R. v. K.(D.), 2012 ONCJ 520

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act . . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Y122543-01 DATE: 2012·August 8 Citation: R. v. K.(D.) , 2012 ONCJ 520 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — D. K. AND J. F., young persons Before Justice P. J. Jones Heard on July 23, 2012 Ruling released on August 8, 2012 Ms. Michelle Sherwood .............................................................................................. for the Crown Mr.

Sergio Giacomini ............................................................................. counsel for the accused J.F. Mr. John Scandiffio.............................................................................. counsel for the accused D. K.

JONES, P. J. J.: [ 1 ] In advance of the dates set for trial, the young persons, D.K. and J.F. applied under section 24(1) of the Canadian Charter of Rights and Freedoms for an order staying the proceedings on the basis that their right to be tried within a reasonable time as guaranteed by

section 11(

b) of the Charter had been infringed. This is my ruling . ALLEGATIONS [ 2 ] The Crown provided a brief

summary of the allegations which was accepted by the defence for the purposes of this proceeding. The

summary reads as follows : “On July 25 th , 2011 the Applicants were arrested and charged with the offences of robbery and assault causing bodily harm. The charges arise from an incident on July 22, 2011 in which the victim, returning to summer school at Riverdale High School after going out to buy his lunch, was lured into an alleyway by one young person and then jumped by four individuals wearing masks. The victim was punched in the face and struck with tree branches on his back.

During the assault, one of the four males demanded, “Give me all your valuables.” The victim gave the assailants $10.00 from his pocket. The assailants then ran off with the victim’s backpack. As a result of the assault, the victim suffered head injuries consistent with a concussion and a broken orbital bone”. HISTORY OF THE PROCEEDING [ 3 ] The relevant chronology of events are as follows: 1. The applicants stand charged that on or about 22 nd day of July, 2011, they did commit the offences of robbery and assault bodily harm, contrary to the Criminal Code of Canada . 2.

The applicants were arrested July 25, 2011 and the information was sworn July 26, 2011. 3. The applicants appeared in court at 311 Jarvis St. Youth Court on July 26, 2011 and were released, on consent, on a $1000 surety bail with conditions that included: no contact with various persons (including the co accused, the complainant, and certain witnesses) except for purposes of the Education Act, and a curfew of 11:00 p.m. to 6 a.m. except while in the presence of certain named individuals, including the parents of the appellants. J.F. had retained counsel who represented both accused on the bail hearing. 4.

On August 12, 2011 the applicants appeared in court for their first appearance after bail was set. By this time both young persons had retained counsel. The court was advised that the parties were awaiting disclosure. The case was put over to August 26, 2011. 5. On August 26, 2011, the matter returned to Court. The Crown advised that the matter should go over as the Crown had received some disclosure but would need time to vet the disclosure before releasing it. The parties agreed to put the matter over to September 16, 2011. D.K. had retained counsel who appeared by designation. 6.

On September 16, 2011, on consent, the bail was varied to include a no contact provision relating to one further witness. As well, initial disclosure was provided, including three witness statements, but the witnesses’ DVD statements remained outstanding. . The matter was put over to October 7, 2011 for defence to receive copies of the witnesses’ DVD statements. 7. On October 7, 2011, counsel for J.F. filed a designation. Counsel for the young persons advised the court that they had just picked up the copies of the DVD statements and sought an adjournment until October 19, 2011 to review them. 8.

On October 19, 2011 some disclosure was still outstanding. The matter was put over to obtain copies of officers’ notes as requested by defence counsel. The Crown advised the court that she had copies of one officer’s notes and would follow up with the other officers. Matter was adjourned until November 10, 2011. 9. On November 10, 2011 disclosure was still not complete. One further set of notes was provided and matter was adjourned to December 7, 2011 to complete disclosure. 10.

On December 7, 2011 the matter was further adjourned to December 19, 2011 as defence counsel had been advised that disclosure was available and they indicated that they needed time to review it. The Crown suggested the setting of a pre-trial, however, counsel for J.F. indicated that he needed time to “digest” the further disclosure and said, in his words, “We’ll digest the new disclosure and we’ll take it from there.” 11.

