In R. v. Jordan,1 the Supreme Court sought to bring certainty and efficiency to the Canadian justice system by establishing a “presumptive ceiling” for bringing charges to trial beyond which any delay is considered a prima facie breach of the accused’s rights2 under s. 11(b) of the Canadian Charter of Rights and Freedoms.3 While the Supreme Court’s attempt to clarify this convoluted area of law was commendable, the limits of the Jordan framework continue to be tested in courts across Canada.
Most recently, the Alberta Court of Appeal faced a novel challenge to the Jordan framework in the case of R. v. K.J.M.4 In KJM, a young offender faced a eighteen-and-a-half-month delay5 between his arrest and eventual trial, which was held at trial to be a reasonable period of delay.6 One of the key questions raised on appeal was as follows: Does the Jordan framework for delay apply equally to young offenders and adult offenders? Specifically, the court considered whether the emphasis within the Youth Criminal Justice Act7 on “timely intervention”8 as well as “promptness and speed”9 means that the presumptive ceiling should be lowered for young offenders. While the Court of Appeal ultimately dismissed the accused’s appeal, all three judges came to very different conclusions regarding the applicability of Jordan. This comment summarizes these three judgments and discusses the important issues they raise about the youth criminal justice system. Considering these disparate judgments, and the fact that the Supreme Court’s recently granted leave to hear the accused’s appeal,10 the question of Jordan’s applicability is far from settled law.
II. THE JUDGMENTS OF THE COURT
Justice Wakeling’s decision in KJM represents the most formulaic approach to delay of the three judgments. It largely consists of a mechanistic assessment of the provincial courts’ enabling legislation, eschewing completely a discussion of the relevant principles under the YCJA.11 Essentially, Wakeling J. holds that because Jordan applies to all hearings in provincial court, and because under the Provincial Court Act,12 the definition of “provincial court” includes youth justice courts (where young persons who have contravened Criminal Code provisions are tried), it necessarily follows that Jordan must apply to young offenders.13
In her dissenting judgment, Justice Veldhuis takes a different approach, focusing instead on the principles enshrined in s. 3 of the YCJA as a guide to her analysis. These principles establish inter alia that “the criminal justice system for young persons must be separate from that of adults,”14 and provide a number of procedural protections designed to expedite the trial process.15
For Veldhuis J., these procedural protections must be read broadly, because young people face “a heightened degree of prejudice from long pre-trial delays,” a proposition that is supported by a number of pre-Jordan cases.16 Considering that young people experience “enhanced prejudicial effects” from delay,17 Veldhuis J. argues that any presumptive ceiling that applies equally to both adult and young offenders would violate young persons’ s. 11(b) rights by effectively punishing young offenders more harshly than adult offenders.18 Veldhuis J. therefore suggests a reduced presumptive ceiling of fifteen months for young offenders.19
Surprisingly, the approach adopted in Justice O’Ferrall’s concurring judgment represents an even more drastic departure from the Jordan framework. While O’Ferrall J. also adopts a principle-based approach, he comes to exactly the opposite conclusion of Veldhuis J.20 Specifically, O’Ferrall J. rejects the proposition of either a fifteen or eighteenth-month ceiling, instead suggesting that it would be inappropriate for a court to enforce any presumptive ceilings in cases involving young offenders.21 In particular, O’Ferrall J. suggests that the “inflexible” and “arbitrary” nature of presumptive ceilings render them inappropriate in the context of youth prosecutions.22 Central to this assessment is the important role that rehabilitation and reintegration play in the youth justice system, specifically with regards to prosecutorial discretion to use diversionary extrajudicial measures. As O’Ferrall J. points out, “an unsuccessful attempt at rehabilitation and reintegration of a young person could cause the trial of charges to be delayed beyond any presumptive limit a court might be inclined to impose.”23 If indeed presumptive ceilings for youth were upheld, it may have the knock-on effect of dissuading prosecutors from using diversionary measures. Because of this, O’Ferrall J. concludes, “the Supreme Court’s decision in Jordan could not have been intended to apply in youth court.”24
III. ISSUES RAISED BY THE DECISION
In addition to deciding the central question of whether Jordan applies to youth offenders, the Supreme Court will likely be required to clarify a number of underlying issues in its eventual decision because of the very divergent approaches taken by the Court of Appeal justices. Two of these issues seem particularly pressing.
