“THE STATE OF THE CRIMINAL JUSTICE SYSTEM IN 2006: AN APPELLATE JUDGE’S PERSPECTIVE”

REMARKS TO THE JUSTICE SUMMIT – 2006

By: The Honourable Justice Michael Moldaver

NOVEMBER 15, 2006

Toronto, Ontario

I want to begin by thanking the Chief Justices and the Deputy Attorney General for inviting me to participate in this important event and for giving me the opportunity to express some thoughts and ideas about our criminal justice system. I am deeply honoured to be here.

It was about a year ago that I delivered the Sopinka Lecture on Advocacy to the Criminal Lawyers’ Association. As some of you may know, I took the opportunity to express, in fairly forceful terms, my concerns about the length of criminal trials and the impact this was having on the public’s faith and confidence in our criminal justice system.

I did so because I believed then, as I do now, that our criminal justice system is at a crossroads and that urgent measures are required to address the twin demons of complexity and prolixity that continue to plague it and pose a threat to its very existence.

My message to the Criminal Defence Bar was that the problem was not solely, or even primarily, one of their making. Rather, it was a collective one for which all of the major stakeholders bore responsibility.

For their part, I raised concerns about the proliferation of pretrial Charter motions and the impact these motions were having on the length of criminal trials. In that regard, what I asked of them was to be discerning in their use of such motions, especially where the underlying legal principles had been addressed by the Supreme Court of Canada. Hardly an earth-shattering proposition, or so I would have thought. Hardly one, I thought, that would lead a senior member of the defence bar to describe my address as “shocking” and a leading academic to chastise me for viewing the Charter not as a “vital living tree” but as a “weed to be stunted”.

Therein of course lies the beauty of the Charter. Free speech is certainly alive and well in Canada.

Much as I might joke about it, I would not want you to think that I take remarks of that nature lightly. I do not. So let me set the record straight.

As part of the Constitution, the Charter is the supreme law of the land. It speaks to what we are all about as Canadians and what we aspire to be.

It is the cornerstone of a justice system that in many respects is the envy of the civilized world:

  • A justice system that is premised on the supremacy of the rule of law.
  • A justice system that prides itself on an independent judiciary and open courtrooms.
  • A justice system that is founded on the belief that we are all equal before and under the law and that every human being is entitled to be treated with respect and dignity.

Am I proud of the Charter? You bet I am! It serves as a model for constitutional democracies throughout the world, wherever they may exist and wherever they may take root.

Do I want to see it thrive and flourish? Absolutely! As I said in a paper that I wrote in 1995 “the Charter has the potential to do great good within our society”. Hardly the words, I think you would agree, of a Charter basher. Hardly the words of someone looking to see the Charter shrivel up and die on the vine.

So let’s be clear. Let’s get the record straight.

  • Do I view the Charter as a weed whose growth should be stunted? – Not on your life.
  • Do I have a problem with counsel who use the Charter to preserve and protect the rights of individuals and minority groups from state excesses? – Absolutely not.
  • Do I have a problem with counsel who use the Charter to promote and advance the cause of justice? – Absolutely not.

Now ask me –

  • Do I have a problem with counsel who trivialize and demean the Charter and who use it, not as a means of promoting justice, but as a means of delaying and in some cases obstructing it? – You bet I do.
  • Do I have a problem with counsel who clog the courts and tax an already overburdened justice system by bringing Charter and other applications that are baseless? – Absolutely.
  • Does it bother me that the antics of these same counsel are depriving worthy litigants from being able to access the courts in a timely fashion? – Absolutely.
  • Does it bother me that these same counsel are pilfering precious legal aid funds at the expense of needy litigants with legitimate causes? – Absolutely.
  • Am I going to give up on my fight against those who would abuse our criminal justice system and make a mockery of it? – Never.

And let there be no doubt about it. The problems of which I speak are not, as an assistant professor at Osgoode Law School recently wrote, simply a product of “poor judgment by many criminal defence counsel on what Charter issues are worth litigating, as well as a plodding and prolix approach by some in advancing these claims”.

Unfortunately, the professor was not present when a distinguished member of the defence bar said to me, in response to my address to the Criminal Lawyers Association, and I quote “Judge, you only have a problem with long criminal trials because you are on a fixed salary”.

The message – if you were making $500 or $600 an hour and $5,000 or $6,000 a day in court, you wouldn’t be complaining about long trials. You’d want them to go on forever!

