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CONSTITUTIONAL ISSUES - Procedural rights - Trial within a reasonable time - Remedies for denial of rights - Stay of proceedings

Friday, June 16, 2017 @ 1:55 PM  

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Appeal by Cody from the judgment of the Newfoundland and Labrador Court of Appeal which set aside the stay of proceedings entered by the trial judge and remitted the matter for trial. On January 12, 2010, Cody was arrested as a part of a drug trafficking investigation. He was charged with two counts of possession for the purpose of trafficking, one count of possessing a prohibited weapon, and one count of possessing a weapon while being prohibited from doing so, and was released on bail. On June 30, 2010, the Crown indicated that it was prepared to provide disclosure but required Cody’s counsel to sign an undertaking preventing the defence from copying the two CDs containing over 20,000 pages of material. The impasse following defence counsel’s refusal to sign was resolved on September 30, 2010. The five-day trial was finally scheduled to begin on January 26, 2015 after applications by Cody for recusal and to exclude the evidence were dismissed and other events took place. Cody’s application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms was heard in late November 2014. Applying the former Morin framework, the trial judge concluded that approximately 19 months were attributable to Crown and institutional delay, which exceeded the guideline for a case tried in superior court. He ordered a stay of proceedings, concluding that the prejudice suffered by Cody because of the delay outweighed society’s interest in a trial on the merits. While the Crown’s appeal from the trial judge’s stay order was under reserve, the Supreme Court of Canada released its decision in Jordan. The majority of the Newfoundland and Labrador Court of Appeal allowed the appeal. Applying the Jordan framework, it found a number of exceptional circumstances relating primarily to disclosure as well as misconduct allegations that had been made against one of the police officers involved. After accounting for these deductions, it quantified the net delay as approximately 16 months. Because this was below the presumptive ceiling, the Court set aside the stay of proceedings and remitted the matter for trial.

HELD: Appeal allowed. The total delay from when Cody was charged to his scheduled trial date amounted to approximately 60.5 months. The thirteen months of delay expressly waived by Cody were to be subtracted. Other periods of time were also to be deducted: the delay resulting from Cody’s first change of counsel and the delay resulting from his recusal application, which was found meritless and frivolous. These two delays were deductible defence delay, having been solely or directly caused by the accused person and having flown from defence action that was illegitimate insomuch as it was not taken to respond to the charges. After accounting for the deductions, the net delay was approximately 44 months, which was presumptively unreasonable. It therefore fell to the Crown to demonstrate exceptional circumstances. Exceptional circumstances generally fell into two categories: discrete events and particularly complex cases. The Crown submitted that the dispute over defence counsel’s refusal to sign the disclosure undertaking prohibiting the electronic copying of the evidence was a discrete event. However, even had this event been reasonably unforeseeable, it was incumbent upon the Crown to take immediate steps to resolve the dispute. It was the Crown’s refusal to release the disclosure that pushed the delay beyond what might otherwise have been viewed as reasonable. Taking into account discrete events, such as the appointment of Cody’s former counsel to the bench and the McNeil disclosure issue that arose, the net delay in this case of approximately 36.5 months remained above the ceiling and was presumptively unreasonable. The delay caused by a single isolated step that had features of complexity, the voluminous disclosure of the evidence, should not have been deducted. While there was extensive disclosure, the balance of the proceedings appeared to have been relatively straightforward. Even after accounting for the voluminous disclosure, this did not qualify as a particularly complex case. The charges against Cody were serious. However, this consideration was overcome by the trial judge’s findings of “real and substantial actual prejudice”. The trial judge also made an express finding that Cody’s conduct was not inconsistent with the desire for a timely trial. The trial judge’s findings under the previous law strengthened the case for a stay of proceedings. Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighed in favour of a stay, the Crown would rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework.

R. v. Cody, [2017] S.C.J. No. 31, Supreme Court of Canada, Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ, June 16, 2017. Digest No. TLD-June122017014SCC