On December 19, 2011, both defence counsel indicated to the court that further disclosure remained outstanding and that they had written to the Crown outlining the nature of the disclosure sought. The matter was adjourned to January 18, 2012 for further disclosure. 12. On January 18, 2012, defence counsel indicated that they were waiting for further disclosure as outlined in their correspondence sent to the Crown. The Crown stated that substantial disclosure had already been provided. The Crown suggested, and the defence agreed, that a judicial pre-trial be scheduled.

The parties agreed to February 2, 2012, as a convenient judicial pre-trial date. 13. February 2, 2012, a judicial pre-trial was held in front of Katarynych, J. She set a further pre-trial date for February 10, 2012 and indicated, in response to a question by defence counsel as to whether the parties should hold off setting the trial dates, “I did

authorize a trial time for this morning and so whatever works for you.” 14. On February 10, 2012, the matter was spoken to before Scully, J. All parties agreed that no further pre-trials wererequired and that disclosure was now complete as the notes from the last of officer had been received that day. Trial dates were set forAugust 14, 15, 17, 2012. As well, in advance of the trial date, an 11(

b) motion date was set for July 23, 2012. [4] To further clarify the chronology I have detailed, and for purposes of the s.11(

b) analysis, I note that after initialdisclosure was received on September 16, 201, counsel made requests for further items of disclosure, including copies of notes from anumber of officers whose names appeared in the disclosure and copies of the DVD statements of the witnesses. To speed delivery ofdisclosure, the defence counsel sent the Crown two letters, dated October 18, 2011 and January 17, 2012 outlining the disclosuresought.

Of the eight officers identified from the initial disclosure material by the defence counsel as having some contact with either thewitnesses or the accused youth, the Crown confirmed that five of these officers had no notes, and the notes from the other officers weredelivered piecemeal in October, November and December, 2011. The final notes relating to Officer Ma were delivered on February 10,2012 (these notes were only a half a page in length and simply confirmed that he had sat in during a witness interview.) FRAMEWORK OF ANALYSIS [5] Although, as noted by Sopinka, J. in R v. Morin, [1992] 1 S.C.J.

No. 25, at para. 40 “some delay is inevitable”, thequestion is, at what point does the delay become unreasonable? In determining whether the delay in any particular case is unreasonableand constitutes a violation of an individual’s

section 11(

b) right to a trial within a reasonable time, Sopinka, J. concluded in para. 32 supra, that a court must consider four enumerated factors (para 31) and then perform a judicial “ balancing” which is described “as anexamination of the length of the delay and its evaluation in light of the other factors”. The four enumerated factors are: 1. The length of the delay 2. Whether there has been any waiver of the delay 3. The reasons for the delay, including, (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay, and 4. Whether the accused has suffered prejudice. [6] In assessing whether a delay is unreasonable, Cromwell, J in R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26at para. 18 wrote: “Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by thedefence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks toprotect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning whycertain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. AsSopinka J. noted in Morin, at p.787, “[t]he general approach....is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitablylead to delay or are otherwise the cause of delay.” [7] It is well established law that s. 11(

b) has both a primary and secondary purpose. These dual purposes are described inR. v. Qureshi, (ON CA), [2004] O.J. No. 4711 (C.A.) at paras. 8-9 as follows: “Section 11(

b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: itprotects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects theaccused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused’s rights toa fair trial by ensuring that the proceedings occur while evidence is fresh and available...Section 11(

b) also seeks to protect two societalrights. First, it protects the public’s interest in having our laws enforced by having those who break the law tried quickly. Promptly heldtrials increase public confidence. Second, s. 11(

b) seeks to protect the public’s interest in having those accused of crime dealt withfairly.” [8] The purpose of the analysis of the delay under the four factors set out in Morin is to provide a framework for thebalancing exercise. See R. v. W.B., (ON CA), [2000] O. J. No. 2186 (C.A.) [9] In describing what is meant by this “balancing” process, Sopinka, J. described this balancing process in R. v.

