Ryman, 3L, Volume 78 Senior Editor
The judiciary is currently taking dramatic steps to cope with the realities of the COVID-19 pandemic, such as suspending family and criminal trials. As Daniel Brown, a Toronto criminal defence lawyer, points out in an interview with the National Post, a pandemic would almost certainly count as an “exceptional circumstance” justifying criminal trial delay beyond the usual time limits imposed by the Supreme Court in R v Jordan, 2016 SCC 27. Nonetheless, it is a germane time to reflect on the right to be tried within a reasonable time enshrined under s. 11(b) of the Canadian Charter of Rights and Freedoms. In particular, I will consider the Supreme Court’s recent decision in R v KJM, 2019 SCC 55, in which the Court declined to create lower trial delay ceilings for young accused.
The Jordan Framework
Jordan famously laid out a framework for determining whether an accused person’s s. 11(b) rights have been violated. Central to this framework “is a ceiling beyond which delay is presumptively unreasonable,” set at 18 months for trials in provincial court and at 30 months for those in superior court. [1] Once these ceilings have been exceeded (including the subtraction of any delay attributable to the defence), the proceedings will be stayed unless the Crown can demonstrate that the delay was reasonable insofar as it resulted from exceptional circumstances (i.e. circumstances outside the Crown’s control that were reasonably unforeseen or unavoidable and could not reasonably have been remedied). [2]
Stays for unreasonable trial delay may also be granted below the presumptive ceilings if the defendant can demonstrate that the below-the-ceiling delay is nonetheless unreasonable. This occurs when the defendant establishes that (1) she “took meaningful steps that demonstrate a sustained effort to expedite the proceedings” and (2) “the case took markedly longer than it reasonably should have.” [3] However, the Jordan court noted that stays granted for delay below the ceilings should “be rare, and limited to clear cases.” [4]
The Jordan decision had a profound impact on the criminal justice system in Canada. However, it left certain questions unanswered. One of those questions was whether the Jordan ceilings, which were set in the adult criminal context, should also apply to proceedings brought under the Youth Criminal Justice Act. Or, given that young accused are particularly vulnerable to the negative effects of prolonged trial delay, should there be a new ceiling tailored to the youth context? Three years after Jordan, the Supreme Court gave their answer in KJM: the Jordan ceilings apply to adult and youth matters alike.
Applying Jordan to the Youth Context in KJM
The defendant in KJM was, at age 15, involved in a fight at a house party during which he seriously injured another party-goer with a box cutter. [5] Due to various interruptions (including a one-month delay resulting from a voir dire transcript error), KJM’s trial took 18 months and 28 days to complete. [6] During this nearly 19-month period, KJM brought an application for a stay of the proceedings based on a claim that his s. 11(b) rights had been violated.
The trial judge dismissed KJM’s s. 11(b) claim, finding that although the delay exceeded 18 months and was therefore presumptively unreasonable, it was “just not the clearest of cases where [she] should stay it.” [7] The Alberta Court of Appeal dismissed KJM’s appeal, with Justice Veldhuis dissenting. Justice Veldhuis would have allowed the appeal on the grounds that a new presumptive ceiling of 15 months should apply to young accused (who were facing single-stage proceedings in provincial court) to account for “the additional prejudice faced by young person[s] experiencing long pre-trial delays.” [8]
The Supreme Court dismissed KJM’s appeal in a 5-3 decision. Justice Moldaver, writing for himself, Chief Justice Wagner and Justices Gascon, Côté and Rowe, found that although there is an enhanced need for timeliness in youth proceedings, this need could be accommodated within the existing Jordan framework. The majority held that the standard 18-month ceiling applied to KJM, and that once defence delay was subtracted from the trial period, the delay in his case fell below the ceiling and was not otherwise unreasonable.
Justice Karakatsanis dissented, agreeing with the majority that the 18-month ceiling applied, but determining that none of the trial delay should be attributed to the defence. Justice Karakatsanis would have found that KJM’s s. 11(b) rights had been violated since the delay exceeded 18 months and would therefore have granted a stay.
Justices Abella and Brown also dissented. They agreed with Justice Veldhuis that a 15-month ceiling should apply to single-stage proceedings in provincial court involving young accused. Based on this lower ceiling, Justices Abella and Brown viewed the trial delay in this case as presumptively unreasonable, and would not have found it justified on the basis of exceptional circumstances nor under the exception courts can grant for ‘transitional’ cases (i.e. for cases that commenced prior to the release of the Jordan decision).
