The Supreme Court of Canada released its decision in R. v. Cody today, and has reaffirmed its controversial ruling in R. v. Jordan.
As was previously discussed in “R v Cody: Anticipating SCC Decision on the Right to Be Tried within a Reasonable Time”, James Cody was arrested and charged with possession of marijuana and cocaine for the purposes of trafficking in 2010. What followed was five years of delays: months were lost over a dispute between the Crown and Cody’s defense regarding the provision of disclosure, Cody changed defence counsel, misconduct allegations were made against Cody’s arresting officer, and so on. In the end, Cody’s trial was set for early 2015—almost five years after his initial arrest.
The Jordan framework, as it has come to be known, creates a presumptive ceiling for trials: if a criminal trial takes longer than 15 months in a lower court or 30 months in a provincial superior court, that trial presumptively violates the accused’s section 11(b) Charter right to a timely trial. Importantly, delays caused by the accused are taken into account by deducting the time for those delays from the total length of time between arrest and trial. Nor is any trial over the thirty-month ceiling automatically a cause for stay: the Crown has the opportunity to prove that there were exceptional circumstances for the delay, or that the case was a complicated one justifying the extended time.
The decision in Cody then serves as an example of the way judges should approach the Jordan framework: first, the total time between charge and the anticipated end of trial is calculated; second, the total delay attributable to the defendants is subtracted from the total. Defence delay is then divided into two components: delay waived by the defence, and delay that is caused solely by the defence. “A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal” (para 27), while delay caused by the defence applies when it has “ ‘solely or directly’ caused the delay.” (para 28) Cody then takes the form of a simple equation: total number of months minus the length of time associated with defence conduct and exceptional circumstances; if that number is over 30, the trial is unfair and in violation of the accused’s s. 11(b) rights.
The Court spends some time elaborating upon this last part, as not all defence conduct can be deducted under this label. Defence actions taken to respond to the charges do not contribute to delay. Rather, only activity that “(1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.” (para 30) While it is not permissible for defence counsel to try and run down the clock, any action taken (along with the manner in which it was performed) must be scrutinized in order to determine whether it contributes to defence-caused delay.
In this case, only two periods could be attributed to the defence: the first was Mr. Cody’s recusal application; this was found to be “meritless, frivolous or illegitimate.” (para 41) Similarly, the time allotted for the change of defence counsel also counted as defence-caused delay. The Crown also attempted to argue that certain events—specifically, the allegations of officer misconduct—were exceptional circumstances, and so five months should be similarly deducted. The Court agreed, but only to a point: two months were subtracted, but the remaining three were caused by institutional delay, and so were not eligible for deduction.
All of this left a total of 36.5 months. As the Crown could not prove that this was a particularly complex case, they failed to rebut the presumption of an unfair trial and the charges were stayed.
Beyond its particular finding, Cody’s emphasis on the good-faith requirements on the part of defence counsel blends seamlessly with the ruling in Jordan, which was intended to effect change in a “culture of complacency” (para 1). Hence the need for all parties involved—defence, prosecution, and judges—to ensure the efficient operation of the justice system and that the protection outlined in s. 11(b) of the Charter actually has some meaning in courtrooms across the country.
This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.