A Criminal Mind: Taming the mega-trials in Ontario

Justice Patrick LeSage and Michael Code recently released their report on mega-trials. The Report of the Review of Large and Complex Criminal Case Procedures is a study of the problems being encountered in Ontario in lengthy trials, and a series of recommendations to improve efficiency.

The report can be found at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/lesage_code/.  
The LeSage/Code report recognizes that not utilizing the most senior counsel increases the burden on the justice system. LeSage and Code point out that senior counsel are more likely to be focused and efficient.

They want highly qualified defence lawyers to be brought back into the legal aid plan, and they also want more senior Crown counsel on big cases.
Once upon a time in the justice system a murder trial took one or two weeks, but now many trials take six months. It did not strain the lawyer’s practice

to take a case on for a low fee. It has become a vicious cycle, and, the longer the trials are expected to take, they point out, the less likely senior counsel are to take them on with a legal aid certificate.

They note that there are three major causes: the Charter of Rights and Freedoms, the reform of evidence law by the Supreme Court of Canada, and the addition of many new complex provisions to the Criminal Code.

They found that there are two ways in which Legal Aid Ontario may have contributed to long trials: the erosion of the tariff over the past 20 years, as cases grew more complex, and underutilization of statutory powers to regulate the quality, efficiency, and effectiveness of the work being done.

LeSage and Code recommend that special rates be created for these complex cases.  Ontario’s top current legal aid rate, whether the charge is shoplifting or murder, is $96.95 an hour. They note that in British Columbia there is an “enhanced fee rate” of $125 an hour, and there are significantly higher rates, which apply in “exceptional matters.” There is a short list of eligible lawyers for the latter.

They perceive a need to encourage mentoring through the bar and the Criminal Lawyers’ Association, rather than through the Law Society of Upper Canada.  One recommendation is to increase remuneration for junior counsel to attend trial with senior counsel.

The fact that the LeSage/Code report on big trials came out in the same year as Prof. Michael Trebilcock’s Report on Legal Aid Review 2008 gives the defence bar some guarded optimism that rates may improve for the most serious cases (see http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/). 

2008 also saw the release of the Report of the Inquiry into Pediatric Forensic Pathology in Ontario (see http://www.goudgeinquiry.ca/).  
Justice Stephen Goudge’s report on now discredited child pathologist Dr. Charles Smith recommends significantly increasing hourly rates for lawyers taking the child homicide cases, and that the eligibility criteria for lawyers taking those cases be defined.

Bifurcated trials have become a problem, slowing down the trying of terrorism cases. Terrorism cases have become protracted because of the procedure in s. 38 of the Evidence Act, which does not permit the trial judge to make decisions on the disclosure and use of evidence affecting national security interests, and even permits interlocutory appeals.

There is the eminently practical suggestion that the powers in s. 38 be within the jurisdiction of the trial court.
Other suggestions include early assignment of trial judges, or amending the Criminal Code to permit a pretrial judge to make binding rulings in the trial, as he would be deemed to have started the trial, but would not be seized with it.

They point out that once the defence or Crown has a ruling on an important issue, the case may settle and trial time is freed up.
The LeSage/Code report states that there is a broad consensus from the Crowns, the defence, the police, and from the judiciary that the solutions they propose should be implemented. 

If they are, one can expect more interest from the leading members of the bar, both Crown and defence, in taking on these serious matters, with great benefits in time savings for all participants in the justice system.

Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].

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