CRIMINAL COURTS ON BRINK OF COLLAPSE, JUDGE SAYS

Endless Manoeuvring By Litigants, Lawyers Threatens To Overwhelm Ontario System

JUSTICE REPORTER -- The criminal courts have been hijacked by overly
demanding litigants and lawyers who revel in needless and
"mind-numbing" legal manoeuvring, a senior Ontario Court of Appeal
judge told a meeting of judges and justice officials last week.

In a written text of his speech obtained by The Globe and Mail, Mr.
Justice Michael Moldaver described the justice system as being on the
brink of collapse.

"The time has come for trial judges to regain control of their
courtrooms -- and they deserve our full co-operation and support in
this important task," he said. "Control of the courtroom belongs to
the judges, not the litigants, and that is something that we must
never again lose sight of!"

Judge Moldaver said that numerous judges have privately agreed with
him that "regaining control of the courtrooms is a vital first step
toward stemming the tide and bringing a semblance of balance and
proportionality and normalcy back into our criminal justice system."

He said that most trial judges live in fear of making a tiny mistake
that will cause a complex proceeding to be overturned on appeal.

"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," he said.

"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. . . . On the
process side, they 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."

Known for his frank, tough-talking manner both inside and outside the
courtroom, Judge Moldaver incited the criminal defence bar last year
with a speech that accused them of being too long-winded and prone to
stringing out cases.

In his call-to-arms to the judiciary last week, Judge Moldaver said
he was the target of a good deal of criticism after last year's
speech, much of it from lawyers who mistakenly assumed that he
dislikes the Charter of Rights and Freedoms.

"Am I proud of the Charter?" he said. "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 view the Charter
as a weed whose growth should be stunted? Not on your life."

However, Judge Moldaver said that he does very much oppose lawyers
who "trivialize and demean" the Charter by using it to delay cases
and obstruct judges who are trying to do their jobs.

"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?" Judge Moldaver asked. "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."

Many lawyers delight in making fees of $1,000, $2,000 or $3,000 a day
as they pursue complicated legal strategies, he said. "And for those
who think that way, the Charter is like a gift from heaven. It is the
godsend of all godsends."

Part of the reason the criminal justice system is perched "on the
brink of collapse" is that it has tried to be too perfect, Judge
Moldaver said. "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. . . .
Ladies and gentlemen, complexity is a pox on our criminal justice system."

Judge Moldaver ended his speech with several recommendations,
including: that juries be trusted to sift through conflicting
evidence on their own without judges having to hold lengthy hearings
on the admissibility of some evidence; vastly simplifying the law
regarding self-defence; ending a practice in which judges must vet
medical and psychiatric records in sexual-assault cases; and allowing
individual pre-trial rulings made for a trial to apply again if a new
trial is ordered on appeal.