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.

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.

With the exception of cases where there has been a dissent in the court of appeal, the Supreme Court of Canada will not hear an appeal absent a successful leave to appeal application. A party bringing a leave application bears the onus of showing why the case deserves to be heard by our country's highest court. Leave will only be granted if the Court decides that the case raises an issue of national importance.

The Manitoba inquiry into the conviction of James Driskell for the 1990 murder of Perry Harder has been underway since July 18. Mr. Driskell served 13 years in prison before his conviction was quashed in 2005.

Yesterday, Mr. Driskell's trial lawyer told the inquiry that he did not receive disclosure from the Crown that a key prosecution witness had sought to obtain immunity on an arson charge in exchange for his testimony. Documents filed with the inquiry showed that the lawyer had repeatedly asked prosecutors whether any of the Crown witnesses had ulterior reasons for testifying against his client. In February 1991 prosecutors wrote to counsel indicating that police files disclosed no such motive. Yet two months earlier the witness' lawyer had written to the prosecutions office with a list of demands, including that he not be charged with any crimes. This letter was not disclosed to defence counsel, and it now appears that the witness was indeed provided with the sought-after immunity.

This aspect of the Driskell inquiry underlines the great importance of the Crown disclosing to the defence all relevant information in its possession or control. The leading case that establishes the right of a defendant to receive such disclosure is R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.). It remains to be seen exactly why relevant information concerning a possible motive for the witness to lie was not disclosed to the defence in the Driskell case. What is clear, however, is that the Crown had an obligation to do so.

Unfortunately, failure to disclose is a common contributing factor in miscarriages of justice. Several commissions of inquiry, including those examining the wrongful convictions of Donald Marshall, Guy Morin and Thomas Sophonow, have criticized Crown counsel for failing to make full disclosure.

For a recent media report on the Driskell inquiry click here.

For a detailed review of disclosure from police to Crown in the Driskell case, conducted at the request of the Manitoba Attorney General by John Enns, a retired provincial court judge, click here. For another review by Mr. Enns, this one concerning disclosure from the Crown to the defence, click here. Both reviews identify serious flaws in the disclosure process.