Judicial power, size of juries could be system cures

Irresponsible legal tactics, lengthy trials have crippled courts, law professor tells conference

From Saturday's Globe and Mail

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 megatrials for Ontario Attorney-General Chris Bentley.

He said that strict deadlines are likely to be imposed on defence 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 defence 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.