By: Drew Yewchuk
Case Commented On: R v Cody, 2017 SCC 31 (CanLII)
Just a little under a year after the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and established a new framework for the Charter section 11(b) right to a criminal trial within a reasonable time, the Court has released a new decision on the issue. (For my earlier post on Jordan, see here, and for a post discussing interpretation of Jordan by some Alberta courts see here.) R v Cody, 2017 SCC 31 (CanLII) clarifies the Jordan framework, but more importantly it affirms the Supreme Court’s commitment to ending the “culture of complacency towards delay in the criminal justice system” (at para 1) despite the pressure Jordan has placed on Crown prosecutors.
Mr. Cody was arrested January 10th, 2010 and charged with offences related to drug possession and weapon possession. A number of issues slowed down the progress of the case. There was a Charter application to exclude evidence, a dispute over disclosure, Mr. Cody chose to change counsel once, his second lawyer was appointed to the bench causing him to change counsel again, and Mr. Cody’s counsel brought an unsuccessful recusal application alleging reasonable apprehension of bias (at paras 5-14). Mr. Cody’s trial date was set for January 26th, 2015, but his Charter application to have the charges stayed under section 11(b) was heard and granted in late 2014 (at para 14).
The Lower Court Decisions
The Supreme Court of Newfoundland and Labrador trial division decision was made under the old framework from R v Morin,  1 SCR 771, 1992 CanLII 89, and thus included an analysis of inherent time requirements and prejudice to the accused (at paras 15-16), no longer used under the Jordan framework. The trial judge, even operating under the more forgiving timelines of the Morin framework, found the delay unreasonable and stayed the charges.
Jordan was released prior to the appeal being heard by the Newfoundland and Labrador Court of Appeal. Applying Jordan, a majority at the Court of Appeal found “a number of exceptional circumstances” (at para 18) that allowed time to be deducted from the total time from arrest to trial. They concluded the total remaining delay of 16 months was reasonable and directed the case to trial (at para 18).
The dissenting Justice at the Court of Appeal found that the majority had incorrectly deducted several periods of delay, and that the total remaining delay was 39 months, well above the 30-month ceiling established by Jordan. The dissenting Justice stated that Jordan was not intended to allow even longer periods of delays:
What would a successful implementation of Jordan look like? In the short run, most cases that were reasonable under Morin will be protected by the transitional provisions. In the medium run, the ceilings in Jordan will be challenging, especially for complex cases, but the framework will give both Crown and defence incentives to act promptly and efficiently. Stays will increase temporarily and then recede. A virtuous cycle of promptness will set in. In the long run Jordan will mean less delay but not more stays. (R v Cody, 2016 NLCA 57 (CanLII) at para 74)
The Supreme Court Decision
The Supreme Court reviewed the framework they set out in Jordan (at paras 20-39), with a focus on illegitimate defence conduct. Illegitimate defence conduct “encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted” (at para 32). The defence can cause delays that do not count towards the ceiling by inaction or omission (at para 33), but the Court was clear that this cannot be used to deter the accused from taking advantage of their right to a fair trial:
[I]llegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. (at para 34)
The Court reiterated that Jordan places duties on trial judges to immediately dismiss frivolous applications (at para 38).
In applying the Jordan framework, they found that the defense’s issue with disclosure undertakings was reasonable and that the Crown failed to resolve the issue at a reasonable speed, so that no time was to be deducted (at paras 51-52). Two months were deducted for the discrete event of McNeil applications (applications relating to evidence of misconduct by a police officer involved in the case, see R v McNeil, 2009 SCC 3 (CanLII)), and one month was deducted because it was caused by defence counsel’s unavailability (at paras 53-55). In the result, the total delay was 36.5 months (at para 62). The Court dismissed “voluminous disclosure” alone as being sufficient to make a case “particularly complex” and justifying lengthier delay (at paras 63-65).
The Supreme Court reviewed Jordan’s transitional provisions for cases already in the system at the time Jordan was released (at paras 67-74), but their key finding was that the Jordan framework sets tighter timelines for the Crown:
Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighed in favour of a stay, we expect that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework. (at para 74)
The Supreme Court restored the order of the trial judge and entered a stay (at para 74).
R v Cody answers a specific question about how the Jordan framework is to be applied that had come up at the Alberta Court of Queen’s Bench in R v Regan, 2016 ABQB 561 (CanLII). Who takes responsibility for periods of delay that are occasioned by the defence, but then prolonged by a lack of institutional resources? The court in Regan had decided responsibility for such periods of delay must fall on the defence, to ensure the defence does not “benefit from its own delay-causing conduct” (at para 72).
But the Supreme Court in Cody decided in the other direction. In relation to the McNeil applications, the Supreme Court found that after the Crown and defence were prepared to proceed in late June, “the court was unable to accommodate them until September— that portion of delay was therefore a product of systemic limitations in the court system and not of the discrete event (Jordan, at para 81) and therefore those months should not be deducted” (Cody at para 55). Institutional delay that follows from defence action remains institutional delay, and cannot be deducted.
The most interesting aspect of Cody is only briefly mentioned in the Supreme Court’s judgment. The Attorney Generals of five provinces acted as interveners in the case, and “[a] number of the provincial Attorneys General who intervened in this matter asked this Court to modify the Jordan framework to provide for more flexibility in deducting and justifying delay” (at para 3). There were expectations that Jordan was being revisited so soon in order for the Supreme Court to “course correct”, “explain, or dial-back, their widely criticized Jordan decision.” That did not happen. Justices Côté and Brown, who dissented in Jordan, even participated in the unanimous seven-justice decision written by “The Court” in Cody (the other two dissenting justices in Jordan, Justice Cromwell and Chief Justice McLachlin, did not hear Cody). If anything, the clarifications in Cody make the Jordan framework even stricter on Crown prosecutors. Jordan was a bold attack on the ‘culture of complacency’ in Canada’s criminal justice system, and Cody gives no sign that the Supreme Court’s resolve has weakened.
This post may be cited as: Drew Yewchuk “R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay” (29 June, 2017), online: ABlawg, https://ablawg.ca/wp-content/uploads/2017/06/Blog_DY_CodySCC.pdf
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