Binnie’s wise words on unclogging courts

Posted on September 28, 2011 in Equality Delivery System

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TheGlobeandMail.com – news/opinions/editorials
Published Tuesday, Sep. 27, 2011. Last updated Wednesday, Sep. 28, 2011.

Justice delayed is justice in Canada. Pre-trial motions in criminal court have been known to last as long as 130 days. The system needs a sanity check. And Mr. Justice Ian Binnie, retiring from the Supreme Court of Canada after 13 distinguished years, is the one to do it.

Judge Binnie wants judges to “take back control of the courtroom.” In the United States, some jurisdictions have begun setting time limits on jury trials, both criminal and civil. Some set limits on trials with a judge acting alone. He believes Canada may need to do the same.

“I think that we may reach the point they have in some of the states south of the border, where they tell people you have three weeks to try this case: ‘I don’t care what witnesses you call. I don’t care how you go about it. I’m telling you that after three weeks, I’m out of here,’” he told The Globe’s Kirk Makin.

The defence and prosecution lawyers reply (in Judge Binnie’s paraphrase): “‘I’d like to argue about a hundred issues, but if I’ve only got a week and a half of the three weeks, then I’d better pick four or five of real significance and then call my evidence on those issues. And we’ll have a compressed, highly focused trial.’”

It is “classic Binnie” – practical and doable. Time limits could be put into effect by, say, a committee of the top trial division of a province, according to Wayne MacKay, a professor at the Schulich School of Law at Dalhousie University in Halifax. The limits would need to have some flexibility to survive a constitutional challenge. This is not something that Parliament needs to legislate. It could easily just “muck things up more,” as University of Calgary law school dean Ian Holloway puts it. (He says judges have enough power already to solve the problems, even without setting time limits, as long as they get backing from appeal courts.)

Judge Binnie is not the first to raise the problem of unwieldy trials. Canada’s Chief Justice Beverley McLachlin discussed it in a 2007 speech. Murder trials that once took five to seven days now take five to seven months to complete, and sometimes even last for years, she said. Civil trials have doubled in length over 10 years, to 25.7 hours on average (she cited Vancouver figures). “As the delay increases, swift, predictable justice, which is the most powerful deterrent of crime, vanishes.”

Before Chief Justice McLachlin, Mr. Justice Michael Moldaver of the Ontario Court of Appeal gave an incendiary speech in 2006 accusing defence lawyers of trivializing and demeaning the Canadian Charter of Rights and Freedoms, and stretching out cases for financial gain.

Judge Binnie is not of the Moldaverian school of fiery rhetoric. He did not single out defence lawyers. “The whole point about being a lawyer is to push the case as far as you can and get the result your client requires. If the door is open, you’re going to go through it.”

Judges are not about to slam that door shut without help. If they could have, they would have done so already. They need institutional backing, including guidance on time limits.

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