Supreme Court decision on presumptive ceiling could have impact on youth clients

A decision pending in the Supreme Court of Canada could have a significant impact on some of Legal Aid Alberta’s (LAA) youngest and most vulnerable clients.

On February 23, 2019, LAA lawyers Dane Bullerwell and Susan Haas appeared in the Supreme Court of Canada to intervene on behalf of LAA in the case of K.J.M. v Her Majesty the Queen.  The Supreme Court is poised to use this appeal to set an important precedent about how quickly the youth justice system should operate.

In its landmark decision of Jordan, released in 2016, the Supreme Court directed that cases handled in the Provincial Court must go to trial within 18 months of when charges are laid, subject to a few narrow exceptions.  

Before Jordan, trial judges had recognized that youth court matters should usually go to trial more quickly than adult court matters, because of the special vulnerability of young people. Attitudes and behaviors develop rapidly at a young age, which heightens the urgency to bring them to trial.

But since Jordan was released, lower courts have disagreed about whether the same “presumptive ceiling” of 18 months also applies to young people whose charges are handled under the Youth Criminal Justice Act. Some courts have suggested that the ceiling should be lower than 18 months, to account for the special ways young people perceive time and experience delay.

Judges of the Alberta Court of Appeal could not agree on the proper approach when they heard the K.J.M appeal last year. One judge suggested the ceiling should be reduced to 15 months. But two other judges disagreed. The Supreme Court will now need to resolve the disagreement.

 The issue is especially important to LAA, since its youth lawyers represent approximately half of all young people charged with criminal offense in Alberta. “Our role as an intervener was to present a different perspective than the other parties,” says Haas. ““Interveners assist the Supreme Court by developing novel arguments that can assist the Court in deciding a case. One of our goals was to provide the Supreme Court with some real-world examples about how the youth justice system operates. It is important to bring a perspective of practicing lawyers – and particularly practicing youth lawyers – to remind the court of what the world looks like from the front lines.”

The Youth Criminal Justice Act creates a unique, youth-only justice system for young people who face criminal charges. As a result, LAA argued that young people deserved special protections – and a special approach to the right to a trial within a reasonable time, guaranteed by section 11(b) of the Charter of Rights and Freedoms. . “Youth court is an easy place to make different rules, without risking the opening of floodgates, because it already is an entirely separate court system,” said Bullerwell.

If the Supreme Court agrees that youth should be treated differently than adults, Canadian provinces might need to direct more resources into youth court matters to ensure that prosecutions in youth court can wrap up more quickly than adult court files.

“A year for a young person is not the same as a year to you or me. Asking a young person to go back and remember specific details about a specific incident that happened so long ago –it’s asking a lot when their criminal jeopardy hinges on it,” said Haas.

LAA suggested that, under the new Jordan framework, youth require a somewhat-lower ceiling, to recognize their heightened vulnerability, their ongoing social and intellectual development, and their unique perception of time. LAA also suggested that lower ceiling would promote reintegration and rehabilitation, since it would ensure young people see a timely link between their actions and any consequences meted out by the justice system.

Legal Aid Alberta looks forward the Supreme Court’s decision, which is expected before the end of the year.

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