GFN didn't intend to re-visit the lengthy trials issue so soon, having just completed a four-part series on the topic last week. But it so happens that the Globe and Mail, in an editorial published today (see p. A13) has publicized and endorsed Justice Moldaver's latest speech. The trope used in the editorial is of Moldaver as a heroic figure who is just mad enough to "tell it like it is", and the question is raised as to whether anyone will take action to fix the system. (For a discussion of Moldaver's speech, see our previous blog entry.)

Here in B.C., the same issue was most recently in the news when Attorney General Wally Oppal, who has frequently spoken out against delay in the criminal justice system, made comments on the topic that provoked a sharp response from Chief Justice Brenner, a response that while intended for judges only was nonetheless leaked to the press.

As GFN has noted, solutions to the lengthy trial problem are not easily found, and the blame shouldn't be placed entirely on defence counsel. But there are steps that can be taken to shorten trials without impinging upon the fair trial rights of defendants. Some of these steps have been mentioned in preious GFN blog entries. What is important is that politicians (and judges) not get caught up in hysteria and act preciptiously with the result that other problems are created. As GFN has noted, the modified court rules and the legal aid changes in Ontario represent the latest attempts to shorten trial length without undermining the rights of the accused. Let's see how these new policies pan out before taken more drastic steps.

In a number of previous entries, we've addressed the issue of lengthy trials - who's at fault and what is to be done. As already mentioned, Justice Moldaver of the Ontario Court of Appeal gave a controversial speech late last year in which he admonished defence counsel for not being sufficiently selective in bringing pre-trial applications. Earlier this week he gave another speech, this time to a conference of judges and justice officials, in which he returned to the theme. This time emphasis was placed on what judges had to do to arrest the problem, and his advice was to take back control of the courtroom. More on this in a moment. He also suggested reforms such as a relaxation of some rules of admissibility so as to lessen the number of pre-trial applications, simplification of the law on self-defence, ending the practice whereby trial judges must vet certain third party records and allowing pre-trial rulings to apply on re-trials. To read Justice Moldaver's latest speech click here.

GFN lawyer David Layton has recently published an article entitled "Defence Counsel's Ethical Duties and Frivolous Charter Applications" in The Verdict, Issue 110, October 2006, at p. 25. The Verdict is published by the Trial Lawyers Association of B.C.

Yesterday GFN lawyer David Layton joined a panel of four criminal lawyers and judges at the University of Toronto bridge week on professional responsibility. The bridge week, one of several dedicated to non-substantive law topics, focused on various aspects of professional responsibility including access to justice, legal ethics and the independence of the bar. This year was David's fifth at U of T. The criminal law component of the bridge week was developed by former Quebec Court of Appeal justice Michel Proulx, a leading defence counsel and jurist since the 1960s and a mentor to many in the profession including David.

This is the third in a series of entries concerning the problem of lengthy trials. Having looked at Justice Moldaver's suggestion that defence counsel should not bring pre-trial applications absent a reasonable likelihood of success in obtaining the desired remedy, we turn to look at the assessment of defence counsel's role contained in Report of the Chief Justice's Advisory Committee on Criminal Trials in the Superior Court of Justice. As mentioned in the first entry in this series, this Report was produced by a select committee of judges, prospecutors and defence counsel, and was recently released by the Chief Justice of the Ontario Superior Court of Justice.

This blog entry marks the second part of a series on trial length and the criminal justice system. Having established that trial length is indeed a matter of concern for all stakeholders (see Part 1), we turn to look at a suggestion made late last year in a speech by Justice Michael Moldaver of the Ontario Court of Appeal to the Criminal Lawyers' Association. Justice Moldaver was quick to stress that many actors in the system share the blame for excessive trial length. But he focused on defence counsel, and argued that they too often bring unmeritorious pre-trial applications. Such an approach made sense when the Charter was in its infancy, and counsel could not know whether an argument would work. But the days of experimentation were over, he said. Counsel now had a body of case law interpreting most matters likely to be encountered on a daily basis. What was needed was "courage of selection". For Justice Moldaver, this meant that counsel should only bring a pre-trial application where there is a "reasonable likelihood" of obtaining the desired remedy.

Is the Moldaver approach a good one? GFN agrees that a totally hopeless application should never be brought. But this is a far cry from imposing a "reasonable likelihood" threshold for the bringing of applications. Imposing such a standard in all cases is unjustifiable for a number of reasons.