The majority decision
All of the judges hearing KJM agreed that section 3(1)(b) of the YCJA emphasizes the unique circumstances of young offenders and the pressing need for youths to be tried in a timely manner.[9] Justice Moldaver highlights five reasons why timeliness has a special significance for young accused:
Since young persons have different perceptions of time and less well-developed memories, prolonged trial delays can impair the connection they are able to draw between their actions and consequences.
Because time spent awaiting trial will occupy a larger proportion of a young person’s life than an adult’s, delay may have a more pronounced psychological impact on youths.
Since memories likely fade faster for youths, delays may make recall of past events more difficult, thus impairing their ability to make a full answer and defence, which is protected under s. 7 of the Charter.
Because youths undergo rapid psychological development, delay between the impugned conduct and corresponding punishment may cause feelings of unfairness (i.e. youths may feel they are being punishing for “who they used to be” rather than who they are at the end of trial).
Finally, it is in society’s interest to see youths rehabilitated and reintegrated into society as quickly as possible. [10]
According to the majority, the existing Jordan framework can accommodate these concerns. Rather than setting a lower ceiling, Justice Moldaver held that the enhanced need for timeliness “can and should be taken into account when determining whether delay falling below the presumptive ceiling is unreasonable.” [11] It “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.” [12] The implication of this approach is that despite the Jordan court’s guidance that stays granted below the presumptive ceilings should be “rare,” they may in fact “be less ‘rare’ when considered against the smaller body of youth applications for a stay under the ceiling.” [13]
The majority adopted this approach for accommodating the enhanced need for timeliness, rather than the one advocated for by Justice Veldhuis, for several reasons, although two reasons seemed to be of particular significance. First, Justice Moldaver found that there was no evidence sufficient to demonstrate that the Jordan ceilings were failing to provide adequate s. 11(b) protections to young accused. [14] Second, the majority was concerned that setting a lower ceiling for young accused would create a slippery slope, leading to a multiplicity of different presumptive ceilings that would undermine the stability and predictably promised by the Jordan framework. [15]
The Abella and Brown JJ dissent
I focus here on the dissent of Justices Abella and Brown because, unlike Justice Karakatsanis, they would have created a new presumptive ceiling for YCJA proceedings.
Justices Abella and Brown responded directly to the majority’s reasoning. First, they would have held that empirical evidence of a problem with youth trial delay “is not a precondition for guaranteeing or defining the content of constitutional rights.” [16] They emphasized that if one accepts “that the goals Jordan sought to achieve are equally applicable in the youth justice context, those principles must be applied in light of the uniqueness of youth proceedings.” [17] In addition, they noted that “no such empirical evidence of delay across jurisdictions was before this Court when it decided Jordan,” and that the Court could take judicial notice of a culture of complacency in the youth criminal justice system. [18]
Second, Justices Abella and Brown rejected the majority’s ‘slippery slope’ concern. In their view, setting a separate presumptive ceiling for young persons is “merely reflecting Parliament’s direction, that those in that age range must be treated separately and differently from adults.” [19] Given that the lower ceiling would apply to all young accused, and would be bounded by a clear legislative context, there is no reason to think that “recognizing a new ceiling for youth court proceedings would lead to a proliferation of ceilings.” [20]
Finally, with respect to the predictability and stability promised by the Jordan framework, Justices Abella and Brown note that in “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.” [21]
The decision in KJM was likely a great disappointment to those who, like Justices Abella and Brown, wanted to see stronger s. 11(b) guarantees for young accused in light of their unique vulnerabilities. That said, given the weight the majority gave to the lack of evidence that the Jordan ceilings were not providing adequate protections for youths, the Court appears to have left the door open for future changes to the presumptive ceilings should such evidence become available.
