Supreme Court set to rule on drug case tossed out due to delays

The Supreme Court of Canada will rule today on a closely watched case that could provide clarity around targets for an accused criminal’s right to a timely trial.

Justices will render a decision in the case of James Cody, an accused drug trafficker from Newfoundland who argued his charter rights were violated when he had to wait five years for a five-day trial. 

The top court heard the case in April, as frustrations mounted over the fallout of another Supreme Court ruling known as the Jordan decision. It was applied by an appeals court in the Cody case, but the 2-1 decision set aside the lower court’s stay of proceedings, with the majority blaming delays mostly on the defence.

The Jordan split 5-4 judgment in July 2016 stayed drug charges against Barrett Richard Jordan after he waited 49 months for a trial, and said criminal trials at Superior Court must be wrapped up within 30 months, and that cases in lower provincial courts should take no longer than 18 months.

Since then, there have been cases tossed out for taking too long to reach trial, including murder and assault charges.

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With much confusion among lawyers and judges about how to apply the ruling, today’s decision could offer more guidance on how to deduct what are defence-caused delays for charges already in the system, or reach beyond the Cody case to clarify what are considered exceptional circumstances or unusual complexities in a case.

Cody’s lawyer, Michael Crystal, said today’s ruling could focus narrowly on the circumstances of the individual “transitional” case, or could be used as a broader opportunity to flesh out details within the categories for determining reasonable or unreasonable grounds for delays going forward. 

He said the Cody case goes “in the weeds.”

Jordan transformed?

“I don’t think you’re going to see Jordan transformed. I think what you’re going to get is a little tweaking, a little elaboration, and a decision on the merits of the case itself,” he told CBC News.

There were many complexities, including confidential informants with security requirements, sweeping disclosure obligations and a number of warrants.

When the case was heard in April, representatives from British Columbia, Alberta, Manitoba, Ontario and Quebec argued for greater flexibility with timelines to deal with unforeseen circumstances and complexity to ensure each case is given due diligence.

Croft Michaelson, who represented the Public Prosecution Service of Canada, said the system must have flexibility to account for unforeseeable circumstances that can cause delays.

Focus on transitional cases

Carissima Mathen, a law professor at the University of Ottawa, predicts the court will not tinker with the principles of Jordan, but rather focus narrowly on those transitional cases that were already in the system prior to the landmark ruling.

“It is possible given all the uproar that they may take the opportunity to offer some more guidance about a couple of the Jordan criteria as opposed to the transitional criteria, but there’s no guarantee,” she said. “This is not Jordan 2.”

Steven Coughlan, a criminal law professor at Dalhousie University, said the scope of the decision will depend on whether justices are having any second thoughts about Jordan. He said more definitions of defence delays that could deduct time from the presumptive ceilings could undermine the Jordan ruling.

“If they do read defence calls for delay in a more expansive way, then that immediately weakens the Jordan test because it makes it much, much easier to get below the ceiling which shifts the onus to the accused rather than the Crown and undermines the spirit of Jordan,” he said.

Pressure on government

The federal government has been under increasing pressure to help the provinces tackle court delays to ensure cases aren’t tossed out due to unreasonable delays.

Appearing before the Senate legal affairs committee in March, Justice Minister Jody Wilson-Raybould said the Cody case considers the “framework” laid out by the Jordan decision.

“We will be following that very closely,” she said at the time.

Article source: http://www.cbc.ca/news/politics/supreme-court-cody-delays-1.4159897?cmp=rss