Cody case fires an­other shot across jus­tice’s bow

The Telegram (St. John’s) - - EDITORIAL - Rus­sell Wanger­sky Rus­sell Wanger­sky’s col­umn ap­pears in 30 Saltwire news­pa­pers and web­sites in At­lantic Canada. He can be reached at rwanger@thetele­gram.com — Twit­ter: @wanger­sky.

For James Cody, a long process has come to an end: the Supreme Court of Canada ruled late last week that five years was too long to wait for a five-day trial, and stayed charges against the New­found­land man.

Cody was ar­rested in Jan­uary 2010, mean­ing he’s been wait­ing more than seven years for a fi­nal de­ci­sion in his case.

And while the end of the case is prob­a­bly wel­come news for Cody, the more sig­nif­i­cant change to the ju­di­cial process is go­ing to oc­cur in courts right across the coun­try.

What the court did was to reaf­firm the prin­ci­ples in an ear­lier case known as the Jor­dan de­ci­sion. The sim­plest ex­pla­na­tion of the Jor­dan case? It’s best spelled out in an old say­ing: jus­tice de­layed is jus­tice de­nied. Wit­nesses’ mem­o­ries fade, dates be­come fuzzy, the ac­cused’s life is sus­pended.

The Supreme Court ruled in Jor­dan — and reaf­firmed in Cody — that cases have to move more quickly, and if they don’t, charges will end up be­ing stayed, even if those charges are for crimes as se­ri­ous as mur­der.

Plainly, the Supreme Court jus­tices are a lit­tle an­noyed, writ­ing, “This ap­peal is yet an­other ex­am­ple of why change is nec­es­sary.”

At­tor­neys gen­eral from sev­eral prov­inces had got­ten in­volved in the Cody case as in­ter­ven­ers.

Their ar­gu­ment, to put it sim­ply, is that the Jor­dan case was caus­ing a sig­nif­i­cant num­ber of le­git­i­mate cases to be dropped and there should be more flex­i­bil­ity in the time it took for the changes out­lined in Jor­dan to come into ef­fect.

The Supreme Court clearly wasn’t buy­ing that ar­gu­ment.

In fact, the court re­it­er­ated the need for the prov­inces to get their jus­tice sys­tems in or­der, and even gave di­rec­tion to judges, say­ing the ju­rists have a clear re­spon­si­bil­ity to shorten trial times.

Judges are be­ing told they should be more ac­tive in mov­ing the court process for­ward — tight­en­ing the sched­ul­ing, en­hanc­ing case man­age­ment, and dis­pos­ing of “plainly friv­o­lous” mo­tions, along with re­fus­ing to grant ad­journ­ments that would un­rea­son­ably lengthen cases.

For jus­tice de­part­ments across the coun­try, the de­ci­sion re­it­er­ates that there has to be more: more re­sources, more pros­e­cu­tors, a bet­ter use of avail­able court time and, most likely, more judges, too.

But there are two sides in ev­ery court case, and speed­ing up the court process is go­ing to re­quire bet­ter ef­forts from ev­ery­one.

Court cases have got­ten amaz­ingly com­plex, with the two sides wrestling over reams of doc­u­men­ta­tion. Cody was fac­ing drug and weapons charges — the doc­u­men­tary ev­i­dence pro­duc­ing by po­lice ran to more than 20,000 pages.

That’s far from un­usual. For com­plex changes con­cern­ing busi­ness fraud or com­mer­cial crime, the ev­i­dence that is part of a trial can sim­ply be mas­sive: 20,000 pages is barely the first vol­ume.

There’s a lot of pa­per ev­ery­where, as lawyers jockey for any avail­able ad­van­tage.

A run-of-the-mill im­paired case can see de­fence lawyers de­mand ev­ery sin­gle piece of pa­per sur­round­ing the breath­a­lyzer unit it­self: all op­er­at­ing man­u­als, train­ing man­u­als, re­pair records and daily cal­i­bra­tion records, as the lawyers look for a rea­son to dis­qual­ify the unit’s pretty straight­for­ward re­sults.

Some­how, both the de­fence and the pros­e­cu­tion will have to find ways to move cases for­wards, de­spite the par­a­lyz­ing amounts of ev­i­dence in­volved — ev­i­dence where ev­ery “t” has to be ob­vi­ously crossed, and ev­ery “i” clearly dot­ted.

Be­cause, if the Supreme Court wasn’t clear enough in the Jor­dan de­ci­sion, it has def­i­nitely made its point now.

If you look at it from a sim­ple hu­man per­spec­tive, one thing is un­de­ni­able.

Put your­self in Cody’s shoes. Five years wait­ing for a trial, five years with your life on hold, is just too long.

The Supreme Court ruled in Jor­dan — and reaf­firmed in Cody — that cases have to move more quickly, and if they don’t, charges will end up be­ing stayed, even if those charges are for crimes as se­ri­ous as mur­der.

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