Federal and provincial prosecutors urged the Supreme Court of Canada to be more tolerant of unexpected delays in criminal proceedings, and to crack down on defence lawyers who unnecessarily prolong trials, at a hearing on what constitutes unreasonable delay.

But the court expressed concern Tuesday about a return to the bad old days – before last summer – when in its view all players in the justice system complacently accepted delay. Some judges also asked about maintaining fairness to defence lawyers and accused persons.

The case of James Cody of Newfoundland and Labrador, accused of drug trafficking, is the first to reach the country’s top court since it set time limits for criminal proceedings in R v Jordan last July. The limit is 30 months in superior court – the court in which Mr. Cody was to go to trial. Mr. Cody’s case was set to take double that time to reach trial – five years – when the trial judge dismissed the charges over delay. The federal prosecution service argues the delay was justifiable and reasonable.

The hearing comes as federal Justice Minister Jody Wilson-Raybould and all provincial justice ministers prepare for an emergency meeting on Friday in Gatineau, Que., to discuss solutions to backlogged courts. Judges have dismissed four murder cases in three provinces over delay since the Jordan ruling. Five provinces appeared as intervenors in the case. (Only one Supreme Court member, Justice Richard Wagner, a dissenter in the Jordan ruling, mentioned the dismissed murder charges in the hearing.)

“Trials are not well-oiled machines,” Croft Michaelson, a lawyer representing the Public Prosecution Service of Canada, which handled the case against Mr. Cody, told the court. “Unforeseen developments can cause cases to quickly go awry, leading to delay.”

On its face, the case is about how to apply the new time limits to proceedings well under way by the time of the Jordan ruling. But the federal prosecution service and several provinces asked the court to demand a faster, more efficient approach from defence lawyers, and to be flexible when unforeseen events arise – each of which would influence most post-Jordan cases.

In Mr. Cody’s case, after the trial judge dismissed the charges, the Newfoundland and Labrador Court of Appeal, in a 2-1 decision, said the actual delay was just 16 months, and ordered a new trial. Mr. Cody, alleged to have been involved in a drug ring linking British Columbia and his home province, appealed to the Supreme Court.

The Supreme Court heard the case Tuesday with seven members present, of whom the entire five-member majority from Jordan was represented. It reserved its decision.

The case turns on how the Supreme Court defines several periods of delay in which the Crown and the defence became embroiled in disputes. Delay caused by the defence must be deducted from overall delay. So, too, must delay caused by unexpected events or exceptional circumstances, though prosecutors are not permitted to simply sit back and watch those unfold; they must take steps to speed things up, where possible. One such event involved an officer who was alleged to have committed misconduct in a separate case. The Crown had to disclose that information to the defence. But the police did not appear to have told the Crown until the last minute. The result: months of delay.

“This is the kind of thing that has been going on that we’re trying to put an end to … the complacency we’re talking about in Jordan,” Justice Michael Moldaver, one of three co-authors of the Jordan ruling, told Mr. Michaelson.

“The Crown was never complacent,” Mr. Michaelson replied. “The Crown was constantly trying to push this case forward.”

He and lawyers for provinces such as Alberta, Manitoba and Quebec warned the court that the time limits in Jordan may give defence lawyers an incentive to act in ways that delay trials – for instance, by bringing a flurry of motions defending their clients’ perceived rights. The court said in Jordan that “frivolous” defence motions count as “defence delay,” but federal prosecutors and the provinces argued that even well-intentioned defence motions may be fruitless and unnecessary, and should count against the defence.

“Don’t let one side create delays that the other side has to answer for,” Ami Kotler, representing Manitoba’s Attorney-General, told the court.

Justice Russell Brown, a co-author of Jordan, asked if defence tactics need to be deliberate and calculated to cause delay, as set out in the ruling. “Absolutely no,” Mr. Michaelson replied.

“Sometimes defence lawyers can be very persuasive at the outset,” and trial judges let them proceed with various challenges – that then fail. He said the court needs to send a message to trial judges to take a harder line against defence motions that unnecessarily prolong proceedings.

Justice Rosalie Abella, another member of the Jordan majority, pointed out that, in the Cody case, the trial judge had accepted a particular defence challenge (launched over errors in a statement of facts entered into the court record) as having raised a legitimate concern. “I hear your words. I’m having trouble actually applying them in this case.”

“We’re in a post-Jordan world now,” Mr. Michaelson said. “Most of the time taken up in many cases is associated with defence applications. You can’t ignore that. You need to go back and clarify what you meant in terms of defence delay.”

Michael Crystal, an Ottawa lawyer representing Mr. Cody at his Supreme Court appeal, said Jordan holds all players at criminal trials, including defence lawyers, accountable. “Every courtroom we walk into, we have to explain everything we do.”

He said if the court allows a five-year delay, it could only be based on “ex post facto hocus pocus inaccessible to everyone but lawyers. No matter how you do the math, such a delay would be a return to a culture of complacency.”

The Globe and Mail
Published Tuesday, Apr. 25, 2017 8:43PM EDT
Last updated Wednesday, Apr. 26, 2017 7:33AM EDT