K.J.M. Appellant v. Her Majesty The Queen, 2019 SCC 55

SUPREME COURT OF CANADA Citation: R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39 Appeal Heard: February 19, 2019 Judgment Rendered : November 15, 2019 Docket: 38292 Between: K.J.M. Appellant and Her Majesty The Queen Respondent - and - Attorney General of Ontario, Director of Criminal and Penal Prosecutions, Criminal Lawyers’ Association (Ontario), Legal Aid Society of Alberta and Justice for Children and Youth Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 120) Moldaver J. (Wagner C.J. and Gascon, Côté and Rowe JJ. concurring) Joint Dissenting Reasons: (paras. 121 to 202) Abella and Brown JJ. (Martin J. concurring) Dissenting Reasons: (paras. 203 to 235) Karakatsanis J.

r. v. k.j.m. K.J.M. Appellant v. Her Majesty The Queen Respondent and Attorney General of Ontario, Director of Criminal and Penal Prosecutions, Criminal Lawyers’ Association (Ontario), Legal Aid Society of Alberta and Justice for Children and Youth Interveners Indexed as: R. v. K.J.M. 2019 SCC 55 File No.: 38292. 2019: February 19; 2019: November 15.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for alberta Constitutional law — Charter of Rights — Right to be tried within reasonable time — Young persons — Delay of almost 19 months between charges and end of youth accused’s trial — Whether presumptive ceilings established in Jordan apply to youth justice court proceedings — Whether youth accused’s right to be tried within reasonable time under s. 11(

b) of Canadian Charter of Rights and Freedoms infringed. M, 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. Almost 19 months after charges were laid, he was found guilty of aggravated assault and possession of a weapon for a dangerous purpose. Shortly before his convictions, he 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 Charter . The trial judge found that the total delay exceeded the 18-month ceiling set out in R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631, and was therefore presumptively unreasonable. The trial judge, however, dismissed the s. 11(

b) Charter application and refused to enter a stay, reasoning that it was not the clearest of cases where a stay should be granted. The Court of Appeal dismissed the appeal, with one justice dissenting. The three justices wrote separate reasons, each taking a distinct approach as to whether the presumptive ceilings set out in Jordan apply to youth matters. Held (Abella, Karakatsanis, Brown and Martin JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Gascon, Côté and Rowe JJ.: While Jordan did not explicitly answer the question of whether the 18- and 30-month presumptive ceilings apply to youth justice court proceedings, the existing Jordan framework is capable of accommodating the enhanced need for timeliness in youth cases. This need is well established in the jurisprudence and codified in the YCJA .

It can and should be considered in applying the test for a stay below the ceiling, which requires the defence to establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. An accused’s youthfulness should be considered in assessing the second branch of the test.

But 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 no need to consider, much less implement, a lower constitutional ceiling for youth matters. Canada’s youth criminal justice system stands separate from the adult criminal justice system. While every person charged with an offence has the right to be tried within a reasonable time under s. 11(

b) of the Charter , this right has special significance for young persons, for at least five reasons. First, because young persons have a different perception of time and less well-developed memories than adults, their ability to appreciate the connection between actions and consequences is impaired. Whereas prolonged delays can obscure this connection and dilute the effectiveness of any disposition, timely intervention reinforces it. Second, delay may have a greater psychological impact on a young person.

Third, the increased rapidity with which a young person’s memory fades may make it more difficult for him or her to recall past events, which may in turn impair his or her ability to make full answer and defence, a right which is protected by s. 7 of the Charter . Fourth, adolescence is a time of rapid brain, cognitive, and psychosocial development. Where a prolonged delay separates the offending conduct from the corresponding punishment, the young person may experience a sense of unfairness, as his or her thoughts and behaviours may well have changed considerably since the offending conduct took place.

Fifth, society has 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.

The foregoing notwithstanding, there is no need to introduce a lower presumptive ceiling for youth matters. It has not been shown that there is a problem regarding delay in the youth criminal justice system, let alone one that warrants the imposition of a new constitutional standard. There is no evidence that young persons who proactively request an expedited trial are not being accommodated in the post- Jordan world, nor that actors within the youth criminal justice system are not taking Jordan to heart.

Further, Jordan established a uniform set of ceilings that apply irrespective of the varying degrees of prejudice experienced by different groups and individuals. Setting new ceilings based on the notion that certain groups — such as young persons — experience heightened prejudice as a result of delay would undermine this uniformity and lead to a multiplicity of ceilings, each varying with the unique level of prejudice experienced by the particular category or subcategory of persons in question. This would quickly become impracticable.

The mere fact that Parliament decided to create and maintain a separate youth criminal justice system does not by itself provide a sound rationale for establishing a separate ceiling for youth matters. The decision not to alter the Jordan ceilings to apply differently to youth justice court proceedings does not mean that an accused’s youthfulness has no role to play under the Jordan framework. 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.

Like the other factors identified in Jordan , the enhanced need for timeliness in youth matters 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. This approach recognizes that while the presumptive ceiling remains the same whether the accused is a youth or an adult, the tolerance for delay differs.

While the presumptive ceiling provides a hard backstop that offers certainty, predictability, and simplicity, the test for a stay below the ceiling affords the necessary flexibility to ensure case-specific features — such as the age of the accused — are not lost in the analysis. At the same time, Jordan will not deliver on its promise — whether for young persons or for adults — unless all participants in the criminal justice system work together and take a proactive approach from day one.

Prosecutors have a strong incentive to be proactive because the failure to do so will be a factor in determining whether a case has taken markedly longer than it reasonably should have. Equally, the defence has a duty to be proactive, as well as an interest in doing so. If the defence hopes to satisfy the “meaningful steps” test set out in Jordan , it must engage in proactive conduct throughout and show that the accused is committed to having the case tried as quickly as possible. Resigned acquiescence will not do.

There is every reason to expect that young persons will enjoy stronger protection against prolonged delay than they did in the pre- Jordan era. While the test for a stay for delay below the ceiling places the onus on the defence to establish that the delay was unreasonable, this does not disadvantage young persons vis-à-vis adults or place them in a less advantageous position than they were in pre- Jordan . Jordan affords all accused persons, including youth, the benefit of a strong presumption of unreasonableness once the delay exceeds the presumptive ceiling.

Given that both young persons and adults benefit from this strong presumption, they both must bear the onus of justifying a stay when the delay is below the ceiling. While the Court stated in Jordan that stays for delay below the ceiling will be rare and limited to clear cases, this statement must be read in light of the fact that the Jordan framework applies to all criminal proceedings, not just youth matters.

While stays for delay below the ceiling may be rare when considered against the entire body of applications for a stay for delay under the ceiling, they may be less rare when considered against the smaller body of youth applications for a stay for delay under the ceiling. Thus, when Jordan is taken to heart and the test for a stay below the ceiling is properly applied to youth court proceedings, the Jordan framework affords young persons robust protection against unreasonable delay. Any delay resulting from failed attempts at extrajudicial sanctions should be treated on a case-by-case basis.

However, without foreclosing the theoretical possibility that such delay might in some rare instances be included in the Jordan calculation, it can reasonably be expected that it will be deducted as defence delay. Removing this type of delay from the Jordan calculation minimizes the risk that authorities will refrain from using extrajudicial sanctions in the first place out of a fear that they may be increasing the likelihood of a stay in the event such measures fail.

Removing disincentives against extrajudicial sanctions is an important policy objective given the central role played by such measures in the youth criminal justice system. Furthermore, this approach makes sense at a conceptual level. When an attempt at extrajudicial sanctions is made, that effectively removes the matter from the court system and places it on a different track. It therefore makes good sense to stop the clock and to restart the clock only if and when the matter is placed back into the court system. The delay in this case fell below the 18-month presumptive ceiling.

