The De­fence ver­sus Jus­tice Mol­daver

Lawyers Alan Gold and Frank Ad­dario take is­sue with judge’s claim that ‘an­tic’- prone de­fence coun­sels threaten jus­tice sys­tem by need­lessly de­lay­ing cases

Toronto Star - - Opinion -

In a re­cent speech to a group of judges and gov­ern­ment lawyers, On­tario Ap­peal Court Judge Michael Mol­daver claimed there is a cri­sis in the crim­i­nal jus­tice sys­tem. He called on his fel­low judges to join him in a bat­tle to sim­plify pro­ce­dures and re­vamp com­pli­cated jury in­struc­tions, and ex­horted them to crack down on crim­i­nal de­fence lawyers who use the Char­ter of Rights to de­lay cases or line their pock­ets with fees. Ac­cord­ing to Mol­daver, th­ese twin evils threaten the “very ex­is­tence” of the jus­tice sys­tem.

Mol­daver is half right. Crim­i­nal cases are com­pli­cated and time-con­sum­ing. But de­fence coun­sel are not the cause of that or any­thing else that threat­ens the jus­tice sys­tem.

In de­scrib­ing the de­fence bar as rid­dled with “an­tic”-prone lawyers who steal from the le­gal aid pro­gram, de­fraud their clients, “triv­i­al­ize the Char­ter” and ob­struct jus­tice, he did a dis­ser­vice to judges, lawyers and the pub­lic.

The avail­able ev­i­dence does not sup­port Mol­daver’s the­ory. Al­most ev­ery case in which a Char­ter ar­gu­ment is raised re­sults in a writ­ten de­ci­sion from a judge. Th­ese cases are in turn en­tered into a search­able database avail­able to ev­ery­one.

If de­fence coun­sel were re­ally “triv­i­al­iz­ing the Char­ter,” you would think that in the thou­sands of cases de­cided ev­ery year in Canada, judge af­ter judge would say so. The ab­sence of ref­er­ence in his speech to any de­cided court case, let alone the hun­dreds it would take to threaten our durable jus­tice sys­tem, sug­gests the prob­lem is not wide­spread at all.

Mol­daver says the courts are in cri­sis be­cause of de­fence coun­sel whose “an­tics” are de­signed to earn fees, rather than ad­vance their client’s cause. Of course, such con­duct would be fraud­u­lent and should be de­nounced.

If such mis­con­duct were com­mon enough to im­peril the en­tire jus­tice sys­tem of the prov­ince, you would think there would be dozens of ex­am­ples avail­able to draw upon. Yet Mol­daver of­fered not one to sup­port his the­ory.

He as­serts that de­fence coun­sel are “pil­fer­ing pre­cious le­gal aid funds,” a se­ri­ous charge to be sure.

Mol­daver would have ben­e­fited from ex­am­in­ing the ev­i­dence of Le­gal Aid On­tario’s par­si­mo­nious ap­proach to pay­ing lawyers. In fact, its checks on over­billing are as thor­ough and care­ful as any gov­ern­ment pro­gram in ex­is­tence.

Le­gal Aid has no he­si­ta­tion in au­dit­ing lawyers’ ac­counts and pub­li­ciz­ing the re­sults. We are un­aware of any wide­spread or even spo­radic theft by de­fence lawyers from the le­gal aid pro­gram.

The truth is, the main de­ter­mi­nant of the length of a crim­i­nal trial is the Crown’s case. The Crown de­cides what ev­i­dence to call. The typ­i­cal de­fence con­sists of ques­tion­ing Crown wit­nesses. De­fence coun­sel’s cross-ex­am­i­na­tion is un­der the con­trol of the judge. If any part of the cross-ex­am­i­na­tion is im­proper, repet­i­tive or un­nec­es­sar­ily time-con­sum­ing, the judge has the right to cur­tail it.

