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.
First, the Moldaver standard risks unduly simplifying and badly skewing counsel's role in the adversarial criminal justice system. Counsel's job is to advance the client's interests, not to act as a prosecutor, judge or neutral bystander. This is not to say that counsel owes no obligations to the court and administration of justice. But such obligations exist concomitantly with a strong duty of loyalty to the client. The Crown can apply to dismiss an application without any evidence being heard, on the grounds that it has no prospect of success. The trial judge has the power to do the same. These other players owe the client no duty of loyalty. It should fall upon them more than defence counsel to take action in this regard.
Second, in each case counsel must ascertain the relevant facts and law and come to some view as to the prospects of success. But in some instances the facts will not be entirely clear, and the law may also be muddied or even deserving of reconsideration. It may thus be difficult to say whether there is a reasonable likelihood of success. Moreover, different lawyers may view the same fact pattern differently or may take different views of the law. Assessing the merits is partly subjective, and counsel should be accorded leeway in determining whether the prospects of success are worth proceeding.
Third, factors other than merit may be legitimately considered in deciding whether to proceed with an application. How serious are the charges? Does the client have any other arguments or defences to advance, and if so what prospect of success do they have? If there is no other defence and the charges are extremely serious, counsel may be justified in proceeding despite a slim chance of success, provided that doing so is in the client's best interests and the client instructs counsel accordingly. Again, this is not to say that a hopeless application should be brought. Rather, it is merely to recognize that a weak application may be justified in one case even though it would not be in another.
To sum up, in certain circumstances the Moldaver test may be the appropriate one for defence counsel to use. But in others a pre-trial application may be justified even though the "reasonable likelihood" standard is not met. As long as counsel is not wasting the court's time with truly frivolous applications, and has the client's best interests at heart, proceeding with the application will be justified. If the Crown or judge takes a different view, either can move to dismiss the defence application as being without merit.