The total delay was 18 months and 28 days. In line with Jordan , any delay caused by the defence must be subtracted from total delay. For example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. Here, on one occasion, the court and Crown were ready at the scheduled start time, but M did not show up on time. This created a need to reschedule the hearing, and the earliest available date was five months later.

While it is difficult to quantify with precision the extent of the delay caused by the defence, attributing a delay of two to three months to the defence is both fair and reasonable. In addition, delay caused by discrete exceptional events that are reasonably unforeseeable or reasonably unavoidable must also be deducted to the extent such delay could not reasonably have been mitigated by the Crown or the justice system. Such an event occurred when an administrative error in the transcript ordering process resulted in approximately one month of delay.

This leaves a net delay of 15 to 16 months, falling below the applicable ceiling. Although this case is close to the line, it does not meet the test for a stay below the ceiling. In a transitional case such as this one, both requirements — that the defence took meaningful and sustained steps, and that the case took markedly longer than it reasonably should have — must be applied contextually, sensitive to the parties’ reliance on the previous state of the law. As to the first requirement, while the defence acted responsibly throughout the proceeding, it did not engage in the necessary proactive conduct.

Its approach was more one of resigned acquiescence. However, given that about 80 percent of the trial took place before Jordan was released, the defence should have the benefit of the doubt and the first requirement has been met. As to the second requirement, although some factors suggest that this case should reasonably have completed in less time, the issue is whether it took markedly longer than it reasonably should have. The vast majority of this trial took place at a time when the tolerance for institutional delay — the primary cause of delay in this case — was high across the country.

It is clear from the record that overbooking and systemic delay in the jurisdiction in question were endemic. Further, the seriousness of the offences and the absence of any demonstrated prejudice are relevant in that they help to explain why the Crown had good reason to believe the delay in this case would not have been found to be unreasonable. The persistent systemic delay discussed above also constrained the Crown’s ability to move this case through the system in a timely manner.

While the delay here was excessive, a contextual approach leads to the conclusion that the case did not take markedly longer than it reasonably should have. Therefore, a stay is not warranted.

Per Abella, Brown and Martin JJ. (dissenting):

Section 11(

b) of the Charter requires a distinct and lower presumptive ceiling for proceedings brought under the YCJA , reflecting the distinct character of young accused and the recognized distinct prejudice they suffer from delay in the youth 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 .

Just as the Court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings. That analysis leads to a presumptive ceiling of 15 months for youth proceedings in the provincial court. When Parliament created a separate youth criminal justice system over a century ago, it sought to achieve two fundamental objectives: to provide young persons with enhanced procedural protections throughout the criminal process in recognition of their youth, and to create less formal and more expeditious proceedings.

Such enhanced procedural protections which recognize that youth proceedings must proceed more expeditiously than proceedings against adults are codified in s. 3(1) (b)(iv) and s. 3(1) (b)(

v) of the YCJA , which crystallized the prior state of the common law. Since the enactment of the YCJA , courts have consistently maintained that criminal proceedings against youth should be resolved more quickly than adult proceedings and that reasonable delay in the adult criminal justice system may not be reasonable in youth proceedings. Given the heightened vulnerability of young persons in the justice system and their diminished moral blameworthiness, enhanced — and robust — procedural protections have been built into this separate system.

The role of prejudice in connection with young persons was not considered by the Court in setting the Jordan ceilings because Jordan did not fix ceilings for youth justice court proceedings. Therefore, the unique prejudice that young persons suffer as a result of delay was not accounted for in Jordan . The only outcome that is consistent with the reasoning in Jordan is to recognize that, in light of the separate court system created by Parliament and the greater prejudice that has been acknowledged in the case of young persons, there should be a lower presumptive ceiling for youth proceedings.

Lowering the presumptive ceiling for youth does not confer enhanced Charter protections on them. Rather, it acknowledges the more profound impact of delay on young persons, and sets a ceiling that aims to confer on them the same protections that adults receive. When it comes to prejudice arising from delayed criminal proceedings, equal protection as between young persons and adults requires differential treatment. This is not a departure from Jordan ; indeed, it is the very application of Jordan ’s principles to the youth criminal justice system.

Refusing to create a separate ceiling would result in the principles underlying Jordan to furnish less protection for young people than they had before Jordan . To rely on the absence of any reference to the youth justice system in Jordan as the basis for inferring that the Jordan framework applies to it, obliterates the historic distinction between the adult and youth criminal justice systems, to the prejudice of young persons.

A framework for adjudicating a constitutional right that is directed to the criminal justice system for adults should not be inferentially taken as having been also directed to be considered in the context of the separate criminal justice system for young persons, particularly when inferring that young persons are captured by the adult framework will lead to less protection than they have received and are constitutionally entitled to. Furthermore, tacking young people onto the adult framework set by Jordan changes Jordan itself, and erodes the clarity it created.

Following Jordan , prejudice is no longer an independent consideration and is instead a factor in the setting of the ceilings, and a stay will be granted in response to delay below the ceiling only in rare and clear cases. By 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.

This results in the worst of both worlds: the rigidity of ceilings that offer youth less protection than they previously received and were entitled to, coupled with a lack of clarity and predictability about if and when a stay will be granted when the delay is below the ceiling. The “below the ceiling test” set out in Jordan is not capable of recognizing young persons’ differential tolerance for delay. To ask youth accused to prove special circumstances to show that delay below the ceiling is unreasonable imposes a disproportionately high burden on them.

The total delay in this case from the time M was charged to the end of his trial was 18 months and 28 days, above the 15-month presumptive ceiling. It is inappropriate to deduct two to three months as defence delay arising from the fact that M was 2½ hours late to one of his numerous court appearances. The transcript error was the result of an administrative oversight that the justice system could reasonably have mitigated. None of the delay in M’s case should be characterized as defence delay or delay due to a discrete exceptional circumstance.

Further, the delay in M’s case is not justified by the transitional exception and the Crown has not demonstrated that the delay in this case was reasonable. Therefore, M’s constitutional right to stand trial within a reasonable time was infringed, and a stay of proceedings should be granted. Per Karakatsanis J. (dissenting): There is agreement with the majority that a separate presumptive ceiling in the YCJA context is neither warranted nor necessary to accommodate the distinct characteristics of young accused and the youth criminal justice system.

Rather, the presumptive ceilings set out in Jordan apply in the context of the youth criminal justice system and adopting a more robust approach to examining the reasonableness of delays falling below the presumptive ceiling provides protection for the rights of young accused pursuant to s. 11(

b) of the Charter . However, as no part of the total delay in this case can be characterized as defence delay or delay resulting from discrete exceptional circumstances, the delay suffered by M breaches the 18-month presumptive ceiling. The delay cannot be justified under the transitional exception as the Crown has failed to demonstrate on the evidence that the delay in this case was reasonable based on a reliance on the previous state of the law and therefore, a stay should be granted.

There is no evidence that the youth criminal justice system suffers from endemic delays that would justify taking the exceptional judicial step of setting a new presumptive ceiling. A failure to lower the ceiling does not put young accused at a disadvantage compared to their adult counterparts and deprive them of the benefits that Jordan extended through the implementation of presumptive ceilings for delay.

Young accused benefit from the presumptive 18-month ceiling set out in Jordan for cases going to trial in provincial courts and it is reasonable to presume that the entire criminal justice system, including the youth system, will ultimately benefit from positive initiatives generated in response to the presumptive ceilings established in Jordan .

