R. v. Cody: Trial Within A Reasonable Time And Enhancing Efficiency

The Supreme Court decision in Jordan1 was a watershed decision that changed the balancing required in considering whether a trial has occurred in a reasonable time. The Court has affirmed the importance of this case in the 2017 decision in R. v. Cody.2

In considering whether a stay of charges should be granted in the context of trial within a reasonable time, the seriousness of the offence will not override the rights in issue. The result is that very serious charges, including murder, have been stayed. This has resulted in considerable media criticism and understandably victims of serious crimes have been left feeling that the justice system has failed them.3 The Jordan and the Cody decisions require that all of the actors in the criminal justice system must engage in a risk balancing of priorities much earlier in the process.

The Court set presumptive time limits in Jordan:4

The new framework for s. 11(b) can be summarized as follows:

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling. Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable. Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law. In Cody, the Supreme Court of Canada delivered a unanimous decision with strong language underscoring the importance of Charter rights and precedent in the Court:5

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. But Jordan was released a year ago. Like any of this Court's precedents, it must be followed and it cannot be lightly discarded or overruled (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 38; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44). The Jordan framework now governs the s. 11(b) analysis and, properly applied, already provides...