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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Court File No.: Central East Region 12-Y18140

Date: 2013-03-14

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.J.C., a young person

Before: Justice G. R. Wakefield

Heard on: January 29, 2013

Reasons for Judgment released on: March 14, 2013

Counsel:

K. Pollock, for the Crown

M. Schwartzentruber, counsel for the defendant D.J.C.

Judgment

Wakefield, J.:

[1] Application for Stay of Proceedings

[1] This is my ruling on the Defendant's application for stay of proceedings on the basis of an alleged breach of his 11(b) right to a trial within a reasonable time pursuant to the Canadian Charter of Rights and Freedoms. Before commencing I must express my appreciation to both counsel for their respective impressive submissions and narrowing of the issues.

[2] Charges

[2] The Defendant is charged with an Impaired Care and Control, an Over 80, Possession of a Controlled Substance, namely Cannabis Resin, together with the Highway Traffic Act offence of BAC above zero.

[3] Timeline of Proceedings

[3] A timeline summary of this matter's history is as follows:

[4] February 5, 2012 — arrest of Defendant

[5] February 28, 2012 — 1st Appearance

[6] March 20, 2012 — 2nd Appearance and 25(4) order granted

[7] April 17, 2012 — 3rd Appearance and Adjourn

[8] May 15, 2012 — 4th Appearance re outstanding disclosure

[9] June 5, 2012 — 5th Appearance re outstanding disclosure

[10] June 12, 2012 — 6th Appearance re outstanding disclosure

[11] June 22, 2012 — 7th Appearance Adj. for Crown Pretrial

[12] July 20, 2012 — 8th Appearance: set Judicial Pretrial

[13] August 27, 2012 — 9th Appearance: Judicial Pretrial

[14] September 4, 2012 — 10th Appearance: set 2 day trial

[15] January 29, 2013 — 11th Appearance for 11(b) motion

[16] April 17 & 19, 2013 — 2 day trial

[4] Initial Release

[17] The Defendant was initially released on an Officer in Charge Undertaking the only terms of which were to notify any change of address and a prohibition against the purchase, possession and consumption of drugs.

[5] Relevant Events and Factors

[18] Within that timeline there were a number of additional events and factors I am to consider in assessing the criteria as to whether there has been a breach and if so whether the remedy should be granted.

[19] I note that at the first appearance, there was initially a request for the 25(4) order which seems to have been overlooked in the process that day. When the 25(4) order was granted on March 20th, the meeting with counsel was not until April 16th, the day before the 3rd appearance. Additional disclosure was not requested until May 14th the day before the 4th appearance. The Crown response requesting clarification of the disclosure requests was sent on May 17th.

[20] The breath videos did not become available until June 7th, after the 5th appearance, and were picked up by counsel June 8th. Further disclosure was provided to the defence at the 6th appearance, with the officer conduct disclosure still outstanding, albeit in circumstances in which the Crown was still not yet sure if such reports were available or not.

[21] The Defendant was ready and available for trial as of October 2nd, so on just the time from set date to the first available trial dates there is an institutional delay of six and a half months.

[6] Change in Status

[22] The Defendant attained his age of majority April 4th, 2012 by turning 18 and ceased to be a Youth.

[7] Breach of Undertaking

[23] On October 9th, the Defendant was arrested for a Breach of his Undertaking and one count of Possess Controlled Substance and held for a bail hearing on a reverse onus basis resulting in a more onerous release with a curfew, house rules requirement and a term to stay out of any motor vehicle driver seat until validly licensed. The Release was affected the same day as the arrest.

[8] Notice of Prejudice

[24] The Defendant did not put the Court nor the Crown on notice of any specific prejudice.

[9] Crown Concessions

[25] Crown has conceded that the Defendant has not waived any delay and as well concedes that the total delay from February 2012 until April 2013 is sufficiently long to warrant an inquiry into the delay.

[10] Institutional Guidelines for Youth

[26] If I understand the Crown position correctly, it asserts that the institutional guidelines should be the equivalent of those applying to adults, namely eight to ten months. In my view, the administrative guidelines set out in R. v. M.(G.C.) regarding the Young Offenders Act apply exactly the same to matters under the Y.C.J.A. The principles applicable the predecessor legislation apply exactly the same to the current Act.

[27] I do not accept the Crown assertion that a youth's perception of time changes so dramatically between the ages of 12 and 18 that there is a sliding scale to the institutional guidelines diminishing to zero just prior to the youth's eighteenth birthday.

[28] Sadly, in my view, an individual's perception of time continues to change with each passing year with the perceived speed of time increasing to the extent that by late middle age months seem to pass as quickly as weeks used to a couple of decades earlier. The administrative guidelines for adults do not increase with the Defendant's age as a result.

[29] Rather, the benefit of the Act's Principles ceases upon the Youth attaining the Age of Majority for offences occurring after that birthday. Prior to that occurrence, the shorter administrative guideline is consistent with the all the benefits of the Act emphasizing different sentencing principles which are more effective when applied in a timely fashion when a conviction occurs and to ensure a Youth who is found not guilty have the benefit of that certainty in the time frame set out in the Act. Similarly, the protections in the Act as to admissibility of statements continues unabated up until the youth's 18th birthday.

[30] As such, I will assess this case within the context of the administrative guidelines of five to six months after the neutral period as one factor I must consider.

[11] Neutral Period and Disclosure Issues

[31] Defence asserts the neutral intake time ends on the May 14th court date while the Crown views the intake to continue until the trial dates were set to which they add 14 days intuitional delay. Essentially the different assessments of delay causation arise from two issues: the nature of the disclosure requests and the unavailability of defence counsel on the one prior judicial pre-trial date offered.

