Kohl Roger Kenneth Robb Appellant v. His Majesty the King Respondent Summary Conviction Appeal Decision Judge: The Honourable Justice Christa M. Brothers, 2023 NSSC 313

SUPREME COURT OF Nova Scotia Citation: Robb v. HMK , 2023 NSSC 313 Date: 20231011 Docket: No. 518949 Registry: Halifax Between: Kohl Roger Kenneth Robb Appellant v. His Majesty the King Respondent

Summary Conviction Appeal Decision Judge: The Honourable Justice Christa M. Brothers Heard: May 23, 2023, in Halifax, Nova Scotia Supplemental Submissions: June 12, 2023 Counsel: Nicholaus Fitch, for the Appellant Nicholas Comeau, for the Respondent By the Court: Overview [ 1 ] On October 6, 2021, the Honourable Judge Frank P. Hoskins (as he then was) determined that there was no violation of the appellant's

section 11(

b) Charter right. The appellant appeals from that decision. [ 2 ] Originally, in the Notice of

Summary Conviction Appeal, the appellant advanced two grounds of appeal: 1. Error of law in attributing certain delay to defence in ultimate decision on 11(b); and, 2. Error of mixed fact and law finding that a refusal was made out. [ 3 ] Both in the appellant's factum and at the appeal hearing, counsel for the appellant indicated that there was only one ground of appeal being advanced. The sole ground relied upon was that the court erred in law when he failed to attribute delay caused by his appointment to the Supreme Court of Nova Scotia to the Crown, and that a stay of proceedings should have been entered.

Background [ 4 ] On July 3, 2019, the appellant was charged that he did, on July 2, 2019: 1. operate a conveyance while his ability to operate it was impaired to any degree by alcohol, or drug or both, contrary to

Section 320.14(1) (

a) of the Criminal Code . 2. AND FURTHER that he at the same time and place aforesaid, did knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under

Section 320.27 or 320.28 of the Criminal Code , contrary to

Section 320.15(1) of the Criminal Code . 3. AND FURTHER that he at the same time and place aforesaid, did operate a conveyance, to wit, a motor vehicle, while prohibited from doing so, contrary to

Section 320.18(1) of the Criminal Code .

4. AND FURTHER that he at the same time and place aforesaid, did operate a conveyance, to wit, a motor vehicle, while prohibited from doing so, contrary to

Section 320.18(1) of the Criminal Code . 5. AND FURTHER that he at the same time and place aforesaid, while bound by a Probation Order issued on the 10 th day of April, 2019, did wilfully fail without reasonable excuse to comply with such order, to wit, “Keep the peace and be of good behaviour,”, contrary to

Section 733.1(1) (

a) of the Criminal Code . [ 5 ] After hearing the evidence on November 9, 2020, and final submissions on March 10, 2021 , the court provided a bottom-line decision convicting the appellant of counts 2 and 5 on October 6, 2021. On January 13, 2022, the appellant filed a Notice of Application alleging a breach of his s. 11(

b) Charter right. A decision was rendered in relation to that application on September 13, 2022. The court concluded that certain periods of delay between final submissions on March 10, 2021, and the bottom-line decision on October 6, 2021 were caused by the COVID-19 pandemic and deducted them from the presumptive ceiling as discrete events.

The court found that, as a result of these deductions, the 18-month presumptive ceiling had not been met, and there was no violation of s. 11(b). [ 6 ] Originally, the appellant argued that the court miscalculated the number of days for the presumptive ceiling and that it had, in fact, been exceeded. The court found 547 days of delay, but concluded that this was not above the presumptive ceiling.

At the hearing of the appeal, the appellant withdrew this argument, arguing instead that the time it took from the final submissions on March 10, 2021 until the provision of the bottom-line decision on October 6, 2021 constituted an unreasonable delay caused by Judge Hoskins’s appointment to the Supreme Court on July 2, 2021. The appellant argues that this delay should not be considered a discrete event or exceptional circumstance. Issues [ 7 ] The relevant questions on appeal are: 1. Was the period from March 10, 2021 until October 6, 2021 characterized correctly and attributed properly? 2.

Did the Judge err in concluding that the appellant’s s. 11(

b) right had not been violated? Standard of Review [ 8 ] The appellant argues that the standard to be applied by a Supreme Court judge sitting as a

summary conviction appeal judge when reviewing for errors of law is correctness. The appellant accepted the Crown's articulation of the standard as follows: The standard of review is a standard of correctness as it pertains to the determination of whether the total delay was unreasonable as well as the decision to impose a judicial stay of proceedings. However, the standard of deference is applicable to the question of the characterization of the delay and the attribution of responsibility. [ 9 ] In R. v.

Brown , 2018 NSCA 62 , the Court of Appeal commented on the standard of review applicable to a trial judge's conclusion on delay: [ 45 ] The trial judge’s ultimate conclusion on delay is entitled to considerable deference as long as he or she “…correctly identified the appropriate approach and considered the relevant factors…” ( R. v. R.E.W. , 2011 NSCA 18 , at para. 33 ; R. v. Mouchayleh , 2017 NSCA 51 , at para. 57 ). [ 46 ] The majority in both Jordan and R. v.

Cody , 2017 SCC 31 , made repeated references to the expertise of trial judges in assessing and categorizing delay ( Jordan , at paras. 65, 79, 91; Cody , at para. 31 ). [ 10 ] This analysis was updated and modified in R. v. Ellis , 2020 NSCA 78 , where Justice Derrick stated: [78] An earlier decision of this Court, R. v. Brown , 2018 NSCA 62 , applied a deferential standard of review for the allocation of the delay aspect of a trial judge’s s. 11(

b) analysis. Brown noted that the majority reasons in both R. v. Jordan and R. v. Cody , 2017 SCC 31 , made repeated references to the expertise trial judges bring to bear in assessing and categorizing delay. ( Brown , at para. 46) [79] The Ontario Court of Appeal has adopted the standard of correctness as the lens through which all aspects of the s. 11(

b) analysis are to be viewed. In R. v. Jurkus , 2018 ONCA 489 , the court held that a trial judge’s characterization of periods of delay is not subject to deference. Jurkus viewed those characterizations and the ultimate decision as to whether there has been unreasonable delay as subject to review on a standard of correctness (at para. 25). Jurkus was cited by this Court in Potter . [80] On reflection, we have concluded that the view taken by the British Columbia Court of Appeal in R. v. Pipping , 2020 BCCA 104 , is preferable to the Jurkus approach.

That said, the ultimate determination of the issue of whether there has been unreasonable delay is subject to a correctness standard, as this Court has held previously. However, a trial judge’s categorization of each period of delay, and findings of underlying facts, should not be subject to a correctness standard. These determinations are to be afforded deference. [81] In Pipping the court held: [92] The post- Jordan s. 11(

b) framework invokes different standards of review at three different stages: (1) findings of fact relevant to defence conduct; (2) the characterization of delay and the attribution of responsibility; and (3) the determination of whether the total delay is unreasonable and the decision to impose a stay. [93] At the first stage, the findings of fact of a trial judge that are relevant to defence conduct are afforded deference on review, and subject to a standard of palpable and overriding error: R. v. Horner , 2012 BCCA 7 at para. 70 ; R. v. K.N. , 2018 BCCA 246 at para. 13 .

[94] At the second stage, first instance judges are uniquely positioned to gauge responsibility for delay: Jordan at para. 65. The determination of whether defence conduct is legitimate or illegitimate is highly discretionary, and appellate courts must show a high level of deference on review: Cody at para. 31 ; R. v. S.C.W. , 2018 BCCA 346 , leave ref’d

(2019) SCC Docket 38403, at para. 38. [95] At the third stage, the ultimate determination of whether the total delay is unreasonable and the decision to impose a stay is a question of law subject to a correctness standard: K.N. at para. 13 ; R. v. Christhurajah , 2019 BCCA 210 at para. 113 . [82] I am satisfied the application of a correctness standard only to the ultimate determination of whether there has been a s. 11(

b) violation is the appropriate approach. The first stage – findings of fact relevant to defence conduct being entitled to deference – is in keeping with the approach taken in Brown .

