Irresponsible legal tactics, lengthy
trials have crippled courts, law professor tells conference
KIRK MAKIN
March 29, 2008
OTTAWA — High-level
discussions are under way to increase the size of juries, provide
financial incentives to lawyers who use legal aid funds efficiently, and
give judges more power to ride herd over lawyers prior to trial, a
University of Ottawa legal conference was told yesterday.
The moves would help
repair a criminal justice system that has been crippled by irresponsible
legal tactics and interminable trials, said University of Toronto law
professor Michael Code, a criminal law specialist.
Prof. Code is
preparing a report on the problem of mega trials for Ontario
Attorney-General Chris Bentley.
He said that strict
deadlines are likely to be imposed on defense lawyers who seek disclosure
of evidence, as well as for the prosecutors who respond to those
disclosure requests.
The reforms - which
Prof. Code said are under active discussion at a "very high" political and
judicial level - are prompted by an intense perception that the court
system is out of control.
He did not
specifically identify which authorities are considering the reforms, and
could not be reached for further comment.
He urged lawyers and
their associations to stop resisting change on the basis that a few "bad
apples" are causing all the problems.
It only takes a
handful of bad lawyers to destroy public faith in the courts, Prof. Code
said.
"We cannot afford to
allow even a few lawyers to warp the system in this way," he said. "I do
not think the train of law reform that is coming down the tracks will be
turned back simply by saying there are a few bad apples."
Prof. Code said that
the move to enhance judicial power would permit more aggressive management
of cases, allowing judges to force lawyers on both sides to drop
unnecessarily time-consuming legal motions.
He said that
expanding juries would respond to a growing fear that jurors caught up in
lengthy trials may start to "revolt," creating an instant mistrial if
there are no alternate jurors on hand to fill their places.
Prof. Code was joined
by another panelist - Mr. Justice Michael Moldaver of the Ontario Court of
Appeal - in warning that endless legal motions and the squandering of
legal-aid funds have created an unsustainable crisis within the justice
system.
They said that
unseasoned defense counsel who lack mentoring and sound judgment have
caused great damage by marring serious cases with unnecessary and
ill-conceived legal motions.
Prof. Code also urged
legal regulators to punish lawyers who are "abrasive, abusive" toward
their opponents or court processes.
He said the
phenomenon is steadily growing and leads to time-wasting courtroom
warfare.
"All of this
unethical conduct is flatly contrary to the rules of professional
conduct," he said. "It's right in there - and it should be enforced. Law
societies have got to get serious about enforcing these ethics. The
counsel ought to be reprimanded." Prof. Code noted that appellate courts
have frequently gone out of their way to admonish lawyers who engage in
this type of "shocking" misconduct, yet their rulings are blithely ignored
by the law societies who regulate the profession.
Meanwhile, he said,
trial judges have grown passive and afraid to rein in lawyers, for fear
that they will not be backed up.
Prof. Code placed
part of the blame for the erosion of professionalism on law schools
failing to teach ethics and professional responsibility.
He said that many
lawyers enter the profession believing that their only duty is to the
client.
Judge Moldaver told
the conference that a major reason the criminal courts are on the verge of
collapse is that criminal trials, "have become interminable games in which
the trial of the accused is regularly overshadowed by the trial of the
investigation."
Murder trials plod on
for many months, draining police resources and consuming legal aid funds
that might otherwise go toward litigants who have needs in family law and
civil cases, he said.
Judge Moldaver cited
an Ottawa murder trial that was recently thrown out on the basis of
unreasonable delays - 17 years after an endless series of preliminary
hearings, trials and retrials first commenced.
"Without ascribing
blame to anyone, I consider it a disgrace," he said.
"Shame on our justice
system. ... Cases like the one I just described give the Canadian justice
system a black eye and bring the Canadian justice system into utter
disrepute.
"I tell you the whole
thing is insidious and it feeds upon itself," Judge Moldaver said. "The
public is becoming disenchanted. Some are beginning to lose faith and
confidence in our justice system."
He faulted appellate
courts such as his own for writing incomprehensible judgments.
He also blamed them
for spouting "philosophy" instead of providing clear instructions to
lawyers and trial judges.