If Mol­daver’s real com­plaint is that trial judges are not ex­er­cis­ing their ju­ris­dic­tion to elim­i­nate im­proper cross-ex­am­i­na­tion, he should say so. And, if he is not say­ing that, he should ad­mit that de­fence coun­sel’s cross-ex­am­i­na­tions are nec­es­sary and proper.

Even if the oc­ca­sional de­fence lawyer strays in­sel to “pro­lix­ity” — long-wind­ed­ness — how can this bring the whole jus­tice sys­tem to a cri­sis point?

There are no re­li­able sta­tis­tics avail­able to con­nect de­fence lawyers to the sys­temic prob­lems that plague the sys­tem.

True, we are an easy tar­get. We de­fend peo­ple charged with ev­ery­thing from shoplift­ing to mur­der. We do this whether the de­fen­dant is a pop­u­lar ath­lete, a priest, a politi­cian, your son or daugh­ter, or a com­plete un­known.

We de­fend peo­ple whether the case against them is stacked with ev­i­dence or built on sus­pi­cion and in­nu­endo.

For our ef­forts we are car­i­ca­tured as greedy, un­prin­ci­pled rel­a­tivists, happy to de­fend any­one with a pile of cash. But far from be­ing the prob­lem with the jus­tice sys­tem, de­fence coun­sel are a key source of its le­git­i­macy.

We are also a form of in­sur­ance. There are ter­ri­ble ac­ci­dents in the crim­i­nal jus­tice sys­tem. Th­ese ac­ci­dents cost the tax­pay­ers mil­lions of dol­lars.

They are ac­ci­dents with names like Guy Paul Morin, David Mil­gaard and Don­ald Mar­shall. There is one, and only one, known form of in­sur­ance against more dis­as­ters like the Morin trial: a com­pe­tent and dili­gent de­fence coun­sel.

It was not po­lice of­fi­cers or crown at­tor­neys who worked to free Morin. It was crim­i­nal de­fence coun­sel. Hard­work­ing de­fence coun­sel who are not pres­sured by im­pa­tient judges to be more “ef­fi­cient” are the best in­sur­ance against fu­ture ac­ci­dents. The rea­son most de­fence coun- are in­sulted by Mol­daver’s speech is that to he failed to iden­tify the real cause of the prob­lem. He dis­missed the chronic un­der­fund­ing of the jus­tice sys­tem as ir­rel­e­vant. Yet, each year lawyers and judges are asked to pro­duce the same high qual­ity jus­tice with less money.

Nowhere in his speech does Mol­daver say any­thing about our es­sen­tial role in the ad­ver­sary sys­tem as a coun­ter­bal­ance to the state’s rush to con­vict.

A strong and in­de­pen­dent de­fence bar is an es­sen­tial check on wrong­ful con­vic­tions and mis­car­riages of jus­tice. It is not enough to ac­cept our role in the­ory. We are a nec­es­sary im­ped­i­ment on the smooth path to the wrong re­sult. We are not mere speed bumps, slow­ing gov­ern­ment travel down a road on which it is en­ti­tled to race at greater speed. The Char­ter of Rights is not a self-ex­e­cut­ing doc­u­ment. It is de­fence coun­sel who give it life, by tak­ing it into the court­rooms of this coun­try.

As long as the real causes of the jus­tice sys­tem’s prob­lems are misiden­ti­fied and the de­fence bar scape­goated, they will re­main im­pos­si­ble to solve.

Rec­og­niz­ing the er­ror of Mol­daver’s the­ory is not just about as­suag­ing our feel­ings. It is about find­ing so­lu­tions to real prob­lems prop­erly un­der­stood. Alan Gold is past pres­i­dent and Frank Ad­dario is cur­rent vice-pres­i­dent of the On­tario Crim­i­nal Lawyers As­so­ci­a­tion.

TORONTO STAR FILE PHOTO

This is an un­dated photo of On­tario Ap­peals Court Judge Michael Mol­daver who in a re­cent speech crit­i­cized de­fence coun­sel for ‘triv­i­al­iz­ing’ the Char­ter of Rights to de­lay cases.

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