R. v. KJM : Balancing Public Policy and Charter Rights
Updated: 16 hours ago
Author: L Young
Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees every Canadian the right to be tried in a reasonable time. In 2016, this so-called “reasonable time” was given an 18 to 30 month ceiling in R v. Jordan , a case in which section 11(b) was invoked. Any trial expected to exceed the ceiling established in Jordan could therefore be considered unreasonable and, in turn, a violation of section 11(b). Such cases could be granted a “stay of proceedings” by the court, in which the trial is ended.[1]
Should the Jordan ceiling be lowered or modified when it comes to young offenders? Such a question was answered by the Supreme Court of Canada in R. v. K.J.M. The accused (referred to as “KJM”) had applied for a stay of proceedings for his aggravated assault and weapons charges on the basis that delays would cause the trial to exceed the 18 month ceiling established in Jordan . KJM argued that this would constitute a violation of his s.11(b) rights. The trial judge however, denied the application on the basis that the rules were unclear regarding the granting of a stay for young offenders. The stay was also denied by the Court of Appeals. The SCC affirmed the lower court’s decisions. In writing for the majority, Moldaver JJ confirmed that while there is an increased need for a trial in reasonable time for young offenders, issues of public policy regarding the uniformity of the Jordan ceiling prevented them from altering it in such cases.
Where do we draw the line between sound public policy and principles of fairness with respect to section 11(b) of the Charter? The Supreme Court notes that there is in fact an enhanced need for timeliness in youth cases, citing the connection between actions and consequences, reduction of psychological impact, memory preservation, potential unfairness, and societal interests as reasons for a court to be especially prompt in their judgements of such cases.
In KJM , the Supreme Court ruled that the Jordan ceiling should not be lowered for youth cases as it would “undermine the uniformity” previously established in Jordan . They stated that if the ceiling is lowered for young persons on the basis that youth are disproportionately affected by lengthy proceedings relative to adult offenders, then there would be arguments to lower the ceiling for persons in any other category which is similarly affected. While the dissent (written by Abella and Brown JJ.) rejected the belief that establishing a lower ceiling for youth could lead to multiple other ceilings, they failed to state whether or not a multiplicity of ceilings would be a victory in upholding the s.11(b) rights of the various other demographics that are prejudiced by lengthy proceedings.[2]
The debate in KJM illustrates the difficulty for the Canadian justice system of balancing the Charter rights of Canadians with broader societal interests such as the aforementioned uniformity of the law. Statistics show a disproportionate amount of racialized and indigenous people being held in pre-trial custody, as well as those with poor mental health or addictions. [3]
Based on the different experiences of these demographics relative to the general population it can be logical to infer that they face different prejudices associated with lengthy trials as well. R v. KJM failed to establish that a reasonable length of a trial can be different for youth and adults. In doing this, it also failed to recognize that the so-called reasonable length of a trial, much like the oft-mentioned “reasonable person”, is entirely dependent on the person invoking it. What confuses me about KJM is that the majority identifies and affirms the many prejudices faced by “Killing Dead Time: Myers, Jordan , and New Responses to Pre-Trial Detention and Delay”young offenders awaiting trial, yet refuses to apply this fact in their ruling. In my view (and that of the dissent), these prejudices provide a solid justification for establishing an alternative Jordan ceiling for youth. If what results from that is a multiplicity of ceilings, I would argue that these may also be justified using the logic of the majority and dissent.
Presumably then, a person with a mental illness awaiting trial would face different prejudices from lengthy proceedings than a person without. The same may be said about ethnic minorities and Indigenous peoples. In facing different prejudices relative to the general population, the so-called “reasonable” length of time for a trial differs for each demographic. The majority had already affirmed this. I disagree with the decision in R v. KJM for this reason. Is uniformity truly the be-all and end-all of the legal system, especially considering the underlying presence of the Charter? The decision in R v. KJM speaks to a need for substantial reform of the criminal justice system, whether that happen through legislation or judicial review.
What then, is the law to do when it comes to balancing an individual’s section 11(b) rights with a justice system that is meant to be fair and uniform to all of society? Some experts such as Christopher Sherrin suggest that a complete stay of proceedings in these cases is too extreme, and offers more fair trials, greater pretrial liberty, and improved security of the individual as potential remedies. [4]
Former Chief Justice Lamer sought to establish stronger section 11(b) rights and suggested looking to the time when “the impact of the criminal process was felt by the accused”, an impact which would absolutely differ based on the prejudices faced by various demographics. [5] Such changes could be beneficial to our justice system and result in a society which values rehabilitation over punishment. In the case of KJM , I agree with the dissent, and believe that offenders charged under the Youth Criminal Justice Act should have a modified threshold for timeliness pursuant to section 11(b) of the Charter. I also believe that creating a multiplicity of modified ceilings would not be a bad thing as the majority in KJM seems to suggest. Perhaps it is time for the Canadian justice system to shift its focus towards the different impacts and experiences felt by the many individuals existing within its grasp.
Endnotes:
[1] R v. KJM , 2019 SCC 55 [ KJM ].
[2] Ibid.
[3] Palma Paciocco, (2019) 53 C.R. (7th) 34 (Westlaw).
[4] Christopher Sherrin, “Reconsidering the Charter Remedy for Unreasonable Delay in Criminal Cases” (2016) 20 Can. Crim. L. Rev. 263 (Westlaw).
[5] Don Stuart,“Chief Justice Antonio Lamer: An Extraordinary Record of Reform of the Canadian Criminal Justice System” (2000) 5 Can. Crim. L. Rev. 51 (Westlaw).
Sources:
Christopher Sherrin, “Reconsidering the Charter Remedy for Unreasonable Delay in Criminal Cases” (2016) 20 Can. Crim. L. Rev. 263 (Westlaw).
Don Stuart, “Chief Justice Antonio Lamer: An Extraordinary Record of Reform of the Canadian Criminal Justice System” (2000) 5 Can. Crim. L. Rev. 51 (Westlaw).
Palma Paciocco, “Killing Dead Time: Myers, Jordan , and New Responses to Pre-Trial Detention and Delay” (2019) 53 C.R. (7th) 34 (Westlaw).
R v. KJM , 2019 SCC 55 [ KJM ].
