We finally have an appellate decision on the application of Jordan timelines to youth justice proceedings! And things remain… not terribly clear.
A majority of the Alberta Court of Appeal in R v KJM, 2018 ABCA 278, has upheld the 18 month limit in provincial court to young persons. The decision notes that the Supreme Court in Jordan said nothing that even “remotely suggests the presumptive ceilings it fashioned do not apply to young persons tried in youth justice courts” (see para 33.)
The majority did leave open the possibility of revisiting this issue in the future if evidence were presented that shorter time periods for trials in youth court were somehow linked to the rehabilitative goals of the youth justice system. For example, should expert evidence be presented in a future case that rehabilitative outcomes for youth were markedly different if their cases were adjudicated faster, that could influence the court’s analysis.
A concurring judgment by O’Ferrall J.A. noted that timely intervention for youth matters does not always necessarily mean a timely trial. Sometimes postponing a prosecution may be to a young person’s advantage. For example, if it allows Crown counsel to consider diversion or the attempt to complete extra-judicial measures before a final decision about a case is made.
Furthermore, young persons’ perception of time varies greatly with age (they are, after all, anywhere from 12-17 years old), and there is simply no basis for a presumptive ceiling in youth court: see para 75.
Veldhius J.A. dissented. holding that a ceiling of 15 months in provincial court was appropriate for youth matters.
The Supreme Court in Jordan held that the justice system needed to change courtroom culture and facilitate a more efficient justice system. Applying this sentiment to the youth justice system mandates a different result for young persons.
Young persons are simply different than adults. Their ability to appreciate the consequences between behaviour and consequences is less developed. Long delays may inhibit the effectiveness of rehabilitative measures. And as a young person’s perception of time may be distorted, greater delays may increase prejudice and stress. Additionally, memories of young witness tend to fade more quickly. This may impact on a young person’s ability to effectively make full answer and defence.
The criminal justice system has always recognized that young persons require enhanced procedural protections. To breathe life into Jordan and apply it appropriately in youth court requires a new ceiling be established of 15 months: see paras 115-116.
This is the first appellate decision in Canada on the applicability of Jordan to youth cases and we have a majority with two sets of reasons and a dissent. A fundamental divide has emerged in the judiciary, centered on whether or not Jordan invites a different ceiling for youth matters or if the Supreme Court’s silence on the issue means it is not for other courts to invent their own timelines.
Some courts continue to insist on new “evidence” being presented to justify a lower ceiling for youth matters as well. I find this to be surprising, given the immense amount of scientific literature that already exists on the benefits of adjudicating youth cases faster than adult ones. Perhaps it has not been properly presented to an appellate court yet.
Should this case be appealed to the Supreme Court of Canada, I have no doubt several interested parties will do so.