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.
Today's instalment looks at some of the causes of lengthy trials. But to start with, and no matter where one stands on the issue, it must surely be accepted that trials are on average much longer today than they were twenty or thirty years ago. Talk to any defence lawyer, prosecutor or judge who practiced in those earlier times, and you will hear about murder trials that routinely took less than a week. The length of a fairly short murder trial today would be a month or so, and the average is probably much longer. Trials lasting months and months are not at all uncommon. GFN lawyers have been (and are currently) on trials of this sort. What has changed?
The Moldaver speech and the Superior Court of Justice Advisory Committee on Criminal Trials (hereafter, the "Advisory Committee") have set out many factors contributing to the increased length of trials. The list is long, and not all of the factors will be set out here. But a standout is the Charter and its impact on the justice system. The Charter allows a defendant to challenge the admissibility of evidence and to obtain other remedies, and has led to so-called pre-trial applications in which the resulting issues and arguments are litigated prior to the trial proper. Few in the justice system say that the Charter is a bad thing or that the defendant should not have these new rights. We at GFN fervently believe exactly the opposite. But the fact remains that the Charter and pre-trial applications have considerably lengthened many trials.
Other factors contributing to the increased length of criminal trials include changes in the law of evidence that allow the Crown to lead evidence that before would have been inadmissible but that requires a pre-trial application in order to determine admissibility. There has also been an increase in the use of expert evidence, which can be complex and consume substantial trial time. Videotape evidence, especially in the realm of defendant and witness statements, is very common now, and though extremely beneficial can sometimes increase trial length. Wiretape evidence is also much more common, and often takes a great deal of time to lead or spawns complicated pre-trial applications on the issue of admissibility. Interpreters are needed more often than before, and their use necessarily slows down the process.
Justice Moldaver and the Advisory Committee also suggest that actors in the system are in part responsible for the increased length of trials. Indeed, the reforms that both ultimately recommend are aimed at changing the behaviour of these actors. This aspect of the topic is extremely contentious and will be delved into in later instalments of the GFN blog. For now, we'll simply set out the complaints in brief, in rather polemical form, and without offering any editorial comment. The first complaint is that some defence counsel bring too many frivolous pre-trial applications, are not properly prepared when they do so and too quickly acceded to client instructions that have no merit. A second complaint is that some Crown counsel get caught up in the victim rights movement, push too hard to admit tangential and often inadmissible evidence and themselves are not always properly prepared. A third complaint is that judges are reluctant to exercise control over the process and let defence counsel and the Crown "have their way", with the result that the one truly independent actor who can step in and prevent the unnecessary waste of public resources is often mute.
Stay tuned for more. Next up, we'll look at the controversial speech by Justice Moldaver, and his particular complaint that defence lawyers bring too many meritless pre-trial applications.
