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Michael Moldaver

SCC sets new test, high bar on defence, for proving judges’ verdict deliberations were unduly delayed

Friday, March 20, 2020 @ 5:36 PM | By Cristin Schmitz


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In a groundbreaking decision which holds that undue delay by trial judges in rendering verdicts does not count toward Jordan’s 18-month and 30-month trial delay ceilings, the Supreme Court of Canada has set a high threshold for defence claims that a judge breached an accused’s s. 11(b) Charter right to trial within a reasonable time by taking too long to render a verdict.

On March 20, Justice Michael Moldaver held for a 9-0 court that the time a judge takes to deliberate and render a verdict is encompassed by s. 11(b) of the Charter since it is well-established that the speedy trial guarantee protects an accused from unreasonable delay up to, and including, the time of sentencing: R. v. K.G.K. 2020 SCC 7.

He went on to hold, again for a unanimous court, that “an accused’s right to be tried within a reasonable time under s. 11(b) will have been infringed where the verdict deliberation time “is found to have taken markedly longer than it reasonably should have in all of the circumstances.”

Justice Michael Moldaver

Justice Moldaver continued by stipulating that the burden on an accused to prove the s. 11(b) claim is “a heavy one” — due to the operation of the presumption of judicial integrity, which carries “considerable weight.” (On this point, Justice Rosalie Silberman Abella disagreed, in a lone concurrence.)

“This presumption presupposes that trial judges are best placed to balance the various considerations that inform verdict deliberation time, and that the verdict deliberation time taken by a judge in a particular case was no longer than reasonably necessary in the circumstances,” Justice Moldaver explained.

He then set out a non-exhaustive list of factors for counsel and judges to consider in applying the new test for what qualifies as unreasonable delay in verdict deliberation.

“In conducting this objective assessment, the reviewing court should consider all of the circumstances,” Justice Moldaver advised. “Some relevant considerations include: the length of the verdict deliberation time; how close to the relevant Jordan ceiling the case was before the trial judge reserved judgment; the complexity of the case; and anything on the record from the judge or the court. It may also 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.”

Justice Moldaver did not accept that the threshold to be met by the accused should be “shocking, inordinate and unconscionable” deliberative delay — a test applied below by the motion judge, and by one of the appellate judges, who erroneously thought that this very strict standard was mandated by R. v. Rahey [1987] 1 S.C.R. 588.

“While one can conclude from Rahey that a breach of s. 11(b) based on verdict deliberation time will be made out where the delay occasioned by it is found to be ‘shocking, inordinate and unconscionable’,” Justice Moldaver remarked, “it does not follow that these three features must necessarily exist in order to make out a s. 11(b) breach.”

On a key issue in the appeal, Justice Moldaver ruled that the time a judge spends deliberating before his or her verdict does not count toward the 18-month and 30-month presumptive ceilings for trial delay set for criminal trials respectively in provincial and superior court by R. v. Jordan 2016 SCC 27.

“The presumptive ceilings established in Jordan were not intended to cover the entire period of time to which s. 11(b) applies,” Justice Moldaver advised. “Properly construed, the Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument,” he explained. “They represent 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 is no suggestion in this case, nor was there any suggestion in Jordan, that delay arising from verdict deliberation time contributes to the systemic problem that Jordan sought to address.”

The top court unanimously dismissed the appeal of K, who was convicted in October 2016 in the Manitoba Court of Queen’s Bench of sexual offences against his stepdaughter. The proceedings crawled along. The time from when K was charged in April 2013 to when the trial judge reserved judgment on a verdict Jan. 21, 2016, was about 33 months. The appellant was found guilty nine months later on Oct. 25, 2016. The Manitoba courts below, with a dissent in the Court of Appeal, rejected the accused’s motion to stay the proceedings due to unconstitutional delay. Under Jordan, K’s case was considered “transitional” because Jordan was not released until July 2016 — more than two years after charges were laid against K and some three months before the accused was convicted — so most of the proceedings happened pre-Jordan.

The delay in the case was “perilously close to the line,” Justice Moldaver said. But taking all of the circumstances into account, he concluded that K “has not established that the verdict deliberation time taken by the trial judge was markedly longer than it reasonably should have been” — particularly given that the trial and a substantial portion of the trial judge’s verdict deliberation time occurred before the release of Jordan.

