Criminal Law: Delay; Verdict Deliberation Times

R. v. K.G.K., 2020 SCC 7 (38532)

“K was charged in April 2013 with sexual offences against his stepdaughter. The evidence and argument at his trial concluded on January 21, 2016. The trial judge reserved judgment. After inquiring as to the status of K’s case, the parties were informed on September 30, 2016, that the trial judge would render his decision on October 25, 2016. The trial judge rendered his decision as planned and convicted K. However, the day before, K filed a motion seeking a stay of proceedings on the basis that the delay between the date the charges were laid and the date the verdict was to be rendered was unreasonable and infringed his s. 11 (bCharter  right to be tried within a reasonable time. The trial judge recused himself from the stay motion. The motion judge dismissed K’s motion, finding that neither the verdict deliberation time taken by the trial judge, nor the delay between the charge and the last day of trial, breached K’s s. 11 (b) rights. A majority of the Court of Appeal dismissed K’s appeal.”The S.C.C. (9:0) dismissed the appeal.

Justice Moldaver wrote as follows (at paras. 2-5, 38, 50, 54-56):

“This appeal requires the Court to consider the application of s. 11 (b) when a trial judge reserves judgment. It gives rise, initially, to two questions: does s. 11 (b) apply to verdict deliberation time, namely the time taken by a trial judge to deliberate and render a decision after the evidence and closing arguments at trial have been made; and, if so, is verdict deliberation time included in the presumptive ceilings established in Jordan?

Turning to the first of these questions, it is settled law that the protection of s. 11 (b) extends beyond the end of the evidence and argument at trial, up to and including the date upon which sentence is imposed (see R. v. Rahey, [1987] 1 S.C.R. 588; R. v. MacDougall, [1998] 3 S.C.R. 45). It follows from this that verdict deliberation time, which necessarily precedes the imposition of sentence, is subject to s. 11 (b) scrutiny. Second, for the reasons that follow, I am of the view that the ceilings in Jordan, beyond which delay is presumed to be unreasonable under s. 11 (b), apply to the end of the evidence and argument at trial, and no further. They do not include verdict deliberation time.

Those conclusions give rise to a further question, namely: 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? The answer, in my view, is that an accused’s right to be tried within a reasonable time under s. 11 (b) will have been infringed where the verdict deliberation time is found to have taken markedly longer than it reasonably should have in all of the circumstances. The burden on the accused is, as I will explain, a heavy one due to the operation of the presumption of judicial integrity. This presumption presupposes that trial judges are best placed to balance the various considerations that inform verdict deliberation time, and that the verdict deliberation time taken by a judge in a particular case was no longer than reasonably necessary in the circumstances.

Turning to the case at hand, the trial judge took slightly over nine months to render his verdict in a relatively straightforward case of minimal to modest complexity — a lengthy delay to be sure. That said, when all of the circumstances are taken into account — including the fact that the evidence and argument, and most of the verdict deliberation time, took place prior to the release of this Court’s decision in Jordan — I am not satisfied that K.G.K. has met his onus of establishing that his right to be tried within a reasonable time under s. 11 (b) was violated. While this case is close to the line, I cannot say that the time taken by the trial judge to arrive at his verdict was markedly longer than it reasonably should have been in all of the circumstances.

There is no suggestion here, nor was there any suggestion in Jordan, that delay arising from verdict deliberation time contributes to the systemic problem that Jordan sought to address. As indicated (at para. 35), Jordan was squarely focused on delay in bringing accused persons to trial and that is the scope of its application.

In sum, properly construed, Jordan did not resolve the issue of how to determine whether an accused’s right to be tried within a reasonable time under s. 11 (b) has been infringed by delay attributable to verdict deliberation time. As I have said, the presumptive ceilings set out in Jordan only apply until the actual or anticipated end of the evidence and argument at trial, and no further. This is consistent with the design of Jordan and it avoids the serious practical problems that would arise if the ceilings were extended to include verdict deliberation time. Put simply, the presumptive ceilings in Jordan do not provide an appropriate yardstick against which the reasonableness of delay attributable to verdict deliberation time may be measured.

In my view, when assessing whether an accused person’s right to be tried within a reasonable time has been infringed by reason of delay occasioned by verdict deliberation time, the question to be asked is whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances.

This test should be approached in light of the presumption of integrity from which judges benefit. This presumption “acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold” (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 17, quoting R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 29, per Abella J., dissenting). As part of their duty to uphold Charter  rights, judges are under an obligation to minimize delay at all stages of the trial process, including during the verdict deliberation phase. Post‑Jordan, judges — like all participants in the justice system — should be acutely aware of the issues that promote delay and which can, in turn, give rise to a s. 11 (b) violation.

As I will elaborate, the presumption of judicial integrity operates in this context to create a presumption that the trial judge took no longer than reasonably necessary to arrive at the verdict. Specifically, the trial judge should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations — which take on a different character once the evidence and argument at trial have concluded — as well as the practical constraints that judges face. The burden lies on the accused to rebut this presumption by explaining why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been. Where the accused meets that burden in a particular case, I hasten to add that, while significant, this finding should not be taken as casting doubt on the judge’s overall competence or professionalism.”

Full Decision