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The grinding wheels of justice

Cover Story
|Written By Glenn Kauth

It was a high-profile terrorism case that took four years to conclude from arrest to judgment, but the trial of Mohammad Momin Khawaja could have gone on even longer.

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.

The distinction, LeSage says, comes down to focus, something he feels less-experienced counsel lack as they introduce a litany of occasionally fruitless motions on everything from disclosure requests to challenges under the Charter of Rights and Freedoms. In Alberta, Court of Queen’s Bench Chief Justice Al Wachowich sees examples of the problem in his courtrooms. “Our bar is a comparatively young bar, and you get lawyers coming in there who have really not characterized the issue as it relates to the trial,” he says. “Therefore, there is a scattergun approach toward the defence.”

In some cases, lawyers during a trial will unleash surprise defences on the judge, he notes. “All of a sudden, [they’ll say], ‘my client’s insane.’ It could be anything. All of a sudden, during the course of a trial you see them shifting gears to go to some place else. A good counsel likes to run clean trials.”

Encouraging lawyers to focus their arguments during the pretrial process is one way Alberta’s courts are tackling the issue. But despite those efforts, trials in Alberta’s Superior Court are getting longer. Between 2003 and 2007, for example, the number of long trials — lasting between five and 25 days — increased by 55 per cent to 67 from 43. At the same time, the number of very long trials, those exceeding 25 days, also went up. But the increase was minor given the small number of cases that reach that point, Wachowich notes.

As a result, backlogs in the system are growing. “Our lead times are not as favourable as they were. We’re still not in what I call ‘a danger zone,’ but we might be approaching it,” says Wachowich, who notes Alberta’s booming population, which has led to an increase in criminal charges, is another factor in the delays.

To deal with the problem, Wachowich has instituted a policy of what amounts to calling errant lawyers into the principal’s office when trials take too long. “Both parties have to estimate how long the trial is going to take,” he says. “Let’s say they say it’s going to take 15 days, which is three weeks, and it takes four weeks. They are then brought before me, and I ask ‘why, how did this come about, what justification [was there]?’ There are no sanctions, but at least they know they’re going to be coming to see the chief justice on this. All I can do is tell them to say five Our Fathers and 10 Hail Marys and sin no more. I don’t keep a list of that.”

The approach is a soft one, but Wachowich says it’s generally effective in reining in lawyers who shudder that word might get out that they got hauled in to see him. Still, both LeSage and Code, along with lawyers across the country, argue more systemic change would help rescue courts suffering under the combined effects of a lack of funding, increasingly complex procedures, and what many acknowledge to be a flight of senior counsel from the most serious cases.

On the legal aid question, of course, the issue is a long-standing one. But for Greenspon, it’s something governments can no longer put off addressing as the tariffs have eroded to the point that they cover a fraction of what senior counsel can earn privately. The fact that the days of what LeSage says was the week-long standard for murder trials are now over only adds to the reluctance of experienced lawyers to take on the most serious cases. “That, of course, is all made worse by the fact that senior lawyers are thinking twice about taking on a three-, four-, or five-month trial on legal aid,” says Greenspon. “Financially, it borders on irresponsible to do that. You can’t afford to.”

Across the country, the complaints are similar. Josh Arnold, a Halifax lawyer who has practised for 18 years, notes that the erosion in public funding has turned him and his colleagues off some of the high-profile cases. “You have to pick and choose your cases a lot more carefully. When I first started doing defence work, I would take any murder case and any of the bigger cases that were more complicated. I didn’t care about what kind of money I was making. Now, I just don’t feel I can do that because financially they’re such a drain.”

Still, in their report LeSage and Code outlined two key ways for fixing legal aid in Ontario, one of which wouldn’t necessarily involve a major increase in funding. On one hand, they echo Goudge’s recommendation to tighten lawyer eligibility for getting a legal aid certificate in the most serious cases, such as the pediatric homicides so prone to error during Smith’s time as a leading pediatric forensic pathologist. At the same time, counsel named to the short list of those eligible for legal aid funding in major cases would receive much higher pay.

