In a historic first hearing in Winnipeg, the Supreme Court of Canada heard arguments Wednesday in a case that will determine how to hold judges across the country accountable for the impact of delays in their decisions.
Whatever is decided in the case will affect the way justice is done across the country.
The court’s nine justices reserved their decision after Wednesday’s hearing — the first in the court’s 144-year history to be heard outside of Ottawa.
It involved an appeal in a criminal case, coming after an overhaul to the justice system following a 2016 Supreme Court decision set new rules to address a “culture of complacency” in Canadian trials.
In the Wednesday case, defence lawyer Kathy Bueti argued the 2016 decision, called the Jordan decision, must also apply to judges and the time they take to make decisions on guilt.
“When rights are being trampled, it doesn’t matter who’s doing the trampling,” Bueti told court Wednesday morning. “There has to be some accountability.”
The Supreme Court’s 2016 Jordan decision says that charges in provincial courts should be dealt with within 18 months, and charges in superior courts should be dealt with within 30 months.
More than 150 people lined up outside Winnipeg’s courthouse Wednesday morning for the hearing, an appeal brought by a Manitoba man convicted of sexual interference and touching his young stepdaughter over a period of years.
The man can only be identified by his initials, K.G.K., under a court-ordered publication ban to protect the identity of the victim.
The man was arrested in 2013 and went to trial in 2016. Trial judge Justice Gerald Chartier took nine months to issue his decision, which the man cited as an unreasonable delay in his appeal.
Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal ruled the case hadn’t taken too long, and a 2-1 majority of the Manitoba Court of Appeal agreed following the man’s second appeal.
In previous appeals, Bueti, K.G.K.’s lawyer, argued the time limits set out for trials by the Jordan decision must include the time it takes a judge to make a decision.
But on Wednesday, the Supreme Court justices told court that wasn’t the intention of the decision.
“Nobody is suggesting that judges are not accountable for doing their work and doing it appropriately. But the issue is how you analyze that,” said Justice Andromache Karakatsanis in court.
“That doesn’t mean the judges are off the hook.… And we are here, I think, to discuss how that analysis occurs.”
No evidence delay is widespread issue: justice
When the Supreme Court delivered the Jordan decision, delays in the justice system were a subject of widespread concern. But on Wednesday, Justice Michael Moldaver said he’s not convinced judge delays reach the same threshold.
“Where is the evidence that this [is] a problem at all, let alone one of epidemic proportions?” Moldaver asked.
Manitoba Crown attorney Michael Conner told court the issue speaks to tension between an accused’s right to a fair trial in a reasonable time and the principle of judicial independence, which requires that judges face no pressure from third parties in their decisions.
The Supreme Court of Canada heard its first case outside of Ottawa in Winnipeg Wednesday. (Submitted/Supreme Court of Canada Collection)
Conner added there’s no suggestion the original judge made any legal errors in his decision to convict the man appealing the case.
“[K.G.K.] can only say, in effect, ‘You were right to convict me, but you should have done so sooner.'”
Conner agreed judges should be held accountable for decision-making time. But he argued the threshold before appeals are granted should be high, and taken on a case-by-case basis, unlike the Jordan decision’s strict timelines.
Court will hear language rights case
Under the Jordan decision, charges can be stayed if a trial takes too long. In court Wednesday, Conner argued an alternative could be considered, such as a reduced sentence rather than a stay of charges.
There’s no clear timeline for how long it will take the court to reach a decision, but a Supreme Court communications officer said the 2018 average was just under five months.
The Supreme Court will continue its Winnipeg hearings on Thursday, when it will hear a non-criminal matter in the case of Conseil scolaire francophone de la Colombie-Britannique v. British Columbia. That appeal, which stems from a case in British Columbia, involves French-language rights in education.
“The minority [language speaker] in Canada has a right to an education in his own language,” said Wagner. “The case that we will hear [looks at] to what extent the French community there can request and ask to get the funding and the help necessary to have French education.”
The public is invited to attend the Thursday hearing, which begins at 9:30 a.m. at the Manitoba law courts building at 408 York Ave.
‘Front-row seat to history’