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R. v. Cody and the push for all parties to proceed efficiently

In unanimously reaffirming the guiding principles set out in R. v. Jordan, the Supreme Court of Canada (SCC) emphasizes the importance of all parties proceeding with matters as efficiently as possible, says Toronto criminal lawyer Lindsay Daviau.

“I think for many counsel this is going to involve a shift in our approach to new files and a need to know the case as quickly as possible to avoid delay, or worse, impact the ability to bring certain applications and make arguments, she tells

Daviau, who practises with Rosen & Company Barristers, comments on R. v. Cody, in which the SCC rules that a Newfoundland and Labrador man facing drug and weapon charges doesn’t have to go to trial because of new timelines the high court set in July 2016, reports the Canadian Press.

In Cody, the accused person was supposed to go to trial in January 2015, some five years and 21 days after his arrest. 

The new framework in Jordan set benchmarks for unreasonable delay at 18 months for charges in provincial court and 30 months in Superior Court.  

The new thresholds for delay set off a firestorm of public and political debate, and most recently a Senate report expressed concern about accused persons walking free because matters took too long to make it to trial, says the article. 

The SCC’s ruling in Cody says the new benchmarks, however, aren’t set in stone, reports the Canadian Press. 

“The Crown could challenge the notion that a delay is unreasonable by demonstrating ‘exceptional circumstances,’’ a majority of the court said in its reasons. These circumstances could include something unforeseen and beyond the Crown's control, such as a sudden illness, or a case requiring extradition of an accused from another country. They might also arise in ‘particularly complex’ cases that involve disclosure of many documents, a large number of witnesses or a significant need for expert evidence,” says the article. 

Daviau says while the SCC is clear it’s giving defence counsel the latitude to be able to take necessary steps in a proceeding without fear the time will count against their client, in so doing, they must also understand that those actions will be subject to scrutiny.

“What this means is we must be able to justify steps in the proceeding that are necessary and might result in delay,” she says. “Further, we have to make efforts to ensure we avoid unreasonable and unnecessary delays — that means spending the time at the beginning to understand your case so it can proceed as expeditiously as possible.”

Cody also brings forward the notion that defence counsel sometimes engage in tactics that are “illegitimate” and are for the purpose of causing undue delay, although it’s not tantamount to professional misconduct, Daviau says.

“I think the effect of this is going to be that all steps taken by the defence are going to be put under the microscope and we will need to be ever vigilant to ensure that proceeding as expeditiously as possible does not result in a disservice to our clients,” she says. 

Daviau also notes the court reaffirms the role the trial judge has to play in ensuring matters proceed as expeditiously as possible.

“This includes calling on judges to summarily dismiss applications that appear frivolous,” she says. “Again, this requires defence counsel to know their case as early as possible to avoid a potentially meritorious argument being thrown out because they aren’t prepared to articulate its importance.”

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