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Delays Caused by Co-Accused: Jordan Principles and Independent Application
Question: What should you know about delays caused by co-accused in criminal trials?
Answer: Delays arising from the conduct of a co-accused can complicate the attribution of time for trial within a reasonable period, as emphasized in the case of R. v. Gopie, 2017 ONCA 728. Understanding how these delays impact your legal rights is crucial, and that’s where David Oake, Barrister (o/a MuskokaCriminal.Law™) comes in. With a dedicated Criminal Defence Team, we ensure that each individual's actions are accounted for in the trial process, helping to protect your rights and uphold justice.
Co-Accused Conduct and Jordan Principles
In Canada, the right to a trial within a reasonable time is a fundamental guarantee prescribed by section 11(b) of the Charter of Rights and Freedoms. The landmark decision of R. v. Jordan, [2016] 1 S.C.R. 631, redefined these principles by establishing presumptive timelines for trials. The protection provided by a trial within a reasonable time aims to prevent undue hardship to the accused, to preserve the integrity of the judicial process, and to maintain public confidence in the justice system. The Jordan case established presumptive ceilings of eighteen (18) months for provincial offences cases and thirty (30) months for criminal charges.
Delays Caused by Conduct of Co-accused
The process of determining attributable delay in multi-accused trials presents unique challenges. The responsibility of delay stemming from the actions of a co-accused leads to crucial questions about distribution of time deductions among all accused individuals.
- The Attribution of Delay:
The delays caused by one accused could be unfairly attributed to others, creating potential injustices within the judicial process. - The Judicial Interpretation:
The case law interpretation plays a pivotal role in determining attribution responsibilities, which significantly affects the right to a trial in a reasonable time. - The Defense Caused Delay:
The evaluating whether delay is caused by intentional acts or necessary actions for a fair trial for a particular accused adds further complexity.
Delay Attribution
The case of R. v. Gopie, 2017 ONCA 728, provides insights into defence delay attribution and highlights the need for an individualized approach. The Gopie case stipulates that delay attributable to a co-accused is inapplicable to determination of the delay attributable to other defendants and is inapplicable to the period of delay deducted from the overall timeline of all accused parties. Specifically, in Gopie it was said:
[128] I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. Accordingly, I would not attribute delay caused by the actions of a co-accused to Sargeant or Gopie.
[129] I begin by acknowledging that Jordan does not expressly address this issue. However, the Jordan framework is based on the concept of accountability, focusing on the conduct of individual players in the justice system. Furthermore, when discussing defence-caused delay, the court in Jordan directs an assessment of the “accused’s acts” and whether his or her acts directly caused delay, or can be shown to be a deliberate and calculated tactic to delay the trial (Jordan, at para. 63). This language suggests that the conduct of the accused must be looked at on an individual basis and attributed accordingly.
[130] The Supreme Court recently provided further guidance on the concept of defence-caused delay in R. v. Cody, 2017 SCC 31. At para. 30 of Cody, the Court emphasized that the only deductible defence-caused delay is that which “is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges”.
[131] Further, while it pre-dated Jordan by a week, the Supreme Court’s decision in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, rev’g 2015 ABCA 409, 609 A.R. 253, is also instructive. A majority of the Alberta Court of Appeal upheld the trial decision which found the delay was reasonable. O’Ferrall J.A. dissented, saying that the trial judge had erred by counting delay caused by Vassell’s co-accused against Vassell on his s. 11(b) application.
[132] The Supreme Court approved of the reasoning of O’Ferrall J.A. and allowed the appeal. The Court commented, at paras. 6-7:
[I]t was clear from the outset that the delay caused by the various co-accused not only prevented the Crown's case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, as he wanted. Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; rather, it is one in which he took proactive steps throughout, from start to finish, to have his case tried as soon as possible. In this regard, his counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline the issues at trial, agreed to admit an expert report, made the Crown and the Court aware of s. 11(b) problems, and at all times sought early dates.
[…] the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates.
Conclusion
Understanding the right to a trial within a reasonable time is essential to uphold justice and maintain public trust in the judicial system. The Gopie decision provides pivotal guidance on addressing delays caused by co-accused parties, solidifying the need for accountability based on individual actions.