R v KGK: Judicial Deliberation Time and s. 11(b) Considerations
In R v Jordan, 2016 SCC 27 [Jordan], the Supreme Court of Canada (“SCC” or “the Court”) addressed the culture of complacency towards delays in the criminal justice system. These delays were said to run afoul to s. 11(b) of the Charter of Rights and Freedoms [Charter], which provides: “Any person charged with an offence has the right to be tried within a reasonable time.”
In response to these concerns, Jordan established presumptive ceilings to ensure that accused persons are tried in accordance with s. 11(b). The ceilings were set at 18 months for cases tried in provincial court, 30 months for cases tried in a provincial court after a preliminary inquiry or cases tried in superior court, and applied to the period “from the charge to the actual or anticipated end of trial” (Jordan, para 49). If the “end of trial” occurred after this point, the delay would be presumed to be unreasonable and the burden would be placed on the Crown to rebut this presumption. Delay caused by the defence or waived by the defence is not included in the presumptive ceilings.
While Jordan explicitly noted arguments and evidence should occur within the ceilings, it left open whether other parts of the process are included (Jordan, para 49).
On September 25, 2019, the SCC heard R v KGK, 2020 SCC 7 [KGK], and provided commentary on the scope of s. 11(b) and clarified the extent of Jordan’s reach.
K.G.K. was charged with sexual offences against his stepdaughter in April 2013. Due to various delays, a trial was not scheduled until January 11-22, 2016. The trial concluded on January 21, 2016. In May 2016, defence counsel inquired into the status of the decision. In July 2016, Jordan was released. In September 2016, Crown counsel inquired into the status of the decision. On September 30, 2016, the parties were informed that trial judge would render his decision on October 25, 2016. On October 24, 2016, K.G.K. “filed a motion seeking a stay of proceedings on the basis that the delay between the date the charges were laid and the date the verdict was to be rendered was unreasonable and infringed his s. 11(b) rights” (KGK, para 15). The trial judge rendered his decision on October 25—a total of nine months after the trial concluded. K.G.K. was convicted of sexual interference, invitation to sexual touching, and sexual assault. The total amount of time from the date charges were laid to the date the verdict was rendered was 42 months.
The s. 11(b) motion for a stay of proceedings was heard by a separate judge. The motion judge dismissed the application, noting that the ceilings in Jordan were not applicable to verdict deliberation, as this would cause practical difficulties and infringe judicial independence.
K.G.K. appealed to the Manitoba Court of Appeal, where a majority of the court dismissed the appeal. K.G.K. appealed further to the SCC.
The Supreme Court’s analysis
On appeal, the SCC considered three issues: (1) whether the s. 11(b) right to be tried within a reasonable time applies to verdict deliberations and, if so, whether the presumptive ceilings set out in Jordan include verdict deliberation time; (2) if s. 11(b) applies to verdict deliberation but Jordan ceilings do not include deliberation time, what the appropriate framework for determining whether an accused’s s. 11(b) right has been infringed is; and (3) whether the deliberation time in the present case was unreasonable.
The majority decision, written by Justice Moldaver, held that s. 11(b) extends to verdict deliberation time but the presumptive ceilings established in Jordan only “apply to the end of the evidence and argument at trial, and no further” (KGK, para 3).
Issue one – scope of 11(b) and ceilings in Jordan
In finding that s. 11(b) extends to verdict deliberation time, the SCC pointed to previous jurisprudence (R v MacDougall,  3 SCR 4; R v Rahey,  1 SCR 588). This jurisprudence held that s. 11(b) protects unreasonable delay up to and including the time of sentencing. Thus, the SCC concluded that “it necessarily follows that the time taken by a judge to deliberate and render a verdict, all of which precedes the sentencing process, is also included” in the s. 11(b) protections (KGK, para 28).
In finding that the ceilings established in Jordan extend only to the end of evidence and argument, and no further, the SCC noted four possible interpretations for the words “end of trial”: (1) the end of the evidence and argument; (2) the date the verdict is delivered, excluding post-trial motions; (3) the conclusion of post-trial motions; or (4) the date of sentencing (KGK, para 33). The majority noted that (1) most “accurately reflects the reasoning underlying Jordan and the mischief it sought to address” (KGK, para 33). They elaborated that there was no suggestion, in the present case or in Jordan, that delay brought forth by deliberation time contributes to the culture of complacency or would be resolved by reaching quicker verdicts (KGK, para 38).
The Court also noted that including deliberation time under the Jordan ceiling would result in practical difficulties that are contrary to the goals of clarity and predictability Jordan sought to achieve. One difficulty the Court referenced is the fact that the amount of deliberation time available to a judge would depend on the proximity to the ceiling at the point the evidence and arguments conclude (KGK, para 49).
Issue two – framework for determining unreasonable delay
The SCC established that in determining whether verdict deliberation time is unreasonable under s. 11(b), a reviewing court should consider whether the trial court took “markedly longer than it reasonably should have in all of the circumstances” (KGK, para 4). The Court noted that the burden falls on the accused to prove and it is a high burden, due to a presumption of judicial integrity. The assumption is that “the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict” (KGK, para 65).
