Proceedings against the Ottawa man had already been delayed in 2007 after the defence fought for more disclosure of the evidence against him. Then, as the trial approached, lawyer Lawrence Greenspon noticed the Crown had lined up 15 police officers to testify about what they found in his house during the investigation. The prospect of listening to the evidence sounded like a waste of time.

“I looked at it and I said you don’t need to call 15 officers to introduce what was found in Khawaja’s house,” Greenspon says. “Call one officer, get all the information he needs as far as where everything was, where it was found, and what it is. Call one ident officer, and we’ll save 15 police officers.”

The idea, he adds, carried little risk and would likely benefit his client, who was convicted in October 2008 of making a bomb detonator but exonerated of allegations he knew of its planned role in attacking British targets. “I made the admission because I knew the Crown I was dealing with is a good and experienced Crown and wouldn’t take advantage of it,” Greenspon says. But the move is one he believes a less-experienced lawyer might have been leery about making.

“There is a fear on the part of younger counsel, and rightfully so,” he says. “They don’t want to make admissions. They don’t want to take any shortcuts because they’re not sure what the implications are going to be. So the easiest way to do it is to say, ‘I’m not admitting anything. I’m going to fight it.’” 

The case highlights both sides of an issue that is crushing the country’s court systems under the weight of procedural delays and legal complexities that are adding to backlogs and, in some instances, causing cases to fall apart before trial. On one hand, the disclosure matter postponed the trial for some time. But on the other, Greenspon, a veteran Ottawa lawyer, had the foresight to allow the Crown to simplify the witness list, thereby saving court time.

In Toronto early last year, the consequences of the increasingly complex nature of criminal trials came to light when a judge stayed the charges in a high-profile case against members of the city police drug squad over delays in providing disclosure to the defence. It’s cases like that one that are the most visible signs of stresses that permeate the system, say the authors of a recent report on criminal trials for the Ontario government.

Written by former Ontario Superior Court chief justice Patrick LeSage and Michael Code, a University of Toronto law professor, the “Report of the Review of Large and Complex Criminal Case Procedures” is the latest in a series of moves aimed at improving the justice system in the province. But as Code points out, the problem, which the authors blame in part on gaps in the legal aid system, isn’t just an Ontario phenomenon. “I would see it very much as a national problem manifested in virtually every jurisdiction,” he says.

Back in 2003, then-B.C. attorney general Geoff Plant noted at a symposium on conflict resolution that efforts to improve criminal justice procedures shouldn’t be put off because of “the very real possibility that the system as we know it will, by reason of cost, delay, and complexity, become functionally irrelevant for much of society.”

To rectify such problems, LeSage and Code outlined a long list of recommendations that include everything from simplifying disclosure procedures to allowing case management judges to make binding rulings on pretrial motions. But the report also highlights the need to improve the quality of legal defence in major cases, an issue that also surfaced in another recent high-profile look at the criminal justice system.

In fact, Ontario Court of Appeal Justice Stephen Goudge, in his inquiry into the province’s pediatric forensic pathology system, recommended that the government increase legal aid rates in order to encourage senior lawyers to take on child homicide cases, something he argued was necessary to avoid repeats of wrongful convictions resulting from the flawed testimony of pathologists like the now-disgraced Dr. Charles Smith.

In a similar vein, LeSage and Code argued the government should increase legal aid from its current $97-per-hour maximum for the most senior lawyers. The result, they hope, is that the most competent defence counsel would return to the big cases. In that way, they predict that the mistakes that the more junior lawyers now left carrying the defence sometimes make would no longer clog up the system.