Michel Proulx, one of Canada's great criminal defence advocates and appeal court judges, passed away yesterday after a long illness. He impressed and touched all who met him with his intelligence, curiosity, enthusiasm and warmth of heart. I first met Michel over 10 years ago, and he became a good friend and mentor. I will miss him dearly but can certainly say that his influence in the legal community will be felt for years to come.

For a description of Michel's life and work, and particularly his impact in the legal community, see the obituary written by Yves Boisvert that appeared this morning in La Press.

Last week we described a near-fight that took place between a Crown witness, Todd Kealy, and the defence lawyer who was cross-examining him, Reid Rusonik. The upshot of the imbroglio was that the judge ordered Rusonik to have no contact with Kealy, and another lawyer was retained to finish the cross-examination. Rusonik apparently remained on the case as counsel. The trial resumed with Kealy's continued cross-examination, but after a break the court learned that Rusonik had defied its order and made contact with Kealy, it appears because he was concerned that Kealy was out for revenge and might hurt Rusonik's family. Rusonik ended up taking the stand in order to provide this explanation to the court. As matter then stood at that point, the judge was considering whether to order a mistrial.

Last Thursday the Judge Mossip court took the only viable option left to her: she declared a mistrial.

We've been following a wild story out of Ontario, about a lawyer and Crown witness almost coming to blows in the courtroom. Kirk Makin first reported the case in the December 16, 2006 Globe & Mail. Two accused were being tried in Newmarket on a charge of attempt murder. The alleged victim was ex-biker Todd Kealy. Kealy testified as a Crown witness and claimed that shots had been fired at his car after an altercation in a bar. Defence counsel Reid Rusonik was cross-examining Kealy for one of the accused. The cross-examination was heated. After Kealy responded to a question by making what could be interpreted as a threat to Rusonik, Rusonik challenged Kealy to fight him outside the courtroom. Things degenerated further from there, including this stellar retort by Rusonik in response Kealy's admonition to "use your head": "any time you fuckhead, any time you little shit". The matter was adjourned so that everyone could cool down. Rusonik apologized upon the court reconvening, but Kealy had disappeared. The case was adjourned for a few more days, at which point Rusonik again apologized. The case was then adjourned until January 4, at which point the fate of the trial would be considered.

Today the Globe and Mail gave us an update.

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.

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.

The government has revealed a new bill, C-25, which if passed will amend the current anti-money laundering regime. The last two GFN blog entries have discussed anti-money laundering legislation, and in particular have considered the fate of past attempts to subject lawyers to the various client-identification, data-collection and reporting obligations. In this respect, Bill C-25 is of interest because no new attempts are made to regulate the activities of lawyers. For the time being, lawyers need only comply with their professional obligations and the Criminal Code prohibitions against handling proceeds of crime and money laundering. There is no doubt that this state of affairs affords the most protection for the confidentiality of client-lawyer information.

As reported in the Globe and Mail today, the federal government is about to introduce a bill proposing amendments to current anti-money laundering legislation. This comes on the heels of a Senate committee report, released two days ago, in which alarm was raised as to the size and scope of the problem in Canada (see October 3 blog entry), and yesterday's annual report by the Financial and Reports Analysis Centre of Canada (FINTRAC), the body that oversees the collection and analysis of data regarding large cash transactions and suspicious transcations. The FINTRAC report states that the body disclosed information to police over the past year regarding 142 transactions totalling $2 billion.

Yesterday the Senate Banking, Trade and Commerce Committee released a report, entiled Stemming the Flow of Illicit Money: A Priority for Canada, which raises alarm at the size and scope of money laundering in Canada and, among other things, recommends that Parliament extend the reach of anti-money laundering legislation to cover the activities of lawyers. Specifically, the report suggests that lawyers be subject to the legislation's current customer-identification, record-keeping and reporting requirements.

There is a long background to the topic of money laundering legislation and lawyers. It is worth reviewing in order to appreciate the context within which the issue arises.

There is a compelling, indeed indisputable, case to be made that faulty identification evidence has contributed to wrongful convictions. The cases of David Milgaard and Thomas Sophonow are prime examples. The crux of the danger lies in the fact that identification witnesses are often mistaken, and yet may be utterly convinced, and convincing, in their assertion that they've correctly picked out the perpetrator. A number of safeguards have been proposed, including the admission of expert evidence to point out to juries the particular frailties of identification evidence. Vancouver criminal defence lawyer Tamara Levy recently advocated this position in her compelling article "The Need for Expert Evidence on the Frailties of Eyewitness Identification", found in The Verdict, Issue 109, June 2006, at p. 38.

Another frequently suggested means of guarding against bad identification evidence is to prevent its creation in the first place by employing double-blind sequential (DBS) photo array lineups. The idea has 2 parts, and is deceptively simple. First, neither the police officer who shows the photo array, nor the witness, knows which of the people in the array is the police suspect, hence the term "double blind". The double blind procedure prevents the officer from consciously or unconsciously prompting the witness to pick the suspect from the array. Second, the array is shown sequentially, one photo at a time, rather than all at once. Sequential display avoids errors caused by the witness choosing the person who looks most like the culprit. Research has shown that witnesses sometimes do this even though the true culprit is not in the lineup.

Gibbons Fowler Nathanson legal assistant Aurora Mendoza made the cover of the yesterday's Vancouver edition of the Metro News. To see Aurora leaving work, looking very relaxed and happy, click here.

The July 21, 2006 edition of the Globe and Mail reports that, despite widespread perception to the contrary, incidents of homicide, car theft, counterfeiting and overall youth crime were all down in British Columbia for 2005 (see p. S1). The article offers commentary from Richard Fowler, who says, tongue in cheek, "I wonder if the chief of police will ask the City of Vancouver for a smaller budget next year". Richard also offers the view that rather than rely on the judicial system as the primary response to crime, the better option is to implement social programs and improve infrastructure with a view to crime reduction.