Further, a lower presumptive ceiling is not required to account for the unique prejudice that young persons suffer as a result of delay as the increased prejudice and the special considerations for young persons codified in the YCJA are both best accounted for through the below-ceiling test in Jordan . Adapting Jordan in the context of the youth criminal justice system by way of the below-ceiling test gives effect to the s. 11 (

b) rights of young accused in two ways. First, it gives them the benefit of a presumptive ceiling and second, the below-ceiling test is sufficiently flexible to incorporate general considerations concerning the unique impact of delay on young accused and the greater need

for timeliness in the youth criminal justice system. The greater need for timeliness, including the unique prejudicial impact of delays onyouth, are not simply case-specific factors — such as the personal attributes, characteristics or circumstances of a specific young accused— used to determine whether the delay in a given case was markedly longer than it reasonably should have been. Rather, theseconsiderations play a larger role: they must suffuse and inform the entire analysis in order to give effect to the statutory mandates in theYCJA.

Thus, both steps of the below-ceiling test must take into account, and be adapted to incorporate, the increased need for timelinessin the youth criminal justice system. Jordan was referring to the criminal justice system as a whole when the Court explained that it expects stays beneath theceiling to be rare, and limited to clear cases.

Given the legislatively mandated and greater need for timeliness in the youth criminal justicesystem, it necessarily follows that delay in a proceeding against a young accused will become markedly longer than it reasonably shouldhave been sooner, perhaps significantly so, than it will in a proceeding against an adult. Therefore, stays below the ceiling in the youthcontext will not be rare or limited to clear cases. It is particularly important that the conduct of the defence be examined liberally and generously in the youth context.

Whilemore than resigned acquiescence is required, the defence is not required to engage in proactive conduct throughout and show that theaccused is committed to having the case tried as quickly as possible. This requires too much from the defence and thereby risksundermining the state’s general s. 11(

b) obligation to try all accused without undue delay. Jordan imposed no requirement on thedefence to engage in proactive conduct or to take steps to have the case tried as quickly as possible. Rather, the defence is required to actreasonably and expeditiously throughout the proceedings and take meaningful, sustained steps to expedite the proceedings. Further, thedefence initiative required at the first step of the test will necessarily be less in the youth context than in the adult context.

Nothing in the jurisprudence before or after Jordan suggests that delays caused by failed attempts at extrajudicial sanctionprograms should be attributed to the defence. It is wrong to attribute these delays to the accused. It would have the practical effect ofextending the presumptive ceiling for young accused beyond the 18-month ceiling that was set in Jordan. It would also undermine theemphasis on timeliness that must be accommodated in the below-ceiling test for matters in the youth criminal justice system. Cases Cited By Moldaver J. Applied: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; referred to: R. v.

Askov, (SCC), [1990] 2 S.C.R.1199; R. v. Morin, (SCC), [1992] 1 S.C.R. 771; R. v. M. (J.), 2017 ONCJ 4, 344 C.C.C. (3d) 217; R. v. M. (G.C.) (1991), (ON CA), 3 O.R. (3d) 223; R. v. C. (T.L.), (SCC), [1994] 2 S.C.R. 1012; R. v. Godin, 2009 SCC 26,[2009] 2 S.C.R. 3; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. S.J.L., 2009 SCC 14,[2009] 1 S.C.R. 426; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165;Dersch v. Canada (Attorney General), (SCC), [1990] 2 S.C.R. 1505; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R.787; R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. H.R., 2006 BCCA 211,225 B.C.A.C. 127; R. v. R.R., 2011 NSCA 86, 307 N.S.R. (2d) 319; R. v. P.R., 2018 SKCA 27, 365 C.C.C. (3d) 120; R. v. R. (T.) (2005), (ON CA), 75 O.R. (3d) 645; R. v. D. (S.), (SCC), [1992] 2 S.C.R. 161; R. v. L.B., 2014 ONCA 748,325 O.A.C. 371; R. v. M. (K.), 2017 ONCJ 8, 373 C.R.R. (2d) 234; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Ashraf, 2016ONCJ 584, 367 C.R.R. (2d) 30; R. v. Zilney, 2017 ONCJ 610, 390 C.R.R. (2d) 209; R. v. Lavoie, 2017 ABQB 66; R. v.

Mamouni, 2017ABCA 347, 58 Alta. L.R. (6th) 283; R. v. King, 2018 NLCA 66, 369 C.C.C. (3d) 1; R. v. K.G.K., 2019 MBCA 9, 373 C.C.C. (3d) 1; R. v.Vader, 2019 ABCA 191; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625. By Abella and Brown JJ. (dissenting) R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Morin, (SCC), [1992] 1 S.C.R. 771; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. R.C.,2005 SCC 61, [2005] 3 S.C.R. 99; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v.

M. (G.C.) (1991), (ON CA),3 O.R. (3d) 223; R. v. D. (S.), (SCC), [1992] 2 S.C.R. 161; R. v. J. (M.A.), (SCC), [1992] 2 S.C.R. 166;R. v. R. (T.) (2005), (ON CA), 75 O.R. (3d) 645; R. v. H.R., 2006 BCCA 211, 225 B.C.A.C. 127; R. v. R.R., 2011NSCA 86, 307 N.S.R. (2d) 319; R. v. L.B., 2014 ONCA 748, 325 O.A.C. 371; R. v. Askov, (SCC), [1990] 2 S.C.R. 1199;R. v. J.O.B., 2005 ABCA 296; R. v. M.A.B., 2011 ABPC 87; R. v. S.M., 2003 SKPC 39, 230 Sask. R. 25; R. v. J. (S.), 2009 ONCJ 217,192 C.R.R. (2d) 266; R. v. H. (M.), 2008 ONCJ 643; R. v. F. (T.), 2005 ONCJ 413; R. v.

L.S., 2005 ONCJ 113, 130 C.R.R. (2d) 81; R. v.C. (Q.Q.), 2005 BCPC 89, 129 C.R.R. (2d) 189; R. v. M. (J.), 2017 ONCJ 4, 344 C.C.C. (3d) 217; R. v. Godin, 2009 SCC 26, [2009] 2S.C.R. 3. By Karakatsanis J. (dissenting) R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. D. (S.), (SCC), [1992] 2 S.C.R. 161; R. v. Askov, (SCC), [1990] 2 S.C.R. 1199; R. v. Morin, (SCC), [1992] 1 S.C.R. 771; R. v. M. (G.C.) (1991), (ON CA), 3 O.R. (3d) 223; R. v. L.B., 2014 ONCA 748, 325 O.A.C. 371. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7, 11(b). Courts of Justice Act, R.S.O. 1990, c.

C.43, s. 38(3). Criminal Code, R.S.C. 1985, c. C-46, ss. 88(1), (2)(a), 268, 691(1)(a). Juvenile Delinquents Act, 1908, S.C. 1908, c. 40. Provincial Court Act, R.S.A. 2000, c. P-31, ss. 11, 12.

Provincial Court Act , R.S.B.C. 1996, c. 379, s. 2(5) . Young Offenders Act , R.S.C. 1985, c. Y-1 . Youth Criminal Justice Act , S.C. 2002, c. 1 ,

preamble, ss. 2(1) , 3 , 4 to 12 , 13 , 25 , 26 , 27 , 29 , 30 , 31 , 32 , 33 , 37(10) , 38 to 82 , 146 . Treaties and Other International Instruments Convention on the Rights of the Child , Can. T.S. 1992 No. 3,

Preamble, art. 40(1), (2)(b). United Nations Standard Minimum Rules for the Administration of Juvenile Justice , G.A. Res. 40/33, November 29, 1985, Rule 20.1. Authors Cited Bala, Nicholas. “Youth as Victims and Offenders in the Criminal Justice System: A Charter Analysis — Recognizing Vulnerability” (2008), 40 S.C.L.R. (2d) 595 . Bala, Nicholas, and Sanjeev Anand. Youth Criminal Justice Law , 3rd ed. Toronto: Irwin Law, 2012. Butts, Jeffrey A., Gretchen Ruth Cusick and Benjamin Adams. Delays in Youth Justice . Chicago: University of Chicago, 2009. Canada. Senate.

