Justice Abuse of Power Style?
The Supreme Court of Canada rules that criminals have the Charter right to timely trials, but the same court rules that non-criminal Ernst is forbidden her Charter right to seek remedy for the Alberta Energy Regulator abusing its power and violating her Charter rights trying to silence her after she presented documented evidence of Encana breaking the law.
Right to a timely trial ‘cannot be lightly discarded,’ Supreme Court rules by Jim Bronskill, The Canadian Press, June 16, 2017, Edmonton Journal
The Supreme Court of Canada is standing by its groundbreaking decision on ensuring timely criminal trials.
In a unanimous decision Friday, the high court ruled that a Newfoundland and Labrador man facing drug and weapon charges should not go to trial under new rules spelled out last July for determining unjustifiable court delays.
The latest decision comes amid intense public and political debate over the time limits for trials, including a Senate committee report this week that expressed concern over accused criminals walking free.
The Supreme Court stood its ground on the need for timeliness in ruling on the case of James Cody, who was arrested in Conception Bay, N.L., in January 2010 and charged with drug possession for the purposes of trafficking and possession of a prohibited weapon.
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 landmark 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 are 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.
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.”
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.
Supreme Court doubles down on tough new standards for trial delays, to the chagrin of provinces by Brian Platt, June 16, 2017, Calgary Herald
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 trial judge’s findings under the previous law strengthen the case for a stay of proceedings,” the ruling says.
Quebec, Ontario, Manitoba, Alberta and British Columbia had all been intervenors in the case, seeking clarity in how Jordan was interpreted — and, ideally, some flexibility.
It also emphasized that the seriousness of the charge still remains a relevant factor for pre-Jordan cases.
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. [What about non-accused persons, harmed by corporations, regulators and governments, in civil actions? In Alberta, there is currently a 3 year wait to get trial date for civil cases, on top of the many years of other delays used by parties more powerful than citizens to kill justice before she even gets dressed.]
“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. [Emphasis added]
Slide from Ernst May 13, 2017 presentation at ACORRDS frac conference, Cochrane AB
2016 Winter & Spring Supreme Court of Canada Appeals/Motions Heard
Rulings released as of December 31, 2016
Green = Ruling released
Grey = Ruling not yet released
May 20, 2016 Shane Rayshawn Vassell v. Her Majesty the Queen (Alta.) (Criminal) (As of Right) (36792) Five weeks & four days to rule.
May 19, 2016 Anita Endean, as representative plaintiff v. Her Majesty the Queen in Right of the Province of British Columbia et al. (B.C.) (Civil) (By Leave) (35843) Twenty-two weeks to rule.
May 19, 2016 Dianna Louise Parsons, deceased by her Estate Administrator, William John Forsyth et al. v. Her Majesty the Queen in Right of Ontario et al. (Ont.) (Civil) (By Leave) (36456) Twenty-two weeks to rule.
May 18, 2016 Groupe Jean Coutu (PJC) inc. c. Procureur général du Canada (Qc) (Civile) (Autorisation) (36505) Twenty-nine weeks & 2 days to rule.
May 18, 2016 Attorney General of Canada v. Fairmont Hotels Inc. et al. (Ont.) (Civil) (By Leave) (36606) Twenty-nine weeks & 2 days to rule.
April 29, 2016 John Thomas Shaoulle v. Her Majesty the Queen (Sask.) (Criminal) (As of Right) (36704) Ruling from the Bench
April 29, 2016 Pierre-Olivier Laliberté c. Sa Majesté la Reine (Qc) (Criminelle) (De plein droit) (36712) Ruling from the Bench
April 28, 2016 Albert Benhaim et al. v. Cathie St-Germain, personally and in her capacity as tutor to her minor son, whose name is being kept confidential, and in her capacity as universal legatee of the late Marc Émond (Que.) (Civil) (By Leave) (36291) Twenty-eight weeks to rule.
April 27, 2016 Royal Bank of Canada v. Phat Trang, Phuong Trang a.k.a. Phuong Thi Trang et al. (Ont.) (Civil) (By Leave) (36296) Twenty-nine weeks & one day to rule.
April 26, 2016 Musqueam Indian Band v. Musqueam Indian Band Board of Review et al. (B.C.) (Civil) (By Leave) (36478) Nineteen weeks & three days to rule.
April 25, 2016 Her Majesty the Queen v. Ordinary Seaman Cawthorne (C.M.A.C.) (Criminal) (As of Right) (36466) Twelve weeks & four days to rule.
April 25, 2016 Sa Majesté la Reine c. Adjudant J.G.A. Gagnon et autre (C.A.C.M.) (Criminelle) (Autorisation) (36844) Twelve weeks & four days to rule.
