Right to a timely trial ‘cannot be lightly discarded,’ Supreme Court rules

For various reasons, Cody’s trial was not slated to begin until late January 2015, five years and 21 days after the arrest.

The trial judge stayed the criminal proceedings against Cody in December 2014 due to the delay, a decision that was overturned by the Newfoundland and Labrador appeal court using transitional provisions of the new framework set out by the Supreme Court.

In its groundbreaking decision last year, the high court cited a “culture of complacency” in the justice system and said the old means of determining whether a person’s constitutional right to a timely trial had been infringed was too complex and unpredictable.

Under the new framework, an unreasonable delay would be presumed should proceedings — from the criminal charge to conclusion of a trial — exceed 18 months in provincial court, or 30 months in superior court.

However, those benchmarks were not set in stone, the court cautioned.

The Crown could challenge the notion that a delay is unreasonable by demonstrating “exceptional circumstances,” a majority of the court said in its reasons.

These circumstances could include something unforeseen and beyond the Crown’s control, such as a sudden illness, or a case requiring extradition of an accused from another country. They might also arise in “particularly complex” cases that involve disclosure of many documents, a large number of witnesses or a significant need for expert evidence.

The Supreme Court also said that as a transitional measure for cases already in the system, the new framework must be applied “flexibly and contextually.”

In the Cody case, the high court said there was a net delay of 36.5 months after applicable deductions and concluded that the Crown could not show the delay was justified. The court therefore said the order of the trial judge to halt proceedings against Cody must be restored.

“This appeal is yet another example of why change is necessary,” the Supreme Court said in its reasons for the decision.

The court said trial judges can play an important role, for instance by denying an adjournment request on the basis it would result in an unacceptably long delay.

Michael Crystal, a lawyer for Cody, welcomed the ruling.

“This case is all about access to justice,” Crystal said.

“It is about the dignity of a trial. It is about the court saying everyone who participates in the process — defence lawyers, Crown attorneys, prosecutors — you have an obligation to work hard, do your jobs, but do it expeditiously.”

Prime Minister Justin Trudeau said the government would take time to consider the decision that will see Cody avoid a trial.

“But there’s no question that it’s part of what has become a bit of a troubling pattern,” Trudeau said. “And we need to make sure that we are working hard to ensure that justice is swift and properly meted out to anyone who commits crimes.”

The Conservatives have repeatedly accused the Liberals of moving too slowly to appoint judges to vacant spots.

The government is moving to fill those positions, bolster the courts with more federally appointed judges and work with the provinces to deal with the “very real problem” of delays, Trudeau added.

In their decision Friday, the judges noted that a number of provincial attorneys general who intervened in the Cody case asked the court to modify the new framework to provide for more flexibility in deducting and justifying delay.

The court said that like any of its precedents, the 2016 decision “must be followed and it cannot be lightly discarded or overruled.”

The new framework, when properly applied, already provides sufficient flexibility and takes into account the transitional period that is required for the criminal justice system to adapt, the court said.

In its report this week, the Senate legal affairs committee said a stay of proceedings should not be the only remedy available for delays, particularly in cases involving serious crimes. It recommended that remedies include a reduced sentence and an award of financial costs.

— Follow @JimBronskill on Twitter

Jim Bronskill, The Canadian Press

by Canadian Press

Right to a timely trial ‘cannot be lightly discarded,’ Supreme Court rules

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