Morin,supra at para. 87 as follows, “The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeingthat persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis thejudge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs theinterest of society in bringing the accused to trial.” (emphasis added)

[10] In deciding how to balance the interests protected by s. 11(b), the seriousness of the charge will affect the weight to begiven to society’s interest in having the charge determined on its merits. The more serious the charge the greater the “societal demandthat the accused by brought to trial.” R. v. W.B. supra, para. 87. ANALYSIS (

a) The length of the delay [11] This first factor is used as a means of identifying and summarily dismissing frivolous applications. It is well establishedthat it is only necessary to consider the other three factors if the overall period of delay “is of sufficient length to raise an issue as to itsreasonableness.” See Morin, supra, para. 36. [12] In this case the total delay is 12 months 21 days, calculated from the day the charge was laid until the date set forthe completion of the trial.

This is a youth case and the Ontario Court of Appeal has set an administrative guideline that youth casesshould generally be brought to trial within five to six months after the neutral period required to retain and instruct counsel etc., (see R. v.M. (G.C.) (1991), 6 5 C.C.C. (3d) 232 (O.C.A.) 246, R. v. T.R. (ON CA), [2005] O. J. No. 2150 para. 40, I find thatthe total delay of twelve months 21 days is sufficiently lengthy to warrant an inquiry into the causes of the delay. (

b) Waiver [13] None of the delay was waived by the defence. (

c) The causes of the delay [14] In assessing the reasonableness of the delay, the court should consider the inherent time requirements of the case, theactions of the accused, the actions of the Crown, the limits on institutional resources, and any other reasons for delay. I now proceed to adetailed analysis of the procedural history of this case, in light of these considerations. July 26, 2011 to February 10, 2012 [15] This is the time which elapsed from the laying of the charge until the matter was set for trial. This period of delay spanssix months and 13 days.

Counsel for the defence concede that the period from July 26 –September 16, 2011 ( one month and 21 days) represents the intake period and is therefore part of the inherent time requirements of the case and should be treated as neutral. Thedefence submits that the balance of the time, namely from September 16 to February 10, less a fifteen day period (January 18-February2, 2012) for the scheduling and holding of a judicial pre-trial, should be treated as delay caused by the failure of the Crown to provide“mandated disclosure” as described in R. v. Stinchcombe, (SCC), [1991] S.C.J. No. 83 para. 17.

It is the defenceposition that the four months 10 days remaining arose from Crown inaction and should be attributed to the Crown., and added to anyinstitutional delay in determining whether the total delay in this case was unreasonable and constituted a violation of the young persons’ right to be tried in a reasonable time. They point out that, notwithstanding the initial disclosure provided, after September 16, 2011,DVD witness statements and more than six officers’ notes remained outstanding.

They submit that it was only on February 10, 2012, thedate the matter was set for trial, that they received the last piece of outstanding disclosure, namely a copy of Officer Ma’s notes. Thedefence argued that all this disclosure was necessary for the young persons to make full answer and defence. [16] The Crown argues that this entire period should be treated as neutral. The Crown submits that the initial intake periodwith a further three to four months should be characterized as neutral owing to the inherent time requirements of the case.

In thealternative, the Crown argues that the additional three to four months (from October 2011 to February 2, 2012 should be attributed to theDefence. She notes that substantial disclosure had been made by October 7, 2011, sufficient for the defence to be in a position todetermine how they wished to proceed. [17] In R. v. N.N.M., (ON CA), [2006] O. J.

No. 1802 (C.A.) at paras. 37-38 Juriansz, J. wrote, “...When outstanding disclosure is alleged to explain a defence request for an adjournment, it is necessary to consider what documentswere outstanding, when and in what circumstances they were requested, and if their disclosure is mandated by the Crown’s constitutionalduty of disclosure. Where the defence has made a late request for material with no potential relevance, any delay that results should notbe attributed to the Crown. A person charged with an offence should not be able to generate a basis for a s. 11(

b) application by makinga continuous stream of request for materials that have no potential relevance, even if the Crown agrees to provide them. Even when theCrown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or toset a date for trial. As this court stated in R. v.

