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  • Lewis Waring

Assessing Timeliness Should Include Deliberation- Megan Filyk

R v KGK (“KGK”), a 2020 Manitoba judgment that made its way to the Supreme Court of Canada (“the Court”), dealt with issues relating to section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”). Delays in criminal proceedings are not unusual and, in R v Jordan (“Jordan”), the Court attempted to regulate the time spent up to trial, finding a certain apathy towards the idea of a “speedy trial”. KGK was decided while KGK was awaiting their verdict from their 2016 trial. As the months went on, a verdict date was finally set for 9 months after the trial had occurred. The day before the judgement was to be read, KGK and counsel submitted a motion for a stay of proceedings, findingtheir section 11(b) right to a speedy trial had been infringed.

In the majority judgment in KGK, the fact that Jordan had been only recently decided was a concern for Justice Moldaver. He found that, had the Jordan decision been made prior to the trial in KBK, this case may have had different considerations. However, Justice Moldaver felt it was not appropriate to hold the trial judge to the standard set in Jordan. He stated that, “Jordan was a call to action which no one in this case could have foreseen.” The standard that KGK would have to reach if the defence was to successfully raise a s 11(b) breach would be that the deliberation took a markedly longer deliberation time in the given context. The majority established that the timing in KBK was not a marked departure for how long it should take, though they did admit that it was very close to being unreasonable.

The focus of the KBK judgment was the Jordan framework of a presumptive ceiling for trials. In this case, the Court concluded that the Jordan framework does not consider time after evidence and testimony has been delivered. An area of contention between the majority judgement in KBK and the concurring judgment was the idea of the presumption of judicial integrity. As will be discussed, red flags are raised with the inclusion of this idea in the assessment of reasonable deliberation time.

Majority Places Onus On Accused

The criminal law system contains an inherent power imbalance between the rights of the accused and those who uphold the system: criminals are bad and judges are good. In my opinion, this type of binary thought contributes to the current issues in our criminal justice system, especially regarding dismissal of the rights of accused persons. If the rights of the accused are not upheld, as they are supposed to be under the Charter, then there will be no bettering of our system. At best, the system will remain stagnant and, at worst, it will return to the high levels of apathy seen a few short decades ago.

Justice Moldaver’s analysis placed the onus on the defence and the accused to raise issues about how the case is proceeding. One issue I take with this approach is that the accused may not understand their actual rights in the circumstances. Without access to information on what a reasonable amount of time is to wait to hear a verdict, an accused is unlikely to raise an issue with it. In KBK, Justice Moldaver enacts a form of victim-blaming towards the accused when he stated that KGK never “expressed any interest – let alone concern – about the pace of the proceedings….”

This statement ignores how the accused is likely to have felt in the whole process leading up to the verdict, namely, that autonomy was not an option. Justice Moldaver in KBK seemed to blame individuals who fail to self-advocate. This does not seem like a way to gain any meaningful change, especially when a judge does not release a verdict for nine months after a trial. Justice Moldaver may have meant that the accused could not have been so concerned about the amount of time taken because they obviously would have said something about this.

As was noted above, the power imbalance of an accused person cannot be overlooked. I believe there are certain biases that Moldaver is asserting in KBK. Presumably if he were the accused in the same criminal trial, he would have raised issues about the wait time. His consequent assumption takes for granted that all accused individuals retain a level of autonomy which would permit them to advocate for themselves.

However, it should not be on the individual solely to complain if a situation is unfair. It should instead be on the system to realize that human beings’ lives are put on hold as they await their verdict. The reality of delay should be treated with more care than the Court provided in KBK. I do not believe that the Justices of the Court were downplaying the amount of time in the given facts. Instead, they understood it to be borderline extremely inappropriate. However, the way that trial judges conduct themselves or manage their time is not helpful in further assessments of trial timeliness. Presuming that a judge has accounted for fairness and timeliness in their deliberation is not enough.

Combatting the Presumption of Judicial Integrity

Justice Abella’s reasoning in KBK condemned part of the majority’s view on what an analysis in situations like this should include. According to Justice Abella, the presumption of judicial integrity would cause issues for an accused, who would have to prove the mindset of a judge during the extended wait. Abella did not think this assessment should include anything to do with the integrity of the judge or their “state of mind.” She found this presumption created a system in which post-marked justifications for the actions of a judge would occur. This could shield the potential use of any claims under s 11(b) in circumstances similar to those in KBK. This could mean that the Charter could simply not be able to protect accused individuals from a long stay.

I agree with Justice Abella in finding that it would be too onerous on the accused to require them to prove the mindset of the judge during the deliberation period. Why should it be on this individual to go against someone who has such an elevated status that the presumption of them is that they did the right thing? I understand that the justice system needs to be able to entrust that judges and justices are doing the correct thing, but what happens when they aren’t? This may have been a very busy nine months for the trial judge, but this is nine months of the accused’s life that is put in suspension while they wait for the judge to do their job. In reading the judgement from the Court, you can feel that Moldaver had compassion for the circumstances and agreed that the timing was not idea. However, he refused to hold the trial judge to a meaningful standard. In my opinion, the majority’s reasoning in KBK was not sufficient. It is not unreasonable that a judge should have to account for their time in making a deliberation and, in fact, this type of system is in place in other jurisdictions. A possible solution for Canada could include the enacting of a statute to hold judges accountable.

The Court cannot impose their ideals on the Manitoba courts in this way, but my hope is that a case such as KBK gaining enough attention and momentum such that is able to be heard at the Court gives the trial judges in Manitoba the inspiration they need to get their judgements in at a faster rate than that of the Court in KBK. If deliberation time cannot be protected by section 11(b), as Justice Abella feared, then trial judges should be striving to keep the justice system fair and do their jobs in a timely manner.


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