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SCC ruling in Cody clarifies the legal test for delay timelines


OTTAWA — The Supreme Court of Canada is standing by its groundbreaking decision on ensuring timely criminal trials.

In a unanimous decision Friday, the court ruled that a Newfoundland and Labrador man facing drug and weapon charges should not go to trial under new rules spelled out last July for determining unjustifiable court delays.

James Cody was arrested in Conception Bay, N.L., in January 2010 and charged with drug possession for the purposes of trafficking and possession of a prohibited weapon.

However, for various reasons Cody's trial was not slated to begin until late January 2015, five years and 21 days later.

The trial judge stayed the criminal proceedings against Cody in December 2014 due to the delay, a decision that was overturned by the Newfoundland and Labrador appeal court last year using transitional provisions of the new framework set out by the Supreme Court.

In its landmark decision last year, the court cited a ``culture of complacency'' in the justice system and said the old means of determining whether a person's constitutional right to a timely trial had been infringed was too complex and unpredictable.

Under the new framework, an unreasonable delay would be presumed should proceedings — from the criminal charge to conclusion of a trial — exceed 18 months in provincial court, or 30 months in Superior Court. 

However, the court cautioned these benchmarks are not set in stone.

The Supreme Court also said that as a transitional measure for cases already in the system, the new framework must be applied "flexibly and contextually.''

In Friday's decision, the court said that in the end, the delay in Cody's case was unreasonable and therefore the order of the trial judge to halt proceedings against him must be restored.

“This appeal is yet another example of why change is necessary,'' the court said in its decision.

The judges noted that a number of provincial attorneys general who intervened in the Cody case asked the court to modify the new framework to provide for more flexibility in deducting and justifying delay.

The court said that like any of its precedents, the 2016 decision “must be followed and it cannot be lightly discarded or overruled.''

In an interview with, Toronto criminal lawyer John Rosen says he was not at all surprised by the court’s ruling in R. v. Cody.

The decision reiterates the benchmarks in Jordan and clarifies the test that should be applied at each stage of the analysis when calculating the timelines, he says. 

Cody is important because it provides definition to two elements of the Jordan test,” says Rosen, founder of Rosen & Company Barristers.

“The first relates to defence delay. If the court determines that defence conduct, whether it’s a motion or a request for an adjournment, was done to cause delay or was a frivolous application that did not advance the accused’s interests, then the period of time it took to deal with that will be deducted."

The second element relates to when the net delay is looked at and the timeline has surpassed the Jordan benchmarks. In that instance, the onus is on the prosecution to demonstrate it was an exceptional case, Rosen says.

“The court defined exceptionality — it’s not in relation to one particular aspect of the case. The entire case has to be considered,” he says. “The court says that if the evidence is complex, then that may excuse delay.

“If it’s not an exceptional case, the charges will be stayed.”

Rosen says ultimately Cody delivers a strong message to the key players in the justice system.

“I think the court is completely tuned into the fact that the system is in trouble. Governments have, for years, under-resourced the justice system,” he says.  

“To government, the court is saying, ‘You need to resource your courts.' To judges, the panel is saying, ‘You need to take a more proactive approach to managing cases.’ To prosecutors and police, ‘You have to work much harder and faster to get disclosure out to proceed efficiently.’ And to defence counsel, the court is saying, ‘Be careful about how you approach a case — not everything goes. You have to be surgically skilful in presenting a matter.’”

– With files from

© 2017 The Canadian Press

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