Kovacs-Tatar (2004), (ON CA), 192 C.C.C. (3d) 91 at para. 47 (Ont.C.A.): “the Crown is not obliged to disclose every last bit of evidence before a trial date is set.” After examining the outstanding items in light of these considerations, the court must decide whether the defence was entitled to refuseto proceed to the next step in the process. If so, the court must still consider whether the particular period of delay caused should beallocated to the Crown, as the materials may be outstanding because of a late request by the defence...” [18] I have reviewed the transcripts and the submissions of counsel.

The evidence on this point was less than fulsome(perhaps for good reasons given that I will be the trial judge), for example, I was not provided with copies of the outstanding officer’snotes for review except for a copy of Officer Ma’s notes that were one half a page and simply recited that he was present during thetaking of a witness statement). As such, I am left to decide this issue on the basis of the submissions of counsel and the agreed fact thatof the eight officers whose notes were requested in the further disclosure request, five officers, given their limited involvement in the

case, did not make any notes. Without reviewing all the disclosure provided it is difficult for me to determine at what point theoutstanding disclosure was of such importance that the Defence counsel were justified in adjourning the matter and not setting the casefor trial or for a judicial pre trial. [19] Nonetheless, as N.N.M. states, the Defence is not entitled to refuse to move to the next step in a case, be it judicial pretrial or the setting of a trial date, until all disclosure has been received (it would depend on the importance of the outstanding disclosure). As set out in R. v.

Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756 (C.A.) at para. 47, the Crown is obliged to makesufficient disclosure before an accused is called upon to elect mode of trial or to plead. Once such initial disclosure has been received,the parties should move on to the next stage and outstanding disclosure may be completed in the interim. [20] I note from a review of the transcripts that the Crown first suggested that the matter proceed to a pre-trial on December 7,2011; defence counsel did not accept the suggestion, and counsel for J.F. indicated that he required further time to “digest” the newdisclosure.

On January18, 2012, Crown counsel once again indicated that the matter should move on to a judicial pre-trial; at this pointdefence counsel agreed and a pre-trial was set for February 2, 2012. [21] Although I accept the submissions of defence that even officers with seeming limited involvement in a case might haveimportant evidence, this speculation does not seem to be reason enough to refuse to move to the next step in the proceedings.

Thisfurther disclosure could be received at a later date and, in that case, would not hold up the progress of the matter. [22] Given the reasonable request by the Crown on December 7, 2011 to move the case to a judicial pre-trial, and given thefact that substantial disclosure had been given to the defence by this date, I am satisfied that the period of delay between December 7,2011 to January 18, 2012 should be attributed to the Defence. In my view the Defence was not entitled to refuse to move the case to thenext stage until most or all disclosure was received.

If the speed of disclosure was an issue, the judicial pre-trial system has proveneffective in encouraging prompt and timely delivery of disclosure by close judicial monitoring, and the defence counsel should haveengaged that process at an earlier time to avoid further delay. [23] In

summary, I have divided the delay as follows: 1. July 26, 2011 to October 7, 2011, a period of 73 days, as intake period, representing an inherent time requirement of the case. 2. October 8, 2011 to December 6, 2011, a period of 29 days, as delay caused by late disclosure by the Crown. 3. December 7, 2011 to January 17, 2012, a period of 41 days, as delay caused by the defence due to their refusal to move the case to ajudicial pre-trial as suggested by the Crown at the court attendance on December 7, 2011. 4.

January 18, 2012 to February 10, 2012 as neutral representing the reasonable time necessary to arrange, prepare and attend at ajudicial pre-trial. It would now appear to be settled law, that this 23 day period, if reasonable, should be categorized as neutral,representing an inherent time requirement of the case. (Per R. v. Tran 2012 ONCA 18 , [2012] O.J. No. 83 (C.A.) para. 34,where Simmons J.A. states, “Dealing first with the judicial pre-trial delay between December 4, 2009 and January 19, 2010, it seems to me that requiring a judicialpre-trial to set the trial date(

s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overalltimeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, somereasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.” February 10, August 17, 2012 [24] This is the period from the setting of the trial date to the last trial date scheduled. Both Defence and the Crown estimatedthat the trial would take three days to complete.