[32] There is a tension between ensuring sufficient disclosure to both be able to assess the strength of the Crown's case and to enable counsel to analyze an accurate estimate of trial time. However, once sufficient disclosure has been provided to enable a trial date to be set, any subsequent delays requested by the Defendant is clearly either neutral or Defence delay.

[33] In my view, there is a parallel obligation on the Crown to provide Youth disclosure more quickly than for adults, and for Defence to review and submit additional disclosure requests more quickly just as there is an obligation on society to provide institutional resources to set trial dates which are more time sensitive than are provided to adults. In my view, the YCJA imposes an obligation on all the justice system participants to ensure "timely intervention" and emphasize "promptness and speed" as required in the s. 3 Principles of the Act.

[12] Disclosure Delays: Breath Videos and McNeil Reports

[34] The disclosure delay issues are essentially two-fold; the breath videos and the "McNeil Reports"

[35] I fully agree with the Defendant's Factum at paragraph 50 that there is surely no reason why, especially when disclosure in this region is digital, that it cannot include at the first appearance the relevant videos in the police possession and fully available at the time the Defendant was released and the Crown brief prepared. In my view there is no need for a separate request by the Defendant for such video material. Unnecessary delay flows from the need for such a request.

[36] I can certainly understand the need for a separate request for the McNeil Reports and for a Crown to review the material prior to being released. However, the expectation of such disclosure requests can hardly been considered novel anymore given the decision dates back to 2009. I am confused by the record on this application that the Crown apparently was unsure if such records even existed. The Crown should be able to confirm the existence of such records, obtain and review and take a position on whether to disclose within the several weeks of an average adjournment.

[13] Judicial Pre-Trial Process

[37] I am aware that there is some dissension as to whether outstanding disclosure issues are appropriate for judicial pre-trials or better adjudicated in a Stinchcombe application. In my view it is a more efficient use of judicial resources to tackle the issue as part of a judicial pre-trial.

[38] Such a pre-trial could have been set earlier rather than just adjourning the matter for further enquiry. In my view, there was an obligation on both Crown and Defence to move the matter forward to a pre-trial if there was disagreement as to the status of disclosure.

[39] At the same time, I would not assess the Defence being unavailable for one earlier offered date as a Defence delay as counsel should not be required to keep their calendars open. I would, however, also note that it was the presiding judge who suggested taking the pre-trial out of the normal youth schedule and adding to an adult pre-trial date in order to move the matter forward.

[40] Indeed, an earlier review of disclosure by the defence would have resulted in an earlier request which would have solidified each party's positions earlier and an earlier utilization of the pre-trial process to resolve outstanding disclosure issues.

[14] Categorization of Delay

[41] Neither Crown nor Defence handled the disclosure delay in a manner consistent with the Principles of the Act. However, to merely assess the entire time as neutral on the basis that neither party was ready to proceed to trial would essentially encourage the continued practice of not providing video disclosure as part of the electronic disclosure package and take disclosure positions within a timeframe consistent with the Act's Principles. Additionally, while there is conflicting Court of Appeal directions on how to categorize judicial pre-trials, even assuming it is inherent delay, where the setting of a pre-trial is delayed by disclosure issues the delay should be assessed in that context.

[42] As such I would assess half the time from May 15th until August 27th as Crown delay. The eight days from the pre-trial until the trial date was set was either a defence request or a mutual request in order to continue discussions with the Crown and to obtain client instructions.

[43] Defence clearly confirmed on the record that they would be available and prepared for trial from October 2nd onwards. The impressive preparation together with ensuring this application was brought prior to the trial date in my view is at least corroborative of that assertion and I accept it. October 2nd through to the trial date of the following April 17th and 19th is clearly institutional delay.

[44] As such I calculate Institutional and Crown delay totalling seven months and three weeks. A rough comparison given the different guidelines for adults would be an Institutional delay of approximately 12 months.

[45] I do remind myself that administrative guidelines are only guidelines and not deadlines.

[15] Prejudice Analysis

[46] With respect to the Defendant's prejudice, there is clearly an inferred prejudice arising from the delay itself. However, in testifying as to specific prejudice, the Defendant was inarticulate to almost incomprehensibility on the issues of prejudice.

[47] There was a clear deterioration in the youth's relationship with his parents as a result of being arrested which further deteriorated during the time he has awaited trial. Sadly, the Defendant had already embarked on damaging that relationship prior to these charges which diminishes the prejudicial impact of this delay.

[48] The Defendant did not finish High School nor followed through trying to improve himself. Not being able to drive was as much a conscious decision not to pay the driving licence reinstatement fee as part of the continuing prejudice from delay.

[49] While I accept that much of the Defendant's inability to mitigate ongoing specific prejudice may be a result of lacking continued unified family support and the immaturity of many youths readily apparent in observing the Defendant testify, there is not the evidentiary foundation to assess much more than modest specific prejudice. I am not prepared to assume that specific prejudice takes the place of inferred prejudice, especially when assessing a youth who may not even have the insight necessary to articulate the impact of specific prejudice in their lives to provide the necessary evidentiary foundation.

[16] Community Interest and Balancing

[50] Clearly, the community has a strong interest in the adjudication on its merits for any criminal matter and especially so with respect to impaired driving. That same community also has an equal obligation to ensure sufficient judicial resources to ensure such criminal trials, and especially youth criminal trials, are heard within a reasonable period of time, consistent with the guidelines.

[17] Conclusion

[51] However, when balancing the comparatively short period of time which exceeded the guidelines, the societal interest in adjudicating on the merits together with both the inferred prejudice and the modest prejudice actually adduced, I am not persuaded that in these circumstances there has been a breach of the youth's 11(b) rights.

Released: March 14, 2013

Signed: Justice G. R. Wakefield