It’s been about two years since the release of a major report on complex criminal trials in Ontario, and now we’re starting to see some of those recommendations become reality.
Already, we’ve seen the province move to gradually increase legal aid rates, a key suggestion in the report by Michael Code, then a University of Toronto law professor and now a judge of the Ontario Superior Court, and former Superior Court chief justice Patrick LeSage.
While the agreement to boost legal aid funding may not go far enough for some, it at least contained provisions to increase remuneration for senior lawyers, something that would go some way to addressing the report’s lament that many among the most experienced defence counsel were no longer willing to take on the biggest and most demanding cases.
Then last week, the federal government took action with the proposed fair and efficient trial act. The goal is to streamline the most complex trials, such as those involving organized crime charges or multiple victims or defendants, by improving case management and reducing duplication in court processes.
The move comes in response to several instances of big cases that lasted too long, cost too much or resulted in mistrials due to delay.
Key among the changes is the appointment of a case management judge who can rule on preliminary issues to prevent matters from getting bogged down in procedures like disclosure requests and Charter of Rights and Freedoms motions.
As a result, the government says a case management judge would be able to impose deadlines, help narrow the issues, and encourage the parties to make admissions and reach agreements.
Other changes include joint hearings on preliminary issues involving similar evidence in separate but related trials.
In addition, amendments to the Criminal Code would provide that decisions on certain preliminary matters would continue to stand in new proceedings in the event of a mistrial unless the court rules otherwise.
Overall, the changes are positive. Of course, while they should help with the big cases, it’s hard to see how having separate case management judges for complex trials would make a huge difference to the justice system as a whole unless there are more judges available in the first place to handle the overall caseload.
At the same time, concerns over disclosure, a key issue identified by Code and LeSage, remain. What will the government do to ensure police and prosecutors provide complete and timely disclosure while responding to concerns over frivolous and excessive requests?
But last week’s changes were a good start. So far, Code and LeSage’s work appears to be a rare example of a report that hasn’t simply gathered dust on a shelf. That in itself is nice to see.
- Glenn Kauth
