SCAPEGOATING OUR RIGHTS

Obsession With Punishing Petty Crimes, Not the Charter, Is What's
Clogging the Courts

Many believe that the charter of Rights And Freedoms is the crowning
achievement of modern Canadian law, and quite a few conferences and
symposiums are being planned this year to celebrate its 25th
anniversary. There is good reason to celebrate the creation of a
document designed to limit the arbitrary exercise of state power.

But a storm is brewing that may rain on all the parades: the
ever-growing backlog of cases languishing in the criminal justice system.

The auditor general of Ontario has warned that more than 91,000 cases
are currently in jeopardy of being tossed because they've taken too
long to come to trial. Many legal observers assert that the system is
grinding to a halt because the Charter has needlessly complicated and
lengthened trials.

There's no question that the Charter adds a layer of complexity to
court proceedings. This is to be expected since the Charter gives the
accused more ammunition to challenge the admission of evidence and
the fairness of the process.

Nevertheless, it makes little sense to blame our legal rights for the
crippling inefficiency of the system. Longer trials are a small price
to pay for a set of rights designed to protect dignity and privacy.
If the Charter is not an appropriate scapegoat for the problem of
trial delay, then who should be blamed for the stagnation and
bloating of the modern criminal trial?

In a speech last November, Justice Michael Moldaver of the Ontario
Court of Appeal seemed to lay the blame on mercenary defence counsel
who think the "Charter is a gift from heaven... the godsend of all
godsends" when it comes to making money. Justice Moldaver called for
urgent measures to address "the twin demons of complexity and
prolixity" that "plague" the modern trial.

A year earlier he issued a warning to defence lawyers to "understand
that the Charter is not your genie in the bottle that you can summon
up with impunity whenever your spirit moves you." Obviously, this
judge believes that defence lawyers are trivializing the Charter by
raising frivolous constitutional challenges.

The judge is not entirely wrong. There are some defence lawyers who
showboat and waste valuable court time.

His finger pointing prompted a quick rejoinder from prominent members
of the defence bar who wrote editorials about the judge's
"disturbing" and "chilling" comments. Quite predictably, the defence
bar pointed out that police, prosecutors and judges are also
responsible for the backlog crisis.

The defence bar is not entirely wrong either. Indeed, one need only
read a select handful of decisions to see that many of our Charter
decisions are rife with ambiguity and confusion.

For example, in a mundane case last spring involving the power of the
police to search a vehicle stopped for speeding, Justice Richard
Blair of the BC Supreme Court complained about the "Charter minefield
through which the police must navigate, bearing in mind numerous
trial and appellate decisions that offer a variety of conflicting
paths." It's sadly remarkable that in 25 years the courts have not
arrived at a clear set of rules for searching vehicles, considering
that this particular interaction between police and members of the
community is a daily occurrence.

As for prosecutorial complicity, the defence bar need look no further
than last week's decision by Justice Colin McKinnon of the Superior
Court of Ontario to stay murder charges against Richard Trudel and
James Sauve for the 1990 murder of two drug dealers. After more than
a decade in custody, these men were freed. The judge held that it
would violate fundamental principles of justice to proceed in light
of the inordinate delays, the problems relating to full Crown
disclosure and the fact that the Crown's case was built almost
entirely on the testimony of unsavoury witnesses from the eastern
Ontario underworld.

Finger pointing is easier and much more fun than repairing a sinking
ship, yet nothing is gained by blaming court congestion on the
prolixity of defence lawyers, the crusading myopia of police and
prosecutors or the incomprehensibility of judges. These characters
all contribute to the problem.

The root of the problem is found in system overload. The system is
collapsing under the weight of its overly ambitious criminalization
agenda, but no one in the legal profession or the political community
seems to be interested in looking at its capacity to process the 3
million charges laid every year in this country.

It must be remembered that the vast majority of these are minor in
nature, yet the same complex and rights-laden process applies to them
all. The increased length of the modern trial is not just reserved
for murder cases; even the simplest case can be spun into a long
adversarial contest.

The legal profession will say that the way to clear the backlog is to
hire more judges and prosecutors, but this self-serving solution will
only clear the current backlog to make way for the next crisis 10
years from now.

Little will change until we start to look at alternatives to criminal
courts for dealing with minor assaults, petty vandalism, disturbing
the peace, possession of illicit drugs and a whole host of other
misconduct that does not require the heavy, punitive hand of state
punishment to achieve justice.

The formality and complexity of the contemporary criminal justice
process should be reserved for serious, predatory crime, and with a
limited but clear focus the system should never be burdened by a
chronic backlog.