June 16: The continuing saga of trial delays – R v Cody

On June 16th the Supreme Court issued a ruling on the Charter right to trial within a reasonable time.  This has been a white-hot issue in Canada since the Court’s July 2016 ruling in  R. v. Jordan,  where a starkly divided panel decided to institute numerical caps on trial proceedings, following which any further delay is considered presumptively unreasonable and, absent a persuasive argument by the Crown, will mandate a stay of proceedings.  A number of stays have since been issued (although there is some debate over the true scope of the Jordan “crisis”).

In R. v. Cody, the Court was faced with an as of right appeal in which a stay was issued for a case that concluded pre-Jordan.  The case thus engaged the so-called “transitional exceptional circumstances” which have been the subject of some confusion.  A trial judge, working in the pre-Jordan context, issued the stay for a drug trafficking charge which did not see trial for 60 months. The Court of Appeal. applying the Jordan transitional framework, reversed that decision. In a 7-0 decision (one of the judges had participated in a companion case at the Court of Appeal), the Supreme Court re-instituted the stay and issued a strong statement in favour of the Jordan ruling.

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