The SCC versus the “culture of complacency”: R. v. Cody
In R v. Cody, 2017 SCC 31, the Supreme Court of Canada reiterated its earlier call for reform to the criminal justice system, criticizing a “culture of complacency” toward delays. The Court’s insistence on reform may be good news for participants in the civil justice system, too, who have seen many civil actions delayed as courts devote their limited resources to clearing their criminal dockets.
The Court’s first call for reform came in the summer of 2016, when the Supreme Court of Canada issued R v. Jordan, 2016 SCC 27. R. v. Jordan dramatically changed the framework for determining whether a criminally accused’s s. 11(b) Charter rights to be tried within a reasonable time have been violated, most notably by setting an upper limit. The Court required that criminal matters be, in essence, sped up. This resulted in a diversion of judicial resources to criminal matters as courts attempted to accommodate the new timelines, leading to a consequent delay in scheduling civil matters. (There is, of course, no constitutional right to have a civil action determined within a set time. At least, not yet.)
Following R. v. Jordan and the turmoil that ensued, some Attorneys General expressed the hope that the Court would reverse itself when the question arose again in R. v. Cody. But the Court declined. And it appears the Court wished to reiterate its view with some urgency: the Court released R. v. Cody in record time, a mere two months after it was heard.
The Decision in Cody
In R v. Cody, the accused, who was charged with possession of drugs and prohibited weapons, waited five years before his five-day trial was scheduled to begin. He argued this delay breached his s. 11(b) Charter rights—correctly, according to the Jordan framework. In Cody, although a number of Attorneys General intervened to ask the Court to modify the Jordan framework to provide more flexibility, the Court refused, stating: “Jordan was released a year ago. Like any of this Court’s precedents, it must be followed and it cannot be lightly discarded or overruled.”
In Cody, the Court applied the Jordan framework—previously summarized by the Canadian Appeals Monitor here—and unanimously ordered a stay of proceedings against the accused.
The Court emphasized the importance of preventing delay in order to “effect real change”, as well as the role to be played by all actors in the justice system to achieve that goal. The Court stated: “All justice system participants—defence counsel included—must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.” The Court also noted the important role of trial judges in “changing court room culture”, given their case management powers and control over the conduct of trials.
Months before the decision in Cody was released, justice ministers from across the country met to discuss solutions to the post-Jordan turmoil. The federal Minister of Justice Jody Wilson-Raybould reportedly said: “It is based on the Jordan decision and the delays that are being faced in courts across the country that we came together to have discussions and put forward some substantive solutions that we’re going to be collectively pursuing.”
Pursuit of those solutions appears to be continuing following the release of R. v. Cody. In a statement on the decision, the Hon. Wilson-Raybould committed to making judicial appointments a priority. She stated: “We are and have been meeting the Supreme Court call to address the roots of the delay through evidence-based policy making.”
It is to be hoped that if the pressure is eased on the criminal justice system, the civil justice system will see some relief, too.
Date of Decision: June 16, 2017
justice reform reform to criminal justice system s 11(b) Charter Rights Supreme Court of Canada