Ceilings set in Jordan don’t apply to verdict deliberation time, SCC rules

Jordan ceilings apply from date of charge until actual or anticipated end of evidence and argument

Ceilings set in Jordan don’t apply to verdict deliberation time, SCC rules
New test places onus on accused person to rebut presumption of judicial integrity, says Kathy Bueti.

The right to be tried within a reasonable time guaranteed by the Charter applies to a judge’s verdict deliberation time, but that deliberation time is not included in the presumptive ceilings set in the Jordan decision, the Supreme Court of Canada ruled today.

In R. v. K.G.K., the Supreme Court found that “Properly construed, the Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument. That is when the parties’ involvement in the merits of the trial is complete, and the case is turned over to the trier of fact,” Justice Michael Moldaver wrote for the majority.

In the case at hand, the court was asked to decide if s. 11(b) of the Charter, which guarantees the right to be tried within a reasonable time, applies to verdict deliberation time, and if it does count, is that time included in presumptive ceilings established under Jordan? In Jordan, the Court wrote that the presumptive ceiling applies “from the charge to the end of the trial,” without defining “end of trial.”

Today, the court decided that the right to be tried within a reasonable time extends beyond evidence and argument, and encompasses verdict deliberation time; however, the court found, the presumptive ceilings established in Jordan were not intended to cover the entire period of time to which s. 11(b) applied and do not include deliberation time.

 If the accused charges that the deliberation time is unreasonable, the test should be whether the deliberation time was “markedly longer than the deliberations reasonably should have taken in all of the circumstances,” Justice Moldaver wrote for the court.

Kathy Bueti of Bueti Wasyliw Wiebe in Winnipeg, and counsel for the appellant, hoped that today’s decision would have provided more guidance on what “markedly longer” deliberations meant.

“There are factors for us to consider; but … the Canadian Judicial Council has a guideline of six months,” in general, for judges to render decisions after hearing a case; “we would have really liked to have something … carved out, saying, ‘once you're passed this point, it becomes ‘markedly longer.’ But that wasn’t done.”

K.G.K. was charged in April 2013 with sexual offences against his stepdaughter, a minor at the time. Four days after being charged, K.G.K appeared in provincial court in Winnipeg, and was released immediately on an interim basis. Counsel for Crown and the defence had no significant discussions until August, and  dates for a preliminary inquiry were not set until September. The Crown was considering other complaints, which meant the trial was delayed; it eventually took place and was concluded in January 2016, six months before the Supreme Court rendered its decision in Jordan.

The trial judge rendered his decision on October 25, 2016, and K.G.K was convicted of several sexual offences. The day before the verdict was rendered, K.G.K filed a motion to stay proceedings on the basis of unreasonable delays between when the charges were laid and the verdict was rendered; by then, 42 months had elapsed. The motion for a stay of proceedings was dismissed by a Queen’s Bench judge, who decided that the verdict deliberation time would only be unreasonable if, in the overall context of the case, the time taken to deliberate was “shocking, inordinate and unconscionable” under s. 11(b) of the Charter. Here, the time taken by the trial judge was longer than desirable, but the deliberation delay was not unreasonable under the circumstances, the motion judge found. A majority of the Court of Appeal upheld that decision, and K.G.K. was sentenced to five years in custody in June 2017.

Justice Moldaver’s reasons outlined a number of factors to consider in making an objective assessment of what constitutes an unreasonable amount of time for deliberation. Factors include whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances; and, even if the Jordan ceiling does not encompass that verdict deliberation time, how close to the relevant Jordan ceiling did the case get before the trial judge reserved judgement?

Another factor to consider is the complexity of the case; here, communications between the Crown and Manitoba’s associate chief justice were considered relevant.

Justice Moldaver also noted it would be helpful to compare the length of time taken with the time that a case of a similar nature in similar circumstances would typically take to be decided.

In today’s judgment the Supreme Court has also, for the first time, established a test that places “an onus on an accused person to determine and try to rebut the presumption [of judicial integrity] as to why the verdict deliberation was markedly longer than it reasonably should have,” Bueti says. “That was never anything that had to be done by an accused in the past.”

Justice Rosalie Abella parted with the majority here. In separate reasons that concurred in the result, she wrote, “there is no basis for requiring an accused to rebut the presumption of judicial integrity to show deliberative delay to be unreasonable. The objective and contextual factors laid out by the majority for determining whether the deliberation time took markedly longer that it reasonably should have do not require assessing the judge’s integrity. The ‘markedly longer’ standard already creates a high threshold. Adding an additional, conceptually irrelevant burden on the accused of demonstrating that the trial judge acted without integrity elevates the burden to an impossible threshold.”

This case was a so-called “transitional” case, started before the Jordan decision was released in July 2016, and concluded afterwards. “This context matters,” Justice Moldaver wrote in his reasons. “[H]ad Jordan been available to the trial judge when he took K.G.K.’s case under reserve, the case’s proximity to the ceiling would no doubt have been a factor that he would have considered in assessing how much time he reasonably needed to render his verdict.”

Because the case was mostly being considered and tried in the pre-Jordan era, the court “didn't find a breach [of the accused’s Charter rights], but they've left the door open,” says Bueti, “saying if this were to happen now, in a Jordan case, they might make a very different ruling.

“So this issue will continue to be litigated, but we'll get further clarity: either judges are going to follow the guidelines in Jordan in this case and do things in a timely fashion, and if they don't, we can see them suffering repercussions for sure.”

Today’s decision “provides important guidance in the area of unreasonable delay, to ensure that all parties work toward timely, efficient and fair trials,” says Renée Lagimodière of Manitoba Justice in Winnipeg, who acted for the respondent Crown in the case.

“It’s a reminder that every party in the justice system, whether it’s Crown attorneys, defence lawyers or judges, have a role in ensuring that trials proceed in a reasonable time, and that we continue to combat that culture of complacency that the court spoke about in Jordan,” Lagimodière told Canadian Lawyer.

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