Time limits for criminal trials also apply to cases involving youth, Supreme Court rules

The Supreme Court of Canada has ruled that an established 18-month time limit to bring an accused person to justice applies to cases involving youth, but it did not impose a shorter time frame for young persons.

In a 5-4 decision, the majority found that an accused person's "youthfulness" should be considered in assessing what constitutes a reasonable delay.

The ruling stems from the case of an Alberta teen identified only as "K.J.M." in court documents. He was charged with aggravated assault after he stabbed another teen with a box cutter in a drunken fight at a house party in 2015. It took more than 18 months for his case to be resolved.

The Youth Criminal Justice Act calls for cases to be dealt with quickly, but the government of Alberta had argued that doesn't mean it's a special constitutional right.

In the game-changing 2016 Jordan decision, the Supreme Court ruled that unreasonable delays in criminal cases violate the Charter of Rights. The court set two separate hard limits on the duration of court proceedings: 18 months for provincial court cases and 30 months for more serious and complex cases heard in Superior Court.

That decision rocked Canada's criminal justice system, leaving prosecutors scrambling to expedite cases and prompting a flood of applications for dismissal of charges due to excessive delays.

The Jordan ruling did not, however, establish specific time limits for defendants under age 18, who are dealt with under a separate youth courts system.

"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," Justice Michael Moldaver wrote for the majority opinion released on Friday.

No lower limit for youth

The majority ruling said there is no evidence that the youth criminal justice system is plagued by the same systemic delays as the adult one that would justify taking the "exceptional judicial step" of setting a lower ceiling for youth cases.

Courts may also consider the individual circumstances of a case to determine whether the accused youth has been subject to an unreasonable delay, even if it is below the 18-month limit.

In a dissenting opinion, three justices said a time limit of 15 months would be more appropriate for youth court cases, given the "distinct prejudice" young persons suffer from delays in the justice system.

"Doing so gives effect to Parliament's intention in enacting a separate youth criminal justice system, to Canada's international commitments, to the recognition in pre-Jordan case law that youth proceedings must be expeditious, and to the consideration that led to setting the presumptive ceilings for adults in Jordan," wrote Justices Rosie Abella and Russell Brown, in an opinion shared by Sheilah Martin.

"Just as the court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings."

The dissenting opinion said that refusing to create a separate ceiling for youth could lead to less protection for young people than they had before the Jordan ruling.

"It turns the Jordan principles, so far as young people are concerned, into a hollow promise," it reads.

A Jordan standard for youth

Lawyer Graham Johnson, who took K.J.M.'s case all the way to the top court, said timely trials have a "heightened importance" for minors because of the profound impact delays can have on their lives and prospects for rehabilitation. 

"In Canada, children as young as 12 can be charged with a criminal offence, and if it takes 18 months to get the case to court and there's a guilty verdict, you're then punishing a 14-year old for what the 12-year-old did," he told CBC News.

"And there's a certain, in my view, injustice in that, given how quickly children develop, mature and can change their behaviour."

The appellant in the case before the Supreme Court was 15 years old when he was charged in April 2015. By the time the trial concluded in November 2016, he was nearly 17 years old.

Johnson said the fact that Parliament established a separate justice system for young people — one that includes guiding principles on prioritizing and expediting those cases — reflects the need to establish a lower case duration limit for minors.

Alberta disagrees

He said a 12-month time limit on the completion of court proceedings would be more appropriate for young offenders.

The government of Alberta disagreed and opposed imposing a timeframe on youth criminal cases.

"The Youth Criminal Justice Act recognizes youth cases should be dealt with earlier and more quickly but these principles do not translate into a special constitutional right," says the legal filing to the Supreme Court drafted by lawyer Robert Fata, acting for Alberta.

"Principles are flexible and adaptive to the circumstances of a specific case, while constitutional rights are universal and protect all accused people equally."

Alberta's court filing notes that the appellant did not dispute the finding that he committed aggravated assault with a weapon and possessed a weapon for a dangerous purpose, or that he inflicted "devastating injuries" on the teenaged victim.

'Unnecessary and unrealistic'

The grounds for K.J.M.'s appeal related only to the issue of the delay in proceedings — not to the facts of the case itself, which he does not dispute.

The Government of Ontario was an intervenor in the case. In a document filed with the court, the provincial government argues that setting a lower time frame for youth cases would be "unnecessary and unrealistic."

Mary Birdsell, executive director of the legal advocacy organization Justice For Children and Youth, another intervenor in the case, said unresolved charges hanging over young people's heads can blight their lives, with bail conditions (such as curfews) undermining everything from education and employment to extra-curricular and social activities.

Birdsell said a prolonged period of waiting can also create a disconnect between the alleged offence and the consequence, which can frustrate efforts to get young offenders to acknowledge the effects of their actions and work against rehabilitation.

"Speedy justice is really important for young people because their sense of time is different, because their development is ongoing, and because you want to capture the moments for addressing underlying consequences in meaningful ways," she told CBC.

"The longer you leave things in limbo, the less likely you are to address the underlying concerns."

The need for 'predictable standards'

Birdsell also cited significant differences in how various court systems work to deal with youth cases across the country, saying some jurisdictions are more efficient than others.

"What we want to do is try and create some predictable standards that can serve as guideposts to Crowns and courts across the country," she said.

According to Statistics Canada, there were 2,767 criminal cases that took longer than one year to resolve in youth courts in 2017-2018 — about 10 per cent of the total number of cases.

But it's not clear from the numbers how many of those cases were delayed due to actions taken by the defence, which are not factored into the time limits set by the Supreme Court in Jordan.

The Criminal Lawyers' Association, another intervenor in the case, said excessive delays are harmful to the public interest.

"The objectives of the youth justice system reflect society's interests as well. These objectives include rehabilitation and reintegration, accountability, timely intervention, and the need for promptness and speed … given young persons' perception of time. The public interest too can only be met with expedited justice," the association wrote in a court filing.

Nick Bala, a youth criminal justice expert at Queen's University, said the law has recognized for a long time that young defendants require special treatment, and was pleased that both the majority and dissent recognized special status of youth. 

"I can appreciate why the majority took the position that it did as this case was 'close to the line' and there is huge push back about Jordan, but I think that the dissent offered a clearer approach more consistent with principles of the Youth Criminal Justice Act," he said.

He said prolonged proceedings harm not just the alleged perpetrator, but families and victims as well.

"There are many people affected by a case and, for everybody, dealing with these things in a more timely way is important," he said.

The Legal Aid Society of Alberta said in the wake of the Jordan ruling that the only way to recognize the state's responsibility to youth is to grant a "special guarantee" of a timely trial.

In its filing to the Supreme Court, it said other jurisdictions, including some American states, have mandatory timelines requiring that youth cases be resolved in less than a year, with some states requiring a disposition within a month.