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Glenn Joyal, of the Manitoba Court of Queen's Bench, is shown in this 2012 file photo.Steve Lambert/The Canadian Press

A judge who took nine months to decide that a man charged with sexually abusing one of his children was guilty – after a trial process that had already lasted 33 months – did not violate the accused man's right to a timely trial, a Manitoba court has ruled.

The case raised the question of what to do when a judge causes a delay well beyond that permitted by the Supreme Court's ruling in the Jordan case last summer. The Supreme Court did not deal with that question in its ruling. The court set an upper limit of 30 months, at which point trials in Superior Court are presumed to violate the accused individual's constitutional right to a trial within a reasonable period, and the charge must be thrown out, unless prosecutors can show exceptional circumstances.

The Jordan ruling has put pressure on prosecutors and defence lawyers to move cases along within the time limits. Judges have thrown out several murder cases because of delays that went beyond 30 months. The Winnipeg case highlights judges' accountability for their role in delays.

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Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench ruled in the case that the time judges take to arrive at a ruling on guilt or innocence should be considered separately from the calculations of whether a trial was delayed unreasonably. Otherwise, he said, a judge in a brief trial would have a long time to decide, while a judge in a long trial may have only a few days. And trials would have to be finished well within the time limits to give judges enough time to decide cases. Including judges within the Jordan time limits in this way, he said, would also limit judges' independence to decide matters as they see fit – a bedrock of Canada's legal system.

Only where the judge took so much time that the delay was "shocking, inordinate and unconscionable," he said, will the judge have violated the accused individual's right to a timely trial. That phrase comes from a 1987 Supreme Court ruling in R. v. Rahey, in which a lower-court judge took 11 months to render a decision on a minor motion during a trial. The Canadian Judicial Council, in guidelines for federally-appointed judges, says they should usually deliver their decisions within six months, but Chief Justice Joyal said that is not a high enough threshold to protect judges' independence.

The man, who cannot be named to protect the victim's identity, is to be sentenced on Tuesday. His lawyer, Katherine Bueti, said in an interview that she will appeal Chief Justice Joyal's ruling after the sentencing. "We ask jurors who are laypeople to give a verdict in a few days, or a week or two." She said Justice Gerald Chartier of the Court of Queen's Bench, did not give an explanation for the delay or provide written reasons for the guilty verdict.

Ultimately, she said, the Supreme Court of Canada will have to address judicial delay, "not just in rendering decisions, but in judges' availability." In Manitoba, she said, judges of the Court of Queen's Bench and Court of Appeal do not sit during in July and August, or between Christmas and New Year's, or on spring break, amounting to 10 weeks in total. "These are not schoolteachers. They're not paid like schoolteachers and they don't do the work of schoolteachers."

Anthony Moustacalis, president of the Criminal Lawyers' Association, also disagreed with Chief Justice Joyal's ruling. "The judges are independent but they have to comply with the law, too. He's forgetting the admonition of Jordan – hard-cap limits which are meant to shock the system out of a 'culture of complacency.'"

The case is the third one known to have involved judicial delay since the Jordan ruling, and reached a similar conclusion. Alberta's Court of Queen's Bench subtracted a seven-month judicial delay when it calculated the delay faced by an accused, and an Ontario Court judge subtracted her own deliberation time from the total delay.

Because of how Canadian courts interpret the principle of judicial independence, the trial judge could not be asked why it took so long to reach a decision – whether it was a complex case, or the judge became ill, or had a heavy workload, for instance.

Chief Justice Joyal said in his ruling, released late last month, that the nine-month delay in the child-abuse case "would not create, in a reasonable person with the full knowledge of the justice system, the sort of shock or sense of alarm that would cause that reasonable person to conclude that the nine-month judicial delay is significantly in excess of acceptable standards."

He did not set a specific time ceiling, saying that the context and complexity of a case need to taken into account. He would also include consideration of how long the trial took – that is, a long delay after a long trial would be more likely to shock the conscience.. The accused man applied for a stay on account of unreasonable delay one day before Justice Chartier rendered his verdict.

As for the 33 months, the Crown argued that 2.5 months of the delay was caused by the defence, and therefore had to be deducted; the defence said it was not to blame. Chief Justice Joyal said either way, the Crown relied on the law as it was at the time and so the delay, though slightly over the Jordan ceiling of 30 months, was not unreasonable.