Standing Senate Committee on Legal and Constitutional Affairs. Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (June 2017) (online: https://sencanada.ca/content/sen/committee/421/LCJC/reports/Court_Delays_Final_Report_e.pdf; archived version: https://www.scc- csc.ca/cso-dce/2019SCC-CSC55_1_eng.pdf ). Davis-Barron, Sherri. Canadian Youth & the Criminal Law: One Hundred Years of Youth Justice Legislation in Canada . Markham, Ont.: LexisNexis, 2009.

Grisso, Thomas. “Adolescents’ Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases” (2006), 32 New Eng. J. Crim. & Civ. Confinement 3. Harris, Peter, et al. “Working ‘In the Trenches’ with the YCJA ” (2004), 46 CJCCJ 367. Jones, Brock, Emma Rhodes and Mary Birdsell. Prosecuting and Defending Youth Criminal Justice Cases: A Practitioner’s Handbook , in Brian H. Greenspan and Vincenzo Rondinelli, eds., Criminal Law Series . Toronto: Emond, 2016.

Levick, Marsha, et al. “The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of Childhood and Adolescence” (2012), 15 U. Pa. J.L. & Soc. Change 285. Steinberg, Laurence. “Adolescent Development and Juvenile Justice” (2009), 5 Annu. Rev. Clin. Psychol. 459. APPEAL from a judgment of the Alberta Court of Appeal (O’Ferrall, Veldhuis and Wakeling JJ.A.), 2018 ABCA 278 , 74 Alta. L.R. (6th) 217, [2018] 10 W.W.R. 415, 364 C.C.C. (3d) 313, 417 C.R.R. (2d) 243, [2018] A.J.

No. 1021 (QL), 2018 CarswellAlta 1767 (WL Can.), affirming the convictions of the accused for aggravated assault and possession of a weapon for a dangerous purpose. Appeal dismissed, Abella, Karakatsanis, Brown and Martin JJ. dissenting. Graham Johnson and Tania Shapka , for the appellant. Robert A. Fata , for the respondent. Eric Siebenmorgen and Joanne Stuart , for the intervener the Attorney General of Ontario. Justin Tremblay and Marie Vauclair , for the intervener the Director of Criminal and Penal Prosecutions. Howard L.

Krongold and Meaghan McMahon , for the intervener the Criminal Lawyers’ Association (Ontario). Dane Bullerwell and Susan Haas , for the intervener the Legal Aid Society of Alberta. Jane Stewart , Samira Ahmed and Mary Birdsell , for the intervener Justice for Children and Youth. The judgment of Wagner C.J. and Moldaver, Gascon, Côté and Rowe JJ. was delivered by Moldaver J. — I.

Overview [ 1 ] On April 12, 2015, the appellant, a “young person” under the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ 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 contrary to s. 268 of the Criminal Code , R.S.C. 1985, c. C-46 , and possession of a weapon for a dangerous purpose contrary to s. 88(1) of the Criminal Code .

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 .

[2] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which was released nearly 15 months after the appellant wascharged, this Court introduced a new s. 11(

b) framework, replacing the one established in R. v. Askov, (SCC), [1990] 2S.C.R. 1199, and R. v. Morin, (SCC), [1992] 1 S.C.R. 771. This new framework sought to address a “culture ofcomplacency towards delay” that had emerged in the criminal justice system (para. 40). At its heart are two presumptive ceilings beyondwhich delay is presumed to be unreasonable: (1) an 18-month ceiling for single-stage provincial court proceedings; and (2) a 30-monthceiling for proceedings conducted in the superior court (para. 49). [3] This appeal raises two main issues.

First, do these presumptive ceilings apply to youth justice court proceedings?Second, was the delay in the appellant’s case unreasonable? [4] I would answer the first issue in the affirmative. While the enhanced need for timeliness in youth matters is wellestablished in the jurisprudence and codified in s. 3(1)(b)(iv) and (

v) of the YCJA, this factor is accounted for within the existing Jordanframework. In particular, it can and should be considered in applying the test for a stay below the ceiling, which requires the defence toestablish that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case tookmarkedly longer than it reasonably should have” (Jordan, at para. 48 (emphasis in original)). An accused’s youthfulness should beconsidered in assessing the second branch of the test, assuming the first branch has been met.

But unless and until it can be shown thatJordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is inmy view no need to consider, much less implement, a lower constitutional ceiling for youth matters. [5] On the second issue, I am not persuaded that a stay is warranted in this case.

After deducting two to three months ofdefence delay and about one month of delay resulting from an administrative error leading to the unavailability of a hearing transcript —a “discrete exceptional circumstance” (Jordan, at para. 75) — the delay in this case fell below the 18-month presumptive ceiling.Considering the test for a stay below the ceiling — which, in a transitional case such as this, must be applied in a manner that is“sensitive to the parties’ reliance on the previous state of the law” (ibid., at para. 99) — I am not persuaded that this case took markedlylonger than it reasonably should have.

Accordingly, I would dismiss the appeal. II. Background [6] On April 11, 2015, the appellant, then 15 years old, got in a fight with the complainant, then 16 years old, at a houseparty. During the fight, the appellant stabbed the complainant in the face and the back of the head with a box cutter, causing seriousinjuries.

The appellant would later claim he acted in self-defence. [7] On April 12, 2015, the appellant was arrested and charged with a number of offences, including aggravated assaultcontrary to s. 268 of the Criminal Code, and possession of a weapon for a dangerous purpose contrary to s. 88(1) of the Criminal Code.Bail was initially denied, but on April 21, 2015, the Crown consented to the appellant’s release on his own undertaking, with minimal conditions.[1] [8] On May 19, 2015, the appellant pleaded not guilty to all charges. Defence counsel hoped to

schedule the trial forJune 29, 2015, but this was not a sitting day due to judicial vacations. Instead, the trial was scheduled to be heard in Provincial Court inFort McMurray on September 16, 2015. [9] On September 16, 2015, the Crown advised that it would be seeking to tender a statement made by the appellant tothe police, reversing its previous position on the matter. This necessitated a voir dire to determine the admissibility of the statementunder s. 146 of the YCJA. However, there was insufficient time to complete the voir dire that day, so it was put over to March 2, 2016,the earliest date available. Defence counsel indicated that there was no s. 11(

b) waiver. [10] On the morning of March 2, 2016, while the Crown and its witnesses were ready to proceed at the scheduled starttime, the appellant did not show up on time. In the interim, the Crown dealt with other matters, and the voir dire did not commence untilthe afternoon. The court sat for about 2½ hours that afternoon. However, as the Crown predicted earlier that morning, more time wasneeded to complete the voir dire. A continuation date was set for July 28, 2016 (the earliest date available) for five hours. Defencecounsel reiterated that there was no s. 11(

b) waiver, and the trial judge indicated that any s. 11(

b) application should be brought beforethe July 28 continuation date. [11] On July 8, 2016, nearly 15 months after the appellant was charged, this Court’s decision in Jordan was released. [12] On July 28, 2016, the voir dire concluded and the trial judge asked the court clerk to order a transcript of theproceedings. The Crown was not involved in ordering the transcript and did not request a copy.

The matter was then adjourned toSeptember 6, 2016, for a ruling on the admissibility of the appellant’s statement to the police. [13] On September 6, 2016, the trial judge advised the parties that the transcript had appeared in her box that morning; sheacknowledged, however, that it may have arrived in the office the week before while she was away on vacation. Unfortunately, it wasincomplete.