The Court provided a non-exhaustive list of factors to consider in determining whether the delay was markedly longer than reasonable, including: length of deliberation, proximity to the Jordan ceiling before the judge reserved judgment, complexity of the case, information on the record, and time typically taken for deliberations for a case of similar nature and circumstances (KGK, paras 67-72). The Court noted that there may be cases in which the length is so long that it results in a de facto breach. (KGK, para 68)
Justice Abella, in her concurring opinion, disagreed on the inclusion of the presumption of judicial integrity in the framework. She stated that it is both “irrelevant and unreachable” as a test (KGK, para 94). “Unreachable” because, in her view, it would be difficult to present evidence to rebut the presumption (KGK, para 90). Her concern is augmented by the fact that there is no inclusion of a reasonable person analysis. Instead, it is up to the reviewing court to make a finding “about the judge’s subjective state of mind and integrity” (KGK, para 91). “Irrelevant” because “markedly longer” is already a high threshold and the objective factors listed by the majority are sufficient determinants (KGK, para 90).
Issue three – unreasonableness of delay
The majority held that K.G.K did not satisfy his onus of proving the s. 11(b) violation. While the Court noted that the case was of “minimal to modest complexity” (KGK, para 5 and 79), they were not satisfied that the time taken by the trial judge to arrive at his verdict was “markedly longer” than reasonable. The SCC noted that the case was close to the line but wrote that the most important factor was the fact that “a substantial portion of the trial judge’s verdict deliberation time occurred before the release of this Court’s decision in Jordan” (KGK, para 81). The Court further noted that, had Jordan been available beforehand, the considerations would have been different (KGK, para 81) and that the s. 11(b) issue would have “in all likelihood” been decided differently (KGK, para 82). Interestingly, the Court stated that nine months is not so excessive to constitute a per se breach.
Commentary – issues one and two
Issue one – ceilings
Whether the ceilings established in Jordan should have been extended to include verdict deliberation time and even sentencing, would, in my view, require a deeper analysis of what is currently practical. If, on average, trials in the Canadian justice system conclude months prior to the established ceilings, it would be fair to require judges to provide verdicts within the established ceilings.
However, the variability of factors including complexity of the case, number of witnesses, etc., would likely not have made this approach feasible. I discuss a framework that would permit flexibility and provide more meaningful protection of individual interests protected by s. 11(b) below.
Issue two – framework
While Jordan may not have referenced the entirety of the criminal justice process as forming part of the problem of delay, the problem is systemic. While I do not doubt that judges will do their best to accommodate, we have to consider the reality of the current system.
The fact that a trial may take 18 to 30 months—not even accounting for the time needed to reach a verdict or for sentencing—heightens anxieties. An accused person may wait in remand longer than the original sentence offered by the Crown, and for this reason, many remand centres are known as plea facilities. This also has effects for the complainant, who may wish to put the matter behind them.
While the Court pointed out that “[t]imely justice is one of the hallmarks of a free and democratic society” (KGK, para 25), in my respectful view, their decision does not go far enough to reinforce this. Requiring an accused to rebut the presumption of judicial integrity, along with using institutional factors as a potentially permissible reason for delay, offers little meaningful protection to s. 11(b) rights in this regard.
Justice Moldaver noted that “local conditions in a particular jurisdiction” and “institutional constraints” judges face could be relevant in assessing whether delays were markedly longer than reasonable (KGK, para 71). The conditions the Court pointed to include overbooking and understaffing of courtrooms (KGK, para 62). It seems unfair to use institutional constraints as mitigating factors. As the SCC stated, it is “the government’s responsibility to ensure that courts are sufficiently resourced to fulfill the promise of s. 11(b)” (KGK, para 62).
Further, I am in agreement with Justice Abella that including a presumption of judicial integrity, absent a reasonable person analysis, hinders accused persons’ ability to meaningfully challenge delay. The SCC already noted that stays of this sort will be rare (KGK, para 65). As noted by Justice Abella, requiring an accused person to rebut this presumption seems like an insurmountable task (KGK, para 85).
While the SCC noted that there is no one size fits all approach – “verdict deliberation time that goes to one case cannot go to another” (KGK, para 61)—a stronger approach, may have been to implement a separate framework, covering deliberations and sentencing, that commences immediately after all evidence and arguments have been heard. The Canadian Judicial Council (“CJC”) provides some insight in this regard.
The CJC recommends reserved judgments should be delivered within six months after hearings, except in special circumstances (KGK, para 63). The SCC notes this is advisory and not a determinative measure of constitutionality (KGK, para 64). It may have been more useful to use the CDC recommendation to set up a framework similar to Jordan to ensure that accused persons are not waiting disproportionate periods of time before hearing their verdict. I find it concerning that the Court notes the nine-month deliberation in this instance did not constitute a per se breach. If a lack of resources is the problem, I again reference the government’s responsibility in this regard (KGK, para 62).
On a favourable note, the Court did note trial judges can and should consider proximity to the Jordan ceiling in determining how to prioritize cases in their workload (KGK, para 61).