Long trials not our fault: Lawyers

Mar 05, 2007 04:30 AM


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 told.

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 blame.

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 hearings.

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 records.

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 records ..."