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April 14, 2008

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A.NEUMAN ASSOCIATES INC. Call 416.223.5991 Investigative & Forensic Accounting Specialists Proven Expertise $3.55 • Vol. 19, No. 12 dvocate_LT_Apr14_08.indd 1 4/8/08 11:56:07 AM Criminal law has taken on 'mind-numbing" complexities 'Marathon-like trails' marring system A BY ROBERT TODD Law Times n Ontario Court of Appeal judge has delivered a searing appraisal of the province's criminal justice system, say- ing it is marred by "interminable delays and marathon-like trials" that have damaged public confidence in the administration of justice. "When I look at criminal trials today, I'm struck by the fact that they bear virtually no relationship to the criminal trials I engaged in as a defence counsel some thirty years ago," Justice Michael Moldaver recently told a legal conference at the Univeristy of Ottawa. "The criminal law has taken on complexi- ties the likes of which are truly mind-numbing, he said, adding that many lower court judges fear they have little chance of navigating trials without "committing reversible error." University of toronto law professor Mi- chael Code, who is preparing a report on megatrials for Attorney general Chris Bent- ley and also spoke candidly at the conference about challenges to the criminal system, said Moldaver "is simply saying what the leading members of the bench and bar have been say- ing for a very, very long time." Moldaver focussed his thoughts on the issue of process in the system — "the emphasis we place on it, and the risk we run in doing so." The judge, who was called to the bar in 1973 and was appointed to the then-Supreme Court of Ontario in 1990 before becoming a judge of the Court of appeal in 1995, said the courts must also deal with the question of "where we draw the line on freeing people whom we know to be guilty." Moldaver said defence lawyers, Crowns, the 'When I look at criminal trials today, I'm struck by the fact that they bear virtually no relationship to the criminal trials I engaged in as a defense counsel some 30 years ago,' says Justice Michael Moldaver police, and the judiciary all have contributed to the lengthening over the past 25 years of crimi- nal trials. Once, murder trials were completed within a week but now last up to seven months, and sexual assault trials that previously finished in a day now take weeks, he said. Trial judges, he said, are responsible for "allowing counsel to go on endlessly, for not bringing a quick halt to frivolous and vexa- tious motions; for not requiring counsel to pare down the issues and narrow the evidence, and generally for giving up control of their courtrooms to the litigants." Appeal courts, said Moldaver, "bear re- sponsibility for layering the criminal law with complexity; for writing philosophy instead of setting down clear guidelines for the police, counsel, and trial judges to follow; for writing judgments that are out of touch with reality, even worse, completely incomprehensible; and for failingto consider in advance how and in what ways our decisions are likely to im- pact on the overall length and complexity of criminal trials." The judge also said the criminal law has become too complex and is now "truly mind- numbing," causing many trial judges to question their ability to keep trials on the tracks. "Sadly, we have reached a point where many trial judges, including those who have been schooled in the criminal law, express se- rious concerns about their ability to complete a criminal trial from start to finish without committing reversible error," said Moldaver. He added that one judge recently told him he believed that the first trial is "little more than a dress rehearsal." The public has become disheartened by the situation, says Moldaver. "Some are beginning to lose faith and con- fidence in our criminal justice system. Many are becoming upset with the interminable de- See Judge, pge 4 Laywers say feds cut special advocate fee BY Tim NAUMETZ For Law Times OTTAWA — High-profile lawyers who have become special advo- cates able to review secret evidence in the cases of five men alleged to have terrorist links say the federal Justice Department has inexplica- bly lowered the fees they will be paid for their work. Several of the newly named spe- cial advocates say reducing the rate from $300 to $275 an is compara- tively small, but could impede the ability of lawyers from large firms to act in the role. They further note that, symbolically, it's a negative start to the new program. The lawyers also expressed con- cern in interviews with Law Times that the Justice Department may also not be prepared to give them adequate administrative, clerical, and office support to do the job properly. Ottawa council Gordon Cam- eron, who already performs similarly sensitive work on secretive files for the Security and Intelligence Re- view Committee, confirms the rate change was a surprise to many of the tract senior counsel, the less will- ing they are going to be to spend a substantial amount of time on the file. That's the practical side of it. The symbolic side of it is that it just seems a bad start to a pro- gram for the department of justice to discount that rate without any explanation or consultation." to Syria by U.S. agents, and Paul Copeland, counsel for two of the five men fighting deportation over the alleged terrorist links, back Cameron's view of the initial rate. Two other senior lawyers who are now special advocates also say the original offer was $300 an hour. Cavalluzzo tells Law Times he After 4 years, I'm taking a reduction. I would say it's not huge, but still, its the symbolic worth that they are attributing to this role. 19 lawyers now on the Justice De- partment roster of special advocates. Cameron tells Law Times: TPLawTimes1CBlue fin 8/22/06 11:46 AM Page 1 "They had $300 an hour to pay special advocates and, for a reason no one has ever articulated, they just dropped it to $275," "The point is, the lower the hourly rate, the harder it is to at- A media spokesman for the Justice Department, Christian Girouard, says, in an e-mail reply to questions about the change, "The info I have has always been $275." But Paul Cavalluzzo, the former counsel for the commission of in- quiry into Maher Arar's rendition was paid a higher fee when he did similar work as commission coun- sel for Justice Dennis O'Connor's inquiry into Arar's rendition and subsequent torture in a Syrian prison. "After four years, I'm taking a reduction, he says. "I would say it's See Scrimping, page 4 NICE BACKYARD. Protect your clients. Recommend TitlePLUS® * Underwritten by Lawyers' Professional Indemnity Company (LAWPRO® Law Times – Backyard (Front Page Base Bar 1C) title insurance.* TitlePLUS title insurance and you, together we make real estate real simple. Visit or call 1-800-410-1013 for more information ). Contact LAWPRO for brokers in Manitoba, Saskatchewan and Alberta. ® Registered trademark of Lawyers' Professional Indemnity Company. 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