N.L. court case could change the course of jus­tice

The Compass - - Editorial - Russell Wanger­sky East­ern Pas­sages Russell Wanger­sky is a Telegram colum­nist. He can be reached at rwanger@thetele­gram.com; Twit­ter: @Wanger­sky.

A case from this prov­ince might be about to fine-tune a Supreme Court of Canada de­ci­sion that’s been mak­ing waves across the coun­try.

Last sum­mer, the Supreme Court of Canada handed down a judg­ment in the case of the Queen vs. Jor­dan.

It was a sim­ple drug case, but it’s had re­ver­ber­a­tions across Canada, bring­ing a slew of court cases to a sud­den end — in­clud­ing com­plex drug mat­ters, and even mur­der tri­als.

The is­sue in Jor­dan was the amount of time it was tak­ing for de­fen­dants to get their day in court.

It’s an is­sue that’s been the sub­ject of Supreme Court chal­lenges be­fore — cases like Askov and, later, Morin, ruled that de­fen­dants have a right to a prompt trial.

Jor­dan, though, took it fur­ther. The jus­tices of the Supreme Court ruled that early cases in­volv­ing de­layed jus­tice weren’t hav­ing enough ef­fect — pros­e­cu­tors were still com­pla­cent about de­lay, and de­fen­dants weren’t get­ting their tri­als quickly enough.

So the jus­tices ac­tu­ally set down a time­frame — for cases at the pro­vin­cial court level, de­fen­dants could ar­gue to have the case dis­missed if it wasn’t in court within 18 months. For cases in pro­vin­cial Supreme Courts, the time­frame was 30 months.

Across the coun­try, that’s meant charges have been be­ing thrown out be­cause the time­frames weren’t met. We’re in a sort of an odd spot right now; it’s a tran­si­tion be­tween the old rules in Morin, and the new ones out­lined in Jor­dan.

And a host of pro­vin­cial jus­tice de­part­ments are hop­ing an­other drug case, this time from New­found­land and Labrador, will of­fer the Supreme Court an op­por­tu­nity to tidy up the fall­out from the Jor­dan case.

The case is called James Cody vs. Her Majesty the Queen, and on the face of it, it’s rel­a­tively sim­ple. Cody was ar­rested as part of a large drug case, but it took him five years to fi­nally have a five-day trial.

Cody was ar­rested when, as part of the sur­veil­lance in an in­ves­ti­ga­tion called Op­er­a­tion Ra­zor­back, he was found in a truck with a kilo­gram of co­caine, a half a kilo­gram of mar­i­juana and a stun gun.

The case me­an­dered along with de­lays in­clud­ing a dis­pute over the use of 20,000 pages of dis­clo­sure doc­u­ments (it was a big op­er­a­tion), changes in lawyers and con­sti­tu­tional chal­lenges.

The judge hear­ing the case said that was too long and stayed the charges; this prov­ince’s Court of Ap­peal over­turned the stay, say­ing that much of the de­lay was the re­sult of de­fence lawyers’ tac­tics and is­sues.

The cur­rent ap­peal to the Supreme Court of Canada - due to be heard on April 25 — has gar­nered the at­ten­tion and in­volve­ment of the at­tor­neys gen­eral of Bri­tish Columbia, Al­berta, On­tario, Que­bec and Man­i­toba, along with fed­eral gov­ern­ment lawyers.

They’re looking for a change that would see a lit­tle more flex­i­bil­ity in the tran­si­tion from older de­lay cases to the more-rigidly struc­tured Jor­dan rules.

There’s some­thing wrong, On­tario of­fi­cials ar­gue, in retroac­tively hold­ing pros­e­cu­tors to a stan­dard that didn’t yet ex­ist: “For serious charges to be stayed, where on ap­pli­ca­tion of the frame­work un­der which the par­ties were op­er­at­ing there was no chance of such a re­sult, this can only bring the ad­min­is­tra­tion of jus­tice into dis­re­pute.”

For its part, the New­found­land pros­e­cu­tors are ar­gu­ing sim­ply that the de­lays in Cody’s trial were not the fault of the Crown, but should rightly be blamed on the de­fence. In all, they say, only six months of de­lay out of five years is the Crown’s fault — and that’s not enough to stay the charges.

It prob­a­bly mat­ters lit­tle to Cody that his name is up in big le­gal lights.

But the Queen vs. Cody — if it ends up mod­i­fy­ing the Jor­dan de­ci­sion sig­nif­i­cantly — may end up be­ing a well-read case in­deed.

“The cur­rent ap­peal to the Supreme Court of Canada — due to be heard on April 25 — has gar­nered the at­ten­tion and in­volve­ment of the at­tor­neys gen­eral of Bri­tish Columbia, Al­berta, On­tario, Que­bec and Man­i­toba, along with fed­eral gov­ern­ment lawyers.”

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