WARNING

The court hearing this matter directs that the following notice 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 Information

Ontario Court of Justice

Date: January 16, 2018

Between

Her Majesty the Queen

— and —

D.M.B.

Counsel:

• M. Flagg — Counsel and Prosecution
• S. Yeghoyan — Counsel for the Defendant

Before: Felix J.

I. Introduction

[1] The young person applied for a stay of proceedings pursuant to s. 11(b) of the Charter of Rights and Freedoms [Charter].

[2] The applicant and respondent have provided extensive factums, a detailed application record, and the relevant authorities.

[3] This application turns on a narrow issue – are youth matters subject to a lower presumptive ceiling.

[4] The applicant concedes that the total delay of approximately 15 months to the anticipated trial date falls below the 18 month presumptive ceiling established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 [Jordan]. The applicant relies on the decision of Paccioco J. in R. v. J.M., 2017 ONCJ 4 [J.M.], in aid of the submission that the presumptive ceiling for youth matters should be 12 to 15 months.

[5] On December 6, 2017 I dismissed the application with reasons to follow after the completion of the trial. The trial was completed on January 9, 2018. These reasons are being released on January 16, 2018.

II. The Jordan Framework

[6] In paragraph 105 of Jordan the Supreme Court of Canada set out the new framework for 11(b):

105 The new framework for s. 11(b) can be summarized as follows:

• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (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.

• For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

[7] This case is not a transitional case. Where the delay falls below the presumptive ceiling the defence must establish that the period of time was nonetheless unreasonable.

[8] The applicant concedes that the total delay is 15 months and 12 days.

[9] The sole issue to determine is whether J.M. applies.

III. Applicability of J.M.

[10] Given the overarching purposes and principles of the Youth Criminal Justice Act [YCJA] the idea of an adjusted presumptive ceiling for youth matters is intuitively attractive. The Respondent's factum meticulously delineates a multitude of reasons why J.M. should not be followed. I endorse many if not all of the reasons outlined in the impressive materials prepared by Crown Attorney M. Flagg, but the analysis in my view may be distilled down to four core principles.

[11] First of all, I presume that the Supreme Court of Canada was aware of the specialized nature of youth matters and the principles outlined in the YCJA and nonetheless declined to mandate a lower presumptive ceiling concerning youth matters.

[12] Second, my reading of Jordan suggests the Court wished to provide a more simplified analysis: (See the analysis by Justice B. Duncan in R. v. Carman, [2017] O.J. No 489 (C.J.) at paragraphs 15-17, regarding possible interpretations of Jordan). The analysis required has been streamlined and simplified as compared to the approach in R. v. Morin, [1992] 1 S.C.R. 771: Jordan, at paras. 29-44.

[13] Third, the Ontario Court of Appeal, in a series of cases beginning with R. v. Coulter, 2016 ONCA 704, has applied the 11(b) framework without direction concerning the YCJA albeit in circumstances where the issue was not before the Court: (See R. v. Picard, 2017 ONCA 692, R. v. Gordon, 2017 ONCA 436, for example). As such, the principles set out by the Ontario Court of Appeal prior to Jordan are still extant – youth matters should proceed with dispatch but there is no constitutionally mandated ceiling: R. v. T.R., [2005] O.J. No 2150 (Ont. C.A.); R. v. M. (C.G.), [1991] O.J. No 885 (Ont. C.A.).

[14] Fourth, I am aware of two decisions where colleagues presiding in the Ontario Court of Justice have declined to adopt the analysis in J.M.: (See R. v. K.M., 2017 ONCJ 8 and R. v. R.V., 2017 ONCJ 305.)

IV. Finding

[15] The concept of a lower presumptive ceiling for youth matters would seem to flow logically from a proper interpretation of the special approach to youth matters. That being said, it falls to appellate courts or Parliament to address whether a unique approach to youth matters requires an adjustment of the presumptive ceiling.

[16] Where the period of delay falls below the presumptive ceiling the applicant must establish that the delay is unreasonable.

[17] A stay of proceedings concerning matters below the presumptive ceiling will be limited to clear cases: Jordan, at paras. 48, 82-83.

[18] The applicant has failed to establish that this is a clear case of unreasonable delay.

[19] The application is dismissed.

Released: January 16, 2018

Signed: Justice M.S. Felix