Completing the Jordan framework: What does Section 11(b) of the Charter Consider?
William Rooney, 3L, Volume 79 Senior Editor
As Emma Ryman observed earlier this year, the COVID-19 pandemic is a reminder of the importance of procedural rights in Canada’s justice system, such as the Charter’s 11(b) right to trial ‘without delay.’ A sudden shift to electronic hearings as a result of the pandemic will undoubtedly increase delays. A timely March 2020 decision from the Supreme Court in R v KGK, 2020 SCC 7 (CanLII) (KGK), considers 11(b) in the aftermath of R v Jordan, 2016 SCC 27 (CanLII) (Jordan). KGK affirms that, where the focus is on the time it took for an adjudicator to reach a decision, the 11(b) inquiry looks different from the framework set out in Jordan. The Supreme Court’s decision in KGK limits the 11(b) inquiry so that Jordan ceilings do not include verdict deliberation time. Moreover, the specific content of the KGK test reads as a retreat from the Jordan Court’s recognition that the judiciary itself must bear some responsibility for the lumbering pace of Canadian criminal justice.
The Jordan Framework
The Jordan framework applies to pre-trial delay. The clock begins when the accused is charged and stops at the actual or anticipated date of trial, but the total delay excludes any delay attributable to the defence (Jordan at paras 47, 49).
Presumptive ceilings on pre-trial delay determine who is responsible for proving an 11(b) violation. The ceiling is 18 months for trials in provincial court and 30 months for those in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) (Jordan at para 46).
When the total delay is above the ceiling, the burden is on the Crown to displace the presumption that the delay is unreasonable by establishing the presence of “exceptional circumstances” that render the additional delay reasonable (Jordan at para 47). Below the ceiling, the burden is on the defence to show that they took reasonable steps to expedite proceedings and that, nevertheless, getting to trial took “markedly longer than it reasonably should have” (Jordan at para 48). However, the Supreme Court cautioned that 11(b) violations beneath the ceiling should be “rare” and “limited to clear cases” (Jordan at para 48).
Where (above the ceiling) the Crown fails to identify exceptional circumstances, or where (below the ceiling) the defence demonstrates that taking the case to trial took markedly longer than it should have, the remedy is a stay (Jordan at paras 47-48).
The Holding in R v KGK
While the Jordan ceilings are not determinative, they are enormously influential on the result. One key question answered by KGK is whether the delay after a trial is completed should be treated in a similarly rigid manner.
KGK is primarily an inquiry into the 11(b) status of the period of time from the end of the trial to the delivery of the verdict (the “deliberation time”). A diagram is useful in illustrating this technical area of the law. The first red box below indicates the “Deliberation time” regarding the verdict. The second red box considers deliberation time in the context of sentencing decisions specifically. The diagram also indicates in green first where the Jordan presumptive ceilings apply and then where the analogous ceilings for sentencing-delay apply, as stated in the case of R v Charley, 2019 ONCA 726 (CanLII) (Charley).
Moldaver J for the Court
Moldaver J, for the majority, held that verdict deliberation time is not to be considered under the Jordan framework, but that an 11(b) analysis can be brought to bear on the time it takes a judge to come to a decision. The deliberation time inquiry is a free-standing one that asks if the “deliberation time took markedly longer than it reasonably should have in all of the circumstances” (KGK at para 65).
This bears a close resemblance to the test to determine whether the defence has established undue delay that falls below the Jordan threshold (“markedly longer than it reasonably should have”) (Jordan at para 48). Indeed, it shares more than the language in common: the test is similarly rigorous and difficult to prove. This is because it engages the presumption of judicial integrity, as Moldaver J explains:
[T]he presumption of judicial integrity operates in this context to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict. Only where the trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have will this presumption be displaced. The reason the threshold is so high — “markedly longer” rather than just “longer” or some lesser standard — is because of the “considerable weight” that the presumption of integrity carries” (KGK at para 65).
The majority decision set out a number of (non-exhaustive) factors a judge ought to consider:
Whether the length of the deliberation was “so manifestly excessive that it constitutes a per se breach of s. 11(b), irrespective of the circumstances” (KGK at para 68).
