Russell Wangersky: N.L. court case could change the course of justice


Published on April 17, 2017

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.

Russell Wangersky
File photo

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

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.

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.

 

Russell Wangersky is a Telegram columnist. He can be reached at rwanger@thetelegram.com — Twitter: @Wangersky.