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 limits.
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 Western University 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."