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Lawyers have mixed reviews on Newmarket's new triage court

|Written By Siobhan McClelland

A new triage court and other changes to criminal matters at a notoriously busy Toronto-area courthouse are causing some lawyers to question whether the government is getting too aggressive in trying to speed matters up.

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The new triage court for criminal cases began in Newmarket, Ont., on June 4, with matters at the preliminary hearing or trial stage being heard there at 9 a.m. If the matter is ready to proceed, it moves to trial or preliminary hearings as long as a courtroom is available. The court hears guilty pleas at 10 a.m.

"The goal is to increase the efficiency and effectiveness with pleas and adjournment matters dealt with outside of trial court," Ministry of the Attorney General spokesman Brendan Crawley wrote in an e-mail to Law Times.

"It is also expected to reduce the average amount of time to trial."

While the goals sound promising, lawyers say the reality is the changes are forcing defendants in Newmarket to choose how to handle their cases too early in the process without knowing important information crucial to their cases.

"I personally believe that justice should not be a speed-time event," says criminal lawyer J.S. Vijaya. "There are serious consequences to Canadian citizens if the justice system is allowed to run like a fast-food restaurant."

Vijaya sees cases pushed forward too quickly with difficulties arising as defence counsel find themselves in triage court before they have received all disclosure.

Defendants are also having to decide whether to accept plea bargains at earlier stages when they may not have full disclosure or have received legal advice.

"What typically happens is if it is a garden-variety case, [such as] a simple assault, the Crown takes an early plea position," says Vijaya. This results in a slight reward to those who plead guilty earlier on in the process.

But if the defendant doesn't accept the early guilty plea, Vijaya says the Crown will rescind the offer and take harder positions later on.

The new triage court is part of the Justice on Target project that began in 2008 with the goal of reducing the number of appearances and days it takes to deal with a criminal matter by 30 per cent.

Between 2007 and 2011, there have been small decreases across the province in the number of appearances and days to complete a criminal charge, not including bench warrant days. However, the project has fallen far short of its original 30-per-cent target.

The statistics posted by the ministry on Newmarket's progress also provide a mixed bag. From 2008 to 2011, there was a decrease in the average number of appearances to disposition to 7.5 from 9.3.

The average number of days to disposition not including bench warrant days has also decreased to 162 from 210. But if bench warrant days also factor in, there has actually been a staggering increase in the number of days to disposition to 285 from 218.

Justice on Target "is about decreasing the time it takes to plead guilty," says defence lawyer Sam Goldstein. "It is not about trying to decrease the time it takes to get to trial."

Goldstein notes that when people are in custody, what's important to them is how long it's going to take them to get to trial. "You don't want to let people languish in jail."

Goldstein says the system now encourages people to plead guilty who shouldn't, which isn't good for the individual or the public.

When people see they won't get a trial for months, they'd rather resolve the matter quickly, particularly if the Crown is giving them a lighter sentence.

"It's about saving money at the cost of justice," says Goldstein.

Defence lawyer Marcy Segal doesn't believe that Justice on Target has failed in Newmarket. She says she can have a trial in about a month in Newmarket and notes there have been fewer trials since Justice on Target began. "I'm setting dates in other places six to eight months down the road.

"There's been a significant number of matters that have been resolved" because of Justice on Target, says Segal, adding she's had some amazing resolutions.

In addition to its triage court, Newmarket also differs from other criminal courthouses by not advising counsel in advance who their trial or plea judge will be.

"In other courthouses, they are giving you the schedule a week in advance of who the judge is going to be," says Goldstein.

He notes lawyers have more certainty when counsel know who their judge is. If counsel get a good judge who's reasonable, they're going to be more willing to take the case to court, he says. However, if counsel get a difficult judge, they may not want to take the matter to court, he adds.

"One of the realities of criminal practice is this is a human-driven system and different people who are judges have their own specific strengths which we, as advocates, try to take advantage of in terms of approaches," says Vijaya. It also helps counsel prepare better for trial when they know who their judge will be, he adds.

While it makes her job more difficult not knowing who the judge is in advance, Segal says there needs to be more transparency in the system, something that's lacking if lawyers start resolving matters based on which judges they like and dislike.

"I don't think the public would feel well to know there's a lot of judge shopping going on," she says. "I don't think that's how justice should be weeded out or dished out."

She continues: "I think that, as a citizen, the matters should proceed on their merits, regardless of who the judge is. We need to have a system that's fair. It can't be swaying towards the defence or towards the Crown. It needs to be fair at all levels."

For background information, see "Justice on Target missing its mark: report."

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