How close to the relevant Jordan ceiling the case was before the trial judge reserved judgment; the closer it was, the greater the need for expediency by the trial judge (KGK at para 69).
The complexity of the case; the more complex, the more time is required for a decision (KGK at para 70).
“Anything on the record from the judge or the court could also be relevant” (KGK at para 71). This includes local conditions affecting the trial judge’s workload, communications from the court or judge to the parties (e.g. about a judge’s illness or workload), and more.
The length of time taken in a case of a similar nature in similar circumstances will sometimes provide a helpful guide (KGK at para 72).
The Concurrence
Abella J, concurring in the result and the general test, disagreed about the operation of the presumption of judicial integrity in this context. For Abella J, the question was simply: did the decision take markedly longer than it reasonably should have? This can be answered using objective and contextual factors and there is no need to look into the trial judge’s integrity or subjective state of mind (KGK at para 87). Under the majority’s test, however, a finding that a deliberative delay is unreasonable requires impugning the integrity of the trial judge (KGK at para 85). This elevates the burden of the accused to “an almost insurmountable one” since a reviewing court would have to make a direct finding about the judge’s subjective state of mind and integrity (KGK at paras 85, 91). It is difficult to see what “cogent evidence” an accused could offer to rebut the presumption of judicial integrity except evidence of the length of the delay in the circumstances (KGK at para 90). This elevates the accused’s burden to an impossible threshold and creates a risk that judicial integrity will be used to justify a deliberative delay that, objectively, did take markedly longer than it reasonably should have (KGK at para 90).
Moldaver J addressed Abella J’s concerns in the majority reasons, explaining that “the presumption of integrity is not just about the judge’s thought processes — it is also about what the judge actually did” (KGKat para 66). Still, despite this disagreement, both justices agree that, in general, judicial decision-making is not really where we should shave off time, absent extraordinary circumstances. To the extent that their disagreement creates a practical difference, it is this: Abella J would like the bar to be ‘very high,’ whereas Moldaver J would prefer ‘very, very high.’
Who is Responsible for Mitigating Delay? Perhaps not Judges
More than filling out the 11(b) framework, KGK is a window into the Supreme Court’s understanding of delay more generally. In Jordan, frustrated with the “culture of complacency” that had developed in the wake of R v Morin [1992] 1 SCR 771, 1992 CanLII 89 (SCC), the Supreme Court proposed a new framework to “encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice” (Jordan at para 5). Reading Jordan, it is easy to conclude that this was intended to apply even to the judiciary. As the Court goes on to reason:
“A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges” [emphasis mine]; (Jordan at para 50)
Yet in KGK, the Supreme Court is unified in insulating judges from review regarding delays in their verdicts. It seems that judges are not to face the same strict ceilings as others who play an important role in the criminal justice system (Jordan at para 50).
One can speculate as to the reasons for the court’s decision. Perhaps, seeing the change Jordan has caused in the behaviour of other parties, the Supreme Court is content to give the judiciary a bit of a break. Whether doing so has reinjected complacency back into the system will take time to see.
Extending the Ruling to the Sentencing Context
Just as Moldaver J concluded his decision on a “Final Practical Note,” let me as well (KGK at paras 74-76).
The most obvious extension of this reasoning is to deliberation time in the sentencing context. Just as the Jordan timelines themselves have been replicated in the form of analogous ceilings for sentencing-delay in Charley, so too can one apply the holding of KGK to sentencing. Post KGK, where a decision as to sentencing takes “markedly longer than it reasonably should have in all the circumstances,” an accused should be able to make out an 11(b) violation.
Of course, delay in this context is unlikely, given the relative simplicity of most sentencing decisions. Yet this would merely require that ‘markedly longer’ be adjusted to fit this context.
Conclusion
KGK is yet another case that blunts the cutting edge of Jordan. It is probably for the best. While there are many appropriate places to demand greater expediency from our justice system, the creation of reasons, the words describing to the parties the extent of their rights, is only very rarely an appropriate one. Still, given the COVID-19 pandemic and the likeliness of more delays with respect to verdicts, it will be interesting to see just how far KGK will be applied in these unique circumstances.