One of the major points of contention between the judgments is whether it is up to Parliament or the courts to create a new presumptive ceiling for young offenders.25 Wakeling J. suggests that it is Parliament, not the courts, who are best positioned to decide this matter because of Parliament’s inherent “institutional ability” to hear evidence on the matter.26 Veldhuis J., in contrast, notes that not only did the Supreme Court explicitly state in Jordan that members of the justice system “have a role to play in changing courtroom culture and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time,”27 but also that the decision “expressly left open the possibility of revisiting the ceilings.”28
Wakeling J.’s interpretation in particular is questionable for a number of reasons. For one, it must be remembered that it was a court, and not Parliament, who initially established the eighteen-month ceiling in Jordan. Second, while Parliament is undeniably better positioned to hear evidence regarding whether a particular policy is preferable, the judgments of Veldhuis J. and O’Ferrall J. make it clear that the present dispute is primarily concerned with interpreting the legal principles found in the YCJA, and deciding whether these principles preclude the possibility of a presumptive ceiling. Surely principled legal interpretation of this kind must fall within the jurisdiction of courts of law. With this in mind, it seems unlikely that the Supreme Court would fetter their ability to interpret legislation in this manner by upholding Wakeling J.’s interpretation.
More importantly, however, the Supreme Court will likely be required to elaborate on just how separate the youth criminal justice system is from that of adults. The judgments in KJM suggest two possible approaches to interpreting the separate nature of the youth system. On one hand, if the court accepts Wakeling J.’s functional approach, the separation between “youth court” and “adult court” becomes mostly superficial, confined to a few narrow procedural entitlements outlined in s. 3 of the YCJA, while the basic structure between the two systems remains the same. If, on the other hand, the Court adopts the more expansive, principled approach supported by both Veldhuis J. and O’Ferrall J., it could open the door to a series of challenges of long-accepted practices within the youth criminal justice system. If Jordan does not apply to young offenders because they belong to a “separate system,” could not the same be true of the extensive case law on bail, arrests, or search and seizure?
With this in mind, the upcoming decision from the Supreme Court has the potential to either clarify or further complicate the ever-changing law of delay.
* JD Candidate 2020.
1 2016 SCC 27,  1 SCR 631[Jordan].
2 Ibid at para 49.
3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),1982, c 11 [Charter].
4 2018 ABCA 278,  10 WWR 415 [KJM].
5 There was disagreement between the Court of Appeal justices about whether one month of the delay was attributable to an exceptional circumstance beyond the control of the Crown. Justice Wakeling held that the delay was actually seventeen-and-a-half months on this basis (ibid at paras 37, 39), but this was rejected by Justice Veldhuis in her dissent (ibid at para 125). In his concurring judgment, Justice O’Ferrall appears to side with Veldhuis J.’s calculation of the delay length (ibid at para 69).
6 Ibid at para 78.
7 SC 2002, c 1 [YCJA].
8 Ibid, s 3(1)(b)(iv).
9 Ibid, s 3(1)(b)(v).
10 K.J.M. v Her Majesty the Queen, 2019 CanLII 11817 (SCC).
11 Justice Wakeling does makes reference to the principles of “timely intervention” and “promptness and speed” under ss. 3(1)(b)(iii) and (iv) but devotes no time to discussing their application (KJM, supra note 4 at para 22).
12 RSA 2000, c P-31.
13 KJM, supra note 4 at paras 23, 29-32.
14 YCJA, supra note 6, s 3(1)(b).
15 Ibid, ss 3(1)(b)(iii)-(v).
16 KJM, supra note 4 at paras 104-107.
17 Ibid at para 107.
18 Ibid at para 113.
19 Ibid at paras 81, 116.
20 While the YCJA s. 3 principles also represent the focus of the dissent’s analysis, O’Ferrall J. is primarily concerned with the principles of accountability, rehabilitation, and reintegration, rather than timeliness and speed. As a result, O’Ferrall J. concludes that staying the charges against the accused “would do nothing to promote the [principles of] the Youth Criminal Justice Act” (ibid at para 65).
21 Ibid at para 71.
23 Ibid at para 76.
25 Ibid at para 96.
26 Ibid at para 62.
27 Ibid at para 96.
28 Ibid at para 97.