Her Majesty the Queen v. T.R. (A Young Person)

[Indexed as: R. v. R. (T.)]

75 O.R. (3d) 645

[2005] O.J. No. 2150

Docket: C42018

Court of Appeal for Ontario,

McMurtry C.J.O., Laskin and MacPherson JJ.A.

May 31, 2005

Charter of Rights and Freedoms -- Trial within reasonable time -- Young persons -- Youth court judge finding that Youth Criminal Justice Act creating duty to ensure prosecutions of young persons being dealt with "much more quickly" than required under Young Offenders Act -- Youth court judge holding that three-month delay in case of young person detained in custody violating s. 11(b) of Charter -- Youth court judge erring -- Youth Criminal Justice Act not creating enhanced responsibilities for speedier trials than was required by Young Offenders Act -- Crown appeal against stay of proceedings allowed -- Canadian Charter of Rights and Freedoms, s. 11(b) -- Young Offenders Act, R.S.C. 1985, c. Y-1 -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 3(1).

Criminal Law -- Young persons -- Trial within reasonable time -- Youth court judge finding that s. 3(1) of Youth Criminal Justice Act introducing new test for trial within reasonable time requiring that prosecution of young persons be dealt with "much more quickly" than required under Young Offenders Act -- Youth court judge holding that three-month delay in case of young person detained in custody violating s. 11(b) of Charter -- Youth court judge erring -- Youth Criminal Justice Act not creating enhanced responsibilities for speedier trials -- Crown appeal against stay of proceedings allowed -- Young Offenders Act, R.S.C. 1985, c. Y-1 -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 3(1) -- Canadian Charter of Rights and Freedoms, s. 11(b).

A young person, R, was charged with several serious criminal offences on February 25, 2004 and was detained in custody. The trial was scheduled for May 4, 2004. On May 4, two matters in addition to R's trial were before the court. One of them was an application by an adult for a stay of proceedings on the basis of unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms. As the complainant in R's case was not yet present and as the adult's s. 11(b) application was not expected to take long, the adult's application was dealt with first, and the other matter was traversed to another court. The adult's s. 11(b) application was not completed until mid-afternoon. The Crown and the judge wanted to start R's trial immediately, but defence counsel objected on the basis that she would prefer not to have the case split between two days. The trial was adjourned to May 26, 2004. On that date, the defence brought a s. 11(b) application. The youth court judge found that s. 3(1) of the Youth Criminal Justice Act ("YCJA") modified the regime under the Young Offenders Act ("YOA") by introducing a more urgent requirement for timeliness. The youth court judge concluded that R's rights under s. 11(b) were violated by the three-month delay in this case. The application was granted. The Crown appealed.

Held, the appeal should be allowed.

Section 3(1) of the YCJA codifies the jurisprudence relating to trial within a reasonable time under the YOA and does not impose an enhanced responsibility on the Crown and the police to ensure that youth justice matters are dealt with more quickly than under the YOA. The youth court judge was unwarrantedly critical of the Crown for not consenting to the release of R on May 4. R was in custody on [page646] serious charges. He had consented to his detention and no one, including R, raised his bail status at the May 4 hearing. The adjournment from May 4 to May 26 did not tip the s. 11(b) scales into unreasonable delay. The Crown and the presiding judge were working hard to ensure that all three matters proceeded, and the choices they made were reasonable. An intake period of five weeks, a scheduled trial five weeks later, and a short adjournment of three weeks for a total time from arrest to trial of three months was not unreasonable.

APPEAL by the Crown from a stay of proceedings of Chisvin J., [2004] O.J. No. 2728 (C.J.).

R. v. Askov, [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, [1990] S.C.J. No. 106, 42 O.A.C. 81, 59 C.C.C. (3d) 449; R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1; R. v. M. (G.C.) (1991), 3 O.R. (3d) 223, [1991] O.J. No. 885, 46 O.A.C. 126, 7 C.R.R. (2d) 174, 65 C.C.C. (3d) 232 (C.A.), apld Other cases referred to R. v. D. (S.), [1992] 2 S.C.R. 161, [1992] S.C.J. No. 51, 9 O.R. (3d) 287n, 138 N.R. 385, 72 C.C.C. (3d) 575 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 11(b), 24(1) Young Offenders Act, R.S.C. 1985, c. Y-1 Youth Criminal Justice Act, S.C. 2002, c. 1, s. 3(1)(b)

Leanne Salel, for appellant. Joseph Wilkinson, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

1A young person was charged with several criminal offences on February 24, 2004. He remained in custody until the date of his trial, May 26, 2004. At the trial, defence counsel made an application for a stay of the charges on the basis of unreasonable delay. The youth court judge granted the application.