Accordingly, she adjourned the matter to October 4, 2016, so that she could re-order and review the full transcript beforeissuing a ruling. [14] On October 4, 2016, the trial judge ruled that the appellant’s statement to the police was inadmissible. In addition,defence counsel advised of his intention to file a s. 11(

b) Charter application, which he did the next day. The next court date waseventually scheduled for October 19, 2016. [15] On October 19, 2016, the appellant testified and the defence closed its case. The matter was then set over to October24, 2016 for argument on the s. 11(

b) application. [16] On October 24, 2016, approximately 18½ months post-charge, the trial judge heard argument on the appellant’ss. 11(

b) application and dismissed it.

[ 17 ] On November 2, 2016, final submissions concluded and the trial judge reserved judgment. [ 18 ] On November 9, 2016, the trial judge issued her decision rejecting the appellant’s claim of self-defence and convicting him of aggravated assault and possession of a weapon for a dangerous purpose. The remaining charges were dismissed. [ 19 ] On February 1, 2017, the appellant was sentenced to 160 days in custody on the aggravated assault charge and 20 days on the weapon possession charge, less time spent in custody before and after conviction, followed by community supervision and probation . He has since served his sentence. III. Decisions Below A.

Section 11(

b) Ruling — Provincial Court of Alberta (No. 150428860Y1) (Cleary Prov. Ct. J.) (Unreported) [ 20 ] 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. She did not attribute any delay to either the Crown or the defence, and she found that the approximate one-month delay caused by the unavailability of the voir dire transcript was not a discrete exceptional circumstance. [ 21 ] 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 is just not the clearest of cases where I should stay it” (A.R., at p. 3). In the result, she dismissed the s. 11(

b) application. B. Court of Appeal of Alberta (O’Ferrall, Veldhuis (Dissenting) and Wakeling JJ.A.) ( 2018 ABCA 278 , 74 Alta. L.R. (6th) 217 ) [ 22 ] 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, Veldhuis J.A. dissenting. The three justices wrote separate reasons, each taking a distinct approach.

(1) Wakeling J.A. [ 23 ] Justice Wakeling held that the Jordan ceilings apply equally to youth matters. He added that even if Jordan left the door open to a lower ceiling for youth matters, the record did not allow the court to rationally determine what that ceiling should be. [ 24 ] Applying the Jordan framework, Wakeling J.A. observed that the total delay was just under 19 months. He concluded that the approximate one-month delay arising from the unavailability of the voir dire transcript was not caused by the Crown and was clearly outside the Crown’s control.

On this basis, he characterized this delay as an exceptional circumstance and deducted it accordingly. This brought the delay just below the 18-month ceiling. [ 25 ] Having concluded that the delay fell below the 18-month ceiling, Wakeling J.A. noted that a stay could be ordered only if the appellant could show that (1) he made a sustained effort to expedite the proceedings and (2) the case took markedly longer than it should have. Justice Wakeling found no evidence to this effect.

He therefore concluded that the appellant had been tried within a reasonable time. [ 26 ] Alternatively, Wakeling J.A. stated that if the delay did exceed the 18-month ceiling, then it was justified under the transitional exception. Considering the pre- Jordan jurisprudence, he noted that the offences were serious, the victim suffered severe and permanent facial scars, and “[t]he Crown undoubtedly and reasonably assumed that the seriousness of the offences weighed heavily against a stay being granted” (para. 45).

He further noted that while prejudice was an important consideration under the Morin framework, the appellant was in custody for only nine days, and his release conditions were not onerous — there was “no evidence of actual prejudice and no inference of prejudice aris[ing] from the delay itself” (para. 46). He therefore concluded that the appellant was tried within a reasonable time under the Morin framework as well.

(2) O’Ferrall J.A. (Concurring) [ 27 ] Justice O’Ferrall rejected the notion that any presumptive ceiling should be applied in youth justice court proceedings, stating that “given the arbitrariness and the relative inflexibility of any presumptive ceiling, it would be wrong in law to apply presumptive ceilings to young persons” (para. 71). He added that Jordan could not have been intended to apply to youth matters because “delay which may be reasonable in the adult criminal justice system may be unreasonable in the youth court” (para. 76).

He also suggested that the converse is true: “delay which may be unreasonable in the adult criminal justice system may be perfectly reasonable in youth court if, for example, the reason for the delay is to attempt to rehabilitate and integrate the young person by postponing prosecution of charges pending the taking of extrajudicial measures or the imposition of extrajudicial sanctions” ( ibid. ). [ 28 ] Turning to the appellant’s case, O’Ferrall J.A. stressed that ordering a stay “would do nothing to promote the [ YCJA ] principles of holding young persons accountable or of promoting their rehabilitation and reintegration” (para. 65).

He therefore concluded that the appeal should be dismissed.

(3) Veldhuis J.A. (Dissenting) [ 29 ] Writing in dissent, Veldhuis J.A. acknowledged that Jordan was meant to apply broadly to create a uniform s. 11(

b) approach and that new categories of persons entitled to different presumptive ceilings cannot be created lightly. However, she was satisfied that creating a new presumptive ceiling for young persons facing single-stage proceedings in provincial court was consistent with both the reasoning in Jordan and the pre- Jordan case law recognizing “the additional prejudice faced by young person[s] experiencing long pre-trial delays” (para. 81). Relying on R. v. M. (J.) , 2017 ONCJ 4 , 344 C.C.C. (3d) 217, she set this ceiling at 15 months.

[30] Turning to the appellant’s case, Veldhuis J.A. agreed with the trial judge that the approximate one-month delaycaused by the unavailability of the voir dire transcript was not an exceptional circumstance. She therefore found that the delay remainedat 18½ months, surpassing the 15-month ceiling. [31] Considering the transitional exception, Veldhuis J.A. concluded that the trial judge erred by applying a “clearest ofcases” test.

Rather, she said, the onus rested on the Crown to establish that the delay was justified based on the parties’ reasonablereliance on the pre-Jordan jurisprudence, which required that the court consider: (1) the complexity of the case; (2) the delay relative tothe Morin guidelines; (3) the parties’ response to the delay; and (4) the prejudice to the accused. Applying this framework, Veldhuis J.A.reached the following conclusions:

(1) Complexity — The lack of complexity of the case weighed in favour of a stay.

(2) Delay relative to the Morin guidelines — The 12¾ months of institutional and Crown delay exceeded the 5-6 month rangefor youth matters suggested in R. v. M. (G.C.) (1991), (ON CA), 3 O.R. (3d) 223 (C.A.), as well as the 8-10 monthrange identified in Morin. This weighed in favour of a stay.

(3) Parties’ response to the delay — The appellant demonstrated his commitment to getting the matter resolved as quickly aspossible, while the Crown showed little motivation to move the matter through the system quickly and made prosecutorial decisions thatcaused delay.

(4) Prejudice — While the appellant led no evidence of prejudice, significant prejudice could be inferred given his age. [32] Ultimately, Veldhuis J.A. concluded that the transitional exception was not engaged, as a proper application of theMorin framework would have resulted in a stay. Accordingly, she would have allowed the appeal and entered a stay. IV. Issues [33] This appeal raises two main issues:

(1) Do the presumptive ceilings established in Jordan apply to youth justice court proceedings?

(2) Was the delay in the appellant’s case unreasonable? V. Analysis A. Requirement for Leave to Appeal to This Court in Youth Cases [34] Before turning to the issues on appeal, I wish to briefly clarify a preliminary matter regarding leave to appeal to thisCourt in youth cases. [35] The appellant filed a notice of appeal on the basis that s. 691(1)(

a) of the Criminal Code permits him to appeal to thisCourt as of right based on Veldhuis J.A.’s dissent. That

section allows a person who is convicted of an indictable offence, and whoseconviction is affirmed by a court of appeal, to appeal to this Court as of right on any question of law on which a judge of the court ofappeal dissents. However, as this Court observed in R. v. C. (T.L.), (SCC), [1994] 2 S.C.R. 1012, young persons tried foran indictable offence under what is now the YCJA do not enjoy a right of appeal to this Court (see p. 1017).

