Supreme Court takes tough line on delay

The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015 (Sean Kilpatric/THE CANADIAN PRES)

The Supreme Court has stuck by its insistence that the criminal-justice system needs tough time limits on delay, dismissing charges in a drug trafficking case in which it took five years to schedule a five-day trial.

But the court, in a 7-0 ruling that brought together the views of two factions that had been deeply divided over delay, stressed that the seriousness of an offence plays an important role in considering delay in cases that predate last summer. That means that several murder charges that have been dismissed, but which are now under appeal, could be back in play.

The case of James Cody of Newfoundland and Labrador was a chance for the Supreme Court to clarify the principles it established in R v Jordan, a decision on delay last summer that set strict new time limits for the completion of criminal trials.

The Jordan ruling has caused turmoil as the criminal-justice system adjusts to the time limits – 18 months for trials in Provincial Court and 30 months in superior court, from charge to completion. Murder cases have been dismissed in Ontario, Alberta and Quebec, and defence lawyers across Canada have brought applications for more than 1,000 cases to be dismissed over delay. Five provinces intervened in the case to urge a more permissive view of delay, particularly for cases already in the system prior to Jordan.

The Cody case highlighted the wide divergence among judges whose job it is to apply the Jordan ruling. Mr. Cody had been accused of trafficking in marijuana and cocaine, possession of a prohibited weapon and breach of probation. He was one of 13 people accused of being part of a drug-trafficking ring between British Columbia and Newfoundland and Labrador. Mr. Cody’s case was set to take 60 months and 21 days when the trial judge dismissed the charges over unreasonable delay.

The Jordan ruling came out after the trial judge’s decision in the Cody case. On appeal from the Crown, the Newfoundland and Labrador Court of Appeal called in lawyers for both sides to hear their views on how to apply Jordan to cases already in the system. The Jordan ruling contained transitional rules for the pre-Jordan period.

Two of the three appeal-court judges then ruled in the Cody case that the actual delay was just 16 months after subtracting for delay caused by the defence and other permissible forms of delay. But a dissenting judge said the actual delay was 39 months, and was unconstitutionally long.

Michael Crystal, an Ottawa lawyer representing Mr. Cody at his Supreme Court appeal, urged the Supreme Court not to take the pressure for change off the justice system by softening the Jordan ruling. “I can tell you my client feels as though the sword of Damoclean justice has been hanging over his head for way too long – 7.5 years,” Mr. Crystal said in an e-mail Friday morning before the release of the ruling.

But federal prosecutors say they acted reasonably under the rules in place at the time. “If the Crown had known that the law was going to be changed, it might have acted differently; it cannot now go back and change behaviour that was reasonable under the former law,” they said in a legal filing to the Supreme Court.

In the Jordan case, Barrett Jordan, too, was accused of drug trafficking, and his case took 49.5 months till completion, a time accepted by the trial judge and an appeal court as reasonable – but which all nine judges on the Supreme Court said was unconstitutionally long. Except for that finding, the court was split, with five judges saying a “culture of complacency and delay” had set in among all justice-system players over the preceding 25 years, and time limits had to be established, and four judges saying there had been widespread efforts to battle delay, and objecting to the new limits.

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