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S.11(b) during a judge's deliberation period

In 2016, the Supreme Court of Canada in R. v. Jordan completely changed the landscape of s.11(b) of the Charter of Rights and Freedoms which holds that any person who is charged with an offence has the right to be tried within a reasonable time. The SCC set out a new framework to overcome what the Court felt was a culture of complacency that had grown in the criminal justice system, causing excessive delays. The Court established ceilings for matters proceeding in the Ontario Court of Justice (18 months) and the Superior Court of Justice (30 months), after which a matter is presumptively unreasonable.

Since this decision, appellate courts have been grappling with the meaning of unreasonable delay (SCC readdressed the s.11(b) framework in R. v. Cody, 2017 SCC 31) and in what contexts the presumptive ceilings outlined by the SCC apply (Ontario Court of Appeal dealt with s.11(b) delay in sentencing in R. v. Charley, 2019 ONCA 726). Most recently, the SCC released R. v. K.G.K., where the Court addressed the issue of delay in verdict deliberation (when the evidence and argument of counsel have completed and the judge reserves his or her decision for a period of time). The Court addressed whether in fact s.11(b) applies to that period of time (it does), whether the presumptive ceilings of Jordan include verdict deliberation time (it does not), and how we are to assess when verdict deliberation time is unreasonable (spoiler, it will be hard to argue this).

In K.G.K., the accused was charged in April 2013. A preliminary inquiry was held in October 2014 and the trial was held in January 2016 (pre-Jordan). The trial completed in January 2016 with the evidence and submissions from counsel. The trial judge reserved his decision, indicating that he had a few matters under reserve but would be getting to this decision as soon as he could. The decision was finally rendered on October 25, 2016 - nine months after the evidence and submissions had completed, and after the Crown had written a letter to the local administrative judge asking when the decision would be completed. In light of Jordan (released in July 2016), defence counsel brought an s.11(b) application. The central issue for the motion judge (a different judge than the trial judge) was whether the verdict deliberation time taken by the trial judge was unreasonable and should be assessed under the Jordan framework. The motion judge dismissed the application. At the Court of Appeal, the majority also dismissed the application. Ultimately, the SCC decided that the deliberation time in this case was close to the line but ultimately not unreasonable. The significance of this decision is how the Court addressed the issue of delay and deliberation time generally.

The Court held that s.11(b) obviously must include deliberation time. This conclusion is supported in previous (pre-Jordan) decisions of the Court in McDougall and Rahey, and makes sense when considering that courts, as custodians of the principles enshrined in the Charter, must themselves be subject to Charter scrutiny.

However, the Court found that verdict deliberation time was not meant to be included in the Jordan presumptive ceilings. The Court explained that in Jordan "end of trial" is most accurately interpreted to mean the end of evidence and argument. Jordan, according to the Court, was not meant to deal with all sources of delay and was focused on the issue of a culture of complacency, where there was no suggestion that judicial deliberation time was contributing to this culture. The Court outlined some of the difficulties if judicial deliberation time was factored into the Jordan ceilings, given the onus on the Crown for proactivity and to show that the cause of a breach was "genuinely out of its control." The purpose of Jordan and the practical problems that would arise if ceilings were extended to include verdict deliberation, the Court held, explains why deliberation time is outside the ceilings.

Given the above conclusion, the Court addressed how to assess delay in verdict deliberations. The question that is to be asked is whether the deliberation time took markedly longer than it reasonably. The Court held that this test must be considered in light of the presumption of judicial integrity, a presumption that acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold, and as such a trial judge takes no longer than reasonably necessary to arrive at the verdict.. This presumption is to be rebutted by the accused where the accused must explain why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been. The Court agreed that this would be a high bar for the accused to meet and that some factors to be considered include: length of time for deliberations; proximity to the Jordan ceiling before verdict deliberations; complexity of the case; any communications between the parties and the court (either on record or in writing); and, comparison between cases of a similar nature. This is not meant to be a subjective test (inquiring into the trial judge's actual subjective state of mind), but an objective determination.

This case demonstrates that while Jordan may have changed the landscape significantly, it has left many unanswered questions regarding the application of that framework. This case also describes the heavy burden on an accused person who wishes to argue that the time that a judge takes to render his or her decision was unreasonable. 

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S.11(b) during a judge's deliberation period | Bayne Sellar Ertel Carter