Any person charged with an offence has the right…to be tried within a reasonable time.
Section 11(b) of the Canadian Charter of Rights and Freedoms
In R. v. Cody, 2017 SCC 31, a unanimous Supreme Court of Canada reaffirms the time limits for criminal proceedings set out in R. v. Jordan, 2016, SCC 27, beyond which delay is presumptively unreasonable: eighteen months for an accused standing trial in a provincial court, and thirty months for an accused standing trial in a superior court (Jordan at para. 46). Trial judges will continue to assess the total delay from the charge to the end of trial, while subtracting any delay attributable to the defence (Jordan at para. 47).
The Court in Cody reminds us at para. 28 that the underlying rationale for the subtraction of defence delay is:
…to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113)
The Court provides additional guidance as to what constitutes deductible defence delay, beginning at para. 26:
Defence delay is divided into two components: (1) "delay waived by the defence"; and (2) "delay that is caused solely by the conduct of the defence" (Jordan, at paras. 61 and 63).
With respect to delay caused by defence conduct, the Court states, at para. 30:
The only deductible defence delay under this component …is that which… 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. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). ….it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).
The Court enumerates the following factors for a judge to consider in determining whether delay is deductible due to defence conduct, at paras. 32 and 33:
· the substance (merit) of an action;
· the efficiency of the process used to further an action - "the manner in which it is conducted";
· “the overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications”;
· whether an action was "designed" to delay the proceeding;
· whether the defence exhibited a "marked indifference" to delay when taking an action; and
· whether defence inaction or omissions contributed to the delay.
However, the Court also reiterates that deductible delay does not include legitimate actions, taken diligently, to respond to an allegation. As the Court states at para. 29:
…In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).
The bottom line is that the Supreme Court of Canada sends a clear message in Cody that a successful section 11(b) application will require counsel to demonstrate diligence and reasoned judgment in making full answer and defence at each stage of a criminal proceeding.
Systemic concerns about delay must not deter defence counsel from advancing viable applications, nor damper creativity in making novel arguments that may serve as the basis for new conceptual frameworks.
Counsel must also resist improper pressure to sacrifice a client's right to be tried within a reasonable time when making full answer and defence.