Accordingly, the total delay from the setting of the trial date to the anticipatedconclusion of the trial is six months and seven days February 10, 2012-April 30, 2012 [25] The period between February 10 and April 30, 2012, I have attributed to inherent time requirements of the case. This is atotal of 79 days. [26] From a review of the transcript, I have determined that the defence counsel were not prepared to try this case before May1, 2012.

Counsel for D.K. indicated on the record that he “was available the entire month of May, so many dates were available at thattime—I was available—and then other dates in July...” (transcript February 10, 2012.). Counsel for J.F. stated that he was available onearlier dates. As a practical matter, where there are co-accused and where there is no severance, trial readiness will be dictated by theearliest dates available to both counsel. The unavailability of one counsel to set an earlier date will not be attributable to the Crown or tothe absence of institutional resources. See R. v.

L.G., 2007 ONCA 654 , [2007] O.J. No. 3611 (C.A.) at para. 63: “[I]t is in the interests of justice that individuals charged jointly with an offence be tried together. ‘A single trial for two or more accusedgenerally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once....Severancewill rarely be granted. Given these principles, delay caused by the actions of a co-accused ordinarily will not be attributable to theCrown or to the absence of institutional resources.” [27] Code, J. discussed this issue of trial readiness in R. v.

Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071 (Ont.S.C.J.) para. 34 as follows: “....It is rarely true that counsel is immediately available for trial, when setting a date. Whenever counsel take on a new case theycomplete various preliminary steps during the intake period. Once they have taken these steps and are ready to set a date for trial, theyneed to set aside sufficient time in their calendars to prepare the new case for trial and to then conduct the trial. If the case is lengthy and

complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial...” May 1, 2012-August 13, 2012 [28] I have determined that as of May1, 2012, the parties were ready for trial but the system could not accommodate themuntil August 14, 15, 17, 2012. This portion of this delay is caused by institutional or systemic delay. Systemic or institutional delay isthe “period that starts to run when the parties are ready for trial but the system cannot accommodate them”. R. v. Morin, supra, para. 47. Reasons for Delay In the result, I have determined the reasons for the delay in this matter are as follows: (

a) Inherent time requirements: intake 73 days, pre-trial 23 days, time required for preparation and counsel’s availability for trial 79days for a total or 175 days (

b) Crown delay: 29 days (

c) Defence delay: 41 days (

d) Institutional delay 138 days [29] Accordingly, I have computed the delay attributable to systemic delay as 5.6 months being the delay attributable to delaycaused by the crown and by the lack of institutional resources. [30] Systemic delay of this magnitude puts the delay in this case squarely within the guidelines for youth matters as set out inR. v. M. (G.C.) supra and R. v. T. R. supra. However, as noted by Simmons, J.A. in R. v. Tran, supra in para. 63, guidelines do notdetermine the issue and the court must still consider prejudice in deciding an 11(

b) application. She wrote, “The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline,not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin,at p. 807.” PREJUDICE [31] Both youth filed affidavits setting out details of the prejudice they claimed to have suffered as a result of the delay inbringing this matter to trial. J. F. [32] J.F. is a grade twelve high school student who spent one night in custody prior to his consent release on July 26, 2011.

He was released on a surety bail which required that he have no contact with certain individuals including the co-accused, thecomplainant and a number of witnesses. He was to obey a curfew from 11:00 p.m. to 6:00 a.m. except in the presence of a parent orolder brother.

He indicated that he had to attend at his lawyer’s office on a number of occasions as well as attend court on severaloccasions. (I note that early on in this proceeding a designation was filed and thereafter, if he attended court, it was either his choice or asa result of a request by his lawyer.) He indicated that each court appearance has caused him and his family considerable stress andanxiety. He indicated that he was frustrated because the matter was taking so long and he is very nervous, scared and anxious. D.K. [33] D.K. is seventeen years of age and is attending grade 12.

