Supreme Court throws out drug case, upholding accused dealer's right to a timely trial

The Supreme Court of Canada has upheld an accused drug dealer’s bid to have his case thrown out because he had to wait five years for a five-day trial.

Justices don't waver from principles of controversial Jordan decision that set hard targets for court delays

The Supreme Court of Canada has thrown out a case against James Cody, an accused drug trafficker who waited five years for a five-day trial. (Mike dePaul/CBC)

The Supreme Court of Canada has upheld an accused drug dealer's bid to have his case thrown out because he had to wait five years for a five-day trial.

Today's unanimous 7-0 ruling also strongly upholds the principles of last July's Jordan ruling, which imposed an 18-month timeline for a case to be wrapped up in lower court, and 30 months for a Superior Court case.

The ceilings were established by the high court to uphold an accused person's charter right to a timely trial, as clogged courts across the country struggle with chronic delays.

"This appeal is yet another example of why change is necessary," the decision reads, outlining the five-year lag between the time James Cody was charged after his 2010 arrest in Conception Bay, N.L., to the time his trial was scheduled to begin.

"The Crown, the defence and the system each contributed to that delay. This leads us to stress, as the court did in Jordan, that 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."

The judgment noted that a number of provincial attorneys general who intervened in the case in April asked for more flexibility. But the ruling said it will take time to transition to the Jordan rules, and that "it must be followed and it cannot be lightly discarded or overruled."

Sufficient flexibility in Jordan

The Jordan framework for calculating an accused person's charter right to trial in a reasonable time provides sufficient flexibility and accounts for the transitional period for the criminal justice system to adapt, the ruling reads.

The Cody decision reviewed the calculation, including what delays could be deducted for exceptional circumstances, unforeseen events and defence delays, and found that the time still exceeded the Jordan limits.

Cody, who was charged in 2010 with drug and weapons offences before Jordan, succeeded in gaining a stay of proceedings by the trial judge because of the delay. The Crown appealed, and a 2-1 decision by the Appeals Court of Newfoundland and Labrador applied the Jordan framework and overturned the stay of proceedings to order a trial.

The decision said Cody was subject to bail conditions that affected his liberty; he experienced mental distress and anxiety and lost employment because of travel restrictions.

On Friday, his lawyer, Michael Crystal, said his client has been living with a cloud over his head for more than seven years, and sees the decision as a vindication.

Mental health suffered

"I think the court recognized that he took no part himself in delaying his proceeding, and further that Mr. Cody did suffer presumed and actual prejudice, his mental health suffered and he lost his job, and clearly he has been vilified in his own community back in Newfoundland."

Crystal said the ruling will force all actors in the justice system to work collaboratively and expeditiously.

Ottawa defence lawyer Michael Crystal said the Supreme Court decision on James Cody will force actors in the justice system to work more efficiently and expeditiously. (Kathleen Harris/CBC)

"Everyone benefits by an expeditious trial. No one wants to have allegations hanging over their head for a long time, and for the victims of crime, no one wants to live with the idea that someday they're going to be called upon to tell people what happened to them."

But he conceded there will be some "inequities" during the transition.

"Whenever the system shifts gears, there are going to be casualties," he said. "It is a transitional period and there is frustration, but I can tell you from the judiciary, to defence counsel, to the staff, to prosecutors' offices, everyone is going into high gear to ensure that trials are done in an expeditious time."

Call for action

Justice Minister Jody Wilson-Raybould said she will read the decision with a "fine-tooth comb," but said the top court ruling repeated a strong call for action.

"I think the underlying message, which existed before and exists today, is that all actors in the criminal justice system need to work concertedly to create culture shift and to ensure that we do everything we can to create efficiencies and improve effectiveness of the criminal justice system," she said in Vancouver. "It's something that I am committed to doing, I know my counterparts in provinces are committed to doing, because it's only with all actors working in concert that we are going to be able to address the issues of delays in a substantial way."

Sue O'Sullivan, the federal ombudsman for victims of crime, is hearing from victims and families right across the country worried that court delays will rob them of the opportunity to see justice done.

Sue O'Sullivan, Canada's federal ombudsman for victims of crime, says chronic court delays are eroding public confidence in the justice system. (Sean Kilpatrick/Canadian Press)

"This directly impacts Canadians' confidence in the criminal justice system," she told CBC News in an interview.

"This has to do with accountability. Our justice system relies on victims willing to come forward to go through the process for justice, and if they don't feel confident, this is where the system is going to break down."

'Devastating' for families

Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime, agreed that speedy trials are in the best interests of all parties. But she said there must be a way to stop persons accused of murder and other violent crimes from walking free due to a timeline, such as having courts prioritize serious crimes.

She called that distressing for families and an affront to the public.

"It's absolutely devastating for the families who are affected. They feel powerless, they're distressed and they're revictimized by it," she told CBC News. "It's also a public safety issue. People who have been accused of very serious crimes, then it is not coming to a courtroom to hear evidence and make a decision in the case, that's unacceptable."

Judicial vacancies

In the House of Commons today, Conservative justice critic Rob Nicholson asked why the Liberal government was taking so long to appoint judges, a delay which is causing a backlog in the courts. He said there was no shortage of "exceptional" candidates when the Conservatives were in power, and called on the government to "clean up this mess."

Bill Blair, the parliamentary secretary to the justice minister, said the government has appointed 77 judges and 22 deputies since taking office.

"We have a system in place, it's being implemented and we are seeing significant progress," he said.

There are currently 43 judicial vacancies.

The federal government is under pressure to take steps along with the provinces and territories to streamline Canada's court system. (Mike dePaul/CBC)


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