Rather, leave is requiredunder s. 37(10) of the YCJA. [36] Having invited submissions on this jurisdictional issue prior to the hearing, this Court granted an extension of time toapply for leave to appeal and granted that application at the beginning of the hearing. The Crown did not oppose the granting of leave. [37] Having settled this preliminary matter, I turn to the primary issue on appeal: whether the Jordan ceilings apply toyouth justice court proceedings. B. Do the Presumptive Ceilings Established in Jordan Apply to Youth Justice Court Proceedings?

(1) Section 11(b) — The Right to Be Tried Within a Reasonable Time [38]

Section 11(

b) of the Charter provides that “[a]ny person charged with an offence has the right . . . to be tried within areasonable time”. This right serves both individual and societal interests (see Jordan, at paras. 19-28).

At the individual level, it protectsthe accused’s “liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stressand cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudicethe ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence” (R. v. Godin, 2009 SCC 26,[2009] 2 S.C.R. 3, at para. 30; see also Morin, at pp. 801-3; and Jordan, at para. 20).

At the societal level, “[t]imely trials allow victimsand witnesses to make the best possible contribution to the trial, and minimize the ‘worry and frustration [they experience] until theyhave given their testimony’”, and permit them to move on with their lives (see Jordan, at paras. 23-24, citing Askov, at p. 1220). Societyalso has an interest in seeing that citizens accused of crimes are treated humanely and fairly (see Morin, at p. 786), and timely trials helpmaintain the public’s confidence in the administration of justice, which is “essential to the survival of the system itself” (Jordan, at

paras. 25-26 ). “In short, timely trials further the interests of justice” ( ibid. , at para. 28). [ 39 ] The s. 11(

b) framework has gone through two iterations over the past three decades: the Morin framework and the Jordan framework. (

a) The Morin Framework [ 40 ] Under the Morin framework, courts were required to balance four factors in determining whether delay had become unreasonable: “. . . (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial” ( Jordan , at para. 30 ; see also Godin , at para. 18 ).

Fundamentally, this inquiry required “a judicial determination balancing the interests which [s. 11( b )] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay” ( Morin , at p. 787). [ 41 ] Institutional delay, which ran from when the parties were ready for trial to when the system could accommodate the proceeding (see Morin , at pp. 794-95), was assessed against a set of administrative guidelines developed in Morin : “. . . eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court” ( Jordan , at para. 30 ).

Institutional delay within or close to the guidelines was generally considered reasonable (see ibid. ). [ 42 ] Prejudice was an “important if not determinative factor” under the Morin framework ( ibid. , at para. 34). Such prejudice could be either actual or inferred — “even in the absence of specific evidence of prejudice, ‘prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn’” ( Godin , at para. 31 , citing Morin , at p. 801). (

b) The Jordan Framework [ 43 ] In Jordan , this Court determined that the Morin framework suffered from a number of doctrinal shortcomings that made it “too unpredictable, too confusing, and too complex” for courts to apply (see paras. 32-38). Even more troubling, the Morin framework failed to address the “culture of complacency towards delay” that had emerged in the criminal justice system due to inefficient practices, inadequate institutional resources, the increased complexity of pre-trial and trial processes since Morin , and other factors (see paras. 40-41). [ 44 ] “[T]o focus the s. 11(

b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice” (para. 5), Jordan introduced a new s. 11(

b) framework.

At the heart of this new framework are two presumptive ceilings beyond which delay is presumed to be unreasonable: (1) an 18-month ceiling for single-stage provincial court proceedings; and (2) a 30-month ceiling for proceedings conducted in the superior court (para. 49). [ 45 ] In setting these ceilings, this Court took into account a number of factors, including the administrative guidelines for institutional delay set out in Morin , the increased complexity of criminal cases since Morin , the concept of prejudice, and the need to ensure public confidence in the administration of justice (see paras. 52-55). [ 46 ] By building the concept of prejudice into the presumptive ceilings, Jordan eliminated prejudice as “an express analytical factor” to be considered (see paras. 54 and 109-10).

Thus, prejudice is now irrebuttably presumed once the ceiling is breached, meaning that “an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one” (para. 54). Prejudice also has a strong relationship with the concept of defence initiative, as it can be expected that accused persons who experience heightened prejudice as a result of delay will be more proactive in moving the matter along (see para. 109). In sum, “the concept of prejudice underpins the entire framework” (para. 109). [ 47 ] This Court summarized the new s. 11(

b) framework as follows: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable.

To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases. [Emphasis in original; paras. 47-48.] [ 48 ] But Jordan did not explicitly answer the question of whether the 18- and 30-month presumptive ceilings apply to youth justice court proceedings. Before answering that question, it will first be useful to explore the enhanced need for timeliness in youth cases.

(2) The Enhanced Need for Timeliness in Youth Cases [ 49 ] Canada’s youth criminal justice system stands separate from the adult criminal justice system (see R. v. R.C. , 2005 SCC 61 , [2005] 3 S.C.R. 99, at para. 41 ; R. v. D.B. , 2008 SCC 25 , [2008] 2 S.C.R. 3, at para. 40 ; R. v. S.J.L. , 2009 SCC 14 , [2009] 1 S.C.R. 426, at para. 56 ; YCJA , s. 3(1) (b)). The legislation governing this separate system is the YCJA , which covers “young person[s]” as defined under s. 2(1) .

This definition includes all persons between the ages of 12 and 17, as well as persons charged with having committed an offence while they were a young person. Such persons are tried before a “youth justice court”, which may be either a provincial or a superior court depending on the circumstances (see s. 13).

[50] While every person charged with an offence has the right to be tried within a reasonable time under s. 11(

b) of theCharter, this right has “special significance” for young persons (N. Bala and S. Anand, Youth Criminal Justice Law (3rd ed. 2012), at p.439). This is so for at least five reasons. [51] Reinforcing the connection between actions and consequences. First, because young persons have “a differentperception of time and less well-developed memories than adults” (Bala and Anand, at p. 144), their ability to appreciate the connectionbetween actions and consequences is impaired.

Whereas prolonged delays can obscure this connection and “dilut[e] the effectiveness ofany disposition”, timely intervention reinforces it (P. Harris et al., “Working ‘In the Trenches’ with the YCJA” (2004), 46 CJCCJ 367, atp. 369). This better enables the young person to learn from the experience, which in turn promotes his or her rehabilitation and overallsocial development. Thus, it has been said that “[t]he effectiveness of the juvenile justice process depends at least in part on itstimeliness” (J. A. Butts, G. R. Cusick and B.

Adams, Delays in Youth Justice (2009), at p. 8). [52] Reducing psychological impact. Second, bearing in mind that any time spent awaiting trial occupies a greaterproportion of a young person’s life than an adult’s, and that young persons perceive time differently than adults do, delay may have agreater psychological impact on a young person. As this Court stated in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), (SCC), [1994] 2 S.C.R. 165, “[a] few months in the life of a child, as compared to that of adults, may acquire greatsignificance” (p. 206).

Thus, the same period of delay may weigh more heavily on a young person than on an adult, which may in turnincrease the overall feelings of stress, anxiety, and (where applicable) loss of liberty associated with that delay. To minimize this impact,youth matters should, as a general rule, proceed expeditiously. [53] Preserving the right to make full answer and defence. Third, memories tend to fade faster for young persons thanfor adults (see N. Bala, “Youth as Victims and Offenders in the Criminal Justice System: A Charter Analysis — RecognizingVulnerability” (2008), 40 S.C.L.R. (2d) 595, at p. 616, citing C. J.

