Pubdate: Wed, 22 Nov 2006
Source: Globe and Mail (Canada)
Copyright: 2006, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin

CRIMINAL COURTS ON BRINK OF COLLAPSE, JUDGE SAYS

Endless Manoeuvring By Litigants, Lawyers Threatens To Overwhelm Ontario System

JUSTICE REPORTER -- The criminal courts have been hijacked by overly 
demanding litigants and lawyers who revel in needless and 
"mind-numbing" legal manoeuvring, a senior Ontario Court of Appeal 
judge told a meeting of judges and justice officials last week.

In a written text of his speech obtained by The Globe and Mail, Mr. 
Justice Michael Moldaver described the justice system as being on the 
brink of collapse.

"The time has come for trial judges to regain control of their 
courtrooms -- and they deserve our full co-operation and support in 
this important task," he said. "Control of the courtroom belongs to 
the judges, not the litigants, and that is something that we must 
never again lose sight of!"

Judge Moldaver said that numerous judges have privately agreed with 
him that "regaining control of the courtrooms is a vital first step 
toward stemming the tide and bringing a semblance of balance and 
proportionality and normalcy back into our criminal justice system."

He said that most trial judges live in fear of making a tiny mistake 
that will cause a complex proceeding to be overturned on appeal.

"And that, as we all know, translates into new trials and more delays 
and more expense and more stress on a system that is already 
overburdened, if not overwhelmed," he said.

"With every passing day, more and more judges are voicing concerns 
about the length and complexity of criminal trials and the urgent 
need to address the problem now, before it's too late. . . . On the 
process side, they believe that we have ceded control of our 
courtrooms to the litigants, and that this has led to delay, 
inefficiency, waste and all manner of abuse."

Known for his frank, tough-talking manner both inside and outside the 
courtroom, Judge Moldaver incited the criminal defence bar last year 
with a speech that accused them of being too long-winded and prone to 
stringing out cases.

In his call-to-arms to the judiciary last week, Judge Moldaver said 
he was the target of a good deal of criticism after last year's 
speech, much of it from lawyers who mistakenly assumed that he 
dislikes the Charter of Rights and Freedoms.

"Am I proud of the Charter?" he said. "You bet I am! It serves as a 
model for constitutional democracies throughout the world, wherever 
they may exist and wherever they may take root. Do I view the Charter 
as a weed whose growth should be stunted? Not on your life."

However, Judge Moldaver said that he does very much oppose lawyers 
who "trivialize and demean" the Charter by using it to delay cases 
and obstruct judges who are trying to do their jobs.

"Does it bother me that the antics of these same counsel are 
depriving worthy litigants from being able to access the courts in a 
timely fashion?" Judge Moldaver asked. "Absolutely. Does it bother me 
that these same counsel are pilfering precious legal-aid funds at the 
expense of needy litigants with legitimate causes? Absolutely."

Many lawyers delight in making fees of $1,000, $2,000 or $3,000 a day 
as they pursue complicated legal strategies, he said. "And for those 
who think that way, the Charter is like a gift from heaven. It is the 
godsend of all godsends."

Part of the reason the criminal justice system is perched "on the 
brink of collapse" is that it has tried to be too perfect, Judge 
Moldaver said. "I want the kind of change that recognizes that 
perfection can, at times, be the enemy of the good -- and that in a 
justice system, it can become the handmaiden of paralysis. . . . 
Ladies and gentlemen, complexity is a pox on our criminal justice system."

Judge Moldaver ended his speech with several recommendations, 
including: that juries be trusted to sift through conflicting 
evidence on their own without judges having to hold lengthy hearings 
on the admissibility of some evidence; vastly simplifying the law 
regarding self-defence; ending a practice in which judges must vet 
medical and psychiatric records in sexual-assault cases; and allowing 
individual pre-trial rulings made for a trial to apply again if a new 
trial is ordered on appeal.
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