Long trials not our fault: Lawyers
2007 04:30 AM
LEGAL AFFAIRS REPORTER
One of the two statues which bookend the
front of the Supreme Court building in
Ottawa is seen in this file image.
Defence lawyers are unfairly
shouldering the blame for longer criminal trials, a
legal symposium was told on the weekend.
While members of the criminal bar
are being told to stop bringing so many motions that
challenge the admissibility of evidence and lengthen
court proceedings, the opposite message is being
delivered to Crown attorneys, the conference was
For example, in a recent case
involving a Toronto nursing home owner charged with
assaulting patients, the Supreme Court of Canada
formulated a new rule that could significantly
lengthen trials when prosecutors try to get hearsay
evidence before a court.
Toronto criminal lawyer Frank
Addario, who chaired the Law Society of Upper Canada
symposium, questioned whether recent efforts by
judges to restrict pre-trial motions by the defence
are based on a belief – also held by some federal
politicians – that "too many criminals are going
free as a result of the Charter."
Don Stuart, a law professor at
Queen's University in Kingston, conceded some judges
have never embraced the 25-year-old Charter of
Rights and Freedoms.
While the Charter hands judges the
power to exclude evidence gathered in violation of
an accused person's constitutional rights, "some
judges will never exclude evidence in their
lifetimes," he said.
But Stuart suggested those who blame
the defence for straining the criminal justice
system are simply ignoring other factors, such as
anti-gang "mega-trials," which tie up courts for
months, if not years.
Although his name was never uttered,
two recent speeches by Justice Michael Moldaver of
the Ontario Court of Appeal hung over the symposium.
Lamenting the ever-expanding length
of criminal trials, Moldaver said defence lawyers,
prosecutors, Parliament and even judges are all to
But criminal lawyers perceived his
remarks as an attack on them – perhaps not
surprising since he singled out as a major problem
pre-trial Charter motions brought by defence
lawyers. Following on the heels of Moldaver's
remarks, the Superior Court of Justice introduced
tough new rules last fall to restrict pre-trial
Sometimes hearings involve
applications for documents in the hands of third
parties, such as a sexual assault complainant's
medical records or even a police officer's
disciplinary history. Justice Gary Trotter of the
Ontario Court of Justice at Old City Hall urged the
lawyers to think carefully before asking for those
Before ruling on such a request, a
judge must go through the records to see if they are
relevant, a time-consuming process which often lays
bare intensely personal material that may never be
admissible, he said.
"I can tell you, I don't relish the
prospect of looking through somebody's private