He spent one night in custody prior to his consent release onbail on July 26, 2011. His bail mirrored the bail terms given to J. F. He indicated that he has no criminal record and this proceeding iscausing him to lose concentration and he is experiencing an anxiety reaction ever since these charges were laid. He indicated that hismarks have dropped from a “B” student to a “D” student. He indicated that as a result of these charges he is unable to acceptemployment as a maintenance worker at a summer camp known as Camp Widiitiwin.

He noted that employment is important for thefamily and if he were able to accept the employment it would ease the financial strain on the family.

He does indicate that instead ofaccepting employment he is attending summer school. [34] He referred in his affidavit to the fact that he is currently in remission for leukemia and the charges increase his anxietyabout the cancer and the delay makes his anxiety even more acute. [35] He also noted that his older brother, who lives separate from the family, is severely disabled as a result of a car accidentand the delay in resolving the charges is adding to the strain caused by this situation. [36] He also deposes that his teachers, principal and vice-principal and hall monitor are aware of his charges and he notes thatthe way they look at him, and the way they treat him has changed since the charges were laid.

He indicates that they are not assupportive as they used to be to him. ANALYSIS [37] In R. v. Morin, supra, para. 61, Sopinka, J. outlines the interests s. 11(

b) seeks to protect. Prejudice is examined in thecontext of three interests: liberty (pre-trial custody or bail conditions), security of the person (being free of stress and the cloud ofsuspicion that accompanies a criminal charge,) and the right to make full answer and defence. Prejudice may in certain circumstances beinferred from the length of the delay. The longer the delay the more likely such an inference will be made. The court also looks forevidence of actual prejudice or a reasonable inference of a risk of prejudice when the issue of prejudice is considered. R. v. Godin, 2009SCC 26 , [2009] S.C.J. No. 26 at paras. 30, 31.

[38] There are two types of prejudice: prejudice that arises as a result of being charged and prejudice that arises from delay.

Section 11(

b) is concerned only with the prejudice that arises as a result of delay. In R. v. Rahey, (SCC), [1987] 1S.C.R. 588 at page 624 , Wilson J. referred to this distinction as follows: “[T]he impairment or prejudice we are concerned with under s. 11(

b) is the impairment or prejudice arising from the delay in processingor disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged. Theprejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonabletime. It is , so to speak, inherent in the system itself. I agree with Lamer J., however, that that prejudice must be kept to a minimum by aspeedy disposition of the charges against the accused.

If this is not done, then the degree of prejudice will exceed that which is theinevitable concomitant of the system and be directly attributable to the delay under s. 11(b).” [39] I have reviewed the affidavit of J.F. and I see no evidence of specific prejudice other than the prejudice one might expectto be experienced by any young person facing a criminal charged. J.F. speaks of his being frustrated, nervous, scared and anxious—prejudice that would be expected to arise from the fact of being charged and can be seen as almost inherent in the criminal court process.

I note that his bail terms were reasonable and not onerous and there were no circumstances referred to by him that would suggest that hisright to a fair trial had been impaired by the delay in bringing his matter to trial. [40] Similarly, the prejudice experienced by D.K. appears to arise as a result of the laying of the charge, and not the delay inprocessing the charge. In D.K.’s case, no details with respect his concerns about his prior serious illness, now in remission, wereprovided and it was unclear whether the onset of his illness was 12 months ago or twelve years ago.

He speaks of a generalized anxietywhich, according to him, has manifested itself in a “loss of concentration” resulting in poor school performance, in added stress abouthis disabled brother and in heightened concerns about the reoccurrence of his illness, now in remission. Although I empathize with hiscurrent emotional state, I find that his description of his emotional state is consistent with the laying of the charges and not the delay indealing with them.

His comment that the school personnel are aware of his charges and, according to him view and treat him differently,is clearly as prejudice arising from the laying of the charges. [41] If D.K. is alleging that his health and employment situation entitle him to a speedier trial than other young peoplesimilarly situated, because he is suffering a special prejudice , the Crown argues that it is incumbent on him to bring this fact to theattention of the Crown and the court.