Brainerd, “Children’s Forgetting with Implication for MemorySuggestibility”, in N. L. Stein et al., eds., Memory for Everyday and Emotional Events, (1997), at pp. 213-17). The increased rapiditywith which a young person’s memory fades may make it more difficult for him or her to recall past events, which may in turn impair hisor her ability to make full answer and defence, a right which is protected by s. 7 of the Charter (see Dersch v. Canada (AttorneyGeneral), (SCC), [1990] 2 S.C.R. 1505, at p. 1514; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47;R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 20). Furthermore, it has been suggested that because “[a]dolescents have lessability to take long-term consequences into consideration and a greater propensity for shortsighted decision-making”, they may be lessable to assist in their defence as delay accumulates, as “[t]heir primary motivation may be for court proceedings to end, regardless ofoutcome” (Butts, Cusick and Adams, at p. 10).

Therefore, to preserve the right to make full answer and defence as fully as possible, it isessential that young persons be tried in a timely manner. [54] Avoiding potential unfairness. Fourth, adolescence is a time of rapid brain, cognitive, and psychosocialdevelopment (see L. Steinberg, “Adolescent Development and Juvenile Justice” (2009), 5 Annu. Rev. Clin. Psychol. 459, at pp. 465-71;T. Grisso, “Adolescents’ Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases” (2006),32 New Eng. J. Crim. & Civ. Confinement 3, at pp. 7-9; M.

Levick et al., “The Eighth Amendment Evolves: Defining Cruel and UnusualPunishment Through the Lens of Childhood and Adolescence” (2012), 15 U. Pa. J.L. & Soc. Change 285, at pp. 293-99). Where aprolonged delay separates the offending conduct from the corresponding punishment, the young person may experience a sense ofunfairness, as his or her thoughts and behaviours may well have changed considerably since the offending conduct took place. Therefore,to avoid punishing young persons for “who they used to be”, delay should be minimized. [55] Advancing societal interests.

Fifth, trying young persons in a timely manner advances societal interests. Society hasan interest in seeing young persons rehabilitated and reintegrated into society as swiftly as possible. When that happens, we all benefit, asour society becomes richer. Moreover, some studies suggest that prompt intervention in youth matters may reduce the likelihood ofrecidivism, which advances society’s interest in the prevention of crime (see Butts, Cusick and Adams, at p. 9). And given that youthhave been described as “the most vulnerable members of our community” (R. v.

Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para.36, citing G. J. Fitch, Q.C., “Child Luring”, in Substantive Criminal Law, Advocacy and the Administration of Justice, vol. 1, presentedto the National Criminal Law Program (2007)), it seems axiomatic that society has a particularly strong interest in ensuring youngpersons do not suffer prolonged delays. [56] The enhanced need for timeliness in youth cases is reflected in the jurisprudence. In M. (G.C.), Osborne J.A. stressedthat there is a “particular need to conclude youth court proceedings without unreasonable delay” (p. 230).

He added that although youngpersons do not enjoy a “special constitutional guarantee to [be tried] within a reasonable time” that “differs in substance from thatavailable to adults”, they nonetheless should be tried more quickly than adults “as a general proposition” (ibid.). Thus, “[d]elay, whichmay be reasonable in the adult criminal justice system, may not be reasonable in the youth court” (ibid.). These sentiments have beenreiterated by other Canadian appellate courts (see, e.g., R. v. H.R., 2006 BCCA 211, 225 B.C.A.C. 127, at para. 21; R. v. R.R., 2011NSCA 86, 307 N.S.R. (2d) 319, at para. 8; R. v.

P.R., 2018 SKCA 27, 365 C.C.C. (3d) 120, at para. 85). Justice Osborne also proposedsome “general guidelines” for delay in youth cases: youth matters should generally “be brought to trial within five to six months, afterthe neutral period required to retain and instruct counsel, obtain disclosure”, and so on (p. 236; see also R. v. R. (T.) (2005), (ON CA), 75 O.R. (3d) 645 (C.A.), at para. 40). [57] Shortly after M. (G.C.), this Court affirmed in R. v.

D. (S.), (SCC), [1992] 2 S.C.R. 161, that whilethe societal interest recognized in Askov and affirmed in Morin “requires that account be taken of the fact that charges against youngoffenders be proceeded with promptly, it is merely one of the factors to be balanced with others” (p. 162). In doing so, the Court stoppedshort of creating separate guidelines or constitutional thresholds for delay in youth matters.

In particular, it made no comment one way orthe other on the five- to six-month administrative guideline for youth matters proposed in M. (G.C.). [58] More recently, the Ontario Court of Appeal reiterated that “youth court matters are expected to proceed with greaterdispatch than adult criminal proceedings” (R. v. L.B., 2014 ONCA 748, 325 O.A.C. 371, at para. 14, citing M. (G.C.), at p. 230). [59] The enhanced need for timeliness in youth cases also finds expression in statute. Section 3(1) of the YCJA contains adeclaration of principles underlying Canada’s youth criminal justice system.

Of particular relevance is s. 3(1)(b), which provides:

(

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: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected , (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time ; [ 60 ] These principles are largely a codification of the jurisprudence under the former Young Offenders Act , R.S.C. 1985, c. Y-1 (see R. (T.) , at paras. 29 and 34 ; H.R. , at paras. 31-32 ; R. R. , at para. 14 ; R. v. M. (K.) , 2017 ONCJ 8 , 373 C.R.R. (2d) 234, at para. 38 ). Section 3(1) (b)(iv) and (

v) in particular “are intended to remind court administrators, judges, lawyers, and others of the need to give priority to the expeditious resolution of youth court cases” (Bala and Anand, at p. 145). [ 61 ] Against this backdrop, I turn to the main issue on appeal: whether the Jordan ceilings apply to youth justice court proceedings.

(3) The Jordan Ceilings Apply to Youth Justice Court Proceedings [ 62 ] The appellant maintains that the Jordan ceilings do not apply to youth justice court proceedings. He urges this Court to adopt a 12-month presumptive ceiling for young persons facing single-stage proceedings in provincial court (sitting as a youth justice court). My colleagues Abella and Brown JJ. accept the appellant’s argument that a lower ceiling should be applied in youth cases, but they would set the ceiling at 15 months.

Respectfully, for reasons that follow, I would not introduce a lower ceiling for youth matters. [ 63 ] First and foremost, it has not been shown that there is a problem regarding delay in the youth criminal justice system, let alone one that warrants the imposition of a new constitutional standard. It bears emphasis that constitutionalizing a lower presumptive ceiling would be no small step. While ordinary statutory requirements come and go, constitutional requirements are meant to be more lasting.

At this time, and on the record before us, it has not been demonstrated that the Jordan framework needs to be revisited in its application to youth cases. We have no evidence that young persons who proactively request an expedited trial are not being accommodated in the post- Jordan world, nor that actors within the youth criminal justice system are not taking Jordan to heart. Nor, despite Abella and Brown JJ.’s insistence, is there any evidence that young persons are worse off under Jordan than they were pre- Jordan .

In fact, as I will develop later in these reasons, the reality is the opposite. [ 64 ] Put simply, in my respectful view, Abella and Brown JJ. are responding to a supposed problem in the youth criminal justice system that has not been shown to exist; nor is it likely to arise, because as I will explain, the existing Jordan framework is capable of accommodating the enhanced need for timeliness in youth cases.

It follows, in my view, that 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 no need to consider, much less implement, a lower constitutional ceiling for youth matters. [ 65 ] Second, Jordan established a uniform set of ceilings that apply irrespective of the varying degrees of prejudice experienced by different groups and individuals.

Setting new ceilings based on the notion that certain groups — such as young persons — experience heightened prejudice as a result of delay would undermine this uniformity and lead to a multiplicity of ceilings, each varying with the unique level of prejudice experienced by the particular category or subcategory of persons in question.

