Vast numbers of litigants unrepresented, lawyers unprepared, conference told

Monday, November 17, 1997

By Kirk Makin " Justice Reporter"
Quirk Makin is Canada's Judicial Sychophant. He was discplined for making up quotes.


TORONTO -- The Ontario court system is an assembly line staffed by disillusioned judges, harried prosecutors and often-inept defence lawyers, a weekend legal conference heard.

"Everything is reduced to getting the numbers through," said Judge David Cole, a panelist at the Law Union of Ontario conference of about 150 judges and lawyers. "What most of us are doing is a lot of routine processing of petty offenders -- most of whom are mentally ill.

"We are getting tired of watching the parade," added Judge Cole, of the Ontario Court's Provincial Division. "I'm really getting very depressed about it. It is very expensive, and I'm not sure it ultimately gives anybody a sense that justice has been done."

Judge Peter Harris, also of the court's Provincial Division, said what the public sees is an illusion of justice.

"What we are doing is obviously not working," Judge Harris said. "We know stiff jail sentences don't produce a reduction in crime. Probation doesn't produce a reduction in crime. The rates of violence stay the same whatever we do."

Judges and lawyers cited problems ranging from overworked and unprepared lawyers to the vast number of unrepresented litigants who are overwhelming the court system. For many, the clear solution was to restore funding to the legal-aid and court systems.

Provincial Division Judge Lynn King bemoaned the fact that recent cutbacks in legal aid have led to 65 per cent of family-law litigants appearing in court without lawyers.

As a result, Judge King said, she regularly witnesses the "mind-boggling" and tragic sight of unrepresented mothers agreeing to the demands of social-welfare authorities without understanding the serious ramifications.

She said it is no better in Youth Court, where a staggering number of teen-agers unthinkingly agree to unrealistic or inappropriate bail conditions. They inevitably end up breaching them, she said, and are incarcerated until their trial date.

"Half of them can't even read," Judge King said. "They don't even remember what day today is. They are teen-agers. They will sign anything. If they had a lawyer, they wouldn't agree to these silly conditions.

"This is the state of family law -- and we are supposed to resolve cases in a fair and equitable manner. You feel like you are a stage director telling people where to stand. You leave at the end of the day wondering what is going on."

With the court system failing at every turn, Judge Harris said, the only viable alternative is to use social programs in the community to try to change aberrant behaviour.

Judge Cole agreed, adding that if 15 to 20 per cent of the least consequential criminal charges were diverted out of the court system, the rest of the cases could be treated properly.

"If there is one thing we all agree on, it is that our court system is being inappropriately used as a dumping ground for social problems," Judge Cole said.

He said the court system itself is increasingly plagued by defence counsel who are poorly paid and disorganized, and Crown prosecutors have to "give away the store" in plea bargains to get through their case lists.

Many defence lawyers make no use of the requirement that the Crown disclose its evidence prior to trial, Judge Cole said. Others have no idea how to conduct a cross-examination.

"It is very clear we have lawyers who not only don't own a copy of the Criminal Code, but haven't read it," Judge Cole said.

He said he must frequently restrain himself from going over the head of a defence lawyer to ask whether an accused person really understands what is taking place.

Judge Cole recalled how he and a colleague once felt compelled to assemble a group of defence lawyers to go through some of the fundamentals they ought to have learned in law school.

Other participants at the conference said the deplorable state of affairs goes far beyond bad lawyering. They said the throttling of the provincial legal-aid plan has made it impossible to spend adequate time on most cases unless a lawyer is willing to work for free.

"Sole practitioners are working without secretaries and working from their homes instead of offices," said lawyer David Bayliss. "They do their own photocopying and are unable to do research."

Mr. Bayliss said the bail system has become "a national disgrace" because so many accused people now appear without counsel. He said they are herded into the prisoner's dock in droves. If they have anyone representing them at all, it is likely to be an exhausted court duty counsel, lawyers stationed in the courtroom who represent clients on an as-needed basis.

Inevitably, a great many are denied bail by the presiding justice of the peace, Mr. Bayliss said. After several weeks or months in jail, he said, they will say just about anything to settle the charges and be released.

Mr. Bayliss said there is a bitter joke doing the rounds that legal aid now ends up paying lawyers $900 for the proceedings to set a trial date and $100 for the trial.

"I don't know why judges haven't spoken out about it," he said. "I don't know why lawyers haven't spoken out about it. It is a scandal. It is inhuman."

Judge King said many family-law litigants who represent themselves in court can barely string a sentence together, let alone file the proper court documents.

She said duty counsel call out numbers from a list as if they were serving customers in a butcher's store, hastily nailing down resolutions to complex domestic matters that are sometimes ill-advised.

"They just seem overwhelmed by what they are doing," Judge King said of the duty counsel.

Defence lawyer Maureen Forestell told the conference that the sheer volume of accused has caused unprecedented cynicism toward accused people. She said they are literally treated like animals.

Court personnel who move inmates around refer to what they are doing as 'bringing up the bodies' or 'shipping a load,' " Ms. Forestell said. She recounted being denied access to a client recently during a courthouse lunch period on the grounds that it was "feeding time."

Lawyer Robert Kellermann said that in many courthouses, accused people are herded into noisy cells where they are obliged to use the toilet in full view of dozens of other inmates. "These are people who are still presumed innocent."

Several lawyers at the conference urged the judiciary to use its credibility and power to draw attention to the plight of the court system. Mr. Kellermann said it may take nothing less than a work-to-rule campaign to bring attention to the crisis.

"If there is a slowdown, I think the government would eventually be forced to provide resources," he said.

Copyright 1997, The Globe and Mail Company
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