Earlier this week Ontario judge Michael Moldaver laid into defence lawyers for prolonging legal proceedings and delaying justice by filing dubious motions invoking alleged Charter rights. Two law professors have taken up the challenge of defending lawyers against Justice Moldaver’s accusations.
To be honest, though, I’m not sure this precisely qualifies as a defence. The professors don’t deny that lawyers are doing what the judge accuses them of; rather, they say, “Yeah, lawyers are doing it, and that’s a good thing.” With defendants like these, who needs plaintiffs?
Mr. Justice Michael Moldaver of the Ontario Court of Appeal recently spoke out about what he sees as a cancer on our justice system — punishingly long and needlessly complex criminal trials. He sees the problem as multifaceted, but, in identifying the cause, he tends to focus on the Charter of Rights and Freedoms and defence lawyers. He sees defence counsel as more concerned with dragging out proceedings with bogus Charter motions to maximize their fees than they are with acting out of a concern for justice.
This is a serious charge against both the Charter and the defence bar, especially coming from someone as respected as Judge Moldaver. In our view, the judge has unfairly targeted all defence counsel.
His remarks are also disturbing to those of us who see the judicial assertion of entrenched Charter standards since 1982 as having constituted the only real check against the lure of law-and-order politics by politicians of all stripes, and the consequent unremittingly legislative trend to toughen the criminal law.
Did they just admit that their agenda is to hinder law-and-order policies sought by our parliamentarians elected in accordance with the will of the people? What breathtaking arrogance!
Who told the legal profession that it runs Canada? I was around during the early-1980s debates over the institution and entrenchment of the Canadian Charter of Rights and Freedoms, and I don’t recall anyone suggesting that the Charter gave lawyers and judges the authority to govern our country. Why, then, has it worked out that way? Who is in charge: the people or our unelected robed and wigged masters?
Also, the professors misrepresent the judge’s criticisms: he did not “focus on the Charter of Rights and Freedoms and defence lawyers” as the causes of the problems he’s concerned about. He focused solely on the lawyers’ abuse of the Charter. Or are the profs claiming that never happens?
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