Lawyers warn of drug case disasters
Aug. 15, 2004. 08:11 AM
JONATHAN HAYWARD/CP Federal lawyer Jim Leising resigned a top post, reportedly partly out of frustration at a lack of resources.
People charged with drug trafficking and other federal offences may get off scot-free if federal prosecution resources are not beefed up, according to senior government prosecutors.A glut of cases has caused the problem: Too many arrests, not enough lawyers to prosecute. Unless something is done soon, prosecutors in the federal justice department warn, some cases will have to be dropped.
The problem is described in two strongly worded letters sent by 12 of Ontario's top federal prosecutors to their bosses in Ottawa. In lofty language, the seasoned prosecutors warn that "calamities" loom in many cases that simply cannot be dealt with.
"Catastrophic consequences loom around each corner each day," one letter states.
The letters, sent a little more than two months ago, suggest that prosecutors will soon have to "triage" cases, deciding which they can deal with. The letter raises the idea of a new system where prosecutors will choose which types of offences will be prosecuted and which type dropped.
"For example, if a choice is to be made between a trafficker in a kilo of heroin and a low-level importer of a kilo of heroin, to which case should we devote the resources?" ponders the letter, signed by prosecutors representing most of the justice department divisions in Ontario.
Another dilemma prosecutors say they will soon face involves individual cases and matters of a broader principle:
"If the same resources could prosecute 50 crack cocaine traffickers or uphold the constitutionality of the Customs power to conduct searches, which interest prevails?"
Still another problem involves police. Often, a justice department prosecutor will be asked to advise investigators working a case, suggesting ways to proceed when gathering evidence.
"If we have no realistic expectation of having additional prosecution resources, (police) will need to know that their investigations will be for naught."
In Canada, there are federal and provincial prosecutors. Federal prosecutors, who work for the justice department, handle cases involving: drugs, smuggling, tax evasion, immigration, competition bureau, extradition requests and some environmental offences. There are 90 federal prosecutors in Ontario.
Provincial prosecutors, who work for Ontario's attorney-general, deal with murder, theft, assault and myriad other crimes.
The letters were sent to Morris Rosenberg, the Ottawa bureaucrat who holds the dual role of deputy justice minister and deputyattorney-general.
Rosenberg would not respond to the Star's queries. He passed the call to another senior justice department lawyer, George Dolhai, who in turn bounced it back to Toronto, telling Morris Pistyner, the new acting director of the Ontario prosecution office, to field the call.
Pistyner said in an interview this week that he does not believe cases will be dropped because of work pressures. Cases are dropped if there is no reasonable chance of a conviction, he said, but not because of an overload of work. Still, he conceded that a new era of restraint in the federal government is contributing to the pressure on prosecutors.
"Government efficiency is the order of the day. There is no special treatment for us in Justice," Pistyner said. He said the letters were written in the lead-up to the federal election, when nobody was sure of the outcome or how it might affect budgets.
Still, Pistyner said the pressures are real.
"Yes, we could use more resources," he said. "Of course I want more people."
One of the letters states that cases often sit in limbo, with no prosecutor available to go to court. Pistyner said this does happen, but "they don't lack (a prosecutor) for long."
The Star was not able to get figures on how many cases are pending in the Ontario area and how many lack a prosecutor.
However, Pistyner said the problem is not so much the number of cases but their complexity. With each passing year, cases brought in by police (such as a big drug sweep) grow larger. There are more accused in each bust, and more and more disclosure is required to defence lawyers.
"Fighting drug traffickers remains a government priority," Pistyner said. The acting director in Ontario said Ottawa has told his people that "everything possible is being done" to fix the situation.
"Ottawa is aware of the pressures and the issues. Whatever could be done is being done."
Still, neither Pistyner nor anyone from the federal justice department was able to say what's being done.
A delay in getting a case to court can signal the end of a prosecution.
The 1990 Askov case is one that constantly hangs over prosecutors' heads.