Some Lingering Questions: Allocating Failed Extrajudicial Sanctions Delay & Other Potential Ceiling Changes
There are at least two lingering questions that the KJM decision raises with respect to trial delay. First, there is the question of how delay resulting from failed attempts at extrajudicial sanction programs should be treated. [22] The majority adopts the view that this form of delay should be considered on a case-by-case basis but could “reasonably be expected [to be] deducted as defence delay.” [23] Justice Moldaver expressed concern that authorities might refrain from using extrajudicial sanctions if they had to fear “that they may be increasing the likelihood of a stay in the event such measures fail.” [24]
On the other hand, Justice Karakatsanis (who agreed with the majority with respect to maintaining the Jordan ceilings) viewed attributing the delay from failed attempts at extrajudicial sanctions to the defence as unfair to the accused. [25] Moreover, given that there was no reference made in the factual matrix of KJM to such attempts, she viewed it as “neither necessary nor prudent to consider this issue in the instant case.” [26] She urged the Court to “exercise judicial restraint” and not address it “in the absence of full submissions and a factual context in which to properly analyze this issue.” [27]
Since the delay in KJM did not involve, as Justice Karakatsanis noted, failed attempts at extrajudicial sanctions, Justice Moldaver’s remarks about treating such attempts as defense delay are obiter dicta. It is likely that this issue will be addressed more fully in a future s. 11(b) case where delay caused by extrajudicial sanction attempts is squarely at issue.
Second, although the Court in KJM declined to create a new ceiling for the youth context, are there other contexts that might warrant different presumptive ceilings? At least one lower court case, York (Regional Municipality) v Tomovski, 2017 ONCJ 785, has considered another context in which the Jordan ceilings might be lowered: provincial offenses. In Tomovski, Justice McInnes determined that the appropriate presumptive ceiling for proceedings under Part I of the Provincial Offences Act was 13-15 months. [28] This lower ceiling was intended to reflect the reduced complexity of proceedings for provincial offenses (such as speeding or traffic violations) as compared to criminal proceedings. [29] However, even based on this lower ceiling, Justice McInnes found that Tomovski’s s. 11(b) rights had not been breached.
York Region sought unsuccessfully to appeal Justice McInnes’ determination that the appropriate presumptive delay ceiling for Part I POA offenses is 13-15 months. In dismissing York’s motion for leave to appeal, the Court of Appeal for Ontario noted, “This court can address the important question of the appropriate presumptive delay ceiling for Part I POA proceedings in another case in which the appeal is properly constituted.” [30] However, the Court emphasized that in dismissing the motion, it should not be understood as approving of Justice McInnes’ lower ceiling. [31] It therefore remains to be seen whether Jordan ceilings will be subject to modifications in the future, be it in the POA context or elsewhere.
Notes
[1] Jordan at para 46.
[2] Jordan at paras 47-48.
[3] Jordan at para 48.
[4] Jordan at para 48.
[5] KJM at para 6.
[6] KJM at para 92.
[7] KJM at para 21.
[8] R v KJM, 2018 ABCA 278 at para 81, cited in KJM at para 29.
[9] KJM at paras 59, 135-141, 216.
[10] KJM at paras 50-55.
[11] KJM at para 4 (my emphasis).
[12] KJM at para 74.
[13] KJM at para 78.
[14] KJM at para 64.
[15] KJM at para 65.
[16] KJM at para 168.
[17] KJM at para 168.
[18] KJM at para 169.
[19] KJM at para 170.
[20] KJM at para 170.
[21] KJM at para 170.
[22] Extrajudicial sanctions can “be imposed either before or after a young person is charged with an offence,” and can include “volunteer work, compensating the victim, and attending specialized programs.” See Department of Justice Canada, Extrajudicial Measures Fact Sheet (March 2015).
[23] KJM at para 89.
[24] KJM at para 89.
[25] KJM at para 229.
[26] KJM at para 225.
[27] KJM at para 225.
[28] However, although Justice McInnes determined that 13-15 months was the appropriate presumptive ceiling for Part I proceedings, he declined “to ‘set’ a specific presumptive ceiling for Part I cases generally” (Tomovski ONSC at para 149).
[29] The respondent in Tomovski noted, for example, that provincial offense proceedings do not include, or only minimally include, factors that contribute to longer proceedings in the criminal context, such as “bail hearings, lengthy intake processes, voluminous disclosure, complex pretrial motions, [and] difficult legal issues…” (Tomovski ONSC at para 59).
[30] York (Regional Municipality) v Tomovski, 2018 ONCA 57 at para 19.
[31] Tomovski ONCA at para 20.