Troubles plague Ontario's busiest court Panel blames judges, time-wasting lawyers for massive backlog

By Kirk Makin
The Globe and Mail
Oct 28, 2006

The Ontario Superior Court of Justice is severely overtaxed and buckling under the weight of criminal trials that drag ever longer, a committee of top judges and justice bureaucrats has concluded.

The report points fingers in every conceivable direction: at judges who lack the spine to bring time-wasting lawyers to heel, at inexperienced or obstructive Crown attorneys who won't disclose information or who play tactical games that lengthen trials, and at defence lawyers who string out trials by turning minor disputes into interminable Charter motions.

In a plea for all participants to pitch in and rescue Canada's busiest court system before it is too late, the committee said the problems are not restricted to mega-trials with multiple accused. It said they extend to small and medium-size proceedings that consume at least double the time that they ought to.

"What is needed is a fundamental change in attitudes and habits on behalf of all participants in the criminal justice system, a system whose participants often do not readily embrace change," it states.

 

The report, submitted to Chief Justice Heather Smith last spring and posted on the court's website, offers a detailed prescription for bringing sanity back to the trial process.

Paul Evraire, executive assistant to the chief justice, described the report yesterday as a superb effort -- written by "truly the cream of the judiciary and the bar" -- and that its recommendations are already being implemented.

Mr. Evraire said Chief Justice Smith recently said her court's case backlog was approaching nine to 10 months -- a critical point at which cases must start being thrown out under Charter of Rights guarantees against unreasonable delays.

Last year, the Ontario Auditor-General's office warned that almost 100,000 criminal cases have been in the system for more than eight months.

The report said those suffering most from the delays are jurors on long trials -- who the report says deserve to be paid a lot more -- and witnesses, whose lives are put on hold while cases bump along.

The report was highly critical of defence lawyers who launch "fishing expeditions" disguised as pretrial legal motions and of pretrial conferences -- informal meetings attended by the defence, Crown and judge -- that are so cursory or confrontational as to be useless.

Pretrial conferences are a vital tool to help streamline cases by inducing plea agreements and narrowing the legal issues that will be thrashed out at trial, the report says. Yet, it says, some judges treat these meetings as inconvenient, while many lawyers show up unprepared to make any concessions or to narrow the issues that could arise at trial.

"On occasion, it appears that some counsel have left their cars running and simply dropped in to fulfill their statutory obligation," the report says.

Nor, it says, does it help that Legal Aid Ontario penalizes defence lawyers who engage in full pretrial conferences. The report notes that the legal aid problem is reversed when it comes to trials, and fee structures encourage lawyers to string out their cases: "Put another way, if the judge will listen, legal aid will pay."

Many defence lawyers no longer confidently select a handful of key arguments on which to concentrate at trial, the report says. Instead, they carry out their client's every whim in apparent fear that they will either be fired if they don't, or crucified in an appeal court later on for having mismanaged the defence.

"Persons accused of criminal offences are now better informed and often more litigious than they were in the past," the report notes. "They widen the issues defence counsel explore, insisting that they have the right to direct the defence."

The report exhorts the judiciary to "roll up their sleeves" and actively manage cases, coaxing lawyers to negotiate and forcing them to comply with rules. "Without that leadership, we have serious reservations that there will be any improvements," it says. "Rather, it will revert to the 'same old, same old,' approaches."

Many trial judges feel they lack sanctions to use against misbehaving lawyers, the report says. Or else, they do nothing out of fear that appellate courts will not tolerate their cracking down.

The report urges prosecutors to pare the number of charges they prosecute against an accused and always offer a firm idea of what sentence they will seek from the trial judge.

Prosecutors too often allow police to thwart their legal obligation to disclose relevant evidence to the defence, the report says. "It is shocking to see how many disclosure issues arise on the eve of, or during, trials."

The report notes that two previous inquiries into the court's worsening problem -- in 1993 and 1999 -- were roundly ignored by many judges and lawyers, but that this blasé attitude cannot continue.

The committee was comprised of Superior Court Judges David Watt, Bruce Durno, Douglas Rutherford, Gladys Pardu, Stephen Glithero and Edwin Minden; Ontario deputy attorney-general Murray Segal; Croft Michaelson, senior general counsel at the federal Department of Justice; John Pearson, regional director of Crown attorneys for the Ontario Attorney-General's Ministry; and Ralph Steinberg, past president of the Criminal Lawyers Association.