R. v. R.D.R., 2011 NSCA 86

NOVA SCOTIA COURT OF APPEAL Citation: R. v. R.D.R., 2011 NSCA 86 Date: 20110927 Docket: CAC 334403 Registry: Halifax Between: R.D.R. A Young Person Within the Meaning of the Youth Criminal Justice Act Appellant v. Her Majesty the Queen Respondent Restriction on Publication: Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act . Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: September 14, 2011 Subject: Canadian Charter of Rights and Freedoms : right to trial within a reasonable period of time in the context of the Youth Criminal Justice Act . Criminal law: Unreasonableness of the verdict, and error of law in not dealing with collusion.

Summary: The appellant was convicted of robbery and related offences in Youth Court. The charge was laid in November 2007 and his trial was not completed until July 26, 2010. The appellant argued that the delay was excessive. He argued there was a special guarantee for young persons to have trials earlier than accused persons in adult court. The trial judge declined to decide the issue. She examined the periods, found no prejudice to the appellant and concluded his right to trial within a reasonable period of time under s. 11(

b) of the Charter had not been infringed. Issue: Did the trial judge err in her refusal to recognize young persons have “special guarantee” to have a trial without delay: and was the verdict unreasonable or unsupported by the evidence or otherwise tainted by legal error. Result: The trial judge examined the lengthy delay from charge to the end of the trial. She made findings that the appellant had not been prejudiced by the delays, many of which were attributable to his own conduct. These findings are not challenged on

appeal. Young persons do not have a special guarantee that differs in substance from an adult to a trial within a reasonable period of time, but a young person may suffer from additional prejudice should his trial be delayed. There was no merit to the complaints that the verdict was unreasonable or the trial judge erred in law in not mentioning the risk of collusion. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 9 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v.

R.D.R., 2011 NSCA 86 Date: 20110927 Docket: CAC 334403 Registry: Halifax Between: R.D.R. A Young Person Within the Meaning of the Youth Criminal Justice Act

Appellant v. Her Majesty the Queen Respondent Restriction on publication: Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act . Judge : MacDonald, C.J.N.S., Fichaud and Beveridge, JJ.A. Appeal Heard: September 14, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Beveridge, J.A., MacDonald, C.J.N.S. and Fichaud, J.A. concurring. Counsel: Chandra Gosine, for the appellant Jennifer A. MacLellan, for the respondent Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act .

PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110 (1) and s. 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 110.

(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.

(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. Reasons for judgment : 1 . A man lived with his young girlfriend and her baby in a ground floor apartment in Dartmouth. They were victimized in an incident that occurred in the early afternoon of November 3, 2007.

The appellant and an unidentified man entered the apartment through the unlocked patio door. They went into one of the bedrooms. They left with drugs and perhaps a small quantity of cash. Who was in that room and the exact sequence of events was the subject of confusion and contradictory evidence.

2. The trial judge convicted the appellant of robbery, possession of a weapon, unlawful confinement and related charges ofbreach of probation and interim release orders. The appellant was a young person within the meaning of the Youth Criminal Justice Act,S.C. 2002, c. 1 (YCJA). He now appeals to this Court alleging the verdict was unreasonable or not supported by the evidence. 3. The appellant’s trial was not completed until July 26, 2010. He also challenges the trial judge’s decision that theappellant’s right to be tried within a reasonable period of time had not been infringed.

Her reasons on this issue are now reported as 2010NSPC 50. The sole argument advanced on appeal on this issue is that the trial judge did not take into account in her analysis that youngpersons are the benefactors of “special guarantees” of the right to be tried without delay. Had she done so, she would have found a s.11(

b) violation and stayed the proceedings. 4. At the conclusion of the appeal hearing, we announced that the appeal was dismissed with reasons to follow. We areunable to agree that young persons have special guarantees different in substance from an adult. The other complaints are without merit. The following reasons explain why. i. Delay 5. The total time period from charge to the end of the trial (November 8, 2007 to July 21, 2010) was 32.5 months. The trialjudge was the Honourable Judge Anne Derrick. She was keenly aware of the length of the delay.

While 32.5 months is a long time,much of the delay was waived by the actions or requests of the appellant. The trial judge found no prejudice to the appellant on accountof the delay. No complaint of error is made by the appellant with respect these conclusions. 6. Judge Derrick reasoned that the actual delay remaining after attribution of time to the appellant, including waiver, and theinherent time requirements, was nine months. She found the delay was not unreasonable and, hence there had been no violation of theappellant’s right to a trial within a reasonable period of time. 7.

The appellant argues that “special guarantees” are mandated by the YCJA and that the failure by the trial judge to recognizeand apply this was an error in law. I am unable to agree that the YCJA mandates a different substantive approach to the right to be triedwithin a reasonable period of time. 8. This issue was addressed in R. v. M.(G.C.) (1991), (ON CA), 3 O.R. (3d) 223 (Ont. C.A.) in relation tothe Young Offender’s Act (YOA). The majority judgment was written by Osborne J.A. (as he then was).

