Pubdate: Sat, 17 Jun 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Author: Sean Fine


Supreme Court rejects plea by five provinces that intervened in case
of accused drug trafficker dismissed because of delay

The Supreme Court has taken a tough line on delay in the criminal
courts, rejecting a plea from the provinces to be more flexible after
a year-old ruling spread turmoil through the justice system.

In its first chance to revisit delay since its groundbreaking ruling
in R v Jordan last summer, the court spoke bluntly to five provincial
attorneys-general who intervened in the case of James Cody, an accused
drug trafficker whose charges were thrown out for unreasonable delay.
The provinces had asked the court to make it easier to justify delay.

"Jordan was released a year ago," the court said in its written ruling
upholding the original decision in the Cody case. "Like any of this
Court's precedents, it must be followed and it cannot be lightly
discarded or overruled."

However, the court provided a ray of hope for prosecutors and crime
victims seeking to overturn the dismissals of serious charges because
of the Jordan case, including murder and child abuse. While not
softening the principles it set out last year - which established
strict new time limits for criminal trials, including 30 months in
superior court, where Mr. Cody was to be tried - the court stressed
that serious offences that were already in the system before the
Jordan ruling should be harder to dismiss.

The one area in which the court went further than in Jordan was in
defining defence delay: that is, when the conduct of defence lawyers
and the accused unnecessarily prolongs trials. The extra time does not
count when the delay is calculated. Some provinces had asked the court
to crack down on defence tactics, even when lawyers honestly intend to
help their clients and not purposely add time to a trial. But the
court appears not to have given them their wish, while reaffirming
that the overall goal is to hold defence lawyers, prosecutors and
judges to account for moving trials along.

Prime Minister Justin Trudeau referred to the delays in the Cody case
as part of "a troubling pattern," adding, "We need to make sure that
we are working hard to ensure that justice is swift and properly meted
out to anyone who commits crimes."

Ontario Attorney-General Yasir Naqvi said in an e-mail to The Globe
and Mail that the ruling "underscores the need for bold changes to
make the criminal justice system fairer and faster."

The case highlighted the wide divergence among the judges who must
apply the Jordan ruling. After Mr. Cody's case had been in the system
for five years, the trial judge dismissed the charges over
unreasonable delay. An appeal court overturned the ruling by a 2-1
margin, saying the actual delay had been 16 months. The Supreme Court
ruled 7-0 that the actual delay was 36.5 months and was unreasonable.
All seven judges supported the principles in the ruling, which was
authored by "the court" rather than an individual judge, an attempt to
give it more weight. In Jordan, the court had split 5-4 over the time

The ruling comes during a week in which a Senate committee issued a
report urging wide-ranging changes to the justice system, including
eliminating or limiting preliminary inquiries. The committee also said
the Supreme Court's ruling in Jordan was not well thought out - one
member likened it to taking the justice system over a cliff - and
called for a new law that would provide alternatives to dismissing
criminal cases that go on too long.

In the same week, the Ontario Court of Appeal heard a prosecution
appeal in a case of first degree murder that was dismissed over delay.
The seriousness of the offence is a crucial consideration in that
appeal. The Supreme Court said in Jordan that all accused have the
right to a timely trial, but it clarified in Cody that seriousness
matters for cases under way before that ruling.

By rejecting the provinces' requests to soften Jordan, the court has
renewed the pressure on governments to put more funding into the
system and to accept the Senate committee's proposed changes, said
Rick Woodburn, president of the Canadian Association of Crown Counsel.

"Bottom line for us: that Senate report becomes all the more
important," he said in an interview.

The court said legitimate action by defence lawyers "takes its meaning
from the culture change demanded in Jordan. All justice participants -
defence counsel included - must now accept that many practices which
were formerly commonplace or merely tolerated are no longer compatible
with the right" to a timely trial. It said appeal courts should defer
to trial judges on their assessment of defence conduct.

Michael Crystal, an Ottawa lawyer who represented Mr. Cody, said in an
interview his client had lived under a sword of Damocles for seven
years, and could now move on with his life. He also said he was elated
by how the court treated defence conduct.

"As a defence lawyer practising in court for the last 25 years, I
leave the court today feeling very, very good about being a defence
lawyer, and the way my profession has been treated by the Supreme
Court, which has said, go forth, vigorously defend, but be careful
about the clock."

Christopher Sherrin, who teaches at the University of Western Ontario
law school in London, Ont., offered a somewhat different take: the
court had been "generous" to prosecutors. "The court in Cody provided
an arguably looser definition of defence delay than in Jordan," he
said in an interview.

Benjamin Perrin, a University of British Columbia law professor who
wrote a textbook on victim law in Canada that was published earlier
this year, said the impact of Jordan has been harsh.

"It is a real damning indictment of the criminal-justice system that
we continue to see very serious charges stayed, not because of police
misconduct, but because [the system] simply could not get the case
fast enough to trial.

"There's not a worse outcome you could have, from the perspective of a
victim." He said the Cody ruling is helpful because it "potentially
attenuates the impact of Jordan at least during the transition period."
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