The second stage – recognizing the unique qualifications of trial judges to assess responsibility for delay – acknowledges the high degree of deference Jordan and Cody have directed appellate courts to show (see, Jordan , at paras. 65, 79, and 91; Cody , at para. 31 ). [83] And, at the third stage – the ultimate determination of whether the net delay is unreasonable – the trial judge’s determination is, as stated in Potter , subject to a standard of correctness. [Emphasis added] [ 11 ] The issues to be determined on this appeal therefore attract two different standards of review: 1.

The characterization, attribution and/or deduction of delay should be examined through the lens of the standard of deference; and, 2. The determination of whether the total delay was unreasonable should be examined through the lens of the standard of correctness. Positions of the Parties at the Appeal Hearing [ 12 ] Initially, the appellant suggested that the 547 days of delay found by the Judge equates to 18.23 months, which exceeds the presumptive Jordan ceiling. However, there is ample jurisprudence to support a different conclusion: • At paragraph 5 of R. v.

MG , 2023 ABPC 38 , Provincial Court Judge Shaw refers to 547 days as the "presumptive ceiling" of 18 months in the context of a voir dire decision pursuant to s. 11(

b) of the Charter ; • At paragraph 2 of R. v. Zoet , 2015 BCCA 107 , the British Columbia Court of Appeal refers to 547 days as exactly 18 months, in the context of sentencing; • At paragraph 34 of R. v. Lewis , 2022 ONCJ 29 , Judge Henschel refers to 547 days as equivalent to 18 months, in the context of a sentencing hearing; • At paragraph 3 of R. v. G.S., 2022 ONCJ 427 , Judge Wright converts the 18-month Jordan ceiling into 547 days in the context of a s. 11(

b) Charter application; • At paragraph 23 of R. v. Tlokka , 2018 NWTSC 48 , Justice Maha states that "Eighteen months is equal to 547 days." • At paragraph 37 of R. v. Mansour , 2020 ONCA 586 , a unanimous panel of the Ontario Court of Appeal ruled that 547 days is the presumptive ceiling in the context of a s. 11(

b) Charter appeal. [ 13 ] Faced with these authorities, the appellant abandoned this argument at the hearing. The appellant argued instead that the Judge erred in his characterization of delay and in his attribution of responsibility for delay. The two time periods of particular focus are March 10, 2021, to April 26, 2021 (47 days) and June 21, 2021, to October 6, 2021 (107 days). [ 14 ] The appellant relied on R. v. Brown , supra , for his position that delay caused by the appointment of a provincial court judge to a superior court is foreseeable and should not be considered a discrete event.

The appellant submitted that when this delay is properly counted against the Crown, the total delay exceeds the Jordan ceiling and is presumptively unreasonable. The appellant relied on the following comments from the Court of Appeal in Brown : [ 64 ] The reason for the state of the docket was the loss, from the two-judge Bridgewater Provincial Court, of one judge to cover Yarmouth as the incumbent judge there was absent due to illness. The Bridgewater Court had also absorbed cases that previously were being heard in a neighbouring community.

The trial judge described the circumstances that he viewed as a “discrete event” as follows: It should be noted, during that period of time the Bridgewater area was operating with only one sitting judge. In the past, two judges had been sitting in Bridgewater, however due to illness of a third judge, we lost one judge to Yarmouth. Additionally, the docket in Liverpool, Nova Scotia was folded into the Bridgewater docket after the Government closed Liverpool Court. The consequence of having these extra cases in Bridgewater resulted in delays.

I find the delay due to the overcrowded docket a discrete event as discussed in Jordan at paragraphs 73 and 75 and Cody at paragraph 48 . This amounted to 108 days or 3.5 months. [ 65 ] Jordan held that a discrete event, that is, an exceptional circumstance lying outside of the Crown’s control, “must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded” (at para. 75). Jordan notes that

exceptional circumstances are reasonably unforeseen or reasonably unavoidable and cannot be reasonably remedied by the Crown (atpara. 69). The determination of whether there is an exceptional circumstance caused by a discrete event is left to a trial judge’s “goodsense and experience” (Jordan, at para. 71). [66] The trial judge’s view of the 3.5 month delay as a discrete exceptional circumstance was comprehensible. The illness of a judgecan constitute a discrete event. A number of courts have made this determination, deducting the delay occasioned by the judge’sunavailability from the presumptive ceiling.

The Crown noted examples in its factum of such determinations – R. v. Riley, 2017 ONSC4448; R. v. Belfour, 2017 SKQB 158; and R. v. Colpitts, 2018 NSSC 41. In all of these cases, it was the judge hearing the case who wasill or unavailable.

That was not the circumstance here. [67] The reason I disagree with the trial judge’s characterization of the 3.5-month delay as a discrete exceptional circumstance isthat it conflicts with the emphasis in Jordan and Cody that ensuring timely trials is a collective responsibility. [68] In Cody the Supreme Court referred to the justice system having a role in mitigating exceptional circumstances: …The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to theextent it could not be reasonably mitigated by the Crown and the justice system. (at para. 48) [emphasis added] [69] This statement echoes the message in Jordan that “…all participants in the justice system must work in concert to achievespeedier trials…” (at para. 116).

Jordan noted that the “justice system” must be prepared to mitigate the delay associated with a discreteexceptional circumstance (at para. 75). [70] I am of the view that the deployment of a Bridgewater judge to cover the Yarmouth Court does not qualify as a “discreteevent.” The over-burdened Bridgewater docket was a resource problem. And while it was not within the power of the trial judge, theCrown, or the defence to mitigate a situation that needed the provision of additional judicial resources, it was a problem that the justicesystem had a responsibility to address.

That is one of the directives to come out of Jordan and Cody. It is not only justice participantswho have to respond to a new delay-sensitive regime, the justice system itself has to change. If docket problems arise because judicialresources have been stretched too thinly then additional judges need to be brought in to alleviate the problem. [71] I find that the 3.5-month delay from January 22 to May 9, 2016 should not have been deducted from the total delay. [Emphasis added] [15] The appellant argued in his brief as follows: 17.

June 2, 2021 to October 6, 2021 was deducted for reasons related to both Covid backlog and the elevation to Supreme Court. Thetrial judge found that this is not something that could be reasonably foreseen or remedied by the court. The Appellant disagrees. Oralsubmissions were not completed until March 10, 2021. A bottom line decision was then not given until October 6, 2021. This is a delayof 211 total days to deliver a very short bottom line decision of conviction. This could have easily been delivered much more quickly andcertainly at least by August 3, 2023 [sic]. 18.

The trial judge found that no remedy could be found and specifically did not want to deliver its decision July 29, 2021 due tothere being another lengthy decision already scheduled for that day. The plainly obvious option was to give a bottom line decision onJuly 29, 2021. This would have negated all further delay. 19. The Court also could have prepared and delivered a written decision during this extended period of downtime from any mattersbeing heard in provincial court. These are reasonable remedies that only the Court could have remedied. 20.

The trial judge described judicial resources as an issue throughout various parts of the delay. These specific delays took place longafter the onset of Covid-19 originally shuttering courts. The Court has to be prepared to look at alternative methods to deliver a decisionin a timely fashion. This is not a matter that had further evidence to be heard. All the processes except decision were complete sometimeafter March 10, 2021. [Emphasis added] [16] Like the appellant, the Crown focused its submissions on the 18-month presumptive ceiling.