While recognizing there may beinstances where it is important to take into the account the age of the young offender, particularly in considering the extent of prejudicesuffered by the delay, he rejected the notion that there was a special constitutional guarantee to trial within a reasonable period of timedifferent in substance from adults. He reasoned (pp. 230-231): a. Young persons, as referred to in the Young Offenders Act, are entitled to the benefit of the rights contained in theCharter. This is so as a matter of general principle.

In addition, the application of the Charter to young offenders is specifically providedfor in s. 3(1)(

e) of the Young Offenders Act. b. The justice system for young persons, as established by the Young Offenders Act, is based on three fundamentalprinciples: responsibility, accountability and the protection of the public. The Young Offenders Act recognizes that young persons havespecial needs, which differ from the needs of accused persons involved in the adult criminal justice system. In R. v.

L. (R.) (1986), (ON CA), 27 C.R.R. 30, 26 C.C.C. (3d) 417, 52 C.R. (3d) 209, 14 O.A.C. 318, this court held that the Young Offenders Actestablished a substantive and procedural scheme which is separate and distinct from the adult criminal justice system. In that case,Morden J.A., writing for the court, recognized the need to proceed with Young Offenders Act prosecutions without undue delay (p. 46C.R.R., p. 226 C.R.). c. In my opinion, the general principles set out in Askov apply to young offenders.

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

Delay, which may bereasonable in the adult criminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They includethe well established fact that the ability of a young person to appreciate the connection between behaviour and its consequences is lessdeveloped than an adult's. For young persons, the effect of time may be distorted. If treatment is required and is to be made part of theYoung Offenders Act disposition process, it is best begun with as little delay as is possible. d.

From a conceptual standpoint, the basis of the need to try young persons with reasonable dispatch is best analyzedand understood if it is viewed as a part of the consideration of prejudice, one of the four factors referred to in Askov. These four factorshave to be balanced in each case to determine if an accused, young or old, has been brought to trial within a reasonable time. Theconstitutional right remains constant. It differs in its application to young persons because there is a particular element of prejudice whichmay result if the trial of a young person is unduly delayed. e.

In my opinion, generalizations with respect to the causal connection between delay and prejudice to either thecommunity interest or the interest of the accused should be made with considerable caution. Prejudice arising from undue delay worksdifferently in its application to the community interest, on the one hand, and the accused, on the other. While it is true that undue delaymay cause some anxiety and hardship to an accused, beyond that which results from the existence of the criminal charges, not allaccused feel prejudiced by delay.

If, for example, Crown witnesses are unavailable, or if the memories of Crown witnesses have failedwith the passage of time, the accused may benefit because the Crown bears the burden of proof. Similarly, in a case where evidencebecomes available in a period of undue delay, the Crown's case may be strengthened.

9. The appellant argues that this decision is not binding on this Court, and should be considered as overruled by the subsequentenactment of the YCJA. The appellant refers to the

preamble to the YCJA, which provides: a. WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that youngpersons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill ofRights, and have special guarantees of their rights and freedoms;

Section 3 of the YCJA also speaks to timeliness of proceedings. It sets out the principles that apply to the Act, and itsinterpretation. The relevant provisions include: a. 3.

(1) The following principles apply in this Act: b. . . . c. (

b) the criminal justice system for young persons must be separate from that of adults and emphasize thefollowing: d. . . . e. (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, includingtheir right to privacy, are protected, f. (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and g. (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’perception of time; 11. With all due respect to the appellant, I see nothing in any of these provisions that changes in substance the general approachto assessing whether a young person’s right under the Charter to be tried within a reasonable period of time has been infringed. Thewording in the

preamble closely resembles the declaration in s. 3(

e) of the YOA that young persons have rights and freedoms in their ownright, including those stated in the Canadian Charter of Rights and Freedoms or in the Bill of Rights, and young persons should havespecial guarantees of their rights and freedoms.

Section 3(

b) of the YCJA does emphasize the need to act promptly in every case. But promptness and speed are relativeterms. They cannot be understood without context. Speed cannot be emphasized to such an extent that procedural fairness to the stateand to the young person is sacrificed. Here, the trial judge analyzed the delays. Many of them occurred because procedural fairnessdictated adjournments. Once because, despite Crown diligence, its witnesses failed to appear.

On numerous occasions, because theyoung person failed to appear on time for his scheduled trial, or by his request, wanted to finally undertake trial preparation. 13. Not all accused persons feel prejudiced by delay. Others feel the consequences of delay acutely. Of course, lengthy delaycan lead to an inference of prejudice (see R. v. R.E.W., 2011 NSCA 18; R. v. Godin, 2009 SCC 26). In addition, evidence can be adducedto establish prejudice to an accused’s right to make full answer and defence or to his liberty and security interests. Like Osborne J.A. inR. v.

