Top court doubles down on tough standards

If provinces and prosecutors were hoping to get a bit of breathing room in their struggles with strict new standards on trial delays, the Supreme Court of Canada is in no mood to oblige.

In a unanimous decision released Friday, the Supreme Court doubled down on a ruling last summer in the matter of R. v Jordan that set out a ceiling on trial delays in order to shake up the “culture of complacency” in Canada’s sluggish justice system.

The Jordan decision has sent ripples across the country because it made no exception for the seriousness of the charge — meaning even accused murderers have had their cases tossed out of court due to trial delays.

In this new decision, the Supreme Court ruled that James Cody, a Newfoundland man facing drug trafficking and weapons charges, will not get a new trial after his case took five years. The trial judge had ordered a stay of proceedings due to the delay, but was overturned last October by an appeals court citing the “transitional” exception for cases already underway before the Jordan decision’s release.

The transition period is one of three exceptions that may justify a trial exceeding the Jordan standards (18 months in a provincial court, 30 months in a superior court). The other two exceptions are events beyond the Crown’s control, and a situation where there is a particularly complex case.

The Supreme Court used this decision to tighten how to apply the transitional exception, pointing out the stay of proceedings had been issued before the Jordan decision even came out.

“The trial judge’s findings under the previous law strengthen the case for a stay of proceedings,” the ruling says. It also emphasized that the seriousness of the charge still remains a relevant factor for pre-Jordan cases.

Quebec, Ontario, Manitoba, Alberta and British Columbia had all been interveners in the case, seeking clarity in how Jordan was interpreted — and, ideally, some flexibility. But the Supreme Court held firm, saying the new Jordan framework “cannot be lightly discarded or overruled.”

“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,” the ruling said.

Earlier this week, a Senate report warned of the prospect of “tens of thousands” of criminal cases getting tossed out starting next year if immediate action isn’t taken on trial delays. It had a wide range of recommendations for how to improve the system and get judges to manage cases more efficiently, but it also urged the government to allow alternative remedies beyond a stay of proceedings.

In April, provincial and territorial justice ministers held a meeting to push the federal government for legislative reforms to help with court delays, particularly around mandatory minimum penalties, bail, preliminary inquiries, and reclassification of offences.

Justice minister Jody Wilson-Raybould is reviewing options, but hasn’t yet announced what the government will do.

Michael Crystal, an Ottawa lawyer who represented Cody, rejected the notion the Jordan decision is causing chaos and allowing scores of serious offenders to walk free.

“I can tell you right now, that’s not the reality in the courtrooms,” he said. “I know there are a couple of cases like that, but that’s far from being the reality. The courts are working very, very hard to accommodate Jordan.”

He said defence lawyers are just as interested in a speedy trial as everyone else, but alternate remedies won’t get us there. The reform he’d most like to see is around improving access to legal aid so accused persons are able to properly navigate the justice system.

“I think we really have to commit to legal aid resources ... the vast portion of cases in the system are somehow subsidized by legal aid programs,” he said.