Law Times

www.lawtimesnews.com Page 2 March 3, 2008 / Law TiMes NEWS Criminal lawyers back big case review Marin: new protocol inadequate By ROBeRT TODD Law Times C riminal lawyers are backing the government's attempt to clean up large and complex criminal case procedure by setting up a review. But they also say further steps must be taken to ad- dress the failed prosecution of a group of Toronto cops accused of corruption. "I would have thought that, given the public's interest in seeing that prosecution move forward, that the aG would have prosecuted it in a more zealous way," adam Boni, a Toronto lawyer and regional direc- tor for the Criminal Lawyers' association, tells Law Times. Boni says attorney Gener- al Chris Bentley should have set up a public review to look into that failed prosecution. "There are cases in the system that are essential to the integrity of the administra- tion of justice to bring to trial in a speedy way, an effective way, and in a proper way," he says. "when that breaks down, and when a prosecution is frustrated because of internal misfirings, then the administra- tion of justice ends up looking quite tar- nished. So, it's a welcomed step, but I don't know that it goes far enough." Bentley last week announced that for- mer Ontario chief justice Patrick LeSage and University of Toronto law professor Michael Code will lead the big case review. They will be looking for ways to move such cases through the system more efficiently. Improvements to the way Crown prosecu- tors and other justice system participants ap- proach big cases, ways to better use justice system resources, and any policy or legisla- tive reforms needed at the federal level will all be considered. written recommendations are expected by the end of the summer. However, Bentley says the review won't include any cases open to further court ac- tion, including the police corruption case. Charges against the six former Toronto police drug squad officers were stayed in January. Ontario Superior Court Justice Ian Nordheimer criticized the Crown's handling of the case, which had been de- layed for 10 years. The attorney general is appealing Nordheimer's ruling, which found that the officers' right to a timely trial had been denied. Ottawa lawyer Norm Boxall, who also is on the CLa executive, says the review isn't an adequate response to Nordheimer's findings. But he's glad to see that the Crown's role in stalled large cases will be scrutinized. "Far too often there's been a concentra- tion on pretrial motions by the defence or defence procedures that have caused delays," says Boxall. "and someone's now finally realizing that, in fact, long prosecu- tions are brought by the Crown. It's the Crown that decides to proceed with them; it's the Crown that decides to join multiple defendants all together, making the cases extremely complex." Boxall says that "90 per cent of the evidence" in big cases is called by the Crown. "we've got to take a look at the actions of the prosecution in general to see why they're proceeding with these cases that seem to take incredibly long, for which the results, quite frankly, are mixed at best." The Ontario Bar association also has thrown its support behind the review. "The already scarce resources consumed by these kinds of trials is a serious con- cern, and efforts must be made to ensure that they are utilized in the most effective manner to ensure that justice is properly served," OBa president Greg Goulin says in a release. "The challenges currently facing the justice system in Ontario requires more than reallocations and Band-aid solutions. The OBa has advocated for a system-wide review over the past several years." while lawyers seem displeased with the review's terms of reference, they are glad to have LeSage and Code at the wheel. Code, who is also a former assistant deputy attorney general, has acted on both sides of the court in big cases. "we expect to make useful recommen- dations, some of which can be easily imple- mented and will have immediate impact, as well as longer-term legislative proposals that will depend on federal co-operation," said Code in a statement. LeSage served as chief justice from 1996 to 2002 and spent 29 years on the bench, and is best known as the judge who presided over the Paul Bernardo trial. "The attorney general has asked us to examine and identify the exceptional chal- lenges presented by the complex criminal case," said LeSage. "we will draw from past experiences and provide both short- and long-term proposals to more effective- ly move the complex case forward." Boni says he breathed a sigh of relief when he heard LeSage and Code's names attached to the review. "They are leaders of the bench and bar; they are exceedingly well qualified to conduct this type of review," says Boni. "any experienced criminal law practitio- ner would have been elated to hear that those were the individuals who were ap- pointed to do the job. Because it certain- ly will be done in a thorough, balanced, and fair way." LT By ROBeRT TODD Law Times O ntario Ombudsman andré Marin tells Law Times a pro- tocol introduced by the Min- istry of the attorney General to prevent future legal aid fiascos is inadequate and only a legislative change will suffice. "I think wills showed us how easy it is to be a judicial hacker," says Marin, who last week released a scathing report about Legal aid Ontario's handling of the murder case of former Toronto cop Richard wills. "what happened here was a combination of his manipula- tiveness meeting the complacency and resentfulness of legal aid. "They were just, inexplicably, re- sentful of the fact that they got caught in the judge's order to supervise the de- fence's billings," says Marin. "It makes you wonder, if you're resentful of that, why are you at legal aid? It's the very essence of what they do." wills was convicted of first-degree murder in the 2002 death of his mis- tress, Linda Mariani. wills' defence ballooned to over $1 million. The money came via a judge's funding order to the Ministry of the at- torney General, but LaO was charged with managing it. Marin found that le- gal aid "completely abdicated" its duty to keep an eye on costs in the case. He says LaO's laissez-faire attitude toward the case was influenced by the fact that the organization wasn't man- aging money from its own budget. "To me, it's a real affront to the function as the guardian of public trust and public funds," says Marin. He says LaO's "not our job" attitude is the main reason why he has recom- mended reforms to the Legal aid act. The ministry created a protocol in De- cember aimed at preventing future incidents of legal aid mismanagement. It makes way for an independent party to review, moni- tor, and assess legal bills, if required. But Marin says that protocol attacks the problem "in a willy-nilly fashion. "The protocol is an expression of wishes between the aG and legal aid, which is nice," says Marin. "But it's like a Hallmark card, where people all co-sign the inside expressing wishes, but it's not a legally binding document, and all it takes is a change in leadership at legal aid for a new management style to come in and say, 'well, this protocol doesn't respect the legislation; we're not going to apply it.'" Marin welcomes the government's lawsuit against wills, and that it has asked for a court review of wills' legal bills to see if any of the money used for his defence should be given back. But he says he's discouraged by the ministry's disposition toward the fiasco. "There has been a felling that, ah well, this is a one-off case, and, you know, the protocol will deal with it," says Marin. "The logic is not there, because if you agree that there is this systemic issue and it requires a protocol to fix it, then it's an issue that needs to be properly fixed." Marin says, "Unless there's legisla- tive change, the system still shows that it's vulnerable to being hacked." Legal aid has agreed to implement all of Marin's recommendations, and both LaO and the ministry will report to him every six months. "No one should make any judgment about anything until they have read the entire transcripts of Richard wills' case," says Munyonzwe Hamalengwa, who was fired by wills before the trial. Those who read the transcripts "will see the kind of client that was involved, the kind of issues that were involved, and why a judge decided to order a Fisher or- der because the case was undefendable if the client represented himself." Raj Napal, wills' trial lawyer, dis- agrees with Marin's view on the valid- ity of wills' defence. "I think it's highly irresponsible, because it means that Mr. Marin and the government will decide whether people are entitled to have a defence lawyer represent them on these very serious charges. There are constitutional issues here relating to the Charter of Rights," he says. Bill Trudell, chair of the Canadian Council of Criminal Defence Lawyers, says those involved are "all good people." "at the end of the day, the system re- ally worked," says Trudell who helped set up a budget in Wills as part of a Big Case Management team. "He got a fair trial, where people exercised discipline, and we found out that the management of the expenses wasn't done properly. "But that's something we could fix. we could never fix if somebody just said, 'This guy doesn't deserve a fair trial,'" says Trudell. 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