The Crown argued that the Judgewas correct when he found that it had not been met in this case. In particular, the Crown submitted that the appointment of a provincialcourt judge to a superior court is highly unpredictable. [17] On June 1, 2023, I wrote to the parties as follows: As you are aware, I am working on my decision in this matter. I am seeking your comment on the following issue. In R. v.

K.G.K., 2020 SCC 7, the Supreme Court of Canada, per Moldaver J., clarified that the presumptive ceilings set out in Jordanonly apply until the actual or anticipated end of the evidence and argument at trial, and no further. The court stated: [2] This appeal requires the Court to consider the application of s. 11(

b) when a trial judge reserves judgment. It gives rise, initially, totwo questions: does s. 11(

b) apply to verdict deliberation time, namely the time taken by a trial judge to deliberate and render a decisionafter the evidence and closing arguments at trial have been made; and, if so, is verdict deliberation time included in the presumptiveceilings established in Jordan? [3] Turning to the first of these questions, it is settled law that the protection of s. 11(

b) extends beyond the end of the evidence andargument at trial, up to and including the date upon which sentence is imposed (see R. v. Rahey, (SCC), [1987] 1 S.C.R.

588; R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45). It follows from this that verdict deliberation time, whichnecessarily precedes the imposition of sentence, is subject to s. 11(

b) scrutiny. Second, for the reasons that follow, I am of the view thatthe ceilings in Jordan, beyond which delay is presumed to be unreasonable under s. 11(b), apply to the end of the evidence and argumentat trial, and no further. They do not include verdict deliberation time.

The court explained that verdict deliberation time should be assessed as follows for the purposes of s. 11(b): [54] In my view, when assessing whether an accused person’s right to be tried within a reasonable time has been infringed by reasonof delay occasioned by verdict deliberation time, the question to be asked is whether the deliberation time took markedly longer than itreasonably should have in all of the circumstances. The parties agree that Mr. Robb was charged on July 3, 2019, and that closing arguments concluded on March 10, 2021. This is a total of616 days, or 20 months and 8 days.

The defence concedes that the time period from June 10, 2020 to November 9, 2020 (153 days)should be deducted as a discrete event. This reduces the relevant delay from 616 days to 463 days, which is approximately 15.5 months,well below the presumptive 18-month ceiling. I note that the defence indicated at trial that if the delay was determined to be below thepresumptive ceiling, Mr. Robb did not take the position that the delay was nevertheless unreasonable.

Am I correct, then, that the relevant question on this appeal is whether the verdict deliberation time in this matter took markedly longerthan it reasonably should have in all of the circumstances? Please provide me with your submissions by June 12, 2023.

If you wish tomake oral submissions on the issue, please indicate your availability in June for a brief court appearance. [18] The appellant responded by letter dated June 12, 2023: At first blush terming a period of delay deliberation time suggests that it is the time required to make the decision, but it appears theSupreme Court of Canada in KGK were clear at paragraph 54 that deliberation time would involve more. Justice Hoskins addressed KGKspecifically in his decision repeatedly starting at page 29 of the 11(

b) decision. He does not appear to have applied the KGK test in theway envisioned by that Court as he never references the markedly longer test factors and includes various times as deductions to theceiling. Of course, neither counsel termed their arguments in the provincial court or in this appeal in those terms either. Arguing how long a decision should take to give would be a steep burden for Crown or Defence to meet as the trier of fact generally doesnot make that process known.

Here, however Justice Hoskins did comment more fulsomely providing much more detailed explanationsthan KGK suggests would likely be available. The Court in KGK at paragraph 60 describes why deliberation time is different and gives non-exhaustive examples including assessingthe evidence, researching and writing reasons. Should our court interpret paragraph 54 of KGK to mean a new clock has started at theend of evidence than the approach should also include the later end date of January 14, 2022 when the detailed decision on convictionwas given rather than the bottom line decision.

This additional time from October 6, 2021 to January 14, 2022 is an additional 100 days. Our case is peculiar due to the bottom-line decision and argument that it should have been given far earlier as it did not require the sameconsiderations from paragraph 60. KGK could be distinguished on this basis. This also raises questions with how to deal with the delayspecifically between the bottom-line decision and the fulsome decision where we have no comment from Justice Hoskins. All the delaythat deliberation time periods are addressed only up to October 6, 2021.

The Court in KGK references at paragraph 63 the use of the six-month guideline. Which would have been breached in our matter as thedelay from March 10, 2021 to January 14, 2022 is 311 days or 10 months and 5 days long. This is not a stringent test and the time untildecision is only a starting point and would rarely on its own make out a breach. The Court in KGK suggests considerations at paragraphs 68 through 72. 1. The length of deliberation delay Here the delay is 10 months and 5 days. It is rare that this factor alone would lead to a breach but would if the delay is manifestlyexcessive.

The Court in KGK found 9 months to be a close call for excessive delay. The Court described it as perilously close atparagraph 77. This factor weighs in favour of finding a breach. 2. How close the matter was to the Jordan timeline when judgement reserved While delay due to Covid was conceded in argument on the application and appeal that was not the case at the time argument endedMarch 10, 2021. The Information was sworn July 9, 2019. This is a delay of 20 months and 2 days which is two months over thepresumptive ceiling at the time the matter went to deliberation.

This factor weighs heavily in favour of finding a breach. 3. Case Complexity Complexity of the case is an important consideration. This was a routine impaired and refusal matter with few witnesses. Justice Hoskinsspecifically made a finding at page 40 of his decision that ‘the present case is not a complex case’. This factor again weighs heavily infavour of finding a breach. 4. Anything on the record from the judge could be relevant We have commented extensively on this aspect in our original submissions when considering appropriate deductions under the usualJordan test.

There is certainly more information in our matter than likely envisioned by the Court in KGK. The record is silent howeveron the delay between the bottom-line decision and the fulsome one of some 100 days. The majority in KGK found that the 9 months decision took in that case very close to the line and that they very well may have found a

breach if the majority of the case occurred after the release of Jordan. The decision for Mr. Robb was over 10 months and occurredentirely after the release of Jordan. [19] The Crown provided its supplemental submissions on June 12, 2023: The Crown respectfully acknowledges receipt of the Court’s correspondence dated June 1st, 2023. Moreover, the Crown furtheracknowledges receipt of the Applicant’s additional written submissions dated June 12th, 2023. In response, please accept the followingadditional written submissions filed on behalf of the Respondent, His Majesty the King.

Respectfully, the Respondent humbly agrees with this Honourable’s Court analysis of the case at bar through the lens of the SupremeCourt of Canada’s Decision in R v KGK, 2020 SCC 7, [2020] 1 SCR 364. Like the Applicant, the Respondent respectfully points to the Trial Judge / Justice’s Decision to answer the Court’s questions(s). At pages27 to 31 of his Decision (date September 13th, 2022) Justice F. Hoskins reiterates the Crown’s

section 11(

b) Charter submissions.These submissions by the Crown had grappled with the issue of deliberation time. The Respondent certainly maintains the position thatwas taken by the Crown at the Trial level. Moreover, the Respondent emphasizes the following portions of R v KGK, 2020 SCC 7, [2020] 1 SCR 364 wherein Justice Moldaverstated the following at paragraph 61: 61 Finally, a reasonable amount of verdict deliberation time must account for the practical constraints that trial judges face, bothindividually and institutionally. Reasonableness under s. 11(

b) has always accounted for the reality that "[n]o case is an island to betreated as if it were the only case with a legitimate demand on court resources" (R v Allen (1996), (ON CA), 92O.A.C. 345, at para. 27). Trial judges know all too well that this is a zero-sum proposition: verdict deliberation time that goes to one casecannot go to another. The appropriate division of time between cases therefore has regard to individual judges' workloads, differentapproaches to reasons and reasoning, and the realities of their daily lives (see, e.g., K.J.M., at para. 102).

