R. v. K.G.K 2020 SCC 7

https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18217/index.do

What is an 11(b) defence?

The Canadian Charter of Rights and Freedoms is meant to guarantee that the person’s criminal charges are dealt with expeditiously thus limiting the time that the person’s liberty is interfered with through bail conditions etc.

  1. Any person charged with an offence has the right:

(b) to be tried within a reasonable time;

What is a reasonable amount of time?

According to the Supreme Court in R. v. Jordan reasonable amount of time means -18 months for single stage provincial court proceedings and (2) a 30 months ceiling for proceedings conducted in the Superior Court.

What is included in the presumptive ceilings of 18 and 30 months?

The matter of K.G.K resolved an important question with respect to the right to have a trial without unreasonable delay, specifically, whether the “Jordan clock” stopped at the end of the accused person’s trial, or whether it stopped once the accused person received a decision from the trier of fact.

For example, let’s say an accused person’s trial evidence and submissions were completed 17 months after they were charged, however, trial judge required three months to deliberate and the accused was not formally convicted until 20 months after the original charge. In these circumstances, is the accused’ right to a trial within reasonable amount of time violated?  According to the Supreme Court of Canada, it is not.

The Court decided that the deliberation period was not included in the overall calculation, as the 18/30 month Jordan ceilings were implemented to focus on the time it takes to bring the accused’s matter to trial. In saying that, the Court created a new approach to determine if a trial judge has taken too long to give their decision. The Court said that trial judges should be presumed to take only the time necessary to deliver a fair decision but that if the accused can show that the trial judge took “markedly longer” (a lot longer) than was reasonably necessary to render their decision, the proceedings will be stayed.

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About the author

I am one of the senior partners at Bytensky Shikhman, a criminal litigation firm in Toronto, Ontario, Canada. In my 25+ year career, I have conducted numerous trials and appeals before all levels of Court in Ontario, defending just about every type of charge in our criminal law. I am also an Adjunct Professor of Trial Advocacy at Osgoode Hall Law School and currently the Treasurer of the Criminal Lawyers' Association of Ontario. I am also an Adjunct Professor for Trial Advocacy at Osgoode Hall Law School, York University and a regular lecturer and placement supervisor for Osgoode's Intensive Programme in Criminal Law.

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