On April 25th, the SCC heard the last appeal in the matter of James Cody v. Her Majesty the Queen. Cody appealed as of right from the Newfoundland Court of Appeal’s (NLCA) reversal of the Newfoundland and Labrador Supreme Court’s (Trial Division) decision granting his application for a stay of proceeding pursuant to s. 11(b) of the Charter.
Cody was first arrested on January 12th, 2010 in the wake of “Operation Razorback,” a joint, interprovincial investigation by the Royal Newfoundland Constabulary and the RCMP. He was charged with possessing cocaine and marijuana for the purposes of trafficking, and shortly thereafter with possessing a prohibited weapon and possessing a weapon in breach of recognizance. When the trial of Cody’s charges was scheduled for January 26th, 2015, after half a decade would have elapsed since they were laid, Cody applied for a stay. The right he asserts is enshrined in Section 11(b) of the Canadian Charter of Rights and Freedoms as “the right to be tried within a reasonable time;” it is connected to the presumption of innocence, the right to liberty, and the right to a fair trial. In R v Morin (1992), Justice Sopinka stated that the s. 11(b) inquiry involves weighing the rights of the accused together with the public interest both in seeing “that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly” and, quoting Justice Cory in R v Askov (1990), “in ensuring that those who transgress the law are brought to trial and dealt with according to the law.”
In Askov, the SCC recognized a list of factors relevant to the question of how long is too long. These factors included waiver of time periods, the actions of both the accused and the prosecuting party, resource limitations, inherent time requirements, and the inferred or actual prejudice to the accused the delay might occasion. The application judge in Cody’s case, Justice Burrage, found that all these factors were in play. Burrage granted James Cody’s stay, having determined that at least two years of delay in his case were susceptible to scrutiny as unreasonably excessive and that Cody had discharged his burden of proving that, more likely than not, the delay contravened s. 11(b).
By the time the NLCA heard the Crown’s appeal, however, the SCC’s decision in R v Jordan (2016) had come down and altered the s. 11(b) landscape. Jordan introduced a thirty-month ceiling in unreasonable delay cases, beyond which prejudice to the accused is presumed. This presumption of unreasonable and therefore unconstitutional delay may be rebutted, according to Jordan, only if the Crown demonstrates the attendance of “exceptional,” justifying circumstances. Justice Hoegg of the NLCA characterized the introduction of this thirty-month ceiling as a “policy decision made by the Court to address the serious problem of trial delays.” Hoegg noted that this is not a bright-line test denoting “that trials which occur beyond the 30-month ceiling are unfair.”
Under Jordan, courts begin by measuring the time from the laying of charges to the anticipated end of trial and then subtract delays “directly caused” by the defence, by way of waiver or otherwise. This stage prevents accused persons, who may strategically contribute to delay to avoid trial, from turning s. 11(b) to their purposes in bad faith. The court then factors in any “exceptional circumstances” the Crown establishes. Jordan states that either particular events beyond Crown foresight or control or general complexity may give rise to such exceptions.
Finally, Jordan furnished a mechanism for dealing with cases like Cody’s, caught between the pre-and-post-Jordan worlds. A “transitional exceptional circumstance” may be made out here, where the pre-deduction duration of delay on charges brought prior to Jordan surpasses the thirty-month ceiling and the Crown shows that it reasonably considered that duration justified, relying on the prior framework. In Jordan, the SCC states that this transitional approach enables the court to consider reasonable notice and reliance in liminal cases with an eye to fairness. In James Cody’s appeal, Justice Hoegg stated that transitional exceptions also serve “to prevent a sudden glut of stays in cases that were plainly reasonable under the old law.”
Once Justice Hoegg finished sorting the some sixty months delay of Cody’s trial under the Jordan system, only sixteen months remained unaccounted for. She held that this post-deduction delay fell below the Jordan ceiling and that the accused had not discharged his burden of proving unreasonableness. The forty-three months Justice Hoegg deducted encompassed delays flowing from the accused’s waivers and change of counsel, as well as exceptional circumstances emanating from complicated, “new and unusual” disclosure issues related to “Operation Razorback,” and from accidents such as the discovery that an agreed statement of facts was erroneous. Transitional exceptions for delay stemming from Crown unavailability and Cody’s prior Charter applications also contributed to Hoegg’s deductions.
Hoegg’s calculations did not go unchallenged at the NLCA. Justice White would have upheld Burrage’s decision and granted the stay. He reckoned Hoegg’s deductions were inflated by her piecemeal approach, finding half as many by assessing the case as a whole. For example, whereas Hoegg applied a complexity exception citing peculiar disclosure issues involved in Cody’s case, White concluded that the passing of a complex phase in a case, such as the disclosure phase that comprised less than a tenth of the length of Cody’s delay, could not support characterizing the case as globally complex and thus exceptional. White also took issue with Hoegg’s approach to the discovery of errors issue, concluding that only matters truly beyond the Crown’s control could ground exceptions, whereas the Crown here had had opportunity to discover the errors in the agreed statement of facts from the outset.
With respect to transitional exceptions, White declared them inapposite in James Cody’s case. Transitional exceptions, he stated, are only available where the Crown first establishes that the impugned delay could be chalked up to reasonable reliance on pre-Jordan law. Cody’s case, White stated, was at best “close to the line” with respect to pre-Jordan law, pointing to Justice Burrage’s decision that the five-year delay was unreasonable on the exclusive basis of the pre-Jordan framework. On Justice White’s view, the circumstances Justice Hoegg took for transitional exceptions were, on the contrary, either unconnected with reasonable reliance or should be borne by the Crown.
Cody’s case is one of the first to be adjudicated under the Jordan framework. As such, the SCC’s decision on the matter will inevitably shed light on and refine the new s. 11(b) law, with substantial implications for the project of fortifying the rights of accused persons against what the Jordan majority termed a “culture of complacency” regarding the routine dilation of delays in the Canadian criminal justice system. The last word on James Cody’s appeal may be expected any day now.
This blog post was written by a CCLA summer legal volunteer. Views expressed do not necessarily reflect the view of the CCLA.