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Supreme Court stands by controversial ruling requiring trials take place within a reasonable time
16-06-2017
The Supreme Court of Canada is standing by its groundbreaking decision on ensuring criminal trials take place within a reasonable time. (SEAN KILPATRICK / THE CANADIAN PRESS FILE PHOTO)
In a unanimous decision Friday, the Supreme Court of Canada stuck to its guns on a controversial ruling it issued last year that set strict timelines for criminal trials.
Instead of backing down in the face of controversy, alarmist headlines and the demands of several provinces for more flexibility, the country’s top court said its new framework, under a 2016 ruling known as Jordan, now governs how judges should assess the Charter guarantee to a trial within a reasonable time.
“Like any of this Court’s precedents, it must be followed and it cannot be lightly discarded or overruled,” the court said Friday.
“Properly applied, this framework provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt.”
That means police and prosecutors must ensure it takes no more than 18 months from the laying of a charge to complete a trial in provincial court, and 30 months for serious, often more complex cases in superior trial courts.
By upholding the Jordan ruling, the high court rejected concerns that serious cases such as murder or sexual assault charges are unjustly being tossed out under the new framework.
“Every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time,” said the court.
The ruling restored a trial judge’s order to halt proceedings against James Cody, one of six men accused in a cross-country police narcotics operation, after charges took five years to get to trial. The high court overturned a Newfoundland Court of Appeal ruling that had wrongly applied the Jordan framework.
“This is like a clarion call for all actors in the system to up their game,” said Cody’s lawyer Michael Crystal.
Justice Minister Jody Wilson-Raybould said the high court’s pair of rulings — Jordan and Cody — “lit another fire under us to address these challenges.”
The high court pointed out that, during this period of transition to the firm timelines for cases underway before last July’s Jordan ruling, the framework still allows judges to weigh the seriousness of an offence and the prejudice to a defendant that might result from a long delay, and for a judge to opt to allow a prosecution to continue.
But, moving forward, it’s a different story. Criminal charges laid since last July are expected to proceed under the new framework of tight timelines for trial within a “reasonable time,” a ruling that gives real muscle to a right enshrined in the constitution’s section 11 (b).
That new framework disregards factors such as “seriousness” of the charge or “prejudice” to a defendant, saying such considerations must not sway a judge’s decision.
It calls on judges to be much more vigilant case managers.
The 7-0 judgment released Friday was signed simply by The Court, a signal meant to reinforce the judges’ dim view of a “culture of complacency” it identified in last July’s controversial Jordan ruling.
In that decision, the court split 5-4.
Not this time.
The seven-judge panel was unanimous as it laid out how courts should interpret and apply the Jordan ruling, concluding five years to bring Cody to trial on drug trafficking charges was far too long.
The Supreme Court of Canada clarified how delays should be measured. It said unnecessary or “illegitimate” delays caused by the defence, and delays that the defence team waives or agrees to must be subtracted from the calculation of how long it takes to complete a trial.
“All justice system participants, defence counsel included, must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 (b) of the Charter,” the decision reads.
Once defence delays are discounted, if a case surpasses the 18-month or 30-month limit, it’s up to the Crown to prove the overall delay is reasonable by establishing “exceptional circumstances.” These could include unforeseeable or unavoidable events (such as the naming of one of Cody’s lawyers to the bench), or the particular “complexity” of a case. The court added the Cody case, altthough it involved several co-accused and 20,000 pages of evidence that had to be disclosed to the defence, was nonetheless relatively straightforward, and didn’t qualify as a “particularly complex case.”
Several provinces had begged the high court to relax the tough new deadlines.
But the high court said there is no going back to a time when the criminal justice system made excuses for unreasonable delays.
Crystal said Cody was “vindicated” by Friday’s ruling, but he characterized it as a hollow victory. “He’s been living with this sort of sword of Damocles hanging over his head for the last seven-and-a-half years.”
Crystal said that when criminal proceedings are halted with no finding of guilt or acquittal, everyone — victims and the accused — loses out. Cody lost his job, his mental health suffered, and he was “vilified” in his Newfoundland community. “His case ends with a question mark . . . and I think we all recognize what that means for anybody.”
Crystal said overly long trials that take years to complete are “a meaningless exercise” and the high court’s pair of rulings designed to force the system to change, although frustrating and heart-wrenching for some, are “all about access to justice.”
“Everyone benefits by an expeditious trial,” he said.
“Look, Jordan is a game-changer,” said Crystal, and “when the system shifts gears, there are going to be casualties, but it will be a short transition.” He said judges, defence counsel, court staff and prosecutors across the country are “now going into high gear to ensure that trials are done in an expeditious time.”
Rick Woodburn, president of the Canadian Association of Crown Counsel, said the Jordan and Cody rulings put the spotlight on elected governments to act quickly, or see more murder and sexual assault trials thrown out of courts that cannot cope with all the demands.
“The cornerstone of a democratic society is its justice system, so you can’t wave the flag of freedom and turn around and not put any money into it,” said Woodburn, whose association represents 7,000 prosecutors.
“Most of the time our provincial courts look like emergency rooms, and our supreme courts are filled to the brim with murders, sexual assaults, big drug trials,” said Woodburn. “We need more Crowns, more legal aid, more judges, and the infrastructure to support all that.”
Prime Minister Justin Trudeau said his government will take the time to “dig in and properly understand” the ruling. He said delays have “become a bit of a troubling pattern.”
“We need to make sure that we’re working hard to ensure that justice is swift and properly meted out to anyone who commits crimes,” Trudeau told reporters, adding the budget implementation bill, once passed, would create new positions for judges.
Wilson-Raybould, on the defensive, said she agreed with the high court’s finding that “every actor in the justice system” bears responsibility for addressing the root causes of delays. She and provincial justice ministers have flagged mandatory minimum penalties, bail, “administration of justice” offences such as breach of bail or probation, preliminary inquiries, and the reclassification of offences “as priorities for legislative reform.”
Wilson-Raybould pointed to her record of 77 judicial appointments across Canada since taking office. Yet critics say the federal Liberal government has dragged its feet on filling vacancies. The Liberals overhauled the judicial appointment process to boost judicial diversity, yet cannot keep pace with judicial departures. There are now 53 positions for federally-appointed judges unfilled, up from 44 last year, in August 2016.
Ontario's attorney general Yasir Naqvi said in a written release he agreed with the court that all players have to work together.
“We are currently rolling out a comprehensive plan to speed up the pace of criminal justice,” he said. “This plan includes appointing 13 new judges and hiring 32 assistant Crown attorneys, 16 duty counsel and 26 new court staff.”