M.(G.C.), I accept that the appropriate way to take into account the special circumstances of young persons is to acknowledge thepotential for a heightened degree of prejudice to their liberty and security interests that may flow from delay. 14. In my opinion, the replacement of the YOA with the YCJA did not change the legal landscape, creating a special constitutionalguarantee. As noted by MacPherson J.A. in R. v.

T.R. (2005), (ON CA), 75 O.R. (3d) 645, the provisions of s. 3 ofthe YCJA are not really new requirements, but rather are codifications of judicial recognition of the need and benefits in proceedingpromptly with charges in youth court. (See also R. v. R.C.D., 2006 BCCA 211.) 15. Counsel for the appellant relies on two decisions: R. v. K.(D.) (Case No. 90-115 N.S.Y.C.); and R. v. S.(M.T.), [1991] N.S.J.No. 314 (N.S.Y.C.) as authorities that say otherwise. With respect, neither assist. In R. v.

K.(D), the trial judge found the young personto have been enormously prejudiced by the delay which had occurred without explanation, and therefore concluded there had been abreach of his s. 11(

b) right. In R. v. S.(M.T.), the trial judge relied on the trial decision in R. v. M.(G.C.)(1991), 12 W.C.B. (2d) 18 whichdecision was reversed by the Ontario Court of Appeal (R. v. M.(G.C.), supra). 16. In this case, the trial judge did not consider it necessary for her to determine if the young person had a special constitutionalguarantee. She said this: a. [25] Mr. Gosine does note that G.C.M. is not binding on Nova Scotia courts.

The issue of whether there should be aspecial constitutional guarantee to trial within a reasonable time for young persons that differs materially from that available to adults isan intriguing one but I have not been presented with any cases that have, since G.C.M. was decided, found a lower threshold for delay inyouth matters. I am not persuaded on the facts in R.R.'s case that I am required to determine if the principles of the YCJA infuse a youngperson's

section 11(

b) rights with a special urgency. 17. As already noted, the trial judge found no prejudice to the appellant from the delay. She emphasized the responsibility of theappellant for delays, and she suspected, but did not make a conclusive finding, that the delay was perhaps intentional. The trial judgereasoned:

a. [39] I have found the Defence submissions on the issue of delay to be unpersuasive. The Crown's submissions on the other hand satisfy me that the Defence has not met the burden of showing that there has been a constitutional violation. My view is further confirmed by what happened with respect to trial preparation. On September 22, 2009, when R.R. failed to appear when his trial was scheduled to start, eventually arriving late, Mr.

Gosine acknowledged to the court that he had not expected the trial to proceed because he had not met with R.R. for the purposes of preparation. ... b. . . . c. [41] ...The statements of Mr. Gosine on September 22, 2009 clearly establish that neither he nor R.R. were ready for trial on any of the earlier dates that had been set.

While I cannot make a categorical finding, the way this case has unfolded leads me to wonder if R.R. and his counsel lay in the reeds hoping the Crown would not be able to put its witnesses forward and then found it opportune to advance a delay argument. d. [42] It seems clear that had R.R. shown up on time for his trial on September 22, 2009, the Court would have been told he and his counsel had not met to prepare for trial, were therefore unable to proceed and required an adjournment. The trial would have been adjourned to October 13, as it was, and the dates that followed.

And if R.R. had attended court on time on October 13, which he did not, the Crown's case could have been concluded and the Defence would have sought an adjournment, at the very least, to advance the alibi defence. Those delays would have been occasioned by R.R. not being ready to complete his trial: they would have been delays R.R. would have been entitled to seek so that he could present a full answer and defence, but not delays that constitute a breach of his constitutional rights. This application for a stay of proceedings on the grounds of unreasonable trial delay is denied. 18 .

I fail to see any error by the trial judge in her analysis or conclusion that the appellant had not established an infringement of his right to trial within a reasonable period of time. i. Conviction Appeal 19 . The appellant makes the bald assertion that the verdict is unreasonable or otherwise not supported by the evidence. The only basis for the assertion is that there was conflicting evidence as between the two victims with respect to a number of details. The reasons of the trial judge make it abundantly clear that she was alive to the inconsistencies and conflicts in the evidence.

She provided detailed reasons for how she viewed and resolved the conflicts in the evidence. There is nothing unreasonable about the conclusions she reached, and there was evidence to support the findings of guilt. 20 . The appellant in his factum suggested error by the trial judge because she failed to address “the risk of witness collaboration or collusion in the reasoning behind the judgment”. The appellant did not argue at trial there was such a risk.

The Crown witnesses were in a relationship that broke up about a month after the incident that led to the charges and had been estranged since, with no contact between them. They failed to appear at trial even though they were subpoenaed. Warrants were issued. There was absolutely no evidence of collusion or risk of it. 21 . There is no merit in any of the complaints advanced by the appellant. Accordingly, these grounds of appeal, and the appeal are dismissed. i. Beveridge, J.A. Concurred in: MacDonald, C.J.N.S. Fichaud, J.A.