That said, trial judges can andshould consider proximity to the Jordan [page392] ceiling in determining how to prioritize cases in their workload. [my emphasis added] The R v KGK, 2020 SCC 7 matter was of course an entirely pre-pandemic / pre-COVID-19. As such, the once in generation effects ofthe various lockdowns and delays were not known to the jurisprudence at the time. Nevertheless, this country’s highest Court’scomments in R v KGK, 2020 SCC 7 remain highly probative.

In addition, the Respondent respectfully points to Justice Hoskins’ Decision at page 117 wherein His Lordship addresses this very impactof the pandemic on his ability to hand down a Decision: [Lines 10 to 15] I should note that my deliberation time in this case, which was from March 10, 2021 to August 27, 2021 was impacted by the COVID-19pandemic that could not be reasonably foreseen or mitigated by the Crown nor the Court – mitigated by the Court nor the Crown. [my emphasis added] For all of the above-noted reasons, the Respondent respectfully submits that the “Jordan deductible” deliberation time, which occurredduring the of COVID-19 pandemic, reduces the net delay to below the 18-month presumptive ceiling.

Procedural History [20] In order to consider the issues on this appeal, it is necessary to review the procedural history of this prosecution. [21] On June 15, 2020, the trial was scheduled and proceeded on November 9, 2020. The trial proceeded with viva voce evidence offour witnesses. The matter was scheduled for written submissions and closing arguments on March 10, 2021. It was then set over to June9, 2021 for decision. [22] On June 2, 2021, the court rescheduled the decision to August 3, 2021. On Auguust 3, 2021 the court had to reschedule thedecision again, stating: THE COURT: Just don’t get up.

I’ve just got to go and grab my book. I’m going to be juggling my Supreme Court

schedule withthis Provincial Court

schedule for the next several months. So unfortunately – okay, so I want to do this in August. I want to keep thisone in August because it’s getting dated with Covid. Just let me see where I am. Sydney that week. I’m in Sydney the beginning of the week but the 27th I think I am available. [23] The decision was put over to August 27, 2021. On August 27, 2021, another judge presided at the appearance to advise that thedecision had to be adjourned again. It was rescheduled to October 1, 2021. On October 1, 2021, the decision was adjourned to October 6,2021, due to a scheduling error.

[ 24 ] On October 6, 2021, the court said it could give a lengthy decision or give a bottom-line verdict with reasons to follow: THE COURT: Okay. Here is what I’m going to propose. I can give you my Decision today, my notes – it will be long. Or I can give you, I’m going to ask you what you want me to do. Because Ms. Lovett is not here. MS. LAWSON: Okay. THE COURT: I can give you the bottom line and then I can give it to you later in full detail, either in writing, if I can, or I can shorten it. But if I go like this, it’s going to be a few hours. MS. LAWSON: Right.

THE COURT: And if I did it the other way, it might be shorter. So did you want the bottom line and the full reasons later or did you want me to just plow through this today? You can speak to your client about it. MS. LAWSON: I think it would be up to Mr. Robb, yeah, if you don’t mind. THE COURT: No, not at all. MS. LAWSON: Did you understand that, Kohl? THE COURT: If he wants to know what the bottom line is today and then come back and get – later I’ll try to shorten it. Or we can spend the time here today. You want to go outside and speak to him? That’s fine. MS.

LAWSON: (inaudible in background) He just wants to know. THE COURT: Okay. So then does he mind if we- then do you want me to give the reasons later? MS. LAWSON: Well I don’t know if Your Lordship is able just to – is it going to be a written Decision? THE COURT: Well I don’t know. I’m trying to do that or shorten it. MS. LAWSON: Okay, so if I guess is Your Lordship does a written Decision then I’m fine with just receiving… THE COURT: I can’t promise you that because we’re really short here in staff. MS. LAWSON: Okay. THE COURT: But here’s my thing.

I’m pretty confident that I’d be able to tighten it up so he won’t be here a long time. MS. LAWSON: Okay THE COURT: That I can try, okay? MS. LAWSON: Yup. THE COURT: And the second thing is – yeah, so he wants the bottom line today then. We’ll do it quickly though, okay? MS. LAWSON: Yes THE COURT: I’ll make it short. MS. LAWSON: Okay THE COURT: Because if I don’t, look… MS. LAWSON: Yes THE COURT: I don’t know if you want to be here all afternoon but I could probably – if I can do it, if I can do it, I would. Yeah, it’s… MS. LAWSON: Yes, it’s long.

THE COURT: Yeah, I can shorten that, I think, if I tighten it up if I had some time. MS. LAWSON: Okay. THE COURT: So you prefer that? MS. LAWSON: Yes. THE COURT: Okay, so let me just give you the bottom line, then. Sorry about that. First let me thank you for your patience. I think there was a confusion in the conflict of the scheduling. I don’t have a J.A. here now. MS. LAWSON: M-hm.

THE COURT: And this Court, as you know, is empty. So I think you came here last Friday but I was in Sydney. MS. LAWSON: Right. THE COURT: And I didn’t know about that. So when they told me about that, I apologized and I squeezed it in here today as soon as I could. This was the first available date, okay? So counsel I’ll provide you then today with my Decision but will provide my full reasons for having reached that decision later. Before I do that, let me express my gratitude for the very able submissions provided to the Court as they were much appreciated. Having carefully reviewed and considered the evidence.

The totality of the evidence deduced in the Trial which includes the exhibits and the viva voce evidence, and I can tell you I spent a lot of time with this, as you will see in the detailed Decision, the Decision wasn’t reached lightly. … [ 25 ] The full reasons for the decision were given on January 14, 2022. One day earlier, on January 13, 2022, Mr. Robb filed an application to stay the proceedings on the basis of a violation of his s. 11(

b) Charter right: Mr. Robb is facing charges with an Information sworn July 3, 2019. Decision was rendered October 6, 2021. This is a total delay of 2 years 3 months and 4 days. There was one adjournment of trial due to the pandemic from June 15, 2020 to November 9, 2020. Subtracting that 5 months leaves the matter with a total delay of approximately 22 months. [ 26 ] I will now review the legal principles and the analysis undertaken by Judge Hoskins. Law and Analysis Trial within Reasonable Time [ 27 ]

Section 11(

b) of the Charter states as follows: Any person charged with an offence has the right (

b) to be tried within a reasonable time. [ 28 ] This Charter right entitles accused persons to have trials held within a reasonable time. [ 29 ] On an individual level, s. 11(

b) of the Charter protects the accused's “liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence” ( R. v. Godin , 2009 SCC 26 , at para. 30 ).

On a community level “[t]imely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the ‘worry and frustration [they experience] until they have given their testimony’”, and permit them to move on with their lives ( R. v. Jordan , 2016 SCC 27 , at para. 24 ).

Society also has an interest in seeing that those accused of crimes are treated fairly, and timely trials help to maintain the public's confidence in the administration of justice, which is “essential to the survival of the system itself” ( Jordan , at para. 26 ). “In short, timely trials further the interests of justice” ( Jordan , at para. 28 ). [ 30 ] Jordan continues to be the leading case on s. 11(b). This decision established ceilings beyond which delay – from the charge to the actual or anticipated end of trial – is presumed to be unreasonable under s. 11(b).

The presumptive ceiling for trials conducted in the provincial court is 18 months. Delay attributable to or waived by the defence does not count towards the presumptive ceiling. Net delay in excess of 18 months is presumed to violate s. 11(b), which would entitle the accused to a stay of proceedings.

Once the presumptive ceiling is exceeded, the burden falls to the Crown to demonstrate that the delay is justified on the basis of "exceptional circumstances". [ 31 ] The court in Jordan defined “exceptional circumstances” as follows: [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [72] Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify.

Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition. [73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines.

Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell , 2016 SCC 26 , [2016] 1 S.C.R. 625).

