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Unreasonable Delay for Young Offenders

The Jordan case is getting a lot of media attention. Charges are being stayed across Canada, including serious charges like murder. The Jordan presumptive ceiling for provincial court matters is 18 months. Before Jordan, courts assessed delay based on loose Morin guidelines and determined whether the presence or absence of prejudice caused by the delay (among other factors) meant that the delay was reasonable or unreasonable. Although the Morin guidelines applied to youth cases, prejudice was more significant to youths than adults so stays were ordered in cases with less delay than adult stay cases.

Under the Jordan regime, prejudice is a factor in determining the presumptive ceiling. Jordan was an adult case so there was no reason to consider what the appropriate ceiling would be for youth cases. In R. v. J.M., [2017] O.J. No. 256, Justice Paciocco tackled the issue of the presumptive ceiling for youth delay and concluded that it necessarily has to be lower than the adult ceiling. The principle that less delay is tolerable for youths was well-supported in the law before Jordan was decided. The Ontario Court of Appeal pointed out that young persons have a less developed ability to appreciate the connection between behaviour and its consequences than adults, that the effect of time may be distorted for young persons and that any treatment that would assist in rehabilitation should commence as soon as possible.

Justice Paciocco also noted s. 3(1)(b) of the Youth Criminal Justice Act codifies that case law. For various reasons, Justice Paciocco held that a ceiling of 12 months was attractive as a one third reduction on the adult presumptive ceiling but ultimately held that he had insufficient evidence on the issue of whether 12 months as a ceiling would sacrifice procedural fairness for speed. It is open on Justice Paciocco's reasons to make a persuasive argument, based on evidence, that procedural fairness would not be sacrificed for speed if a 12 month presumptive ceiling was imposed on youth cases.

The presumptive ceiling for youth cases has not been settled but it is lower than for adult cases and the issue awaits appellate review.

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