Implications of new SCC decision on access to justice for young Canadians
Prior to R v TJM (2021 SCC 6), it was unclear who had the jurisdiction to grant bail when the accused was a young person. This lack of clarity had the potential to produce prolonged, confusing proceedings, contrary to the goals of the Canadian youth criminal justice system.
The Youth Criminal Justice Act, (YCJA), which governs youth criminal justice in Canada, aims to render these criminal proceedings less formal and more efficient than their adult counterparts. As Justice Moldaver noted in R v KJM (2019 SCC 55), the right to be tried within a reasonable amount of time has particular significance for young accused persons. For instance, youth have a different conception of time compared to that of adults. Therefore, timely criminal proceedings can be key to reinforcing the connection between a young person’s actions and their consequences, and ultimately promoting the YCJA’s goals of rehabilitation and reintegration.
Likewise, since the time awaiting trial occupies a larger proportion of a young person’s life than that of an adult, the psychological impact of a delay can be much more significant for a young accused person. TJM presented an opportunity to mitigate these issues by clarifying how a young person may seek release on bail.
TJM was a young person charged with second-degree murder. Under section 14 of the YCJA, youth justice courts have jurisdiction over any offence allegedly committed by a young person. Generally, a youth justice court refers to a special type of provincial court, presided over by a youth justice court judge. In some cases, the province’s superior court is deemed a youth criminal justice court. For instance, if a young person is charged with second-degree murder, like TJM, they may choose to be tried by a superior court judge. In that case, the judge is deemed to be a youth justice court judge and the court is deemed to be a youth justice court.
TJM elected to be tried by a superior court judge and sought release on bail before trial. However, section 33(8) of the YCJA provided that if a young person is charged with an offence listed in section 469 of the Criminal Code (including second-degree murder), only a youth justice court judge may release them from custody. Although under section 13(2) of the YCJA the provincial court judge was deemed to be a youth justice court judge “for the purpose of the proceeding,” it was unclear whether a “proceeding” also encompassed pre-trial decisions or just the trial itself.
The superior court judge in TJM interpreted s 13(2) to mean that only the province’s designated youth justice court had the power to grant TJM bail. TJM’s lawyer appealed this decision and the case ultimately reached the Supreme Court of Canada (SCC). While the Crown had entered a stay of proceedings by this point, both parties to the case nonetheless agreed that the SCC could consider the bail issue.
In a unanimous decision, the SCC held that the youth justice court judge had jurisdiction to release TJM from custody prior to trial. Brown J reasoned that when the YCJA referred to a superior court judge having jurisdiction over TJM’s “proceeding,” the meaning of the word “proceeding” was not limited to the trial alone. Rather, it encompassed the bail hearing. Further, the SCC determined that s 33(8) afforded superior court judges and designated youth court judges concurrent jurisdiction to hear bail applications under the YCJA. When s 33(8) is read together with s 13 of the YCJA, the language “a youth justice court judge” in the former provision can refer either to a superior court judge who has been deemed a youth justice court judge, or to the judge of a designated youth justice court.
The decision in TJM is significant for several reasons. First, Brown J expressly left ambiguous as to whether an application for judicial interim release made after the trial has started must be brought before the trial judge, or whether concurrent jurisdiction also applies here. This issue may be taken up in future youth criminal justice cases.
Second, in light of COVID-19-related criminal trial delays, this decision’s emphasis on the importance of access to justice and efficiency in the youth criminal justice system is remarkably timely. Professionals practicing in this area have noted that a lack of face-to-face services places vulnerable young people at a disadvantage, and pandemic-related delays risk jeopardizing rehabilitation efforts aimed at young offenders. Indeed, TJM’s own case had been making its way through the court system since at least fall 2019, when TJM’s initial bail application was dismissed.
Lastly, this case has especially important implications for young people from rural areas and Indigenous communities. There, as Brown J notes in TJM, provincially designated youth justice courts tend to be more accessible than superior courts. As a result, their concurrent jurisdiction over bail hearings can promote timely criminal proceedings for youth in these areas. Indigenous youth remain overrepresented in Canada’s criminal justice system, and, on average, spend more time in pre-trial detention than their non-Indigenous counterparts. Thus, it is significant that this case appears to take their specific circumstances and concerns into account.
TJM is not only about a single bail hearing. It engages the fundamental values underlying Canada’s youth criminal justice system. As Canada continues to grapple with the particular challenges associated with prosecuting young accused persons, the impact of TJM will likely resonate in courtrooms across the country.
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