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.
Justice Moldaver's suggestion that judges take control of the courtroom is something that has increasingly been mentioned as a necessary step in reducing trial length. What is meant in this regard is that judges control the process much more closely and strictly so that time is not wasted, for instance by summarily dismissing applications that are clearly meritless and limiting the calling of viva voce evidence where not necessary.
About a month ago the Ontario Superior Court of Justice took a step in this direction by revamping its rules of procedure for pre-trial applications in criminal matters. The rules place new and much more demanding timelines on counsel who bring applications, and require much more up-front detail from counsel as to the evidentiary and legal bases for an application. The rules expressly encourage judges to dismiss applications that are clearly without merit, and are drafted so as to make clear that counsel who fail to comply do so at their peril. To read the new rules, click here. The key provisions are those that are new or have been amended, namely, Rules 2,6 and 27-34.
The revamped rules are interesting because in Justice Moldaver's 2005 speech, he warned defence counsel that failure to cut down on the number of meritless pre-trial application would probably lead to exactly this response from the courts.
GFN's contacts in Ontario suggest that some judges have taken these new rules to heart, and have also taken courage from the comments of Justice Moldaver and the report of the Superior Court of Justice Chief Justice's Advisory Committee on Criminal Trials entitled New Approaches to Criminal Trials, with the result that more pre-trial applications are being tossed out for non-compliance with the rules or summarily dismissed due to a lack of merit. The question is, will the judges be successful in their attempt to change the legal culture in Ontario? Or will things eventually return to normal? And if trial judges stay the current course, will the Court of Appeal back them up when appellants complain that their rights were violated by reason of being denied the opportunity to make a full-blown application? Finally, if the Ontario experiment is successful, will we see similar measures adopted elsewhere in Canada?
As a last point, this battle over trial length is also being fought in the legal aid arena. The Ontario Superior Court Advisory Committee has suggested that there is a financial incentive for lawyers on legal aid to bring meritless applications or to drag out trials. Justice Moldaver implied the same thing in his most recent speech. And just this week Ontario Legal Aid announced that it would no longer fund trials in amounts exceeding $75,000 absent extraordinary circumstances, and in doing so complained that a small number of large cases were eating up a disporportionate amount of resources. There is no doubt that a preciptious drop in legal aid funding will have a quick impact in this area. But the result may be that accused persons bring applications to the courts for funding. We may thus see the whole issue dropped back in the hands of trial judges.
The sense at GFN is that some changes are inevitable in this area. At the end of the day, meritless applications should not be brought. But at the same time, the rights of the accused must be protected and counsel who reasonably believes that an application is in his or her client's best inerests and is not without merit has a duty to proceed. Defence counsel must not be cowed by comments coming from the judiciary, and as long as
