Less than a year after it set new time limits for criminal trials, the Supreme Court of Canada is being asked by federal prosecutors and several provinces to soften a ruling that has resulted in four charges of murder being thrown out for unreasonable delays.
At a hearing Tuesday in the case of James Cody, an accused drug trafficker from Newfoundland and Labrador, the court will hear a plea from the federal prosecution service for tolerance of slow-moving cases that entered the system before the ruling last July – in a case known as R v. Jordan – created the new limits.
Five provinces are intervening in the case in support of a more permissive view of delay. Three of them – Ontario, Alberta and Quebec – have seen judges throw out murder charges over delay, including a first-degree murder charge against a Montreal man dismissed on Friday, and a second-degree murder charge against another Montreal man whose wife died when her throat was slit. Manitoba and British Columbia are the other two provinces intervening.
The Cody case was scheduled, after multiple delays, to take five years to come to trial. The Supreme Court's new time limit is exactly half that – 30 months, from charge to completion, for trials in Superior Court. But the court also said it would be unfair to apply the new rules to cases that were already well under way; it provided for a blend of new and old rules.
Two months before Mr. Cody's trial was to begin, he applied to the judge for a stay, saying his right to a timely trial had been violated. The trial judge agreed and dismissed the charges. But the Newfoundland and Labrador Court of Appeal, in a 2-1 decision, said the delay was reasonable and ordered a new trial. Mr. Cody appealed to the Supreme Court to restore the trial judge's ruling.
The federal prosecution service argues that five years was reasonable in Mr. Cody's case, under the old rules.
"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," federal prosecutors, who handle drug cases, said in a legal filing to the Supreme Court.
The hearing in the Cody case comes as the federal and provincial justice ministers prepare for an emergency meeting on Friday to look for solutions to clogged courts and dismissed cases. It is unlikely that a ruling will be made in time to influence discussions in that meeting, though the court occasionally rules on the same day as the hearing.
For the court, the Cody case is a test of its resolve to transform the justice system. In Jordan, the court's majority in the 5-4 ruling was scathing about a "culture of complacency and delay" in the justice system, and said judges, defence lawyers, prosecutors and government all bore responsibility.
"Unless you admit a case has been in the system too long, you will never get past the 'culture of complacency,'" said Ottawa lawyer Michael Crystal, who is representing Mr. Cody before the Supreme Court. "It's only when you say too long is too long – five years is too long – that you will be uncomfortable. It's only when you have a target of 30 months that you become uncomfortable and you have to become more efficient."
Mr. Cody was charged in January, 2010, one of 13 people accused of being part of an alleged drug-trafficking ring between British Columbia and Newfoundland and Labrador. Complications arose during proceedings. His initial lawyer was named to the bench. An agreed statement of facts contained errors, and so did a judge's pretrial ruling. Based on those errors, Mr. Cody's defence counsel fought an extended battle to have the charges thrown out.
The case shows the difficulty judges are having in interpreting the Supreme Court's rules for cases in the system before Jordan. Two appeal court judges said the actual delay had been just 16 months, after subtracting for delay that was permitted under the old rules, and delay caused by the defence. By contrast, a dissenting judge found there were 39 months of delay. (The trial judge ruled before Jordan. The appeal court ruled after Jordan, and called the defence and Crown lawyers in to make arguments about how to apply Jordan.)
The Jordan ruling sparked an uproar. In Alberta, prosecutors dropped 200 cases – including drunk driving and assaulting-police charges – saying that they did not have enough prosecutors to handle them all, and had to save their resources for serious cases. In Quebec, where the government is spending an extra $175-million over four years to hire more judges, prosecutors and court workers, Justice Minister Stéphanie Vallée told The Globe and Mail that by the time prosecutors can set trial dates in superior court, the cases are already beyond the 30-month time limits. Ontario and Manitoba are trying to persuade Ottawa to drop most or all preliminary inquiries.
The situation in the Cody case echoes that of the Supreme Court's last major attempt to crack down on court delay. In 1990, it set time guidelines in R v. Askov, resulting in nearly 50,000 criminal charges being thrown out in Ontario alone; then in R v. Morin, 18 months later, the court eased off, allowing for more flexibility. And the court was clear in Jordan that it did not wish to see a repeat of the chaos caused by Askov, which is why it allowed for the old rules still to be in force to some extent.
But the Criminal Lawyers' Association is urging the Supreme Court to stay the course, saying that governments and the media have exaggerated the fallout from Jordan, and that what is happening is stimulating the change sought by the court.
"The 'problem' underlying government calls for flexibility does not exist," the group says in a legal filing. "The early evidence is that Jordan is working the way it was supposed to – as a vehicle for measured change. It started a conversation about delay without drastic results."