And lets not kid ourselves. It doesn’t have to be $5,000 or $6,000 a day. Many would be happy with $2,000 or $3,000 or even a $1,000. And for those who think that way, the Charter is like a gift from heaven. It is the godsend of all godsends.

Am I going to give up on my fight to curb the abuses and excesses in our criminal justice system? – Never.

And the good news ladies and gentlemen, is that I am not alone.

With every passing day, more and more judges are voicing concerns about the length and complexity of criminal trials and the urgent need to address the problem now, before it’s too late.

The concerns that they express relate to both process and substance.

On the process side, many believe that we have ceded control of our courtrooms to the litigants and that this has led to delay, inefficiency, waste and all manner of abuse.

The ones that I have spoken to recognize that regaining control of their courtrooms is a vital first step towards stemming the tide and bringing a semblance of balance and proportionality and normalcy back into our criminal justice system.

On the substantive side, many trial judges complain that the criminal law has taken on complexities and subtleties the likes of which are truly mind-numbing. Few feel confident in their ability to complete a criminal trial from start to finish without committing reversible error.

And that, as we all know, translates into new trials and more delays and more expense and more stress on a system that is already overburdened, if not overwhelmed.

And lest there are those who would poo poo my concerns about complexity and accuse me of overstating my case, the next time you have a few spare moments, do me a favour. Pick up a copy of Justice David Watt’s checklist of items that trial judges are expected to be familiar with when they commence a criminal jury trial.

As luck would have it, I just happen to have one here. It contains 115 items. That’s right, 115 items. Not to put too fine a point on it, whenever I see this list, I shudder – and I’ve been a student of the criminal law for more than thirty years.

And when I see lists like this and when I think of how cumbersome our criminal trial process has become, and how it often takes weeks and months and sometimes years for criminal trials to complete, I cannot help but wonder whether in our zeal to create a perfect justice system, we haven’t instead ended up with one that is on the brink of collapse.

Perhaps this is truly one of those instances where perfection has become the enemy of the good.

Or, as a well-known author and journalist recently put it, albeit in a somewhat different context:

They tried to be better than fair, which is like trying to be straighter than vertical. Eventually, they bent so far backwards looking for social and economic justice that they just toppled over.

Are we on the verge of toppling over? I don’t know. What I do know is that we can’t keep going the way we have.

And it is on that note that I want to congratulate Chief Justice Heather Smith and her Advisory Committee on Criminal Trials for taking such an important, if not critical, step in the right direction.

As most of you know, the Advisory Committee was co-chaired by Senior Regional Justice Bruce Durno and Justice David Watt, two preeminent jurists who have devoted their professional lives to the criminal law and who share the admiration, respect and trust of Crown and defence counsel alike, province wide.

The committee was given the mandate of recommending ways by which criminal trials could be made more efficient, without sacrificing the quality of justice. The committee worked prodigiously at its task and spent the better part of two years formulating a series of recommendations that have now been incorporated into this province’s Criminal Trial Rules. The rules in question went into effect one month ago today and they apply to all criminal trials conducted in the Superior Court. Among other things, they require Crown and defence counsel to focus much earlier on contentious trial issues and they require trial judges to closely scrutinize pre-trial motions with a view to ensuring that baseless ones are not heard and that those with potential merit are heard in a timely and efficient fashion.

In my view, the committee deserves high praise. The new rules represent a vital beginning in our quest to reduce the length of criminal trials, while at the same time maintaining a high quality of justice.

Above all else, they serve as a sober reminder, to trial and appellate judges alike, that control of the courtroom belongs to the judges, not the litigants, and that is something that we must never again lose sight of!

The time has come for trial judges to regain control of their courtrooms and they deserve our full cooperation and support in this important task.

Will it be forthcoming? I hope so. Time alone will tell. Rules, as we all know, are only as good as the people who apply and enforce them. The rules that have just come into force call for a culture change – a different mindset if you will – on the part of Crown and defence counsel. They seek to remedy what Lord Justice Auld, in his 2001 Review of the Criminal Courts in England and Wales, referred to as “a culture of last-minute decisions”.

How the Bar will react remains to be seen. In its report, the Advisory Committee noted that in its correspondence and consultations with the Bar, many members were not prepared to embrace the recommendations. Some felt that the solution to longer trials was more judges, more courtrooms, more prosecutors and more money for legal aid. The committee disagreed. Much as it recognized the importance of adequate resources, it was firm in its view that none of those suggestions addressed the issue of trials taking too long.

The view of the committee is reminiscent of the view adopted by Chief Justice McMurtry when he joined the Court of Appeal some ten and a half years ago in his capacity as Chief Justice of Ontario.

