This has echoes of what Ontario Court of Appeal Judge Michael Moldaver has been saying about the expansion of Charter motions. He has been attacked for it by defence bar in particular, who say these issues have to be argued. Do you agree more with him on this? That the Charter is getting out of hand?
I see it as potentially putting the system in jeopardy by imposing costs that nobody can afford including the state. I don’t see it as peculiar to the defence. We recently had a case where we divided. I was in the minority on the result, but everybody agreed that my formulation of the law was correct, which was cold comfort. It had to do with post-offence conduct. In that case, it was the prosecution saying after the offence, the accused did this, that and the next thing and this proved consciousness of guilt on the part of the accused and was probative. There, you have the prosecution pushing the envelope. They say, well, now that the courts have put post-offence conduct on a principled basis, we are not limited to a very narrow category of conduct that used to be the rule. Here’s this evidence; I’m going to try to get it in. The defence objects, there are motions, and the case goes on.
The whole point about being a lawyer is to push the case as far as you can and get the result your client requires. If the door is open, you’re going to go through it. I think that over time, consensus is developing within the legal community – including the judges – that the trial judges have to be more aggressive and they have to have reassurance that appeal courts will back them up. And there has to be some modification of the adversarial system to make the process proportional to what is at stake.
If you have a first-degree murder case and somebody facing 25 years in prison, well, there has to be more latitude than if you are dealing with a break and enter where the lawyers want to go into all sorts of sideways and byways in hopes of finding something useful. Or the prosecution wants to explore similar fact evidence which really isn’t similar fact evidence, but if they can get it in front of the court, would be dynamite.
So more than anything, these come down to the trial judge controlling the process?
The trial judge is the centrepiece of the system and I think the trial judges are frustrated as much as the defence bar or the prosecution or the legal community generally at what they see as unnecessarily long trials. And they are working towards solutions and ultimately, I think the solution is to modify the procedure to fit the issue before the court.
Do you have concerns about availability of legal aid in civil, family or criminal?
I know there is a huge dispute over legal aid but I’m so far removed from how the legal aid system is operating that I can’t really comment. I do want to make the point that we see every day, lawyers who are carrying cases to the Supreme Court they are obviously not being paid for. Yet, they believe so strongly that their case is just and they are professional enough to know that if it’s going to succeed, they have to push it forward at their own expense. To me, it is a tremendous affirmation of the strength of the profession that we still have a lot of people who take their professional responsibilities tremendously seriously and throw aside a lot of profitable work to go after why they became lawyers – which is to do justice.
Is there too much emphasis on high fees and these other elements get lost in that?