On Friday, March 20, the SCC is releasing its decision in R. v. K.G.K. which looks at whether judge’s decision-making time should be considered in the calculation of overall delay for s. 11(b). K.G.K. was one of the two appeals that was heard in Winnipeg this past Fall when the SCC did its field trip.

In K.G.K., the appellant was convicted of sexual interference and invitation to sexual touching. There was a 33-month delay between the date of the charge and the completion of the evidence. A day before the verdict was delivered, he brought a motion to stay the proceedings on the basis of delay. He argued the time taken by the judge (around 9 months) to render his decision should be considered in the calculation of overall delay. The judge refused the stay on the basis that the decision-making time here did not fall under the Jordan framework. Pursuant to R. v. Rahey, [1987] 1 S.C.R. 588, the appropriate test to determine whether a judge’s decision-making time breaches s. 11(b) of the Charter is whether, in the context of the case, the time taken is “shocking, inordinate and unconscionable”. In the circumstances, while the time was comparatively long, it did not meet that threshold.

A majority of the Court of Appeal dismissed the appeal. Justice Hamilton, dissenting, would have allowed the appeal and stayed the proceedings. Jordan does not specifically refer to a judge’s decision-making time, but Justice Hamilton held, “[W]hen I read the majority’s decision in the context of its stated purpose to address the culture of complacency and pre-Jordan section 11(b) jurisprudence, including Rahey SCC, I conclude that a judge’s decision-making time is to be included in the calculation of total delay for the purposes of applying the Jordan framework.” The majority found that the 18-month and 30-month ceilings set out in Jordan do not apply to the time it takes to make a judicial decision. Justice Cameron stated, “There is no question that Jordan emphasises the importance of all players, including judges, in ensuring that trials proceed efficiently. That does not mean that the Court intended to impose deadlines on a judge’s decision-making time based on how long it takes a case to go to trial.” Justice Monnin agreed in part with both his colleagues on various aspects of the analysis.

Make sure to lock in your predictions before Friday.