The situation in the court at that time was bleak. I know. I was there. We had a backlog of gargantuan proportions. It was enormous. It stretched from here to Vancouver and back.

Civil appeals were taking two to three years from the date of perfection to be heard. Criminal appeals weren’t much better. They were being heard one and a half to two and a half years from the date of perfection.

And a great hue and cry went up from the Bar. And calls went out for the immediate appointment of perhaps a dozen or more judges to our court.

And the new Chief Justice listened attentively and he took it all in and in the final analysis, he responded with a resounding “No”. Not that he was unconcerned about the backlog. If anything, he was apoplectic about it. But he saw the matter differently.

The problem, he realized, lay with the judges alright, but not because there were too few of us, but because the few of us that there were had given over control of the process to the litigants.

And with the hard work and dedication of a blue ribbon committee composed of the Honourable George Finlayson, the Honourable Coulter Osborne and the Honourable Justices John Laskin and Stephen Goudge, the Chief Justice took it upon himself to right the situation.

To do so, he knew that the court had to wrest control of the process from the litigants and put it back into the hands of the judges where it belonged. And then, we had to give the system a good shake.

And so we did. And we blitzed the backlog. And we stopped giving out adjournments on demand. And we brought in time limits for oral arguments. And we demanded that certain appeals be perfected within 90 days and we expedited others.

And a great hue and cry went up from some members of the Bar, particularly those who had been trading on the existing culture of delay and using it as a means of obstructing, if not at times, defeating the cause of justice.

And under Chief Justice McMurtry’s leadership we pulled together and we worked hard and the Chief Justice reached out to the Bar and he sought their support and he got it. And low and behold, within a space of eighteen months, we sent the backlog packing, for good.

Civil appeals could now be heard within nine to twelve months of perfection and sooner if need be; criminal appeals within six to nine months and sooner if need be.

And that is how matters stand to this day, some nine years later and that is how we intend to keep them. Of that, you have our solemn promise.

And the stakeholders in our justice system and the people of this province for whom it exists, owe a great debt of gratitude to Chief Justice McMurtry. Thanks to his courage, leadership and vision, we now have an appeal process that is capable of delivering quality justice in a timely and efficient manner. For that, and so much more Chief Justice, you will go down in history as one of this province’s most esteemed and preeminent chief justices.

And thanks to the leadership and vision of Chief Justice Smith and her Advisory Committee, we have every hope and expectation that the criminal trial process will follow suit.

In that vein, I implore the major stakeholders to come together and work hand in hand, in a spirit of cooperation and goodwill, to make our criminal justice system better. Please, lets put aside our petty bickering and get on with the important work at hand.

In the end, as we all know, the strength of our criminal justice system lies not in rules or regulations or edicts but in the people who serve it.

Our strength is people; our product is justice.

Let us now pull together as a team to create, not destroy.

To this point, I have stayed away from the complexities and subtleties that plague the criminal law and leave trial judges wondering about their ability to complete a criminal trial from start to finish without committing reversible error.

The concerns of which I speak are not new. Eleven years ago, as a trial judge, I wrote:

Like it or not, there is an ever-increasing sense of frustration, if not despair, festering within trial judges throughout this country. Many feel that the criminal trial has become an exercise in futility. Many believe that we have lost sight of its primary purpose. Few feel confident in their ability to conduct such a trial from start to finish without committing reversible error. Regularly, these fears prove to be well founded.

And on the subject of pretrial motions and evidentiary rulings, I said:

And the sad part of it is that it often matters not that the trial judge is able to get it right nine out of ten times. If the tenth ruling is wrong, that, in and of itself, may be sufficient to nullify a two-week, or even worse, a two-month trial.

And the sad part of it is, ladies and gentlemen, that in the year 2006, eleven years later, nothing much has changed. Indeed, if anything, I sense that things have gotten worse.

So what’s the answer? What can we do?

Well, I’m no genius but it seems to me that we have one of two choices.

We can either sit back, as we have, and do nothing, or we can roll up our sleeves and get at the problem.

We can throw up our hands in despair and cry “c’est la guerre” or we can come together and say “we are mad as hell and we are not going to take it anymore”.

Guess what camp I’m in! Yeah! You’re right, I’ve had enough. I want to see change but not just any change. I want to see meaningful change. I want to see real change.

I want to see the kind of change that can only come about if we are prepared to start thinking outside the box.

I want the kind of change that recognizes that a justice system that tries to be better than fair is a justice system that is destined to topple over.