2The Crown appeals. The appeal requires a consideration of whether the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA") modified the Young Offenders Act, R.S.C. 1985, c. Y-1 (the "YOA") in the domain of the timing of youth court trials. The appeal also invites an assessment of the continuing applicability, under the new YCJA, of the principles of the leading cases dealing with unreasonable delay generally and unreasonable delay in youth court matters specifically: R. v. Askov, [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, [1990] S.C.J. No. 106, 59 C.C.C. (3d) 449, [page647] R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 71 C.C.C. (3d) 1 and R. v. M. (G.C.) (1991), 3 O.R. (3d) 223, [1991] O.J. No. 885, 65 C.C.C. (3d) 232 (C.A.).

B. Facts

(1) The parties and the events

3The respondent, T.R., a 17-year-old youth, was arrested on February 25, 2004. He was charged with robbery, possession of the proceeds of crime and breach of probation.

4A bail hearing was scheduled for February 26. T.R.'s counsel requested an adjournment to March 1.

5On March 1, the Crown advised that he was seeking the detention of the respondent. Defence counsel requested an adjournment to March 4.

6On March 4, the respondent consented to his detention. The charges were read and the matter was adjourned to March 17 for a first appearance, at which time disclosure was made. The matter was then adjourned to March 30.

7On March 30, the case was adjourned to April 5, at the respondent's request, for a judicial pre-trial. A target trial date of May 4 was set.

8On April 5, following the judicial pre-trial conference, defence counsel requested a return date of April 27, one week prior to the trial date, to be able to review some outstanding disclosure with her client. On April 27, counsel received further disclosure and the case was adjourned to May 4 at 9:30 a.m. for trial.

9On May 4, two matters in addition to the respondent's trial were scheduled, one of which was a Canadian Charter of Rights and Freedoms s. 11(b) motion in an adult case. Crown counsel indicated that while he would normally give priority to an in-custody youth trial, he proposed to deal first with the adult s. 11(b) motion because he did not think it would take long and because the complainant in the respondent's matter was not yet present in court. The third matter was traversed to a different court.

10The presiding judge, Justice Barnes, observed that the adult s. 11(b) motion would take about an hour and defence counsel indicated that she was content to let it proceed first.

11Unfortunately, the adult s. 11(b) motion was not completed until mid-afternoon. The Crown and the judge wanted to start T.R.'s trial immediately and find an early return date since all the witnesses were present. Defence counsel objected on the basis that she would prefer not to have the case split between two days.

12The court adjourned for a few minutes so that counsel could attend the trial co-ordinator's office. The earliest available [page648] trial date was May 26. This date was earlier than any resumption date involving Justice Barnes if the respondent's trial started the afternoon of May 4.

13The presiding judge adjourned the respondent's trial to May 26. Defence counsel stated:

I just want to place on the record to make it clear for future possible issues that today I was here at about ten to ten and an out of custody 11(b) motion consumed the day despite this matter being set down specifically for my young offender in custody client today.

(2) The proceedings on May 26, 2004

14On May 26, 2004, the defence brought a s. 11(b) application. Defence counsel indicated that the record contained a transcript of only the May 4 court proceedings, but that this was "really the only relevant transcript with regard to this application". Defence counsel also set out the essence of her position in this fashion:

Basically, the defence is not contesting the time taken from arrest to the first trial date. The issue before the Court, in our submission, is the delay between May 4th and today's date ...

15The youth court judge, Chisvin J., heard extensive submissions from counsel, took a recess, and delivered an oral judgment later that day [[2004] O.J. No. 2728]. The youth justice court is a very busy high volume court. I have read the transcript of the entire day's proceedings. I want to record how impressed I was with the highly professional way in which the youth court judge presided and, especially, with his ability to prepare and deliver a comprehensive and thoughtful oral judgment later the same day.

16The youth court judge held that the respondent's Charter s. 11(b) right to be tried within a reasonable time had been violated. Pursuant to s. 24(1) of the Charter, the youth court judge ordered a stay.

17Central to the youth court judge's reasons was his view [at para. 3] that the YCJA "has set out a new regime for the Courts and Crown to act under". He reviewed several of the provisions of the YCJA. He focused particularly on s. 3(1)(b)(ii)-(v) which provides:

3(1) The following principles apply in this Act:

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

. . . . . [page649]

(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;

18The wording in s. 3(1)(b) of the YCJA led the youth court judge to this conclusion [at para. 10]:

As a result, there is an enhanced responsibility on the Crown and on the police to ensure that young people's matters are dealt with much more quickly and certainly much more quickly than was even expressed under the Young Offenders Act.

