Focus On

CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Procedural rights - Trial within a reasonable time

Friday, March 20, 2020 @ 2:07 PM  


Lexis Advance® Quicklaw®
Appeal by KGK from a judgment of the Manitoba Court of Appeal refusing his appeal of a judgment that dismissed his motion for a stay of proceedings based on violation of his rights under s. 11(d) of the Canadian Charter of Rights and Freedoms (Charter) to be tried within a reasonable time. KGK was charged in April 2013 with sexual offences against his minor stepdaughter. His trial concluded on Jan. 21, 2016, and the trial judge reserved judgment. Following inquiries by both parties about the status of the case, they were informed on Sept. 30, 2016, that the trial judge would render his decision on Oct. 25, 2016. On Oct. 24, 2016, KGK filed a motion seeking to stay the proceedings on the basis that the delay between the date the charges were laid and the date the verdict was to be rendered — approximately 42 months — was unreasonable and infringed his s. 11(b) rights. Despite receiving that motion, the trial judge rendered his decision as planned, convicting KGK of one count each of sexual interference, invitation to sexual touching and sexual assault. The trial judge then recused himself from the case and KGK’s motion was heard by a new judge, who dismissed the motion on the basis that including verdict deliberation time in the ceilings established under the R. v. Jordan framework would not strike an appropriate balance between the constitutional imperatives of s. 11(b) of the Charter and judicial independence. The motion judge concluded that verdict deliberation time would only be unreasonable within the meaning of s. 11(b) where, in the overall context of a case, the time taken was “shocking, inordinate and unconscionable”. In KGK’s case, although the deliberation time was longer than desirable it did not result in a breach of KGK’s s. 11(b) rights. A majority of the Court of Appeal upheld that decision.

HELD: Appeal dismissed. Section 11(b) of the Charter reflected and reinforced the notion that “[t]imely justice is one of the hallmarks of a free and democratic society”. The parties agreed that the right to be tried within a reasonable time enshrined in s. 11(b) of the Charter encompassed verdict deliberation time. However, the presumptive ceilings established in Jordan were not intended to cover the entire period of time to which s. 11(b) applied and did not include deliberation time. The Jordan ceilings were not designed to exhaust the s. 11(b) analysis and cover all sources of delay. Rather, the ceilings represented a specific solution designed to address a specific problem: the culture of complacency towards excessive delay associated with “bringing those charged with criminal offences to trial”. There was no suggestion that delay arising from verdict deliberation time contributed to the systemic problem that Jordan sought to address. The decision called upon the courts to change “courtroom culture” by implementing more efficient trial procedures. Jordan was squarely focused on delay in bringing accused persons to trial and that was the scope of its application. When assessing whether an accused person’s right to be tried within a reasonable time was infringed by delay in verdict deliberation time, the question was whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances. This test should be approached in light of the presumption of judicial integrity, which acknowledged that judges were bound by their judicial oaths and would carry out the duties they had sworn to uphold. A trial judge should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations, as well as the practical constraints that judges faced. The burden lay on the accused to rebut this presumption. Trial fairness took on a different character after the trial ended and the case was left in the hands of the trier of fact. Prior to the end of evidence and argument, time was the enemy of trial fairness. By contrast, once the evidence was preserved in the record, necessary verdict deliberation time worked to ensure fairness.This was so because verdict deliberation time reflected the time a trial judge considered reasonably necessary to carefully assess the evidence, research points of law, and write reasons, which helped to ensure fair and accurate decision making. Reasonable verdict deliberation time also had to account for the practical constraints that trial judges faced, both individually and institutionally. Very often, a balancing of the foregoing considerations resulted in a verdict being rendered within the six‑month guideline set by the Canadian Judicial Council. However, this six‑month guideline was not a determinative measure of constitutionality. Simply showing that this guideline had been exceeded would not, in itself, establish a breach of s. 11(b). Only where the trial judge’s verdict deliberation time was found to have taken markedly longer than it reasonably should have would this presumption be displaced. Factors a court could consider in assessing the reasonableness of deliberation time included how close to the relevant Jordan ceiling the case was before the trial judge reserved judgment; the complexity of the case; any information concerning the judge’s workload or institutional constraints affecting courts in the local jurisdiction; and the length of time taken for deliberations in other cases of a similar nature in similar circumstances. The nine months taken for deliberations in KGK’s case came perilously close to a markedly longer delay than should reasonably have been required to render a verdict. Had this case been heard entirely post-Jordan, the s. 11(b) issue might have been decided differently. However, the trial judge’s verdict deliberation time occurred before the release of Jordan. Until Jordan was released, the parties in this matter appeared to have conducted themselves in a complacent manner. Had Jordan been available to the trial judge when he took KGK’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. The impossibility of taking this consideration into account pre‑Jordan should not be held against him.

R. v. K.G.K., [2020] S.C.J. No. 7, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., March 20, 2020. Digest No. TLD-March162020011-SCC