A JUDGE'S ALARM

When an appeal-court judge says the criminal-justice system is on the
verge of collapse, it's a good idea to sit up and pay attention. The
question is whether anyone is listening to Mr. Justice Michael
Moldaver of the Ontario Court of Appeal.

To get a picture of Judge Moldaver, think of the Peter Finch
character from Network shouting, "We're mad as hell and we're not
going to take it any more." In fact, the judge drew on that line in a
speech posted on the appeal-court website earlier this month. While
it's true that those who insist they're mad as hell run the risk of
being seen as madmen (in Network, Mr. Finch was quite mad), Judge
Moldaver, an appeal-court member since 1995, is a credible figure.

Why, in his view, is the system verging on collapse? Because the
Charter of Rights and Freedoms has created two crushing burdens. One
is that the appeal system under the Charter aims to be "better than
fair." The result is needless "complexities and subtleties" that make
it amazingly difficult to get a trial verdict past an appeal court.
(His own court took the apparently unprecedented step this month of
ordering a fourth trial for a man accused of murder because of
unfairness in the trial. Judge Moldaver himself wrote the ruling.)
Among trial judges, "few feel confident in their ability to complete
a criminal trial from start to finish without committing reversible error."

The other is that some defence lawyers twist the Charter out of
shape. "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. 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." Pre-trial legal
battles often last two or three times as long as the trials
themselves, he says. Criminal trials may last months or years. Judges
have lost control of their courts.

Is he right in his claims? The Ontario Auditor-General's Office
warned in September that 100,000 criminal cases have been in the
system more than eight months, creating a risk that some will be
tossed out for "unreasonable delay" under the Charter. The province's
overstretched legal-aid plan just announced a limit of $75,000 in
funding per defendant. A report this month from a criminal-justice
panel set up by Ontario Superior Court Chief Justice Heather Smith
cited Judge Moldaver's views, but also said the structure of
legal-aid funding is partly to blame for defence-lawyer behaviour;
there's lots of money for pre-trial battles, but little for the
pre-trial conferences aimed at reducing court time. The defence bar
is up in arms over Judge Moldaver's speech.

His bluntness is welcome. The problems he described do not stop at
Ontario's borders. Is anyone mad enough there to take up his challenge?