“This context matters,” Justice Moldaver elaborated. “Jordan was a call to action which no one in this case could have foreseen. Indeed, until Jordan was released, the parties appear to have conducted themselves in the complacent manner that defined the pre‑Jordan era. There is no hint that K.G.K. expressed any interest — let alone concern — about the pace of the proceedings, including the verdict deliberation time taken by the trial judge prior to the release of Jordan (some five and a half months after he reserved judgment). It is apparent that the release of Jordan caused an attitudinal shift among those involved in K.G.K.’s case: K.G.K. acknowledges that the release of Jordan triggered the filing of his delay motion; the Crown wrote to the [Manitoba Court of Queen’s Bench] associate chief justice to inquire about the status of the verdict; and a date was subsequently set for the rendering of the verdict. Notably in all of this, K.G.K. offers no sufficient explanation for why he waited until the day before the trial judge rendered his verdict, almost four months following the release of Jordan, to file the s. 11(b) application at issue.”

Justice Moldaver agreed as well with the conclusion of the Manitoba Court of Appeal majority below that the judge who dismissed the accused’s unreasonable delay motion did not err in finding that, once the judgment reserve time was subtracted from the total delay up to the verdict, the case constituted a transitional “exceptional circumstance” under Jordan.

Justice Rosalie Silberman Abella

In concurring with the appeal’s outcome, Justice Abella agreed with much of the majority’s reasoning, including the “markedly longer” standard.

However she argued that the defence should not have to additionally rebut the presumption of judicial integrity to show that the deliberative delay was unreasonable.

“The ‘markedly longer’ standard already creates a high threshold,” she pointed out. “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,” she warned. “The test for unreasonable deliberative delay would be more effective and fair, and more consistent with Jordan, if it assessed only the objective and contextual factors for the delay, without the added hurdle of having to rebut the presumption of judicial integrity.”

However Justice Moldaver disagreed with Justice Abella’s characterization and assessment of the majority judgment. “With respect, the reviewing court is not tasked, as my colleague suggests, with ‘assessing’, ‘inquir[ing] into’, or ‘making a declaration on’ the trial judge’s actual subjective state of mind,” he averred. “Rather, the test that I propose requires the reviewing court to engage in an objective determination — one that mirrors the reasonable observer test used in cases where the accused must directly rebut the presumption of integrity.”

Moreover, given that the trial judge’s nine months of deliberation to verdict came “perilously close” to undue delay, Justice Moldaver said he “would in all likelihood” have decided in favour of the defence motion, had the entire case been heard after the top court denounced the criminal justice system’s “culture of complacency” in Jordan. “As such, I must respectfully disagree with my colleague that the test I have proposed ‘raises the accused’s burden to a threshold that is both conceptually unhelpful and unreachable’ and ‘could have the unintended consequence of sheltering trial judges’ deliberative delay from [Charter] scrutiny’,” Justice Moldaver stated. “That is simply not so.”

Renée Lagimodière, senior Crown attorney with the appeal unit of the Manitoba Prosecution Services, who represented the respondent along with Michael Conner and Charles Murray, told The Lawyer’s Daily “the decision confirms that all parties in the justice system must work to ensure that an accused’s right under 11(b) of the Charter are not infringed.”

Kathy Bueti, Bueti Wasyliw Wiebe

“The case provides important guidance in the area so that all parties can work towards timely, efficient and fair trials,” she said. “Importantly, the court recognized the relevance of the presumption of judicial integrity.”

Kathy Bueti of Winnipeg’s Bueti Wasyliw Wiebe, co-counsel for the appellant with Amanda Sansregret, told The Lawyer’s Daily one takeaway for criminal lawyers is that “judicial integrity is paramount, and that the accused has an extremely high burden of rebutting the presumption to explain why, in the circumstances of a case, the verdict deliberations were markedly longer than they reasonably should have been.”

She noted, “we are not surprised that judicial decision-making time is not subject to Jordan timelines. But were hoping that clearer guidance would emerge from the decision.”

“There is now a test for verdict deliberation reasonableness,” Bueti remarked. But “there is no definition of what ‘markedly longer’ means, and it may have created an impossible burden for the accused to rebut.”

Bueti advised defence counsel to continue to litigate undue deliberative delay, especially in cases that arose post-Jordan, rather than transitional cases like K.G.K.

