BC Rail case shows why our legal system is a mess
By Ian
Mulgrew
The BC Rail
corruption trial looks like the most recent example of a growing quagmire in
the criminal legal system: interminable proceedings, skyrocketing costs and
heavy use of public resources.
The length of time
required to steer the case to this point and the incredibly long road still
ahead are an indictment of the current situation.
Blame a trio of
Supreme Court of Canada decisions – Rowbotham, Askov and Stinchcombe – for the
widening and deepening swamp.
Each seems a
reasonable, laudable expression of constitutional protection extended to those
facing criminal charges – the right to a state-funded lawyer, the right to a
speedy trial, and the right to full disclosure of the accusations and Crown
evidence.
Unfortunately, when
you step back and look at the big picture, the combined interplay of these
rulings often produces pernicious, unintended legal quicksand.
At worst, defence
lawyers and their clients can seem to be relieved of financial pressure and any
sense of urgency, while police and prosecutors scramble, with scarce resources,
to provide complete disclosure as a Constitutional-mistrial alarm clock ticks
down.
In the 1988 judgment
known as Rowbotham, the court articulated the parameters of the fundamental
idea that a lawyer should be provided to anyone accused of a serious crime who
can't afford one.
With government
cutbacks to legal aid, the courts now receive more and more so-called Rowbotham
applications from the needy.
Across the province,
lawyers are providing instructions to people on how to go to court and ask a
judge to order funding when the legal-aid plan turns them down.
Similarly, few of
those charged in a complex case can afford the cost of a defence where legal
bills can be expected to hit six or seven figures. Again, the court steps in
and tells the government to ante up.
In the second
decision, known as Askov, the court established the criteria and standards of
the right to a speedy trial.
Thousands of criminal
cases were tossed as a result of the 1990 ruling, and since then many more have
gone out the window.
Most recently, this
issue came to the fore in the Kootenays, when two drug cases were dismissed
because of delays.
The third aggravating
ruling, from 1991, is Stinchcombe.
It provides the legal
parameters of a full and complete defence as guaranteed by Section 7 of the
Canadian Charter of Rights and Freedoms.
The court in the case
unanimously affirmed that the Crown had a duty to reveal its evidence to the
defence.
The high bench said
disclosure wasn't merely voluntary, it was obligatory, and embraced all
evidence and all pertinent information.
And – this is key –
the initial disclosure must take place before the accused elects his mode of
trial or makes his plea.
As a result, police
departments across the country now struggle to manage the disclosure
requirements with their job of law enforcement, and say investigations are
suffering.
The delays bogging
down many of today's complicated cases are primarily caused by the herculean
labour necessary to provide disclosure.
Tens of thousands of
documents can be involved, and there can be thorny legal conflicts involving
third-party privacy and solicitor-client privilege to be resolved.
Few can afford the
cost of top-flight legal counsel over the many years it now takes to get from
arraignment to verdict; even the millionaire defendant in the Air India case
applied and won government funding!
The result of this
trilogy of decisions is a criminal system where trials can become unwieldy,
expensive odysseys that are too great a burden on taxpayers and bring the
administration of justice into disrepute.
That doesn't mean
these fine Supreme Court judgments should be repudiated – but we need to start
addressing their fallout.
(Click to enlarge)
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