She noted that the youth never brought these concerns to the Crown’s office seeking an earlier trialdate on this basis or a variation of a bail term to allow for summer employment, nor did he commence a de novo bail application broughtunder

section 33 of the Youth Criminal Justice Act. It was her position that if D.K. wished to rely on allegations of specific prejudicenot immediately apparent , he had an obligation to bring these specific instances of prejudice to the attention of the court Thisobligation to take the initiative to alleviate the prejudice is outlined by Arbour J.A. in R. v. Bennett (1991), (ONCA), 64 C.C.C. (3d) 449 (Ont. C.A.) at page 478 as follows: “[I]f an accused is being prejudiced by delay in a less apparent way, he or she must bear the responsibility for taking the initiative inalleviating that prejudice.

This, in my view, is not inconsistent with the proposition that an accused need not assert his s. 11(

b) right. An accused who claimsprejudice, beyond the prejudice common to most accused and inferred from any delay, is claiming an entitlement to a speedier trial thanother accused in apparently similar circumstances. The only way for the system to accommodate that claim is to hear it expressed.

There comes a point, in my opinion, where an accused who is suffering a special prejudice from delay of his trial must bring his or herplight to the attention of the prosecuting authorities and the courts.” [42] After reviewing the affidavits and hearing argument, I have concluded that the prejudice the young persons areexperiencing is the type of prejudice which arises from the fact of being charged.

With respect to D.K., as a result of his failure to bringto the attention of the Crown his claim of special prejudice in a timely manner, as well as the weak evidentiary basis for the claim aspresented, his claim of special prejudice cannot succeed. [43] No doubt, there is a point sometime in the future, should the delay continue, when the degree of prejudice will exceed theprejudice that can be expected to arise because of the fact that charges were laid. Such a point has not been reached in this case. [44] Accordingly, I find the prejudice of the type

section 11(

b) is concerned with not significant in this case. SPECIAL YOUTH CONSIDERATIONS [45] These two young men are seventeen years of age and have been facing serious charges for just over one year. [46] Counsel for the young persons submitted that the delay of twelve and one half months in bringing this matter to trial isprima facie unreasonable and is contrary to the principles laid out in the Youth Criminal Justice Act (the Act) which speak to theresponsibility of those charged with enforcing the Act to act with promptness and speed given young persons’ perception of time. In thisregard the court was directed to section 3(1)(b)(

v) which reads as follows: 3(1)(

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time. [47] There is a suggestion in the wording of this

section that there is a special duty to expedite trials for young persons. Frommy experience, teenagers do have a very different perception of time and if the court wishes to hold young people accountable for theirmisdeeds and make a difference in that young person’s behaviour in the future, a timely response by the criminal justice system is veryimportant. Be that as it may, as a matter of law, do young persons charged with criminal offences have an enhanced right to speediertrials than adults? Are there different considerations when assessing prejudice under the Charter given a young person’s perception of

time? I do not think the answer to these questions is yet completely clear although the existing case law has some important things to sayon this topic. [48] It is settled law that the Youth Criminal Justice Act codifies existing jurisprudence under the Young Offenders Actregarding the need to bring youth matters to trial in a timely way (See R. v. T. R. supra at para. 34). No new constitutional right to aspeedy trial is created either under the Youth Criminal Justice Act or the Youth Criminal Justice Act and the guidelines set by Osborne,J.

A. in M.(G.C.) –a five to six month period for the start of a trial after the neutral intake period, is still good law and should be applied. See R. v. T. R. supra para. 34. [49] Osborne J.A. in R. v. M. (G.C.) supra in para. 23 wrote about how the principles set out in R. v. Askov (SCC), [1990] 2S.C.R.1199 apply in the situation where young persons stand charged as follows: “In my opinion, the general principles set out in Askov apply to young offenders.

There is a particular need to conclude youth courtproceedings without unreasonable delay, consistent with the goals of the Young Offenders Act and the principles upon which it is based.I do not, however, view young persons as being entitled to a special constitutional guarantee to trial within a reasonable time, whichdiffers in substance from that available to adults. Nonetheless, it seems to me that, as a general proposition, youth court proceedingsshould proceed to a conclusion more quickly than those in the adult criminal justice system.