April 22, 2016 Jean-François Morasse c. Gabriel Nadeau-Dubois (Qc) (Civile) (Autorisation) (36351) Twenty-seven weeks to rule.
April 21, 2016 Corporation of the City of Windsor v. Canadian Transit Company (F.C.) (Civil) (By Leave) (36465) Thirty-three weeks to rule.
April 1, 2016 Information and Privacy Commissioner of Alberta v. Board of Governors of the University of Calgary (Alta.) (Civil) (By Leave) (36460) Thirty-four weeks to rule.
March 31, 2016 Matthew John Anthony-Cook v. Her Majesty the Queen (B.C.) (Criminal) (By Leave) (36410) Twenty-nine weeks & one day to rule.
March 30, 2016 Ledcor Construction Limited et al. v. Northbridge Indemnity Insurance Company et al. (Alta.) (Civil) (By Leave) (36452) Twenty-one weeks & three days to rule.
March 29, 2016 Attorney General of Canada v. Igloo Vikski Inc. (F.C.) (Civil) (By Leave) (36258) Twenty-three weeks & three days to rule.
March 24, 2016 Karine Lizotte, ès qualités de syndic adjoint de la Chambre de l’assurance de dommages c. Aviva, Compagnie d’assurance du Canada et autre (Qc) (Civile) (Autorisation) (36373) Thirty-five weeks & one day to rule.
March 23, 2016 City of Edmonton v. Edmonton East (Capilano) Shopping Centres Limited (as represented by AEC International Inc.) (Alta.) (Civil) (By Leave) (36403) Thirty-two weeks & two days to rule.
March 22, 2016 Alan Peter Knapczyk v. Her Majesty the Queen (Alta.) (Criminal) (As of Right) (36612) Ruling from the Bench.
March 22, 2016 John Reginald Alcantara v. Her Majesty the Queen (Alta.) (Criminal) (As of Right) (36613) Ruling from the Bench.
March 21, 2016 Her Majesty the Queen v. Oswald Oliver Villaroman (Alta.) (Criminal) (By Leave) (36435) Seventeen weeks & four days to rule.
February 25, 2016 Her Majesty the Queen v. Michael Bruce Newman (B.C.) (Criminal) (As of Right / By Leave) (36524) Ruling from the Bench.
February 23, 2016 Frédéric Gagnon c. Sa Majesté la Reine (Qc) (Criminelle) (De plein droit) (36581) Ruling from the Bench.
January 22, 2016 Heritage Capital Corporation v. Equitable Trust Company et al. (Alta.) (Civil) (By Leave) (36301) Fifteen weeks to rule.
January 21, 2016 Jonathan David Meer v. Her Majesty the Queen (Alta.) (Criminal) (As of Right / By Leave) (36448) Ruling from the Bench
January 20, 2016 Her Majesty the Queen v. Meredith Katharine Borowiec (Alta.) (Criminal) (As of Right) (36585) Nine weeks & one day to rule.
January 19, 2016 Joseph Wilson v. Atomic Energy of Canada Limited (F.C.) (Civil) (By Leave) (36354) Twenty-five weeks & two days to rule.
January 18, 2016 Conférence des juges de paix magistrats du Québec et autres c. Procureure générale du Québec et autres (Qc) (Civile) (Autorisation) (36165) Thirty-eight weeks & four days to rule.
January 15, 2016 Akeem Smith Seruhungo v. Her Majesty the Queen (Alta.) (Criminal) (As of Right) (36523) Ruling from the Bench.
January 15, 2016 Johnathan Peter Spicer v. Her Majesty the Queen (Alta.) (Criminal) (As of Right) (36532) Ruling from the Bench.
January 14, 2016 Workers’ Compensation Appeal Tribunal et al. v. Fraser Health Authority et al. (B.C.) (Civil) (By Leave) (36300) Thirty weeks & three days to rule.
January 13, 2016 Joseph Ryan Lloyd v. Her Majesty the Queen (B.C.) (Criminal) (By Leave) (35982) Thirteen weeks & two days to rule.
January 12, 2016 Jessica Ernst v. Alberta Energy Regulator (Alta.) (Civil) (By Leave) (36167)
The Supreme Court of Canada took a year and a day to rule on merely a preliminary motion in Ernst vs AER. There was no trial and no evidence allowed, although that didn’t stop Justice Rosalie Abella from making facts up to change why the AER, then EUB, violated Ernst’s Charter rights.
January 11, 2016 Lee Carter et al. v. Attorney General of Canada et al. (B.C.) (Civil) (By Leave) (35591) Ruling from the Bench.