Young persons in custody, young persons out of custody, adults in custody, adults out of custody, persons whose custody status changes, persons with strict bail conditions, persons with minimal bail conditions, persons who experience heightened memory loss, and others could all lay claim to their own distinct ceiling. Even within the category of young persons, this could lead to separate ceilings being established for different age groups: one for 17-year-olds, one for 14-year-olds, and so on. This would quickly become impracticable.

Moreover, the result would be incompatible with the uniform-ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(

b) framework. [ 66 ] Nor, in my view, can a separate ceiling for youth matters be justified on the basis that Parliament has established a separate youth criminal justice system under the YCJA . Constitutional standards exist independent of Parliament’s statutory design. Therefore, the mere fact that Parliament decided to create and maintain a separate youth criminal justice system does not by itself provide a sound rationale for establishing a separate ceiling for youth matters.

Otherwise, Parliament would have the ability to alter constitutional standards through ordinary statutory amendment, such as by merging the adult and youth justice systems. Such a result would be incompatible with the concept of a constitutional standard. [ 67 ] Reinforcing these points is a practical difficulty that would accompany the introduction of a lower presumptive

ceiling for youth matters: the need to fashion a transitional scheme capable of fairly discerning which cases falling above the new ceiling, but below the Jordan ceiling, should be stayed. While this practical concern obviously does not preclude the introduction of a lower ceiling, it is yet another reason to question the advisability of doing so. [ 68 ] For these reasons, I would not alter the Jordan ceilings to apply differently to youth justice court proceedings. 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.

(4) Considering the Enhanced Need for Timeliness in Youth Matters in the Test for a Stay Below the Ceiling [ 69 ] While the presumptive ceilings are a significant

chapter in Jordan , they are not the full story. Jordan established ceilings , not floors . While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling.

In this way, Jordan marries uniformity with flexibility. [ 70 ] The Jordan framework recognizes that delay falling below the presumptive ceiling will be unreasonable where the defence establishes that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (para. 48). [ 71 ] Focusing on the second requirement, this Court stated in Jordan that “[t]he reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings” (para. 87 (emphasis added)).

The use of the word “including” indicates that the list of factors is not closed. In youth cases, the enhanced need for timeliness should be included as another factor to be considered in determining the reasonable time requirements of a particular case. This factor should be considered not merely because the legislature has codified it under s. 3(1) (b)(iv) and (

v) of the YCJA , but because of the rationales identified at paras. 51-55 of these reasons, which would remain valid even if Parliament were to eliminate s. 3(1) (b)(iv) and (

v) of the YCJA . [ 72 ] The enhanced need for timeliness in youth cases cannot, in my view, be reduced to a set “youth discount”, and its weight will vary depending on the circumstances. Nonetheless, it requires as a general rule that youth matters should proceed in a timely manner, and the Crown and the justice system must do their part to ensure this objective is met. This general rule, and the corresponding obligation on the Crown and the justice system to do their part, is already reflected in practice, as youth cases are typically given priority and completed more quickly than adult cases.

Thus, recognizing the enhanced need for timeliness in youth matters as a factor to be considered in determining the reasonable time requirements of a case simply gives effect to what is already happening on the ground. [ 73 ] In line with this case-specific approach, where a young person, in taking meaningful and sustained steps to expedite the proceedings, brings special concerns about delay to the attention of the Crown and the court, those concerns, and the extent to which the Crown and the justice system respond to them, should also be considered.

For example, if an accused can show that he or she is struggling in school due to anxiety over the outstanding charges, and the Crown and the justice system fail to take reasonable steps to expedite the matter to respond to this concern, that may be a significant factor in determining whether the case took markedly longer than it reasonably should have.

Conversely, if the Crown and the justice system take reasonable steps to respond to this concern and do their part to ensure that the matter proceeds expeditiously, then “it is unlikely that the reasonable time requirements of the case will have been markedly exceeded” ( Jordan , at para. 90 ). [ 74 ] Ultimately, like the other factors identified in Jordan , the enhanced need for timeliness in youth matters 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. [ 75 ] This approach recognizes that while the presumptive ceiling remains the same whether the accused is a youth or an adult, the tolerance for delay differs.

What may be reasonable in the case of a 45-year-old may not be reasonable in the case of a 17-year- old — and for that matter, what may be reasonable in the case of a 17-year-old may not be reasonable in the case of a 12-year-old. By permitting a flexible, case-specific inquiry for cases falling below the ceiling, the Jordan framework recognizes that simply treating everyone alike is no solution. Context matters.

While the presumptive ceiling provides a hard backstop that offers certainty, predictability, and simplicity, the test for a stay below the ceiling affords the necessary flexibility to ensure case-specific features — such as the age of the accused — are not lost in the analysis. Indeed, Jordan was not insensitive to the need for context-sensitivity. This Court emphasized that “‘the judge must look at the circumstances of the particular case at hand’ in assessing the reasonableness of a delay” (para. 58, citing Jordan , at para. 301 , per Cromwell J. (concurring in the result)).

It also stated the following: While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: . . . compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling.

Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time. [para. 51] [ 76 ] Despite Abella and Brown JJ.’s suggestion to the contrary, the Jordan framework, when properly applied, provides no less protection to young persons than its predecessor, which proved to be unpredictable, confusing, and complex (see Jordan , at para. 38 ). In fact, there is every reason to expect that young persons will enjoy stronger protection against prolonged delay than they did in the pre- Jordan era.

To this end, I wish to address two main concerns that have been raised about taking a “below-the-ceiling approach” in youth cases. [ 77 ] First, while the test for a stay below the ceiling places the onus on the defence to establish that the delay was unreasonable, this does not, in my view, disadvantage young persons vis-à-vis adults or place them in a less advantageous position than they were in pre- Jordan . Jordan affords all accused persons, including youth, the benefit of a presumption of unreasonableness once the delay exceeds the presumptive ceiling.

This presumption is an advantage that accused persons did not enjoy under the pre- Jordan framework, which always placed the onus on the accused to demonstrate that the delay was unreasonable, no matter its length (see

Morin , at pp. 788-89). Moreover, as stated in Jordan , “[s]ince the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded”, it is appropriate to place the onus on the defence to justify a stay below the ceiling (paras. 85-86).

In fairness, given that both young persons and adults benefit from this strong presumption, they both must bear the onus of justifying a stay below the ceiling. [ 78 ] Second, while this Court stated at para. 48 of Jordan that stays below the ceiling will be “rare” and “limited to clear cases”, this statement must be read in light of the fact that the Jordan framework applies to all criminal proceedings, not just youth matters.

While stays below the ceiling may be “rare” when considered against the entire body of applications for a stay under the ceiling, they may be less “rare” when considered against the smaller body of youth applications for a stay under the ceiling.

The restriction to “clear cases” was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits. [ 79 ] Thus, while Abella and Brown JJ. maintain that the approach adopted in these reasons will afford young persons less protection than they enjoyed pre- Jordan and will turn Jordan into a “hollow promise” for youth (para. 166), this is simply not so.

When Jordan is taken to heart and the test for a stay below the ceiling is properly applied to youth court proceedings, the Jordan framework affords young persons robust protection against unreasonable delay. [ 80 ] Having said this, Jordan will not deliver on its promise — whether for young persons or for adults — unless all participants in the criminal justice system work together and take a proactive approach from day one (see Jordan , at paras. 5, 108, 112, and 117 ; R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659, at para. 36 ).

As I will explain, this applies to both the Crown and the defence, among others. [ 81 ] Prosecutors cannot be content to wait until the 18-month mark is within eyesight before kicking into gear. That is precisely the sort of normalized indifference towards delay that prompted Jordan . Rather, they should take active steps from the outset to ensure the matter is dealt with promptly, even if

[…]