Trials: Don’t Forget Fairness

This past weekend Supreme Court Chief Justice Beverly McLachlin commented on the need to get “trials heard more quickly” while observing that this was a “constant struggle” because criminal justice is a “complex and difficult business”.

Undoubtedly the criminal justice system is made difficult because of the many competing interests, which collide daily in this nation’s courtrooms. Judges, prosecutors and defence lawyers all have distinct rolls to play in that system and it’s impossible for everyone to always agree.  The Chief Justice alluded to this reality when she reminded her interviewer that although trials need to be heard more quickly we must be mindful of “maintaining the position” of the defence and the prosecution.

But in our desire for speedy trials let’s not forget fairness in our criminal justice system. How do we address the inherent imbalance of an individual – presumed to be innocent – going up against the State with all its resources?

Is it fair for example that it’s getting more difficult for people to receive Legal Aid funding?  Is it fair that defence lawyers who accept a Legal Aid certificate are expected to do more with less and often have to subsidize their client’s defence in the form of unpaid work?

If we want a first class criminal justice system it’s going to cost us.  We need to pay our judges and prosecutors well.  We need to pay for properly functioning modern courthouses that can deal with the daily flow of people charged with crimes. No less important is the need to pay for an independent defence bar that zealously advocates for clients without wondering whether defending their clients will lead them to bankruptcy. An independent defence bar, able to go toe-to-toe with the prosecution, is what makes our criminal justice system different and we as a society are better off for it.

It’s no secret that many people who get caught up in the criminal justice system are not wealthy so they usually can’t afford to pay for a lawyer.  In times of budgetary restraint Legal Aid has to tighten its belt just like everybody else.  Often people are denied Legal Aid coverage forcing them to face their criminal charges without the benefit of counsel. An increase in the number of people representing themselves in court however will not help speed up trials and it will do absolutely nothing to ensure fairness in the criminal courts.

Our current federal government wants to get tough on crime, increase sentences for many types of offences and to blunt some of the protections under the Charter of Rights and Freedoms.  That’s nothing new as governments rarely pass up an opportunity to show voters that they can keep the streets safe and make sure the bad guys are behind bars, but all of that costs money.

In principle most citizens want an independent, properly funded defence bar able to provide the best defence possible against the allegations of the state.  There are few things in this world more destructive to a person’s well being than going up against the State with all its resources, while being unable to pay for a lawyer to help. It’s cold comfort to that person who represented himself that he was convicted quickly. The objective is not just speedy criminal justice system but also a fair one.


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