That is a new principle that has to be considered, and [it] is important for the Crown, the police and the Court to bear that one in mind, particularly when dealing with young people.

19The youth court judge then reviewed the Askov factors. With respect to length of delay, he held [at para. 20] that "the time period in totality from February 25th to today's date, required at the very least, an inquiry into this matter as to the length of delay."

20The youth court judge held that the respondent had not waived any of the time periods in the case.

21With respect to the reasons for the delay, the youth court judge was highly critical of the Crown for the events that unfolded at the May 4 hearing. He concluded [at para. 25] that "the Crown should have given priority in the circumstances to a young person who is in custody."

22On the question of prejudice, the youth court judge observed that prejudice is always established when a young person is in custody. He also suggested that, when the trial was adjourned from May 4 to May 26, the Crown could have alleviated the prejudice by consenting to the respondent's release on bail at that juncture.

23Accordingly, the youth court judge concluded that the respondent's s. 11(b) right had been violated and, pursuant to s. 24(1) of the Charter, he ordered a stay of the charges against the respondent.

C. Issue

24The sole issue on the appeal is whether the youth court judge erred in concluding that a three-month period from arrest to trial [page650] for an in-custody youth facing serious criminal charges violated the youth's Charter s. 11(b) right to be tried within a reasonable time.

D. Analysis

25The youth court judge was alive to two crucial factors -- the case involved a youth and the youth had been in custody from the moment of his arrest to the scheduled trial date, a period of precisely three months. These two factors weighed heavily on the trial judge's mind. I say -- rightly so.

26Nonetheless, in my view the youth court judge committed several errors in his reasoning, which in turn led him to the erroneous conclusion that the three-month period from arrest to trial was unreasonable and, therefore, constituted a violation of s. 11(b) of the Charter.

27First, the youth court judge erred in stating that there was an enhanced responsibility on the Crown and the police to ensure that youth justice matters are dealt with "much more quickly than was even expressed under the Young Offenders Act".

28It is true that there is wording in s. 3 of the YCJA that speaks directly to the speed of youth justice proceedings. Section 3(1)(b)(iv) mandates "timely intervention" and s. 3(1)(b)(v) addresses "the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time".

29These are not, however, new requirements. They were also central to the interpretation of the YOA. Indeed, a fair observation would be that much of s. 3 of the YCJA is a codification of the jurisprudence relating to the YOA.

30This observation is true on the issue of the timing of youth justice proceedings. For example, the wording of s. 3(1)(b)(v) of the YCJA is reflective of leading decisions of the Supreme Court of Canada such as R. v. D. (S.), [1992] 2 S.C.R. 161, 9 O.R. (3d) 287n, [1992] S.C.J. No. 51, 72 C.C.C. (3d) 575, at p. 162 S.C.R., p. 576 C.C.C., wherein Sopinka J. affirmed that "charges against young offenders be proceeded with promptly".

31The same provision in the YCJA also effectively codifies the leading decision of this court on the issue of unreasonable delay in YOA proceedings, R. v. M. (G.C.), supra, at p. 230 O.R., p. 240 C.C.C., in which Osborne J.A. said:

In my opinion, the general principles set out in Askov apply to young offenders. There is a particular need to conclude youth court proceedings 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, which differs in substance from that available to adults. None the less, it seems to me that, as a general proposition, youth court [page651] proceedings should proceed to a conclusion more quickly than those in the adult criminal justice system. Delay, which may be reasonable in the adult criminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They include the well-established fact that the ability of a young person to appreciate the connection between behaviour and its consequences is less developed 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 the Young Offenders Act disposition process, it is best begun with as little delay as is possible.

(Emphasis added)

32In short, a pronounced judicial focus on ensuring the prompt resolution of youth justice proceedings was a prominent component of the interpretation of the YOA. On this issue, the YCJA does not introduce a change.

33Second, and related to the first error, the youth court judge erred when he stated that "there is an obligation to bring these matters on to trial even faster than that of the administrative guidelines" in the leading case, M. (G.C.).

34There are two problems with this reasoning. First, since the YCJA is a codification of the jurisprudence under the YOA on the issue of timeliness of youth justice proceedings, it follows that the leading cases, including M. (G.C.), are still good law and should be applied, not abandoned. Second, the youth court judge appears to regard the guidelines in M. (G.C.) -- a five- to six-month period for the start of a trial after the neutral intake period -- as a ceiling. This is contrary to M. (G.C.), where Osborne J.A. said at p. 236 O.R., p. 246 C.C.C.:

It must not be forgotten that systemic or administrative delay guidelines must not be applied as a ceiling, threshold or limitation period. The required balancing of the Askov factors must be undertaken in every case.