Elijah Anton Askov and three others were charged with conspiring to commit extortion, but waited almost two years for trial. Their case was tossed out after the Supreme Court ruled that an accused person facing an unreasonable delay — in this case, caused by an overburdened justice system, the judges said — can have his case thrown out of court.
Following the Askov precedent, thousands of criminal cases came to a similar end.
At the time the letters were sent in late May, Pistyner was deputy director of the Ontario division. His boss, senior lawyer Jim Leising, had just resigned and the department was scrambling to figure out what to do without its well-respected leader.
Pistyner said he did not sign the letters (he was away when they were written) but saw one later and told colleagues he agreed with the content.
Leising left the management job as director of the department last May to return to a job as senior counsel after Ottawa refused to raise his job classification to a more senior rank, which would have brought a small raise in pay but would also have given the Ontario division more clout in getting resources.
Leising, colleagues say, was also upset by the lack of resources his department got from Ottawa. One of the letters complains about the poor treatment of Leising and the department as a whole. It suggests that the federal government has never made prosecutions a "real priority," and that their department is the "poor step-sister" to other departments charged with more weighty, but less pressing, policy issues.
"In Justice, everything happening in Ottawa matters. Outside Ottawa? Forget it," a senior prosecutor told the Star.
Leising was much loved by the prosecution staff and apparently, lawyers say, did his best to hold the department together.
He is on vacation and could not be reached by the Star.
The Star was able to obtain a copy of a letter written by deputy minister Rosenberg to the senior prosecutors regarding the Leising matter. In his letter, sent to the 12 signatories, Rosenberg vows to look into the matter of raising the classification of the person who oversees the Ontario prosecution service.
Rosenberg, in his letter, makes no mention of the more serious problem of short-staffing and cases potentially being tossed.
Prosecutors in the Ontario region of the justice department continue to worry that, as one of the letters states, "cases in excess of a manageable workload will have to be stayed."
"The glue that holds (the prosecution service) together is the people who serve in it. Driven by their commitment to the public interest, (the staff) somehow, day in and day out, hold the ship together with twine and baling wire," one letter states, then adds in an ominous tone: "Even the finest adhesive has its load limit. At some point, the fraying twine snaps."
Pardon my cynicism but, any analysis of this alleged problem which fails to consider the obvious inefficiencies inherent in having both Ottawa and the provinces enforcing the same Criminal Code is plainly not complete and likely not objective.
Additionally, although it's hardly surprising that it's never mentioned, one must wonder what sort and (or) caliber of lawyers the civil service attracts?
First, there's the vast difference in the salaries "good", highly competent lawyers can earn in the private versus the public sector. Secondly, while the government's health and pension benefits might be a tad better than Bay Street's at the lowest or entry level, apparently they don't include paid memberships in private clubs and exclusive golf courses and, when you're making anywhere from the mid-six figure range upwards, it's not too tough either to buy your own Viagra or to salt away a few bucks for one's golden years.
Ergo, one must ask: are Crown Attorneys pretty much to criminal law what legal aid lawyers are to the civil division?
Further, while members of the legal profession love to go on about the supposed high moral callings that first drew them to practice law, (much the way they tout the alleged lofty ethical standards of themselves and their colleagues) there's a huge difference in the levels of personal accountability between private and public practice.
Blow a big deal on Bay Street through gross incompetence or because you opted to put your own personal or political agenda ahead of your client's and you're down the road and fast!
Blow a major prosecution like Susan MacLean did with Guy Paul Morin or Leslie Baldwin did with Karla Holmulka and, in both instances, your supervisor - The Ministry - makes you a Judge and your real employer - the public who pays your salary - gets no say whatsoever.
Bottom line: only a lawyer would have the gall to trade dollars for non-accountability and then whine about the working conditions. If you don't like them, spare us the crying, the threats and the doom and gloom predictions and simple quit and go find a job in the real world of the private sector. With now over 10,000 law society union members in Ontario alone, it shouldn't be too hard to find replacements. - G.