Complementing the Jordan framework - YS Malone

In January 2016 the accused in R v KGK (“KGK")’s trial ended and the trial judge began to deliberate on the case. The accused was originally charged in April 2013, and it took until October 2016, nine months after the end of evidence and argument at trial, for a verdict to be handed down. The day before the verdict was handed down, the accused asked for a stay of proceedings based on the claim that the delay between the charges being laid and the verdict being handed down was unreasonable and an infringement of the accused rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“the Charter”). In the time between the trial ending and the verdict being handed down, the Supreme Court of Canada (“the Court”) had delivered a ruling that established new rules relating to the length of time that was allowed to bring an accused to trial. In R v Jordan (“Jordan”), the Court set ceilings for delays in court proceedings, above which the delay would be presumptively unreasonable. The ceilings from Jordan were 18 months for cases in provincial court and 30 months for cases in superior court or where there has been a preliminary inquiry.

In KGK, April 2013 to October 2016 was 42 months, well past the presumptive ceiling for superior court cases established in Jordan. At the request of the defence, the trial judge recused himself from the stay of proceedings, but the motion judge dismissed the accused’s motion. The motion judge found that verdict deliberation time should not be assessed under the Jordan framework as it would not properly balance section 11(b) Charter rights with judicial independence and would create innumerable practical difficulties in trial cases. The motion judge also relied on the Court decision in R v Rahey (“Rahey”), which held that verdict deliberation time “would only be an unreasonable violation of s 11(b) where, in the overall context of the case, the time taken was “shocking, inordinate and unconscionable.”” The motion judge also took into account that much of the delay in KGK took place prior to Jordan and that the Crown had satisfied the court that the delay was justified based on the parties’ reliance on the previous framework such that it fell into the transitional exceptional circumstance laid out in Jordan.

Court of Appeal

The Court of Appeal was split on the issue and returned three opinions, two concurring and one dissenting. The concurring opinions rejected the appeal and differed only on the test which they believed should apply to determine if a period of verdict deliberation resulted in a breach of an accused person’s s. 11(b) right. One justice accepted the motion judge’s interpretation from Rahey, while the other said a court “should take a contextual approach which balances a number of facets of the decision-making process according to the relevant use of evidence”.

The dissenting opinion would have allowed the appeal, concluding that the presumptive ceilings apply from the date the charges are laid until the date of the verdict. Her reasons were that the jurisprudence prior to Jordan treated verdict deliberation time as part of the inherent time requirements of the case and that the purpose of Jordan, being to combat the culture of complacency that led to unreasonable delays, lends itself to the conclusion that it should be included.

Supreme Court of Canada

When the case came before the Court, they had three issues to decide:

• whether section 11(b) of the Charter applies to verdict deliberation time, and, if so, whether that time included in the presumptive ceilings established in Jordan;

• if section 11(b) of the Charter applies to verdict deliberation time but the Jordan ceilings do not include that time, how the delay attributable to verdict deliberation time should be assessed in determining whether an accused’s right to be tried within a reasonable time has been infringed; and

• whether the verdict deliberation time taken in KGK was unreasonable.

Analysis

Does section 11(b) of the Charter apply to verdict deliberation time, and if so, is that time included in the presumptive ceilings established in Jordan?

Section 11(b) protects both the accused’s interests in liberty, security of the person, and trial fairness as well as the interests of society in general. Trials concluded in a timely manner are beneficial to victims and witnesses and promote public confidence in the administration of justice. The Court in KGK was quick to point out that section 11(b) does apply to verdict deliberation time, as made clear in R v MacDougall where the Court found that section 11(b) protects against an overlong trial until the outcome of the case is final, meaning a sentence has been handed down. The Court found this necessarily includes verdict deliberation.

That is not to say that the Jordan framework applies to verdict deliberation. The Jordan framework was not designed to incorporate the entire spectrum of section 11(b) analysis. It was meant to address the culture of complacency regarding excessive delays that arose, in part, because of the ineffectiveness of the framework from R v Morin (“Morin”). The framework from Morin did nothing to inspire proactive measures to decrease delays, merely providing redress for delays. The Court in Jordan had two goals:

• enhance the clarity and predictability of the section 11(b) analysis; and

• galvanize systemic change in the court system in order to reduce unnecessary delays in bringing accused’s to trial.

The Court in Jordan showed their intent in limiting the framework to the trial by expressly declining to comment on whether the presumptive ceilings applied to delays in sentencing, focusing their guidance almost exclusively on trial practice and procedure. Extending the framework to verdict deliberation would render the argument and adjudication of pre-trial applications speculative because there would be no way to predict whether the judge might reserve their decision or how long they might take to render a verdict. This would in turn require counsel to speculate on the verdict date and would impede counsel’s ability to take proactive measures to bring the proceedings under the ceiling, since counsel would not know when the verdict was likely to be issued.

There are also practical issues with extending the framework to cover verdict deliberation. In the case where the presumptive ceiling is breached, the onus is placed on the Crown to show that the cause of the breach was outside of its control. This shift in onus was intended to encourage the Crown to be proactive in preventing delays, but in the case where the breach occurs after the evidence and argument concluded it did not make sense for the Crown to be held accountable for the time a judge makes to deliberate. The Crown is in no position to interfere with the judicial deliberation process or to explain why the delay occurred. Furthermore, even if the Crown could fulfill these tasks, there would be no way to meaningfully test the evidence, since the judge could neither testify nor submit an affidavit.

