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The Supreme Court has made it difficult for criminal cases to be thrown out for unreasonable delay when judges take a long time to deliver a decision on an accused person’s guilt.

Eight of the court’s nine justices said a “presumption of integrity” applies for judges: that all cases take no more time than needed, and the judges balance the need for timeliness and fairness against any practical difficulties or workload issues they face. Only Justice Rosalie Abella said the notion of judicial integrity was “irrelevant,” and would make timely justice “unreachable” in cases with slow-moving judges.

Accused persons can still argue against the presumption that judges, in effect, always do their best. To succeed, they need to show that a judge took “markedly too long” to decide, Justice Michael Moldaver wrote for the eight judges.

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The ruling came in a Manitoba case in which a man identified by his initials, K.G.K., was convicted of three counts of sexual abuse involving his stepdaughter. The trial in front of Justice Gerald Chartier of the Manitoba Court of Queen’s Bench had ended in January, 2016. Justice Chartier ruled in October of that year – nine months later. The day before the ruling, the accused man launched a legal challenge, saying his Charter right to timely justice had been denied.

The Supreme Court’s ruling means K.G.K. will have to serve a five-year prison sentence Justice Chartier handed down. K.G.K. had been free on bail awaiting the outcome of his constitutional challenge.

“It seems to be an impossible burden for an accused,” his lawyer, Katherine Bueti, said in an interview. “We had a client who waited nine months. We were never given an explanation for the delay, and now we’re supposed to rebut that presumption. I don’t know how you’d even begin to do that.”

The Canadian Judicial Council has asserted that judges should take no more than six months to render a verdict, she said, while the Supreme Court established no timeline.

Justice Moldaver wrote that judges, as part of their duty to uphold Charter rights, must minimize delay at all stages of the process, including in their deliberations.

In July, 2016, the Supreme Court set down new time limits for criminal trials: 30 months in superior courts (which include the court where K.G.K. was tried) and 18 months in provincial court. It said the time limits were needed to end at least a quarter-century of “complacency” around delay on the part of government, judges, prosecutors and defence lawyers. The ruling caused chaos in the courts, which struggled to reduce the time from when a charge was laid until a trial was done.

K.G.K.'s trial was nearing 30 months when Justice Chartier began his deliberations.

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K.G.K. lost in his initial attempt to have his case thrown out when Queen’s Bench Chief Justice Glenn Joyal ruled that the delay of nine months did not “shock the conscience.” K.G.K. lost again, two judges to one, at the Manitoba Court of Appeal.

The Supreme Court said the new time limits do not include a judge’s deliberations. Otherwise, cases might have to be rushed to take into account unpredictable decision times, it said.

But the Charter right to timely justice does include judicial decision-making time, all nine judges on the court said. In for K.G.K., however, Justice Moldaver wrote that because most of the case happened before the ruling that established the time limits, Justice Chartier should not be held to them. The case was not complex, and the length of time was “close to the line,” Justice Moldaver wrote; “in all likelihood” it would been deemed too long if the new rules had been in place earlier. All nine judges upheld the conviction of K.G.K.

Jill Presser, who represented the Criminal Lawyers’ Association, which intervened in the case, said the practical effect of the ruling “may be to insulate judicial deliberations” from scrutiny over violations of the Charter right to timely justice.

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