Under the second option, Legal Aid Ontario would exercise more oversight over lawyers’ work. An exceptions committee comprised of senior lawyers — which already exists as a mechanism for reviewing requests for extra funding in particularly serious cases — would have the added responsibility for approving money to pay for a defence counsel’s proposal to bring an unusual motion before the court.

In that way, lawyers with expertise would help weed out frivolous defence strategies. “What we’re recommending is that there be a more proactive control over the type or the specific motions that might be brought,” says LeSage. “In other words, there should be some likelihood of success. There should be some evidence upon which the motion is based.”

LeSage acknowledges the idea carries risks, particularly since it raises concerns about the independence of the defence bar. But as he and Code pointed out, in British Columbia, the Legal Services Society has managed to both provide the guidance and oversight they advocate while instituting a system of sanctioning lawyers deemed to have erred in their use of public funds. The result is that B.C. has had greater success in preventing high-profile cases from falling apart, according to Code. “B.C., curiously, is in some ways the jurisdiction that’s been the most successful in managing these cases having successfully brought home the Air India case and the Pickton case with trials on the merits,” he notes.

In fact, Glen Orris, a veteran Vancouver lawyer who worked on Robert William Pickton’s defence during his murder trial, says the B.C. oversight system works well. As a lawyer who sits on some of the Legal Services Society panels that review defence requests for additional funding, Orris argues the insistence that counsel manage public funds prudently is reasonable.

Recently, for example, he was part of a panel considering a lawyer’s request for a full transcript of the previous trial of a client who was subsequently severed from the co-accused. But after consulting with the panel, the lawyer agreed he only needed the testimony of a handful of witnesses, says Orris.

Nevertheless, as lawyers across the country point out and as LeSage and Code spent a lot of time emphasizing, the problems with long trials — and those cases that fall apart — aren’t restricted to the trend of inexperienced counsel taking on serious matters. “It’s unfortunate that anyone would blame defence lawyers for a delay based upon this,” says Brian Beresh, a senior member of the bar in Edmonton.

Beresh admits legal aid rates sometimes do deter experienced lawyers from taking on cases, but rather than blame the defence for delays, he says the prosecution and the police complicate trials through what he calls “excessive charging” of people. “It appears to be that that assists police forces when they go for funding to justify their claims for an increase. But it causes a tremendous backlog in the system.” Orris, too, criticizes police and Crowns for needlessly making cases more complex. “What they’re using now, and I’m dealing with a number of cases, is the criminal organization counts as additional counts,” he says.

In one instance, a client accused of three counts of murder is also facing additional charges related to involvement in a criminal organization. “To me, it’s a ridiculous waste of time to deal with [criminal organization] counts in addition to a murder count,” says Orris. “If you can’t get the murder, you don’t get the [criminal organization]. If you get the murder, you don’t need the [criminal organization]. There can’t be any consecutive time for a life term.”

LeSage and Code, in fact, single out police and prosecutors as other sources of the backlogs plaguing the justice system. In particular, they’re sometimes guilty of providing incomplete and tardy disclosure, which creates delays as defence lawyers battle in court for access to evidence against their clients. But at the same time, defence counsel are often guilty of making frivolous and sometimes excessive demands for disclosure, which also slows the process down.

The issue is one that Wachowich has seen balloon into a major headache since the R. v. Stinchcombe decision that set the standard for full disclosure to the defence. Speaking of the late Supreme Court justice John Sopinka, who wrote the decision in Stinchcombe, Wachowich says: “My good friend would be turning in his grave if he knew that decision would prolong trials rather than expedite matters.”

But as LeSage and Code point out, many of the problems leading to trial delays as well as cases falling apart aren’t a result of mistakes or omissions either by defence lawyers, Crown counsel, police, or judges. The Charter, for example, has led to a litany of pretrial motions that retard proceedings.

At the same time, reforms to evidence laws, such as changes to the hearsay rule and new standards for assessing the voluntariness of confessions, have also slowed down the process. In addition, criminal law in Canada has become both richer and more complicated. Similar to Orris’ point, LeSage and Code note that the provisions for criminal organization charges have added a new element to many trials.