I want the kind of change that recognizes that perfection can, at times, be the enemy of the good and that in a justice system, it can become the handmaiden of paralysis.

I want the kind of change that recognizes that we do not have unlimited resources to pour into our justice system.

I want the kind of change that can only come about if we are prepared to stop treating jurors as aliens and start treating them as twelve intelligent people from twelve different walks of life who bring with them 500 or 600 years of collective life experience, wisdom, common sense and good judgment.

I want the kind of change that will once and for all, put an end to the concern, expressed by so many trial judges, that ninety percent of what they tell juries is for the Court of Appeal and ten percent is for the jury.

In sum, I want the kind of changes that are needed, on so many fronts, to simplify the criminal law and in the process, help restore the public’s faith and confidence in our criminal justice system.

Ladies and gentlemen, complexity is a pox on our criminal justice system.

It is a chief contributor to long and costly trials, and the appeals that flow from them, and the long and costly retrials that flow from them.

I believe that we can rid the criminal law of much of the complexity that presently exists but only if we are prepared to commit to the kind of changes about which I have been speaking.

Time does not permit me to go into detail but by way of example, I can foresee a day when the self-defence provisions that clutter our Criminal Code will be replaced by a single provision, akin to what we now have in s.7, with the jury being asked two questions: (1) Was the accused entitled to use force; and (2) if so, was the force he used excessive in the circumstances as he reasonably perceived them to be.

I can foresee a day when KGB voir dires, that often go on for days at a time, will become unnecessary because we will trust jurors to decide whether an out-of-court statement, made by the very person who has just been cross-examined before their eyes, is so inherently unreliable that it is not worthy of consideration – just as we now trust jurors to decide whether such statements are ultimately reliable and worthy of belief.

I can foresee a time when trial judges will no longer be required to spend endless hours rummaging through boxes of illegible medical, psychiatric and social work records, generated by complainants in sexual assault cases, because we will impress such records with a privilege akin to solicitor and client privilege and they won’t be produceable absent an initial showing of innocence at stake.

And when we come to understand that the jurors are intelligent and that our job is to alert them to dangers, not hold their hand every step along the way, I can foresee a day when charges will be much shorter and trial judges will not wince at the prospect of charging on such things as similar act evidence and the co-conspirator exception to the hearsay rule.

In the meantime, until we are prepared to make the kind of fundamental changes about which I have been speaking, we will be forced to carry on with a regime that many believe is the worst of both worlds i.e. a criminal trial process that is layered with complexities and a criminal appeal process that tries to be better than fair (which, as the noted journalist observed, is like trying to be straighter than vertical).

Perhaps in the meantime, we should be giving some thought to changing the rules that govern the existing appeal process.

The curative proviso might be a good place to start.

As matters now stand, once the appellant establishes an error of law, the onus shifts to the Crown to show that the verdict would inevitably have been the same had the error not been made.

Maybe that test should be reconsidered. Perhaps in cases where the appellant has otherwise received a fair trial, and by that, I mean a trial in which the judge and jury were impartial, the charge was fair and balanced and the Crown did not engage in improprieties that rendered the trial unfair – perhaps in those situations, where an error of law has been made out, the onus should remain with the appellant to show that there is a reasonable likelihood that the verdict would have been different had the error not been made. Or, if you find that too harsh and feel that the onus should remain with the Crown, perhaps the Crown should only have to show that there is a reasonable likelihood that the verdict would have been the same had the error not been made.

And what about those cases where the error of law raised on appeal was not raised at trial or where the error of law raised on appeal is based on a change in the law as it existed at the time of trial?

Perhaps we should refuse to entertain such grounds altogether or, if you find that too harsh, should we not, at very least, put the onus on the appellant to show that the verdict, in all likelihood, would have been different had the error not been made.

And finally, when a new trial is ordered, should we not have a rule that says that any pretrial ruling, not overturned on appeal, shall remain binding unless the party seeking to revisit it can show that the law has changed since the time of the appeal or that material fresh evidence has come to light that could reasonably be expected to affect the ruling.

When you consider that pretrial rulings often last twice and sometimes three times as long as the trial itself, surely such a rule would result in an enormous saving to the administration of justice.

And on that note ladies and gentlemen, I’ll end where I began.

We have a criminal justice system that in many respects, is the envy of the world. It is not without its problems though. Complexity and prolixity are the twin demons that continue to bedevil it. The time has come to send them packing. I ask you to please join with me in going forward with this important task.

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