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16 May, 2008  
Even lawyers have to eat ... Not necessarily, replied the Cardinal

Canadian jurist urges judges to take control of cases away from lawyers … Maximising business in the criminal courts begs the question, “where do we draw the line on freeing people we know to be guilty”?

imageOntario Court of Appeal Justice Michael Moldaver has been a frequent critic of the “antics” of criminal defence lawyers as they string cases out, which is the principal way they maximise their incomes. He said:

“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’.”

Not only are trials getting longer but the pre-trial period is being inflated. For example, in a story about the forthcoming terror trials at Parramatta, it was reported that:

“The courtroom was crowded with as many as 30 barristers and their instructing solicitors… Justice Whealy said there would be at least three months of legal argument and lawyers would be canvassing nine issues before the Supreme Court jury was empanelled.”

imageJustice Moldaver (pic) doesn’t restrict his criticism to lawyers. He accuses most judges of wrongly letting lawyers run things, which is getting close to suggesting adversarial procedure be dumped.

Of the Ontario Court of Appeal he said:

“We had a backlog of gargantuan proportions. It was enormous… 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’... 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.”

Justice Moldaver said those things in November 2006. Prior to that, in May that year, the Ontario Chief Justice’s Advisory Committee On Criminal Trials had issued its report on New Approaches to Criminal Trials.

Justice Moldaver effectively was doing a demolition job on some of its findings and recommendations.

The report had started off well, quoting judges who said things like:

“Unless, we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice.”

However, the report then bogged itself down in the procedural morass, frequently endorsing the unsatisfactory status quo:

“Central to the adversary system is the concept that it is the lawyers who prepare and present the case before an independent decision-maker…

Trial judges would prefer to be, and should be, passive observers, presiding over trials in which all counsel are prepared, are focused on the triable issues, treat the court and opposing counsel with respect, and conduct fair cross-examinations on relevant issues.

In trials conducted in this manner there is no need for the trial judge to become involved in trial management. Responsible counsel conduct the trial and the trier of fact makes the requisite determinations throughout the trial. Regrettably, not all trials are conducted in that manner.”

The report said that judicial discretion to intervene must be exercised “sparingly”. For example:

“The selective and judicious use of the trial management power … will enhance the objectives of effective case management in criminal trials. That power, however, must be exercised sparingly. Where it limits cross-examination or directs the order in which witnesses are called, caution must be exercised. Trial judges are entitled to restrict a line of cross-examination that would not further the resolution of the issues in the case and that may serve to distract and confuse the jury while needlessly prolonging the trial. However, caution must be exercised where cross-examination is restricted.”

In November 2006 Justice Moldaver said:

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

So, on March 28 he was at it again at a legal conference at the University of Ottawa.

He was also saying things like: “Where we draw the line on freeing people whom we know to be guilty.”

No one replied that we draw the line at the point where a guilty defendant runs out of money.

The most recent Australian Bureau of Statistics report on barrister income says:

“The main sources of income for barrister practices in 1998-99 were in the fields of personal injury ($235 million), commercial ($228 million) and criminal ($89 million) law… These three fields of law accounted for 66 percent of practice income.”

Criminal work has been a non-stop growth area for decades now, while personal injury fees are struggling under various reforms.

One recent Lawyers Weekly article concerning Justice Moldaver devoted about equal space to an establishment type lawyer who said practitioners should not, “cede the field to the law reformers”.

The headline was “Lawyers told to take responsibility to prevent radical criminal reforms”.

imageIn 1992 a former Attorney General of Hong Hong, Michael Thomas QC, said:

“When a delegation of lawyers called on Cardinal Richelieu (pic) in seventeenth century France to lobby against a reform that would take business from them, their leader finished up with the plea: ‘Even lawyers have to eat, Cardinal’. ‘Not necessarily’ was the Cardinal’s cool response.

But it is not that easy nowadays for politicians to impose their will on lawyers and the legal system.”

Unless someone like Justice Moldaver is supplying politicians with the ammo.