R. v. K.G.K., 2020 SCC 7

DELAY - VERDICT DELIBERATION - S.11(B)

MAJORITY - MOLDAVER J

Question: Does section 11(b) apply to verdict deliberation time?

Answer: Yes. Section 11(b) protections extend beyond trial up to and including the date a sentence is imposed. Verdict deliberation time, which clearly precedes the imposition of sentence, attracts s. 11(b) protections. 

How did the Court get there? Jordan held that the presumptive ceilings apply from the date of the charge to the actual or anticipated end of trial. In Jordan, the Court did not define what constitutes the “end of trial.” The SCC clarifies that “end of trial” refers to the end of the evidence and argument. In other words, when the parties’ involvement in the merits of the trial is terminated and the case is turned over to the trier of fact.

Question: Do the presumptive ceilings in Jordan include the time taken by a TJ to deliberate and render a decision? 

Answer: The ceilings set in Jordan do not include verdict deliberation time. The ceilings in Jordan apply from the date of the charge to the actual or anticipated end of evidence and argument at trial.

How did the Court get there? The crux of Jordan was aimed at fighting the ‘culture of complacency’ in the criminal justice system. Verdict deliberation time is not part of this culture and has not significantly contributed to delays in bringing accused persons to trial. The majority affirms (as it alluded in R v KJM) that Jordan was solely focused on addressing a well established problem of delay in bringing accused persons to trial (not delay facing young persons, not delay arising from verdict deliberations, etc.) The limited scope of Jordan is clear in the decision itself where the court declined to consider whether Jordan applied through to the date of sentence. While Jordan recognized the role of the judiciary in addressing this culture of complacency, this call to action was limited to changing “courtroom culture” by implementing case management and more efficient scheduling practices.  

Including verdict deliberation time in the Jordan ceilings would be impracticable and would reintroduce unpredictability into the 11(b) framework. First, it would render pre-trial s. 11(b) applications nearly impossible as it would be difficult to predict whether the judge might reserve their decision and if so, for how long. This would run contrary to Jordan’s attempt to promote prospective, rather than retrospective delay applications. The last date of evidence and argument provides a workable and predictable date to use in calculating delay in pre-trial applications.

Second, for post-trial 11(b) applications, where the ceiling has been breached, it would be unfair to hold the Crown accountable for the time a judge takes to deliberate. The Crown could not and should not interfere with the judicial deliberation process, and is not in a position to explain why the judge took the time they did to arrive at a verdict. Lastly, if verdict delay was included in the ceilings the amount of time available for deliberation would be contingent on how close to the ceiling the evidence and argument concluded.

Question: How is the reasonableness of verdict deliberation assessed?

Answer: The test for determining whether an accused’s s. 11(b) rights have been infringed by verdict deliberation delay is whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances. This is a high threshold. This is an objective assessment. The court should consider: the length of the verdict deliberation time, how close to the Jordan ceiling the case was before the judge reserved judgment, the complexity of the case, communications between the judge and the parties, local considerations and length of time taken in similar cases.

How did the Court get there? The presumption of judicial integrity creates a presumption that a trial judge will not take longer than reasonably necessary to arrive at a verdict. In other words, a trial judge should be presumed to have struck a balance between timeliness, trial fairness and practical constraints. The burden lies on the accused to rebut this presumption. The defence has the onus of establishing why, in all the circumstances of the case, the verdict deliberation took markedly longer than it should have. 

The court finds that there is no increased need for timeliness following the end of trial given that the accused is usually subject to the same liberty restrictions from the time of the charge, the end of evidence at trial, and awaiting the verdict. Concerns for trial fairness are different pre- and post-evidence and argument. Prior to the end of evidence, the accused’s right to make full answer and defence are significantly impacted by delay; the longer a trial is delayed the more an accused will be prejudiced by fading memories, lost evidence, etc. Post-evidence, however, these concerns are largely attenuated. Lastly, a reasonable amount of verdict deliberation must account for the individual and institutional practical constraints.There are limits on judicial and court administration resources.

In this case, the verdict deliberation delay was 9 months. The court held that while this was long it was not so unreasonable so as to constitute a breach of s. 11(b). Note the majority of this case was pre-Jordan, and thus a transitional case.

CONCURRING - ABELLA J

While Abella J agreed with the majority’s disposition of the appeal, she disagreed with the majority’s use of the presumption of judicial integrity to inform whether verdict deliberation delay was unreasonable. In her view, this elevates the accused’s burden to an “almost insurmountable one.” An accused person is hardly in the position to present cogent evidence to rebut the presumption of judicial integrity. Abella J is concerned that the presumption of judicial integrity will act as an irrefutable justification for deliberative delay.