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [Emphasis added] [ 32 ] While the Jordan decision indicated that the presumptive ceilings apply “from the charge to the actual or anticipated end of trial”, the court did not explicitly define the phrase “end of trial.” As a result, it was unclear whether verdict deliberation time was included in the presumptive ceilings established in Jordan .

The Supreme Court of Canada considered this specific issue in R. v. K.G.K. , 2020 SCC 7 . In K.G.K. , the court clarified that the protection of s. 11(

b) extends beyond the end of evidence and argument at trial, up to and including the date of sentencing, but that the presumptive ceilings in Jordan apply only to the end of closing arguments. The Jordan ceilings do not include verdict deliberation time (para. 3). The court noted at paragraph 4: ..[A]n accused’s right to be tried within a reasonable time under s. 11(

b) will have been infringed where the verdict deliberation time is found to have taken markedly longer than it reasonably should have in all of the circumstances. The burden on the accused is, as I will explain, a heavy one due to the operation of the presumption of judicial integrity.

This presumption presupposes that trial judges are best placed to balance the various considerations that inform verdict deliberation time, and that the verdict deliberation time taken by a judge in a particular case was no longer than reasonably necessary in the circumstances. [ 33 ] Justice Moldaver, for the majority, explained that the presumptive ceilings “represented a specific solution designed to address a specific problem: the culture of complacency towards excessive delay associated with ‘bringing those charged with criminal offences to trial’” (para. 34, quoting from Jordan , at para 2 ).

Delay arising from verdict deliberation time does not contribute to that problem: [38] There is no suggestion here, nor was there any suggestion in Jordan , that delay arising from verdict deliberation time contributes to the systemic problem that Jordan sought to address.

As indicated (at para. 35), Jordan was squarely focused on delay in bringing accused persons to trial and that is the scope of its application. [ 34 ] According to the court in K.G.K. , “the presumptive ceilings in Jordan do not provide an appropriate yardstick against which the reasonableness of delay attributable to verdict deliberation time may be measured” (para. 50). [ 35 ] Justice Moldaver set out the following test for assessing whether the right to be tried within a reasonable time has been infringed by delay occasioned by verdict deliberation time: [54] In my view, when assessing whether an accused person’s right to be tried within a reasonable time has been infringed by reason of delay occasioned by verdict deliberation time, the question to be asked is whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances. [55] This test should be approached in light of the presumption of integrity from which judges benefit.

This presumption “acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold” ( Cojocaru v. British Columbia Women’s Hospital and Health Centre , 2013 SCC 30 , [2013] 2 S.C.R. 357, at para. 17 , quoting R. v. Teskey , 2007 SCC 25 , [2007] 2 S.C.R. 267, at para. 29 , per Abella J., dissenting). As part of their duty to uphold Charter rights, judges are under an obligation to minimize delay at all stages of the trial process, including during the verdict deliberation phase.

Post- Jordan , judges — like all participants in the justice system — should be acutely aware of the issues that promote delay and which can, in turn, give rise to a s. 11(

b) violation. [56] As I will elaborate, the presumption of judicial integrity operates in this context to create a presumption that the trial judge took no longer than reasonably necessary to arrive at the verdict. Specifically, the trial judge should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations — which take on a different character once the evidence and argument at trial have concluded — as well as the practical constraints that judges face.

The burden lies on the accused to rebut this presumption by explaining why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been.

Where the accused meets that burden in a particular case, I hasten to add that, while significant, this finding should not be taken as casting doubt on the judge’s overall competence or professionalism. [ 36 ] Justice Moldaver proceeded to elaborate on the considerations that inform verdict deliberation time: [57] In determining whether the verdict deliberation time in any given case took markedly longer than it reasonably should have, it must be borne in mind that trial judges are in the best position to assess how much time is needed in all the circumstances of the case.

Specifically, the trial judge should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations — both of which animate s. 11(

b) itself — as well as the practical considerations that constrain the amount of time they

can spend on a particular case. [58] Timeliness is essential to achieving the purposes of s. 11(b). These purposes are well established. In Morin, Sopinka J. explainedthat the primary purpose of s. 11(

b) is to protect the individual rights of the accused, but that it also protects societal interests (p. 786). … [59] With respect to the individual interests that s. 11(

b) protects, the nature of the liberty and security of the person interests remainsthe same from the date on which charges are laid to the date when the verdict is rendered. While awaiting the verdict, accused personstypically remain subject to the same liberty restrictions, stresses, and stigma that existed between the laying of charges and the end of theevidence and argument at trial.

Generally speaking, these interests are best protected by bringing the proceedings to a close as quickly aspossible. [60] Trial fairness, however, takes on a different character after the trial proper ends and the case is left in the hands of the trier offact. Prior to the end of evidence and argument, time can be the enemy of trial fairness.

As this Court observed in Jordan, the accused’sright to make full answer and defence and “[f]air trial interests are affected because the longer a trial is delayed, the more likely it is thatsome accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degradedevidence” (para. 20). By contrast, once the evidence is preserved in the record and the case is left in the hands of the trier of fact, thoseconcerns are largely attenuated, and necessary verdict deliberation time works to ensure fairness.

This is so because verdict deliberationtime reflects the time a trial judge considers reasonably necessary to justly adjudicate a particular case. This includes carefully assessingthe evidence, researching points of law, and writing reasons, which “help ensure fair and accurate decision making; the task ofarticulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under emphasizingimportant points of fact or law” (R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 12).

As such, this time inures to the benefit of theaccused and society at large. [61] Finally, a reasonable amount of verdict deliberation time must account for the practical constraints that trial judges face, bothindividually and institutionally. Reasonableness under s. 11(

b) has always accounted for the reality that “[n]o case is an island to betreated as if it were the only case with a legitimate demand on court resources” (R. v. Allen (1996), (ON CA), 92O.A.C. 345, at para. 27). Trial judges know all too well that this is a zero sum proposition: verdict deliberation time that goes to one casecannot go to another. The appropriate division of time between cases therefore has regard to individual judges’ workloads, differentapproaches to reasons and reasoning, and the realities of their daily lives (see, e.g., K.J.M., at para. 102).

That said, trial judges can andshould consider proximity to the Jordan ceiling in determining how to prioritize cases in their workload. [62] There are also limits on judicial and court administration resources. It stands to reason that this front end burden has an impact onback end deliberation time, particularly in jurisdictions that are still working to respond to Jordan. There is no shortage of commentaryon this.

For example, in Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (2017), theStanding Senate Committee on Legal and Constitutional Affairs reported that “[a] recurring concern voiced by witnesses and raised inJordan was with respect to how the justice system has been underfunded for too long” (p. 1).

This report identified essential contributorsto delays in case flow and courthouse administration as being the overbooking and understaffing of courtrooms, and insufficient designand integration of technological solutions to improve efficiency (e.g., to permit videoconferencing and remote access, and to improvescheduling) (pp. 81 and 93). The report also describes an urgent need to “addres[s] the excessive vacancies of federally appointedjudges” (p. 3; see also pp. 5 and 86 et seq.).

It suggests that “[a]ll of the concerns with the administration of courthouses and effectivecase flow management would be significantly alleviated if Canada had enough judges to handle the number of criminal cases awaitingtrial” (p. 86). Judges must work within these institutional restrictions and manage their workloads as efficiently as possible.

That said,nothing in these reasons should be construed as diminishing the government’s responsibility to ensure that courts are sufficientlyresourced to fulfill the promise of s. 11(b) (see Jordan, at paras. 40 41, 117 and 140). [63] Very often, a balancing of the foregoing considerations results in a verdict being rendered within the six month guideline set bythe Canadian Judicial Council (“CJC”).

