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
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.