Canadian securities regulators have jurisdiction to lay charges under provincial securities legislation, and have prosecuted serious securities offences criminally. The persons so charged have a right to be tried within a reasonable time. Questions have arisen as to whether or not a court’s deliberation time was to be factored in the timelines identified in the now seminal case R. v. Jordan, 2016 SCC 27 (“Jordan”). Despite the fact that the R. v. K.G.K., 2020 SCC 7 (“KGK”) case is a criminal case, the teachings of the Supreme Court of Canada described below are transposable to a securities litigation setting.
In its March 20, 2020 judgment in KGK, the Supreme Court of Canada offered additional guidance as to the application of presumptive ceilings established in Jordan. Notably, the Court ruled on the scope of the Jordan ruling with respect to verdict deliberation time. The key question was whether a court’s deliberation time was to be factored in the timelines identified in the Jordan case, and whether such delays impacted section 11(b) Charter right with respect to a person’s right to be tried within a reasonable time.
In this case, the accused was charged in April 2013 and his trial concluded in January 2016, after which the trial judge took the case under advisement. In July 2016, the Supreme Court rendered its decision in Jordan in which it established presumptive ceilings – 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts (or cases tried in provincial courts after a preliminary inquiry) – above which the delay is presumed to be unreasonable. On October 24, 2016, one day prior to the trial judge’s decision on the verdict, the accused filed for a stay of proceedings based on the delay between the laying of the charges and the date of the verdict.
The accused’s motion for a stay of proceedings was dismissed in the first instance, the motion judge concluding that verdict deliberation time should not be considered under the presumptive ceilings established in Jordan. A majority of the Court of Appeal of Manitoba dismissed the accused’s appeal.
The Supreme Court also dismissed the accused’s appeal. The Court first confirmed that the scope of the s. 11(b) right to be tried within a reasonable time does extend up to the time of sentencing and thus includes deliberation time required to reach a verdict. However, regarding the presumptive ceilings established in Jordan, the Court held that these ceilings apply “from the date of the charge until the actual or anticipated end of the evidence and argument”, thus excluding verdict deliberation time. The Court highlighted that the ceilings were not established to address all sources of delay, but rather to address the specific problematic of excessive delay in bringing accused to trial. Hence, there is a clear distinction drawn by the Court between the protected right as such as opposed to the “yardstick” to weigh a violation of such rights embodied by presumptive ceilings.
Regarding verdict deliberation time, the Supreme Court held that, in assessing whether an accused’s right to be tried in a reasonable time was breached, the “question to be asked is whether the deliberation time took markedly longer that it reasonably should have in all circumstances”. Moreover, given the presumption of judicial integrity, the burden lies on the accused to demonstrate that the verdict deliberation time was markedly longer than it should have, which is a high burden. Hence, in rare circumstances, undue delays in deliberation can still trigger the application of Charter remedies. The Supreme Court provided a non-exhaustive list of circumstances to be considered in the analysis of the reasonableness of verdict deliberation time :
- Length of the verdict deliberation time;
- Time elapsed prior to the trial judge taking the case under advisement;
- The complexity of the case;
- Information on the record about a judge’s personal workload or other cases that need to be prioritized;
- Local condition in a specific jurisdiction;
- Length of time in cases of similar nature and circumstances.
The Supreme Court further reiterated that the minimization of delay and the safeguarding of accused’s right under s. 11(b) of the Charter are the responsibility of all participants in the criminal justice system. Accordingly, parties, in appropriate circumstances, should not hesitate to communicate with their trial judge to inquire about the status of a verdict.
Assuredly, this case cannot be seen as replacing or undermining the framework established in Jordan, but rather as an guide to delineate when and how presumptive ceilings apply.