In Ethical Principles for Judges (2004), the CJC describes adherence to this guideline as an“adjudicative dut[y]” (p. 20) associated with judicial office, and sets out the content of the duty as follows: [T]he decision and reasons should be produced by the judge as soon as reasonably possible, having due regard to the urgency of thematter and other special circumstances. Special circumstances may include illness, the length or complexity of the case, an unusuallyheavy workload or other factors making it impossible to give judgment sooner.

In 1985, the Canadian Judicial Council resolved that, inits view, reserved judgments should be delivered within six months after hearings, except in special circumstances. [Footnote omitted; p.21.] [64] The significance of this six month guideline notwithstanding, it is not a determinative measure of constitutionality. Simplyshowing that this guideline has been exceeded will not, in itself, establish a breach of s. 11(b). Indeed, the Ethical Principles for Judgesproduced by the CJC is “advisory in nature” (p. 3).

The statements and principles therein “are not and shall not be used as a code or a listof prohibited behaviours” and “[t]hey do not set out standards defining judicial misconduct” (p. 3). Moreover, the CJC’s guidelineacknowledges the inherent case specific and judge specific nature of the balance between the considerations of the need for timeliness,trial fairness, and practical limitations. [37] The court in K.G.K. emphasized that the threshold for a finding that a judge’s verdict deliberation time breached an accused’s s.11(

b) right is a high one: [65] Where an accused claims that the trial judge’s verdict deliberation time breached their s. 11(

b) right to be tried within areasonable time, they must establish that the deliberations took markedly longer than they reasonably should have in all of thecircumstances. This is — appropriately, in my view — a high bar. As indicated, the presumption of judicial integrity operates in thiscontext to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practicalconstraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict.

Only wherethe trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have will this presumption bedisplaced. The reason the threshold is so high — “markedly longer” rather than just “longer” or some lesser standard — is because of the“considerable weight” that the presumption of integrity carries (Cojocaru, at para. 20). Stays in this context are significant and, although

distinct from stays below the ceiling, they too are likely to be “rare” and limited to “clear cases” ( Jordan , at para. 48 ). It bears repeating, however, that where a trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have in a particular case, this should not be taken as casting doubt on the judge’s overall competence or professionalism. [66] The role the presumption of integrity plays in this context is entirely consistent with the manner in which it has been applied in this Court’s jurisprudence.

I agree with my colleague Abella J. that the presumption is used to avoid the “second-guessing of a judge’s thought processes” ( Teskey , at para. 47 ). I would add, however, that the presumption of integrity is not just about the judge’s thought processes — it is also about what the judge actually did. Specifically, it recognizes that judges are bound by their oaths of office and encompasses the expectation that they do in fact “carry out” their sworn duties to the best of their ability ( Teskey , at para. 20 ; see also Cojocaru , at para. 17 ).

In the present context, the presumption of integrity serves both of these purposes, namely: it significantly limits the circumstances in which a reviewing court may second-guess the trial judge’s determination of how much verdict deliberation time was reasonably necessary in light of the competing considerations in play; and it provides a legitimate basis upon which to presume that the trial judge actually took only as much time as was reasonably necessary in all the circumstances. [Emphasis added] [ 38 ] Justice Moldaver identified some factors the reviewing court should consider in assessing whether the deliberations took markedly longer than they reasonably should have in all of the circumstances: [67] In conducting this assessment, the reviewing court should consider all of the circumstances, some of which are identified below.

This list is not intended to be exhaustive. [68] The starting point is, of course, the length of the verdict deliberation time. While it is extremely unlikely that the length of time will suffice on its own, there may be instances in which the time taken is so manifestly excessive that it constitutes a per se breach of s. 11(b), irrespective of the circumstances. [69] The reviewing court should also take into account how close to the relevant Jordan ceiling the case was before the trial judge reserved judgment.

This is necessary to account for the fact that, even in the absence of a breach of the ceiling, the impact on an accused’s liberty and security interests continues to intensify as a case proceeds and approaches the end of evidence and argument. This cumulative impact does not vanish when a trial judge reserves judgment. And that is why trial judges should consider a case’s proximity to the Jordan ceilings in prioritizing their workloads. [70] The complexity of the case will be an important consideration.

Necessary verdict deliberation time varies in accordance with a case’s complexity (see Jordan , at para. 88 , quoting Morin , at pp. 791 92). The amount and nature of the evidence adduced, the number of co accused (if any), the legal issues raised by the case, and the parties’ positions are all relevant in determining whether the time taken by the trial judge to deliberate on the verdict was markedly longer than it reasonably should have been in all of the circumstances. [71] Anything on the record from the judge or the court could also be relevant.

This might include communications from the court to the parties (e.g., respecting a judge’s illness), or communications from the judge to the parties, should the judge deem it appropriate to so communicate (e.g., about their workload and other cases that they may need to prioritize). Further, even if the judge did not put information about their personal workload on the record, the parties and/or the reviewing judge may be aware of the local conditions in a particular jurisdiction and may in turn be able to draw inferences about the trial judge’s workload and the institutional constraints they may have faced.

Keeping these constraints in mind ensures the proper application of s. 11(

b) while state actors work to respond to Jordan and bring about the institutional change that s. 11(

b) requires. [72] Finally, it may be helpful in some cases to compare the length of time taken with the time that a case of a similar nature in similar circumstances would typically take to be decided (see Jordan , at para. 89 ). [73] As my colleague notes, these factors are objective. However, with respect, the reviewing court is not tasked, as my colleague suggests, with “assessing”, “inquir[ing] into”, or “making a declaration on” the trial judge’s actual subjective state of mind (Abella J.’s reasons, at paras. 87 and 91).

Rather, the test that I propose requires the reviewing court to engage in an objective determination — one that mirrors the reasonable observer test used in cases where the accused must directly rebut the presumption of integrity. [ 39 ] In K.G.K. , the trial judge’s verdict deliberations took nine months. The majority of the Supreme Court of Canada held that although the deliberation time was long, it was not per se unreasonable. Turning to the surrounding circumstances, the court noted that the case was of minimal to modest complexity.

There was no information on the record regarding the trial judge’s workload, other than a statement that he had “a few matters under reserve” at the time he reserved judgment. The most important factor, according to the majority, was that K.G.K.’s trial, and a substantial portion of the verdict deliberation time, occurred before the release of Jordan : [81] As I see it, the most important feature of this case is that K.G.K.’s trial and a substantial portion of the trial judge’s verdict deliberation time occurred before the release of this Court’s decision in Jordan . This context matters.

Jordan was a call to action which no one in this case could have foreseen. Indeed, until Jordan was released, the parties appear to have conducted themselves in the complacent manner that defined the pre Jordan era. There is no hint that K.G.K. expressed any interest — let alone concern — about the pace of the proceedings, including the verdict deliberation time taken by the trial judge prior to the release of Jordan (some five and a half months after he reserved judgment).

It is apparent that the release of Jordan caused an attitudinal shift among those involved in K.G.K.’s case: K.G.K. acknowledges that the release of Jordan triggered the filing of his delay motion; the Crown wrote to the Associate Chief Justice to inquire about the status of the verdict; and a date was subsequently set for the rendering of the verdict. Notably in all of this, K.G.K. offers no sufficient explanation for why he waited until the day before the trial judge rendered his verdict, almost four months following the release of Jordan , to file the s. 11(

b) application at issue. Most significantly, the trial judge’s pre Jordan assessment of the requisite balance between the need for timeliness, trial fairness considerations, and the practical constraints he faced was reasonable at the time. Although the end of evidence and argument occurred close to the 30 month ceiling, the proximity of a transitional case (like this one) to the Jordan ceilings cannot inform whether the verdict deliberation time taken was reasonable.

