TORONTO -- The Ontario court system is an assembly line staffed by
disillusioned judges, harried prosecutors and often-inept defence
lawyers, a weekend legal conference heard.
"Everything is reduced to getting the numbers through," said Judge
David Cole, a panelist at the Law Union of Ontario conference of about
150 judges and lawyers. "What most of us are doing is a lot of routine
processing of petty offenders -- most of whom are mentally ill.
"We are getting tired of watching the parade," added Judge Cole, of
the Ontario Court's Provincial Division. "I'm really getting very
depressed about it. It is very expensive, and I'm not sure it
ultimately gives anybody a sense that justice has been done."
Judge Peter Harris, also of the court's Provincial Division, said what
the public sees is an illusion of justice.
"What we are doing is obviously not working," Judge Harris said. "We
know stiff jail sentences don't produce a reduction in crime.
Probation doesn't produce a reduction in crime. The rates of violence
stay the same whatever we do."
Judges and lawyers cited problems ranging from overworked and
unprepared lawyers to the vast number of unrepresented litigants who
are overwhelming the court system. For many, the clear solution was to
restore funding to the legal-aid and court systems.
Provincial Division Judge Lynn King bemoaned the fact that recent
cutbacks in legal aid have led to 65 per cent of family-law litigants
appearing in court without lawyers.
As a result, Judge King said, she regularly witnesses the
"mind-boggling" and tragic sight of unrepresented mothers agreeing to
the demands of social-welfare authorities without understanding the
She said it is no better in Youth Court, where a staggering number of
teen-agers unthinkingly agree to unrealistic or inappropriate bail
conditions. They inevitably end up breaching them, she said, and are
incarcerated until their trial date.
"Half of them can't even read," Judge King said. "They don't even
remember what day today is. They are teen-agers. They will sign
anything. If they had a lawyer, they wouldn't agree to these silly
"This is the state of family law -- and we are supposed to resolve
cases in a fair and equitable manner. You feel like you are a stage
director telling people where to stand. You leave at the end of the
day wondering what is going on."
With the court system failing at every turn, Judge Harris said, the
only viable alternative is to use social programs in the community to
try to change aberrant behaviour.
Judge Cole agreed, adding that if 15 to 20 per cent of the least
consequential criminal charges were diverted out of the court system,
the rest of the cases could be treated properly.
"If there is one thing we all agree on, it is that our court system is
being inappropriately used as a dumping ground for social problems,"
Judge Cole said.
He said the court system itself is increasingly plagued by defence
counsel who are poorly paid and disorganized, and Crown prosecutors
have to "give away the store" in plea bargains to get through their
Many defence lawyers make no use of the requirement that the Crown
disclose its evidence prior to trial, Judge Cole said. Others have no
idea how to conduct a cross-examination.
"It is very clear we have lawyers who not only don't own a copy of the
Criminal Code, but haven't read it," Judge Cole said.
He said he must frequently restrain himself from going over the head
of a defence lawyer to ask whether an accused person really
understands what is taking place.
Judge Cole recalled how he and a colleague once felt compelled to
assemble a group of defence lawyers to go through some of the
fundamentals they ought to have learned in law school.
Other participants at the conference said the deplorable state of
affairs goes far beyond bad lawyering. They said the throttling of the
provincial legal-aid plan has made it impossible to spend adequate
time on most cases unless a lawyer is willing to work for free.
"Sole practitioners are working without secretaries and working from
their homes instead of offices," said lawyer David Bayliss. "They do
their own photocopying and are unable to do research."
Mr. Bayliss said the bail system has become "a national disgrace"
because so many accused people now appear without counsel. He said
they are herded into the prisoner's dock in droves. If they have
anyone representing them at all, it is likely to be an exhausted court
duty counsel, lawyers stationed in the courtroom who represent clients
on an as-needed basis.
Inevitably, a great many are denied bail by the presiding justice of
the peace, Mr. Bayliss said. After several weeks or months in jail, he
said, they will say just about anything to settle the charges and be
Mr. Bayliss said there is a bitter joke doing the rounds that legal
aid now ends up paying lawyers $900 for the proceedings to set a trial
date and $100 for the trial.
"I don't know why judges haven't spoken out about it," he said. "I
don't know why lawyers haven't spoken out about it. It is a scandal.
It is inhuman."
Judge King said many family-law litigants who represent themselves in
court can barely string a sentence together, let alone file the proper
She said duty counsel call out numbers from a list as if they were
serving customers in a butcher's store, hastily nailing down
resolutions to complex domestic matters that are sometimes
"They just seem overwhelmed by what they are doing," Judge King said
of the duty counsel.
Defence lawyer Maureen Forestell told the conference that the sheer
volume of accused has caused unprecedented cynicism toward accused
people. She said they are literally treated like animals.
Court personnel who move inmates around refer to what they are doing
as 'bringing up the bodies' or 'shipping a load,' " Ms. Forestell
said. She recounted being denied access to a client recently during a
courthouse lunch period on the grounds that it was "feeding time."
Lawyer Robert Kellermann said that in many courthouses, accused people
are herded into noisy cells where they are obliged to use the toilet
in full view of dozens of other inmates. "These are people who are
still presumed innocent."
Several lawyers at the conference urged the judiciary to use its
credibility and power to draw attention to the plight of the court
system. Mr. Kellermann said it may take nothing less than a
work-to-rule campaign to bring attention to the crisis.
"If there is a slowdown, I think the government would eventually be
forced to provide resources," he said.
Copyright © 1997, The Globe and Mail Company
All rights reserved.
While this article points out the obvious, it does not seem to concern itself with the fact that judges are also as or more responsible for the mess in our courts. While these 150 judges and lawyers were attending yet another conference, (ostensibly on the weekend, but it must have cut into court time) their courts sat empty and hundreds or thousands of cases were delayed.