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Russell Wangersky: Cody case fires another shot across justice’s bow

The Supreme Court of Canada. — image
The Supreme Court of Canada. — image

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.

Russell Wangersky

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.

Russell Wangersky’s column appears in 30 SaltWire newspapers and websites in Atlantic Canada. He can be reached at — Twitter: @wangersky.

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