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Economist raps Canadian justice system

|Written By Tim Naumetz

OTTAWA - The Economist has published a scathing indictment of the Canadian justice system, comparing Canada negatively to Latin American countries for its treatment of white-collar crime and government corruption.

The article - which also claims Canadian “sloth” prosecuting in those areas is shown up by American “zeal” - has sparked criticism from Ontario lawyers.

The London-based weekly newspaper cites the Mulroney-Schreiber judicial inquiry as an example of a woefully slow

system of justice. The inflammatory article was published just as the inquiry began last month.

The story, written by an anonymous Economist correspondent from Ottawa noted six years had passed since it became public knowledge that former military lobbyist Karlheinz Schreiber paid former prime minister Brian Mulroney at least $225,000 in cash for as-yet undisclosed lobbying services once Mulroney left office.

The article also referred to a three-year investigation before the fraud trial of theatre “impresarios” Garth Drabinsky and Myron Gottlieb that led to convictions last March; the 16-month stretch between influence-peddling charges against Ottawa Mayor Larry O’Brien and his trial; and the fact that former newspaper baron Conrad Black was jailed for fraud in the U.S. but never charged in Canada.

But two noted Ontario lawyers say the methodical and deliberate system of Canadian justice avoids wrongful convictions and other pitfalls that can turn prosecutions into miscarriages of justice.

James Morton, former president of the Ontario Bar Association, says the magazine’s comparison of Canada to Latin American countries is also misguided. “I think it’s stretching a point for ideological reasons,” says Morton, a founding partner at Steinberg Morton Hope & Israel LLP, who also lectures at Osgoode Hall Law School.

“As America is overzealous, Canada may be lackadaisical, but we’re certainly not in the situation of some of the South American countries if only because in Canada there is no basis to say that delays in prosecution arise from corruption; they arise from a system that is inherently slow,” he tells Law Times.

Morton and Mark Ertel, president of the Defence Counsel Association of Ottawa, say checks and balances in Canadian justice help to prevent miscarriages of justice and leads to a fairer system.

Both lawyers argue that one of the Canadian elements criticized by The Economist as a time-consuming delay - the requirement for sweeping evidence disclosure by police - gives the justice advantage to Canada compared to the U.S.

“If the only thing you want to look at is speed, then their model is a good model to follow,” Ertel tells Law Times. “I would like to think we are looking at more than speed here and we actually care about whether guilty people are convicted and innocent people go free or not.”

The Economist cites three other causes for its conclusion that Canada’s justice system is slow prosecuting white-collar crime and corruption compared to the United States. It says the absence of the grand-jury system is a disadvantage for Canada, wider use of plea bargaining in the U.S. shortens court time, and “Canadians tend to defer to authority and trust their institutions.”

Ertel says wide use of plea bargaining can subvert justice.

Stiff federal sentencing regimes in the U.S. - which Ertel argues the Harper government is mimicking in a range of recent Criminal Code amendments - can contribute to wrongful convictions as the accused or suspects either enter a guilty plea or give false evidence to avoid lengthy prison terms. “We have concerns about that in this country,” says Ertel. “We think that’s the kind of thing that might motivate a witness to lie, so we don’t put as much emphasis on that, although it does happen.”

“If you bring in an unjust system, that will move things along,” he says. “Everyone is trying to be tougher on crime; everybody is blindly accepting the American model.”

Ertel and Morton argue Canada’s decision to replace grand juries with preliminary inquiries for major criminal cases in the mid-1960s improved standards of justice. “It’s a much fairer system than the grand jury,” says Morton. “It’s not as one-sided, but it slows things down. We’ve substituted fairness for speed.”

But, Ertel admits that underfunding and short resources in courts and Crown prosecution offices, combined with developments such as a Supreme Court of Canada ruling that widened the acceptability of hearsay evidence, are slowing courts down.

“I think our criminal justice system, if it’s not funded properly it’s at a very dangerous time,” he says.

Morton notes murder trials with a jury in the U.S. often begin within a year of charges but in Canada “it’s just not going to happen.”

“It is slower than the United States and one of the things we need to work on in Canada, and I’ve written about this and I’ve made a fuss about this, is we need to speed up the criminal system,” he says.

“I’m not talking about just white collar, we need to speed up all criminal cases.”

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