“These offences have become a major feature of the modern mega-trial in Ontario, many of which are gang-related, and they obviously require considerable additional trial time to prove the additional aggravating ‘criminal organization’ element, which can then result in a lengthy consecutive sentence,” LeSage and Code say in their report. In one case, they note, the courts were able to deal with the underlying offence in about a week, whereas dealing with the aggravating criminal organization counts took an additional six weeks.

Goudge, meanwhile, observed an additional complicating factor in his report on Ontario’s pediatric forensic pathology system. With scientific evidence becoming increasingly complicated, it has become more daunting for defence lawyers to challenge the flawed testimony of experts for the Crown. As a result, he recommends the Ontario government fund courses for both Crown and defence counsel so they can better act in cases involving pediatric forensic pathology.

LeSage and Code, too, note that training, education, and mentoring for lawyers are another important element in resolving the court delays they highlighted. “There is a role for law schools in teaching the students the practicalities [and] the fundamentals of conduct in a courtroom,” says LeSage. “The students are much better educated today than they were in my day. But what they do lack is a sort of fundamental experience in a courtroom.”

The consequence is what judges call a gap in knowledge of courtroom procedures among young lawyers, including the basic rules of decorum. But beyond formal education, the decline in legal aid funding is another source of the problem since it means senior lawyers are not only reluctant to accept serious cases, but in the ones they do take on they don’t have the money to retain young lawyers as junior counsel.

As a result, the people left to handle legal aid files don’t get the same type of on-the-job training, or mentoring, that they might have received in the past when they worked under more experienced counsel.

In Halifax, for example, Arnold says none of the big law firms he’s aware of have criminal law departments anymore, which means there are fewer opportunities for young criminal lawyers to work alongside the veterans. At the same time, Greenspon says the crisis in legal aid has had another consequence.

“The practice of having an articling student, again given legal aid rates, is something that’s been dramatically reduced over the years. When I started, just about every criminal law firm had an articling student. There are hardly any of them anymore because, quite frankly, on the legal aid cases you can’t afford to pay them.” The issue is one that also concerns LeSage. “Students don’t get the same courtroom exposure that many of us had when we were articling. We carried the senior’s bag, so to speak.”

To at least begin to address the gap, LeSage and Code recommended additional legal aid funding to allow senior lawyers to retain junior counsel. But so far, whether and when the Ontario government, or any other jurisdiction, will answer the long-standing concerns about legal aid is unclear.

Following the LeSage-Code report, Ontario Attorney General Chris Bentley announced his government would place major-case Crown prosecutors into police departments — similar to a recommendation LeSage and Code made as a way of improving the pre-charge stage — but he shied away from any firm timelines on boosting the budget for legal aid.

In Halifax, Arnold isn’t optimistic that the repeated calls for more money to not only improve fairness to the accused but also to grease the wheels of the criminal process will lead to changes any time soon. “There’ll be a couple of disasters, and once those disasters happen, then people will start looking at it a little more closely,” he says.

Back in Ontario, meanwhile, Code is concerned about the prospects for action on legal aid. “We say that we’ve got to do all these things, that this is not the time for tinkering with the system and making a few changes. It really requires systematic, broad-based change to all the areas that we recommend.”

In fact, he and LeSage let no one off the hook, including the judges who, they say, have been too reluctant to push cases forward. “We say everybody bears responsibility for these problems. . . . Partly, they’re the responsibility of the courts and the legislature for law reform efforts that weren’t sensitive to the fact that they were making trials way too complex. They’re partly the fault of the judiciary for not being more forceful in managing these cases. They’re partly the fault of the law society for not disciplining unethical and unprofessional conduct. They’re partly the fault of legal aid for not overseeing it. They’re partly the fault of the bar for not mentoring young lawyers. They’re partly the fault of the Crown and police for not establishing efficient disclosure practices and efficient oversight. We think it’s very much a multi-faceted problem.”