35A third error committed by the youth court judge relates to his comments about the respondent's bail status. On the prejudice factor in the Askov analysis, the youth court judge said:

What may be a factor and should have been a factor considered, one has to wonder if the Crown made the decision not to proceed with the matter on May 4th, which arguably was theirs to make and having decided that as being aware that this young person was in custody, why didn't the Crown take the option available to them which was to consent to the release of the young person pending the next court date. That of course would have alleviated at least some of the prejudice to today's date. That was not done.

36With respect, this reasoning is seriously flawed and constitutes an unwarranted criticism of Crown counsel. The youth court judge did not have the transcripts of the bail hearing before him on May 26, the respondent was in custody on serious charges (including robbery), the respondent had consented to his detention, and no one, including the respondent, raised his bail status at the [page652] hearing on May 4. Nor was this issue mentioned by anyone during the extensive submissions made to the youth court judge on May 26.

37Against the backdrop of these errors, I turn to a consideration of the delay in this case.

38After a young person is arrested, there is an intake period involving a number of steps before the case is ready for trial. The intake period, and how it should be assessed under the umbrella of Askov, were succinctly described by Osborne J.A. in M. (G.C.) at p. 232 O.R., p. 242 C.C.C.:

The youth court is an intake court where time is typically consistently consumed by bail applications, disclosure, the processing of legal-aid applications, the retention and instruction of counsel, and the need, where required, to involve the young person's parents in the process. These steps all take time. They occur, for the most part, at the commencement point of a prosecution under the Young Offenders Act. In my opinion, this intake related delay should be taken into account by being excluded from the calculation of systemic delay. It should be viewed as neutral, in the sense that it should not be attributed to either the Crown or the defence.

39The intake period in this case commenced on February 5, 2004 (arrest) and probably finished on March 30 (target trial date set). No one has criticized nor, in my view, could reasonably criticize this five-week period.

40On March 30, a target trial date of May 4 was set. M. (G.C.) suggests as an administrative guideline that a youth court trial should commence within five to six months after the completion of the neutral intake period. The period of delay in this case, five weeks, is well inside this guideline. Moreover, the respondent does not suggest otherwise.

41That leaves the adjournment from May 4 to May 26 which, the youth court judge determined, tipped the s. 11(b) scales into 'unreasonable delay'. I disagree, essentially for three reasons.

42First, the total period of post-intake delay on May 26 was less than two months. Even with the intake period added, the total delay was precisely three months. This is well inside the administrative guideline from M. (G.C.).

43Second, I have read the transcript of all nine appearances in this case, from February 26 to May 26 (an advantage the youth court judge did not have). In my view, there is not a hint of unreasonable delay at any stage in the proceedings. Indeed, I was genuinely impressed with how focused all of the participants (Crown and defence counsel and various judges) were on moving this case forward to an early trial. The participants recognized that the respondent was in custody, that this was a serious consideration, and that the youth justice system needed to respond in a timely fashion. In my view, the participants achieved their shared goal. [page653]

44Third, a fair reading of the transcript of the May 4 hearing belies the criticism that the youth court judge levelled at Crown counsel. My reading of that transcript leads to the conclusion that Crown counsel and the presiding judge were working hard to ensure that all three matters proceeded. The choices they made -- traversing one matter to another court and proceeding first with the adult s. 11(b) matter -- made sense, especially since the complainant in the respondent's case was not present at the start of the day and the adult s. 11(b) matter was anticipated to last about an hour. Moreover, when the adult s. 11(b) matter took longer than expected, both the Crown and the presiding judge were prepared to commence the respondent's trial in mid-afternoon. It was the respondent's counsel who opposed this step. Everyone then looked for the earliest possible trial date, and found one 22 days later.

45I do not want to conclude my analysis without returning to a comment I made earlier. The youth court judge was right to attach substantial weight to the fact that this case involved an in-custody youth. There is always a real prejudice when a young person is incarcerated.

46However, in the end I do not think that this case comes close to posing a serious delay issue. An intake period of five weeks, a scheduled trial five weeks later, and a short adjournment of three weeks for a total time from arrest to trial of three months is entirely compliant with Askov and M. (G.C.). Indeed, the progress of the respondent's case, especially when one reads all of the transcripts and can see how diligently Crown counsel and various judges worked to move the case forward, comes close to being a model for timely youth court proceedings involving an in-custody youth.

E. Disposition

47I would allow the appeal, set aside the stay and order the respondent to stand trial on the charges he faces.