In 1992, Justice Finlayson of the Court of Appeal for Ontario, never one to mince words, wrote with concern about the length of criminal trials. He said: "Unless we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice. As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process."

Justice Finlayson's sentiments have been repeated by many other judges over the last 15 years. It is a recurring complaint that the criminal justice system is too slow, and the greatest concern stems from the length of criminal trials. There is no doubt that unduly long trials may risk undermining public confidence in the system. If that occurs, the legitimacy of the system suffers, and so does the quality of justice meted out. The questions are, can we shorten trial length without harming the rights of the defendant or the public interest in convicting the guilty after a fair trial, and if so how is reform best achieved?

In a several part series, GFN looks at some recent developments in the area, in particular focusing on and responding to two recent salvos from Ontario judges, namely, a 2005 speech by Court of Appeal Justice Michael Moldaver and a just-released report of the Superior Court of Justice Chief Justice's Advisory Committee on Criminal Trials entitled New Approaches to Criminal Trials.

Yesterday, the Supreme Court of Canada affirmed the power of the jury to acquit an accused even where the evidence allows for no other conclusion but that he is guilty. In R. v. Krieger, the accused was charged with unlawfully producing cannabis. He freely admitted having done so and there appeared to be no viable defence. The trial judge directed the jury to return with a guilty verdict and persisted in this direction even when some jurors expressed discomfort at the result. The Supreme Court held that the judge's direction was in error, and that trial judges have no power to direct a guilty verdict - to do so effectively undermines the right to a jury trial protected by s. 11(f) of the Charter.

An important concept underlying the decision in Krieger is that of "jury nullification"; i.e. the ability of a jury to acquit an accused on the basis that the law under which he or she is prosecuted should not be followed in the particular case. Defence counsel are not allowed to ask for an acquittal on this basis but our courts have never denied that the nullification power exists. Krieger simply affirms that power, albeit implicitly. The result does not, however, mean that we can expect a surfeit of nullifying acquittals. It is only in a very rare case that jurors will ever do so. In Krieger itself, the accused suffered from illnesses and used cannabis to ease his pain. In Canada's most famous case of jury nullification, Henry Morgentaler was acquitted of abortion-related charges in cricumstances that made it clear that the jury was refusing to apply the law. So, while Krieger is an interesting case that affirms the important role of the jury in our criminal justice system, it is unlikely to lead to any palpable change in the way that the system operates.

The government has revealed a new bill, C-25, which if passed will amend the current anti-money laundering regime. The last two GFN blog entries have discussed anti-money laundering legislation, and in particular have considered the fate of past attempts to subject lawyers to the various client-identification, data-collection and reporting obligations. In this respect, Bill C-25 is of interest because no new attempts are made to regulate the activities of lawyers. For the time being, lawyers need only comply with their professional obligations and the Criminal Code prohibitions against handling proceeds of crime and money laundering. There is no doubt that this state of affairs affords the most protection for the confidentiality of client-lawyer information.

As reported in the Globe and Mail today, the federal government is about to introduce a bill proposing amendments to current anti-money laundering legislation. This comes on the heels of a Senate committee report, released two days ago, in which alarm was raised as to the size and scope of the problem in Canada (see October 3 blog entry), and yesterday's annual report by the Financial and Reports Analysis Centre of Canada (FINTRAC), the body that oversees the collection and analysis of data regarding large cash transactions and suspicious transcations. The FINTRAC report states that the body disclosed information to police over the past year regarding 142 transactions totalling $2 billion.

Yesterday the Senate Banking, Trade and Commerce Committee released a report, entiled Stemming the Flow of Illicit Money: A Priority for Canada, which raises alarm at the size and scope of money laundering in Canada and, among other things, recommends that Parliament extend the reach of anti-money laundering legislation to cover the activities of lawyers. Specifically, the report suggests that lawyers be subject to the legislation's current customer-identification, record-keeping and reporting requirements.

There is a long background to the topic of money laundering legislation and lawyers. It is worth reviewing in order to appreciate the context within which the issue arises.

The Court of Appeal has recently posted reasons in the matter of an application for the appointment of counsel in R. v. Ellard. Ms. Ellard is the best known of several young defendants charged in the homicide of teenager Reena Virk. She has had three trials to date: the first ended in a conviction that was overturned on appeal, the second ended in a controversial mistrial, and the third resulted in a conviction earlier this year.