“We are pleased that the delay need not be ‘shocking, inordinate and unconscionable’ to attract 11(b) scrutiny,” she noted. “The fact that the court stated that the case comes ‘perilously close to the line’ makes it clear that this was in no way a frivolous appeal.”

Jill Presser, Presser Barristers

Jill Presser of Toronto’s Presser Barristers, co-counsel with Colleen McKeown for the intervener Criminal Lawyers’ Association of Ontario, said the top court importantly confirmed its earlier jurisprudence that the s. 11(b) guarantee of trial within a reasonable time applies from the time of charge through to, and including, sentencing.

In the wake of K.G.K., criminal defendants “can still, at least in law and theory,” argue that the trial judge’s deliberation time breached their right to be tried within a reasonable time, contrary to the Charter, Presser suggested. But “practically speaking, the effect of the majority’s decision may be, as Justice Abella recognized, that judicial deliberation time is exempt from Charter review.”

“In my view, the effect of the majority’s decision is that it will be very, very difficult, if not impossible, for accused persons to ever successfully argue that a trial judge has taken so much time to render a verdict that the 11(b) right has been violated,” Presser commented. “As Justice Abella recognizes ... an accused should not have to rebut the presumption of the integrity of the trial judge in order to meet their burden of showing that the deliberation time was unreasonable. Requiring an accused person to show that the trial judge did not act with integrity in taking as long as they took to render judgment, effectively means that the accused must meet a threshold that is unattainable.”

Presser queried, “how can an accused ever show that their trial judge acted in a way that was not consistent with the judge’s oath of office?”

She opined that the majority’s approach in this regard seems to run counter to the purpose of the s. 11(b) right, which the court explicitly recognized protects the right to a speedy trial from charge through to sentencing.

However, she advised defence counsel to continue bringing s. 11(b) applications in appropriate cases, under the rubrics specified by Justice Moldaver.

Presser also pointed out that the majority “helpfully suggests that defence counsel and the Crown work together proactively in cases where judicial deliberation time is getting lengthy, to indicate concern to the judge or the court (paras 74-76) and ask for a speedier release of judgment.”

Justice Moldaver noted that in determining whether there was unreasonable deliberative delay, in all the circumstances, the starting point is the length of the verdict deliberation time.

“While it is extremely unlikely that the length of time will suffice on its own, there may be instances in which the time taken is so manifestly excessive that it constitutes a per se breach of s. 11(b), irrespective of the circumstances,” he specified. “The reviewing court should also take into account how close to the relevant Jordan ceiling the case was before the trial judge reserved judgment. This is necessary to account for the fact that, even in the absence of a breach of the ceiling, the impact on an accused’s liberty and security interests continues to intensify as a case proceeds and approaches the end of evidence and argument. This cumulative impact does not vanish when a trial judge reserves judgment. And that is why trial judges should consider a case’s proximity to the Jordan ceilings in prioritizing their workloads.”

Justice Moldaver said the complexity of a case “will be an important consideration. Necessary verdict deliberation time varies in accordance with a case’s complexity. ... The amount and nature of the evidence adduced, the number of co‑accused (if any), the legal issues raised by the case, and the parties’ positions are all relevant in determining whether the time taken by the trial judge to deliberate on the verdict was markedly longer than it reasonably should have been in all of the circumstances.”

Also potentially relevant to the analysis is anything on the record from the judge or the court. “This might include communications from the court to the parties (e.g., respecting a judge’s illness), or communications from the judge to the parties, should the judge deem it appropriate to so communicate (e.g., about their workload and other cases that they may need to prioritize).”

Justice Moldaver said even if the judge did not put information about their personal workload on the record, the parties and/or the reviewing judge may be aware of the local conditions in a particular jurisdiction “and may in turn be able to draw inferences about the trial judge’s workload and the institutional constraints they may have faced. Keeping these constraints in mind ensures the proper application of s. 11(b) while state actors work to respond to Jordan and bring about the institutional change that s. 11(b) requires.”

Justice Moldaver said it might also be helpful, in some cases, to compare the length of deliberation time taken by the judge with the time that a case of a similar nature in similar circumstances would typically take to be decided.

Photo of Justices Michael Moldaver by Jessica Deeks
Photo of Justice Rosalie Silberman Abella by Phillipe Landreville


If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Cristin Schmitz at Cristin.Schmitz@lexisnexis.ca or at 613-820-2794.