Criminal law, a bit like crime itself, can be quite messy. Last year, however, the Supreme Court of Canada tried to make it more efficient in order to protect accused people from having to live too long under the shadow of alleged guilt while awaiting trial.
In their split decision in the case of R. v. Jordan, the majority ruled that an individual's right to a speedy trial was presumptively violated if they had to wait more than 18 months for cases tried in provincial court, and 30 months for cases tried in superior court.
The result has been chaos. Cases involving serious offences, murder included, have been thrown out, an outcome that likely to damage the public's opinion of the justice system.
Five provincial attorneys-general, plus their federal equivalent, are pleading for room to manoeuvre. And a current case before the Supreme Court of Canada is giving them some hope.
R. v. Jordan involved an alleged drug trafficker in B.C. who had to wait 49 months for a verdict. Lawyers for another alleged drug trafficker, James Cody in Newfoundland, have been arguing that their client's superior court trial will have gone twice as long as the 30-month limit in the Jordan ruling if and when it is completed, and that all charges should be stayed.
They are now before the Supreme Court of Canada, where Justice Michael Moldaver, one of the coauthors of the Jordan decision, raised questions about its exacting standards in oral argument on the Cody case.
The big issue is, who is the cause of the delays in a trial – the Crown, or the defence? And who gets punished for delays? What if the accused changes – or has to change – lawyers? What if Charter challenges come up? What about complex white-collar criminal cases, often featuring thousands of documents – should such cases, which clearly need extra time, get extra time?
Michael Crystal, Mr. Cody's lawyer, has praised the Jordan decision for forcing defence lawyers and Crown attorneys to "abandon their silos and Cold War posturing." Maybe. But there's also a widespread sense that Jordan's rigidity has upset a delicate balance, causing legitimate cases of serious law-breaking to be dropped.
When it issues a ruling in the Cody case, the Supreme Court has an opportunity to restore a degree of flexibility to the courts. In doing so, it can protect the reputation of the justice system.