That said, had Jordan been available to the trial judge when he took K.G.K.’s case under reserve, the case’s proximity to the ceiling would no doubt have been a factor that he would have considered in assessing how much time he reasonably needed to render his verdict. How

long he would have taken to deliberate and release his verdict and reasons cannot be known with certainty, though it can be expected that he would have released his verdict and reasons sooner than he did. The impossibility of taking this consideration into account pre Jordan should not be held against him. [82] That said, had this case been heard entirely post- Jordan , I would in all likelihood have decided the s. 11(

b) issue differently. As such, I must respectfully disagree with my colleague that the test I have proposed “raises the accused’s burden to a threshold that is both conceptually irrelevant and unreachable” and “could have the unintended consequence of sheltering trial judges’ deliberative delay from [ Charter ] scrutiny” (Abella J.’s reasons, at para. 94).

That is simply not so. [83] In sum, taking all of the circumstances into account, K.G.K. has not established that the verdict deliberation time taken by the trial judge was markedly longer than it reasonably should have been. … [Emphasis added] [ 40 ] It should be noted that the K.G.K. decision was released on March 20, 2020, mere days after the declaration of a global pandemic. Provincial Court Decision [ 41 ] The court gave a careful and thorough review of the procedural history, facts and legal principles.

The court began its analysis by acknowledging the 18-month presumptive ceiling established in Jordan : The Supreme Court of Canada in Jordan set a presumptive ceiling of 18 months for cases heard at the Provincial Court. The 18 month mark in this case would have been January 3, 2021, 18 months from the date the information was sworn. The decision of the Court was rendered on October 6, 2021, 276 days, or 9.2 months beyond the 18 month presumptive ceiling. This makes the total delay in this case 827 days.

Following the Supreme Court of Canada’s decision in Jordan , after the total delay is calculated delay attributable to the Defence must be subtracted. The result, or net delay, must then be compared to the applicable presumptive ceiling; in this case 18 months. The analysis then depends on whether the remaining delay, that is the delay which was not caused by the Defence, is over or below the presumptive ceiling. If the net delay exceeds the ceiling then the delay is presumptively unreasonable. To rebut this presumption the Crown must establish the presence of exceptional circumstances.

If it cannot the delay is unreasonable and a stay will follow. In the case at bar the Applicant, the Crown, submits that the record establishes the presence of two discrete events – actually three, which I’ll talk about in a second – which constitute exceptional circumstances and, therefore, the delay caused by these exceptional circumstances is reasonable and a stay is not warranted.

The Respondent, the Defence, submits that the record does not establish the presence of exceptional circumstances for the entire delay, and after deducting the delay attributed as exceptional circumstances the net delay is above the presumptive ceiling and the stay is warranted. (pp. 8-9) [ 42 ] After reviewing the procedural history, the court said the following about the Jordan framework: Let me just address the law, that Jordan framework. The test for assessing whether an accused’s right to be tried within a reasonable time as guaranteed by

Section 11(

b) of the Charter was reformulated in Jordan . In Jordan the Supreme Court of Canada established a presumptive ceiling of 18 months for proceedings that occurred in the Provincial Court without a preliminary inquiry. In R. versus – and I’ll spell the name – M-O-U-C-H-A-Y-L-E-H the Nova Scotia Court of Appeal summarized the approach for analyzing delay in post- Jordan cases at Paragraph 6 , 1. First, calculate the total delay. 2. Deduct from the total delay any delay waived or caused by the Defence. 3.

Where the net delay exceeds the presumptive ceiling the onus shifts to the Crown to rebut the presumption on [ sic ] a reasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so a stay must follow. 4. Where the net delay is within the presumptive ceiling the Defence has the onus of showing that the delay is unreasonable. Defence can do this by showing that it took meaningful steps that demonstrate a sustained effort to expedite proceedings and the case took markedly longer than it should have.

As mentioned in this case the total delay in this case is 827 days, as argued by the Defence. That is my calculated time as well, and it was calculated from the day that the information was sworn, July 3, 2019, until the trial decision was rendered on October 6, 2021. The total delay in this case exceeds the 18 month presumptive ceiling by 277 days. (pp. 14-16) [ 43 ] It is evident that the court calculated the total delay for the purposes of the presumptive ceiling by starting from July 3, 2019 , when the information was sworn, and ending on October 6, 2021, when the bottom-line decision was given.

This approach was consistent with the submissions and urging of both the Crown and the defence. According to K.J.K. , however, the Jordan ceilings apply

only from the date of the charge until the end of the evidence and argument, which, in this case, was March 10, 2021. As a result, the total delay was 617 days, or 20 months, and 8 days – 2 months and 8 days beyond the presumptive ceiling. It is from this figure that defence delay and any exceptional circumstances should be deducted. [ 44 ] The court then proceeded to consider defence delay and exceptional circumstances. In summarizing the parties’ positions, the court noted that they both calculated the total delay as 827 days.

The court further noted that they both agreed that delay from the original trial date of June 9, 2020, to the newly scheduled trial date of November 9, 2020 (152 days) was a direct result of the COVID-19 pandemic and should be deducted. [ 45 ] The defence denied that it had waived any time or was otherwise responsible for any delay. It submitted that the total delay, after subtracting the 152 days, was well above the presumptive ceiling, and that it could not be justified by either discrete events or case complexity.

The defence said a stay was the only appropriate remedy in the circumstances. [ 46 ] The Crown’s submissions – which did refer to K.G.K. – were confusing: The Crown submits that the following delays should be either attributed to the Defence or deducted as an exceptional circumstance – and I’ll read from the – the schedule, the chart that was provided by the Respondent in her written submissions, time period, the reason for the deduction, and days deducted. So, time period September 11, 2019 to October 15, 2019. The reason for deduction delay caused by Defence. Thirty-four days deducted.

June 8, 2020 to June 10, 2020 delay caused by the Defence two days. Deducted two days. June 10, 2020 to November 9, 2020. Reason for deduction exceptional circumstances COVID-19 pandemic, 152 days. March 10, 2021 to June 9, 2021. The reason for the deduction exceptional circumstances COVID pandemic, 45 days. One half of 91 days of a total delay the days deducted [ sic ]. On June – the time period of June 2, 2021 to August 3, 2001 [ sic ]. The reason for the deduction exceptional circumstances COVID-19 pandemic. Fifty-five days to be deducted. August 24, 2021 to October 6, 2021.

That time period the Crown submits the reason for the – for the deduction is exceptional circumstances (Your Lordship’s appointment to the Supreme Court). Forty-four days should be deducted. The time period of September 24, 2021 to October 1, 2021. The reason for the deduction delay caused by the Defence. Eight days otherwise deducted as exceptional circumstances above. The total deduction is 332 days. The net delay after deductions 826 days – 332 days = 494 days net delay; approximately 16.46 months.

The Respondent further argues that after applying the reasoning in the recent decision of the Supreme Court of Canada in R. v. G.K. which holds for the proposition that although the right to be tried within a reasonable time, and trying in

Section 11(

b) extends beyond the end of the evidence and argument at trial and encompasses verdict deliberation time, the presumptive ceilings established by the Court in Jordan do not apply and, therefore, the net delay in this case is approximately 14.3 months, bellowing the ceiling of 18 months. The Crown submitted that – the following chart in its submission. Again, the time period is September 11, 2019 to October 15, 2019. The reason for the deduction delay caused by the Defence, 34 days. June 8, 2020 to June 10, 2020. Delay caused by the Defence, two days. Time period June 10, 2020 to November 9, 2020.

The reason for deduction exceptional circumstances, COVID, 152 days. March 10, 2021 to June 9, 2021. Exceptional circumstances, COVID and deliberation time. The Crown submits 45 days, or one half of the 91 days of total delay. Deliberation time is 91 days. June 2, 2021 to August 3, 2021. Exceptional circumstances, COVID and deliberation time is the reason for the deduction, which is days deducted 55 days. Time period August 3, 2021 to August 27, 2021. The reason for deduction deliberation time, 24 days deducted. August 24, 2021 to October 6, 2021.