Finally, including verdict deliberation time in the Jordan framework would result in the amount of deliberation time available after the end of argument and evidence to vary greatly depending on how long remained before the presumptive ceiling. This would result in cases that are lengthier and more complicated to have less time for deliberation than cases that are less so, which would be incongruous with common sense. The Court concluded that verdict deliberation time is not considered under the Jordan framework, and the presumptive ceilings apply only until the end of the evidence and argument at trial.

If section 11(b) of the Charter applies to verdict deliberation time but the Jordan ceilings do not include that time, how should the delay attributable to verdict deliberation time be assessed in determining whether an accused’s right to be tried within a reasonable time has been infringed?

It is not disputed that section 11(b) applies to verdict deliberation time. However, there is no clear test for determining whether verdict deliberation time was reasonable within the meaning of section 11(b). The test established by the Court is as follows: a verdict deliberation time will be unreasonable when it takes markedly longer than it reasonably should have in all the circumstances. The test should be approached in light of the presumption of integrity from which judges benefit, which takes into account that “judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold” and that judges are under obligation to minimize delays at all stages.

The presumption of judicial integrity creates the presumption that trial judges took no longer than reasonably necessary to arrive at the verdict and that judges should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations, as well as practical considerations. The burden of rebutting this presumption is on the accused to show why, in light of all circumstances, the verdict deliberation time was markedly longer than it reasonably should have been.

The Court in KGK was conscious of the fact that during the verdict deliberation time the nature of the individual’s section 11(b) interests remained subject to the same liberty restrictions, stresses, and stigma that existed between the laying of the charges and the end of the evidence and argument at trial. These interests are best protected by bringing the proceedings to a close as soon as possible. However, speed is a more important consideration prior to the end of evidence, as the risk of losing evidence (through fading memory, unavailability of witnesses, lost or degraded evidence, etc.) puts the fairness of the trial in question the longer it takes. Once the evidence is preserved in the record, there is less of a need for haste, and the main issue of concern is ensuring trial fairness.

However, judges do not deliberate in a vacuum. A certain amount of verdict deliberation time must account for the practical considerations that trial judges face. Judges do not have unlimited time, and any time spent on one case necessarily means time they could not spend on another. When prioritizing their cases, they should take into account how close any case is to the Jordan ceiling.

The Court in KGK has set a high bar in establishing that a trial judge’s verdict deliberation time breached their section 11(b) Charter right to be tried in a reasonable time. The accused must show that the verdict deliberation time was markedly longer than it reasonably should have been in all the circumstances while navigating the presumption of judicial integrity. The Court did provide a non-exhaustive list to act as guidelines in determining whether there was a breach:

• the length of the verdict deliberation time;

• how close to the relevant Jordan ceiling the case was before the trial judge reserved judgement;

• the complexity of the case, including but not limited to: amount and nature of evidence, number of co-accused, legal issues raised by the case, and parties positions;

• anything on the record from the judge or court; and

• the length of time taken with a case of similar nature in similar circumstances.

Conclusion

The Court in KGK found, on the basis of their test, and taking into account that most of this case took place pre-Jordan, that the verdict deliberation time did not amount to a breach of the accused’s section 11(b) right to a trial within a reasonable time.

Concurring opinion

In KGK, Abella J agreed with the Court’s majority in how the case was disposed of as well as most of the analysis. She did, however, disagree with the use of the presumption of judicial integrity in the majority’s proposed test, believing that such a test would create a nearly insurmountable hurdle. Abella J argues that “it is difficult to see” what evidence an accused could offer that would possibly rebut the presumption of judicial integrity and that having that requirement would create a risk that the presumption itself would act as a justification for a deliberative delay. Further, Abella J found that the lack of presumptive ceilings in the current formulation of the test kept the onus of proof firmly on the accused in all instances.

Commentary

Abella J’s arguments strike true with me. The presumption of judicial integrity creates such a burden on the accused that it seems doubtful that it could be reasonably overcome. There is, of course, the argument that it should not be reasonably overcome and that it should require exceptional circumstances to void a trial based on a procedural delay. The companion argument that an accused who the Crown has brought this far into proceedings, with years of time and energy spent, is so much more likely to be guilty that it is little risk to make the burden of showing a breach fall squarely on their shoulders.

All of that is true, of course. The practical reality of our justice system is that innocent people do get convicted of crimes and do get incarcerated; we accept that reality, otherwise we would require higher standards for convicting, perhaps making the threshold “beyond any doubt” instead of “beyond a reasonable doubt”.

That argument rings hollow to me though. There is a difference between accepting lower standards where higher would grind the justice system to a halt, and accepting lower where higher would result in a number of guilty people going free, both practically and morally. The reason Blackstone thought it was better that ten guilty persons escape justice rather than one innocent suffer is that as a society we value our liberty above all else, and the state violating that liberty without sufficient cause is a betrayal of the worst variety. We accept that risk only where the alternative is to invite catastrophe. At the point in time where an accused would submit a stay of proceedings on this issue, they are, presumably, not guilty. They deserve all the protections we would afford to the most innocent person in the country. From a moral standpoint, the question is whether requiring a lower threshold for establishing a breach would invite catastrophe.

From a practical standpoint we have more considerations. Public confidence in the administration of justice, if not at the lowest point, is at a low point. The delays we already have in trials stretch the public's patience. Allowing a person to get off on what the public will see as a technicality will further enflame the disdain the public has for the justice system.