Judges urged to exercise restraint

A lack of judicial restraint has helped to “lubricate the chainsaws” of those who have an anti-Charter agenda, according to a prominent Toronto defence lawyer who last week called this “one of the most fragile times in the history of criminal justice in this country.”

Delivering an advocacy lecture in honour of justice John Sopinka to the Criminal Lawyers’ Association conference, William Trudell asked that judges exercise restraint when delivering decisions, to be courageous, and not to sign on to “poisonous and unhelpful” statements.

Noting that he is “letting us down” and “pruning the Charter with an axe,” Trudell took specific issue with recent comments made by Ontario Court of Appeal Justice Michael Moldaver in the Court of Appeal’s R v. LB decision, a case involving a youth who was arrested in front of a Toronto high school after police searched a bag which contained school work and a loaded .22-calibre handgun.

During a pre-trial ruling, the gun was excluded from evidence under the Charter and LB was acquitted. But the appeal panel set aside the acquittals and ordered a new trial, noting there were no Charter breaches and the gun should have been admitted into evidence.

In the decision, Moldaver wrote that: “. . . this case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined 25 years ago when the Charter first came to being.

Sadly, in recent times, such images have become all too common - children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief.”
Trudell, president of the Canadian Council of Criminal Defence Lawyers, noted that the predictable editorials followed.

“I humbly ask judges to be careful, to exercise restraint when rendering their decisions, because there are many out there who distrust you and the system in which you serve. And I call upon judges to be courageous. Don’t sign on to poisonous and unhelpful dicta,” he told those in attendance.

Recent comments made by Moldaver on the subject of the Charter - in which he noted that he had a problem with counsel who use the Charter “as a means of delaying and in some cases obstructing [justice],” as well as with counsel who clog the courts by “bringing Charter and other applications that are baseless” - have since been used as a “rallying cry” for police witnesses and politicians, he says.

In a speech to the justice summit last year, Moldaver also noted that it bothers him that “the antics of these same counsel are depriving worthy litigants from being able to access the courts in a timely fashion” and that “these same counsel are pilfering precious legal aid funds at the expense of needy litigants with legitimate causes.”

The complexities in the criminal justice system, said Trudell, are not the creation of the defence bar, noting that the new bill C-2, for example, is full of difficult issues.
In accepting this year’s G. Arthur Martin Criminal Justice Award, Paul Copeland noted that, “We expect more of the judiciary - the purported guardians of our Constitution. It appears that we expect wrong.”

“It is one thing for our higher courts to say, as they have, that there is no automatic exclusion of conscriptive evidence. It is quite another for them to say, as they effectively have, that evidence of guns can never be excluded. This is purely an invention of our Court of Appeal,” he added.
Trudell also urged Crowns and prosecutors to work with the defence in joint advocacy for the system, namely to protect preliminary inquiries.

“Every one of us knows that it is an incredibly important vehicle to prevent wrongful convictions, promote orderly and focused trials, and in many cases educate the victims about what the real evidence is,” noted Trudell.

Calling on Crowns to join with defence lawyers to stop the “hacking erosion of the preliminary inquiry,” Trudell noted that in former chief justice Patrick LeSage’s report on the inquiry into James Driskell’s wrongful conviction, LeSage wrote that he believed that “had a preliminary inquiry been conducted in this case, the likelihood of this miscarriage of justice having occurred would have been diminished.”

“The too-cute-by-half movement towards preferred indictments cutting off the preliminary inquiry is wrong, and dangerous, and we know it,” said Trudell.
Preliminary inquiries are in danger of disappearing, he says, in light of the multitude of megatrials on the horizon, as those who are “unenlightened” about preliminary inquiries view them as taking too long.

Because of the “avalanche of cases” coming into the system, Trudell said that in large centres such as Toronto, without “proper case management or pre-charge screening,” the legal community needs to probe, question, check, and challenge every step of the way.

Crowns in particular, he said, also need to initiate and follow through on meaningful charge screening and withdraw charges that have no prospect of conviction, and specifically adopt the report of the national steering committee on justice efficiencies and access to the justice system that he said acts as a blueprint for early case consideration.

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