Mistakes in the evolving rules of delay - D. Grohl

The Canadian Charter of Rights and Freedoms (“the Charter”) establishes in section 11(b) that any person who is charged with an offence must be tried for that offence in a reasonable amount of time.1 Not long after the Charter went into effect, the Supreme Court of Canada (“the Court”) clarified in R v Rahey (“Rahey”) that in order to violate section 11(b), a delay would have to be shockingly long, to an unconscionable degree.2 In 2016, to provide more exact guidance, the Court in R v Jordan (“Jordan”) established a framework to determine a ceiling for what should be considered a reasonable time between being charged and tried for a crime.3 However, there was some ambiguity as to whether the ceiling set in Jordan included the time a trial judge might spend if they choose to reserve their verdict; this issue was resolved in R v KGK (“KGK”).4

A delay in proceedings

The appellant in KGK was the eponymous KGK., who was charged in April 2013 with multiple sexual offences for crimes done against a family member over a period of eleven years, some of which were sexual assaults that he later admitted to.5 It took nearly eighteen months for KGK to have his first preliminary inquiry and another four months before his trial date was scheduled, while the prosecution mulled over including additional charges from other complainants in joinder (which they ultimately did not do).6 The trial was set to commence on January 11, 2016, with no complaints from any parties involved over the fact that this process was to take over two-and-a-half years in total, starting when KGK was first charged.7

The trial proceedings concluded after ten days, with the trial judge reserving his verdict for a later date; this verdict was not given for another nine months, during which both defence counsel and Crown prosecutors made inquiries as to the status of the verdict.8 While defence counsel had been informed that the verdict was incoming a month before its release, they waited until the day before the verdict to make a request for a stay of proceedings under section 11(b) of the Charter, arguing that the significant amount of time between the charges being laid and the verdict being given was unreasonable as defined in Jordan; the decision in Jordan had been given in June of 2016, during the reserved verdict delay.9

A motion judge on the Manitoba Court of Queen’s Bench (“the MBQB”) found that, as Jordan was decided after the majority of the 42 total months had already passed and as both the defence and Crown had acted as though the previous legal framework of Rahey applied, that therefore the Rahey standard should apply. The MBQB found that the verdict delay, though not ideal, was not shocking or unconscionable and so it dismissed the section 11 (b) motion.10 The Court of Appeal of Manitoba (“the MBCA”) dismissed an appeal from the defence. In the appellant decision, the justices did not agree on whether Rahey or Jordan should apply, and those that applied Jordan did not agree on whether the verdict delay should be counted towards the delay ceiling.11

The Court in KGK was concerned with resolving four issues upon appeal:

• whether the section 11(b) Charter right against an unreasonable total time to be tried for a crime applies to a delay in the final verdict;

• if section 11(b) applies to that verdict delay, whether the delay ceiling in Jordan should include that verdict delay in its determination of reasonableness;

• how the reasonableness of a delay in verdict should be determined to violate section 11(b) if not through Jordan; and

• whether the verdict delay in KGK was in fact unreasonable by whatever method was determined to be applicable.12

The Court quickly resolved the first issue by affirming the ruling in Rahey which held that section 11(b) of the Charter applies from when the accused is charged up until the outcome of the case, which the Court concluded would clearly include the sentences and therefore the verdict.13 As to whether the framework in Jordan should apply to a delay in verdict, the Court argued that it should not.14 It ruled that, though the language in Jordan for the period in which the ceiling applies could be interpreted as extending all the way to the end of sentencing, the correct interpretation of Jordan holds that it only extends to the end of evidence and argument at trial.15 Cited reasons for this choice of interpretation included that:

• the Court in Jordan specifically avoided commenting on whether the delay ceiling should apply to sentencing delays;

• the stated objective of Jordan was to resolve complacency in the pacing of Crown prosecution activities, rather than judicial deliberation;