Delay, which may be reasonable in the adultcriminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They include the well establishedfact that the ability of a young person to appreciate the connection between behaviour and its consequences is less developed than anadult’s. For young persons, the effect of time may be distorted.

If treatment is required and is to be made part of the Young OffendersAct disposition process, it is best begun with as little delay as is possible”. [50] Osborne, J.A. goes on to set a systemic or administrative goal, or general guideline for youth court systemic delay that isstill good law today. He noted in para. 45 of R. v. M. (G.C.) supra that, “In general, youth court cases should be brought to trial within five to six months, after the neutral period required to retain and instructcounsel, obtain disclosure, etc.

These are administrative guidelines only....It must not be forgotten that systemic or administrative delayguidelines must not be applied as a ceiling, threshold or limitation period. The required balancing of the Askov factors must beundertaken in every case.” [51] In R. v. M. (G.C.) supra para. 24, Osborne J.A., without explaining further, referred to a special relationship between theneed to try young persons with reasonable dispatch and the consideration of prejudice. He noted, “The constitutional right remains constant.

It differs in its application to young persons because there is a particular element ofprejudice which may result if the trial of a young person is unduly delayed.” (Emphasis added) [52] However, he went no further in explaining this special connection between delay and prejudice in relation to youngpersons and in the case before him he identified systemic delay of eight and one half months in bringing a twelve year old accused totrial and still lifted the stay. In para. 38 he wrote, “In my view, the youth court judge erred in concluding that Askov imposed a systemic delay ceiling or threshold.

Because of hisconclusion on that issue, he did not balance the other factors. Although the total delay of ten and one-quarter months and the systemicdelay of eight and one-half months were longer than is desirable, there was no significant prejudice. Some prejudice, beyond prejudiceaccruing from the fact of being charged, undoubtedly existed. However, the respondent’s release terms were not onerous.

In the case inwhich the trial could have been held in eight and one-half months but for an essential Crown witness being in a crisis centre, and in acase where prejudice was minimal, I do not think that the respondent’s right to be tried within a reasonable time was violated.” [53] The special relationship between young persons, prejudice and delay has not been fully articulated in the caselaw andremains an open question.

On the facts of the case before me, considering the length of the systemic delay I have found, I am notprepared to presume prejudice which would shorten the otherwise accepted administrative guidelines for bringing youth cases to trialbecause this youth case was not brought to trial at an earlier date. BALANCING OF RIGHTS PROTECTED BY S.11(b) [54] Balancing all the factors as set out in Morin supra, I find that the young persons’ right to be tried within a reasonable timeas guaranteed by s. 11(

b) of the Charter has not been infringed. Although the total delay in this youth case is 12 months 21 days fromcharge to anticipated conclusion of the trial and as such is not ideal, I have examined the particular time periods involved in processingthis case and have determined that only 5.6 months of the delay may be attributed to systemic delay. Systemic delay of this magnitudefalls squarely within the administrative guidelines for youth cases. However, these applications are not determined solely by theapplication of a mathematical or administrative formula.

There is no ceiling for delay nor are the guidelines to be treated as a limitationperiod beyond which cases should be stayed. Likewise, there are no safe periods of delay, although the guidelines, absent prejudice,may be helpful in weeding out frivolous claims for relief. [55] The court must still engage in a balancing of the rights s. 11(

b) seeks to protect, both the individual rights of the accusedand the rights of society in order to decide these applications. [56] As to the rights of the accused protected by

section 11(b), for the reasons set out in my ruling, I have found no substantialprejudice. On the other hand, I find that the rights of the community to have the laws enforced and to have matters tried quickly and on

their merits, is quite strong in this case given the seriousness of the charge and the allegations of serious violence. CONCLUSION [ 57 ] In conclusion I am not satisfied that the interests of the accused and society in a prompt trial in this case outweighs the interests of society in bringing these young persons to trial. [ 58 ] Accordingly, the

section 11(

b) application for a stay of proceedings is dismissed. Released: August 8, 2012 Signed: Justice P. J. Jones