Exceptional circumstances, appointment to the Supreme Court and deliberation time. Days deducted 44 days. September 24, 2021 to October 1, 2021. The reason for the deduction delay caused by Defence. Eight days otherwise deducted as an exceptional circumstances [ sic ] above. Total deductions according to the Crown 332 days. Without deliberation time deduction [ sic ] 402 days if deliberation time is deducted. The Respondent submits that the recent decision of the Supreme Court of Canada in K.G. – I think it’s K.G.K. – K.G.K. held that deliberation time must be deducted from the total time.

In this case that would mean deducting 402 days from the total of 826 days. That deduction would yield a delay of 14.13 months of delay, which the Respondent submits is below the ceiling of 18 months. (pp. 27-31) [ 47 ] The court proceeded to set out findings, making no deductions from July 3, 2019 until June 8, 2020. The Judge held that the

defence had waived June 8 and 9, 2020, due to defence counsel’s unavailability, and deducted those two days. The court deducted the period from June 10, 2020 to November 9, 2020 (152 days), during which time the provincial court restricted in-person appearances due to the COVID-19 pandemic, as a discrete event. In so doing, the court reviewed numerous cases where delay caused by the pandemic had been characterized as an exceptional circumstance and deducted from the total delay.

The Judge held that the time between November 9, 2020 and closing arguments on March 10, 2021 constituted a procedural requirement that formed part of the presumptive ceiling. After closing arguments on March 10, 2021, the matter was adjourned to June 9, 2021 for decision. [ 48 ] The court found that the period from March 10, 2021 to June 9, 2021 (47 days) should be deducted as an exceptional circumstance due to the COVID-19 pandemic.

The court explained that on April 23, 2021, the Nova Scotia courts released a notice announcing that all in-person court proceedings between April 26, 2021 and May 21, 2021 would be adjourned and rescheduled due to rising COVID-19 cases and new public health restrictions. It was later announced that these restrictions would be extended to June 11, 2021. The court noted that on May 16, 2021, counsel received an email from the court clerk advising that the June 9, 2021 decision would be adjourned due to COVID restrictions. Counsel appeared by telephone on June 2, 2021 to reschedule the decision.

The Judge stated that although the date of July 29, 2021 was suggested, the court declined because it would be too difficult to deliver two long oral decisions on the same day, especially when there were other matters on the docket as well. The matter was therefore adjourned until August 3, 2021.

The court held that the 55 day period from June 9, 2021 to August 3, 2021 should be characterized as a discrete event due to the pandemic and deducted from the total delay. [ 49 ] The court stated that on August 3, 2021, counsel received an email from the clerk of the court advising that the decision would have to be adjourned because “Justice Hoskins will not have the decision ready.” Judge Hoskins explained that, given his recent appointment to the Supreme Court and the backlog of cases due to COVID-19, he had been juggling his Supreme Court

schedule with the Provincial Court, and needed to adjourn until August 27, 2021. He concluded that the 24 days from August 3, 2021 to August 27, 2021 should be deducted for deliberation time. [ 50 ] Without directly referencing KGK, Judge Hoskins spoke about the need for adequate deliberation time at p. 80: It should be stressed that when a date is scheduled for a decision to be rendered it usually is. However, there are those occasions when a judge requires more time to deliberate because of extenuating circumstances, such as dealing with a significant backlog of cases because of the COVID-19 backlog.

Indeed, the length of time it takes a judge to issue a decision varies widely. It depends on a number of factors including the judge’s workload, which requires at times prioritization of cases such as those cases where the accused person is in custody on remand. And to borrow the earlier cited quote – and I quote, “It has been noted that no case is an island to be treated as if it were the only case with a legitimate demand on the Court resources.” [ 51 ] He further noted that on August 24, 2021, the decision was adjourned again, due to his scheduling error.

The parties appeared on August 27, 2021 before another judge to get a new date for the decision. The court offered September 24, 2021, but defence counsel asked for October 1, 2021 because she did not know whether she was available on the earlier date. The court held that the period from August 27, 2021 to September 24, 2021, should count toward the presumptive ceiling because the adjournment was due to his error and could have been avoided.

He held that the eight days from September 24, 2021 to October 1, 2021 should be ascribed to the defence as implicit waiver and deducted. [ 52 ] The court stated that on October 1, 2021, the court clerk emailed counsel to advise that the decision would need to be adjourned “due to Justice Hoskins’ pressing commitments to the Supreme Court”. Judge Hoskins indicated that he was in Cape Breton Supreme Court on that date, where he was scheduled to conduct a show cause hearing, and that he did not know how the date of October 1, 2021 had been selected for the decision.

Counsel appeared before Judge Murphy and adjourned the matter to October 6, 2021.

The court found that this five day period was due to a scheduling error which should have been avoided and should therefore not be deducted from the total delay. [ 53 ] Contrary to the appellant’s statement in his appeal brief, the Judge made no finding that any delay related to his appointment to the Supreme Court should be deducted from the presumptive ceiling as a discrete event. [ 54 ] After making the deductions set out above from the 827 days considered to be the total delay, the court concluded that the remaining net delay was 547 days, which converted to 17.9 months, just under the 18-month presumptive ceiling.

The court therefore dismissed the s. 11(

b) application. Analysis [ 55 ] The first issue on this appeal pertains to whether the Judge erred in how he categorized and attributed the period from March 10, 2021 until October 6, 2021. [ 56 ] Based on the parties’ submissions before Judge Hoskins, the transcript of his decision, and the parties’ submissions on this appeal, respectfully, there was confusion of counsel about the interrelationship between the Supreme Court of Canada’s decisions in Jordan and K.G.K. in the s. 11(

b) analysis. [ 57 ] As noted earlier, K.G.K. clarified that the Jordan ceilings apply only from the date of the charge until the end of the evidence and argument, which, in this case, was March 10, 2021. Respectfully, it follows that there is no need, as was done here, to categorize periods of delay occurring after March 10, 2021 as procedural requirements, defence delay, or exceptional circumstances for the purposes of the presumptive ceiling. The period from March 11, 2021 until the decision was rendered constitutes the trial judge’s verdict deliberation time.

[ 58 ] As the Supreme Court of Canada explained in K.G.K. , the right to be tried within a reasonable time extends beyond the end of evidence and argument and encompasses verdict deliberation time, but the presumptive ceilings do not. It follows that, contrary to the Crown’s assertion in its supplemental appeal submissions, deliberation time is not “ Jordan deductible”. Deliberation time, while relevant to an accused’s right under s. 11(b), is irrelevant to the calculation of the presumptive ceiling.

Where an accused claims that the trial judge’s verdict deliberation time breached their right to be tried within a reasonable time, they must establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances. This is the test which should be applied to the time period from closing arguments until the decision . [ 59 ] As noted earlier, the total delay from July 3, 2019, when the information was sworn, until March 10, 2021, the end of the evidence and argument, was 617 days, or 20 months, and 8 days – 2 months and 8 days beyond the presumptive ceiling.

Any periods of delay before March 10, 2021 which Judge Hoskins categorized as defence delay or exceptional circumstances should have been deducted from this figure. These deductions would include two days for defence delay, and 152 days for delay associated with the COVID-19 pandemic, which the parties agreed should be deducted as a discrete event. This leaves 463 days, or just over 15 months (15.22).

Accordingly, the total delay did not exceed the presumptive ceiling, and there was no breach of s. 11(b). [ 60 ] The appellant’s real complaint is with the delay between closing arguments on March 10, 2021 and the decision date, which is either October 6, 2021, when the bottom-line decision was given, or January 14, 2022, when the court provided its full reasons. In either case, the appellant submits that the court’s deliberations took markedly longer than they reasonably should have in all of the circumstances.

In particular, the appellant says the length of the verdict deliberation time cannot be justified on the basis of Judge Hoskins’s appointment to the Supreme Court of Nova Scotia or the con

[…]