• interpreting the ceiling in Jordan as concluding at the end of final argument sets a clear and predictable end date, avoiding the myriad of practical concerns that would arise from forcing counsel to divine an unforeseeable finish date based on the uncontrollable whims of the presiding judge.16

As Jordan did not apply in KGK, the Court then provided guidance as to how to ascertain whether a delay in verdict was so unreasonable that it violated Charter section 11(b). The new standard it provided was that the accused must prove that the amount of time taken by the judge to deliberate the verdict was “markedly longer than it reasonably should have in all of the circumstances”.17 The Court provided a non-exhaustive list of ways that the accused could succeed at meeting this high bar they set.18 The total amount of time may be so long as to be determinative of a marked excess above reasonableness.19 The accused could argue that the trial judge should be considerate of how close the previous proceedings were to exceeding the Jordan ceiling before they reserved their verdict.20 By demonstrating that the case was less complex, the accused could argue that the judge should have required less time to deliberate the verdict.21 The accused could provide evidence demonstrating the absence of circumstances which would cause delays in the deliberation of the verdict, such as illness, heavy workload, or lack of resources.22 Finally, the accused could point to cases with similar facts that took markedly less time for the trial judge to provide a verdict.23

In applying those suggested arguments to KGK, the Court found that the delay in verdict by the MBQB very well likely could be seen as markedly longer than reasonable.24 However, the Court found that the fact that the decision in Jordan was handed down most of the way through the proceedings to be a critical factor; the Court identified KGK as falling into the transitional exception set out in Jordan, as it is clear from the marked change in behaviour of the defence and Crown after Jordan that they had both operated using the existing framework preceding Jordan.25 As such, the Court in KGK refused to count the near breaking of the Jordan ceiling by the previous proceedings as a valid factor against the reasonableness of the trial judge’s delay in verdict and decided to reject the appeal from KGK.26

The Court preferred to defer, ignored the Charter

In examining KGK, I cannot help but conclude that this result may have been decided in the other direction if a more sympathetic character was making the appeal, as this case was very much borderline. The Court counted the lack of complaints from the accused during the lengthy proceedings up until the end point, as well as their admittance that they were pursuing a section 11(b) claim because of Jordan, as factors against their argument.27

As far as I am aware, the timing and frequency of complaints from the accused has not been a factor in determining the reasonableness of a delay in proceedings; not in the Charter, not in Rahey, not in Jordan, and not in the preceding judgment of the Court in KGK. Furthermore, it is well within the power of the Court to conclude that the delay in verdict from the trial judge is now unreasonable in retrospect, given new criteria. With a charitable interpretation, it seems that the Court was much more concerned with disrespecting the trial judge than it was with KGK’s motion. Uncharitably, it would seem that the Court in KGK had used deference to the finder-of-fact as a shield to cover themselves while they ignored the Charter rights of an unsavoury character.

Endnotes:

1 Canadian Charter of Rights and Freedoms, s 11(b), Part I of the Constitution Act, 1982.

2 R v Rahey, [1987] 1 SCR 588. [Rahey]

3 R v Jordan, 2016 SCC 27. [Jordan]

4 R v K.G.K., 2020 SCC 7 at para 3. [KGK]

5 Ibid at para 6.

6 Ibid at paras 6-10.

7 Ibid at paras 10, 11.

8 Ibid at paras 12-15.

9 Ibid at paras 15, 16.

10 Ibid at paras 17, 18.

11 Ibid at paras 19-21.

12 Ibid at para 22.

13 Ibid at para 28, 29.

14 Ibid at para 23.

15 Ibid at para 33.

16 Ibid at paras 39, 40, 44.

17 Ibid at para 54.

18 Ibid at paras 65, 67.

19 Ibid at para 68.

20 Ibid at para 69.

21 Ibid at para 70.

22 Ibid at para 71.

23 Ibid at para 72.

24 Ibid at para 82.

25 Ibid at para 81.

26 Ibid at paras 81, 83.

27 Ibid at para 81.