BarTalk December 1999
Volume 11, Number 6

by The Honourable Associate Chief Judge E D Schmidt

There is a theme in military history (my university major) that appears to be timeless: There are those who are unhappy about change. After the invention of gunpowder, noblemen continued to build castles. Cavalries kept charging even after Gatling had figured out how to make bullets fly at one per second. I was not surprised then when I opened my mail this week. The changes in the criminal process are creating some stir. “Judicial independence”, “access to justice”, “right to Counsel” were mentioned. Then there was this: “This system is a joke designed to cost the client nothing but money and achieve nothing.” Whoa. The Task Group either screwed up big time or there is misapprehension mixed up in the general apprehension.

Criminal caseflow management is about how the court will get through its cases in a way that is cost effective to the clients and lawyers. The transition period will be difficult. However it’s transition—no pain, no gain. Gain? OK, here it is:

• Administrative matters like particulars will be extracted from crown counsel before counsel ever appear before a judge.

• Crown can be assigned to a file at charge approval and defense counsel will have someone knowledgeable to talk to throughout the case.

• All appearances can be scheduled and those appearances, including trials, will not be overbooked.

• Organized counsel can dispose of any case with two appearances. That includes the trial.

• Arraignment Reports and Trial Readiness Reports can be faxed after counsel consult by phone.

• If counsel have really pre-trialed the case themselves and filed the report there will be no need to come to the trial confirmation hearing unless a judge orders it in a specific case.

• Legal Aid counsel will be paid for preparation prior to plea. Maybe not enough, but it’s a start and a valuable precedent.

• Crown can prepare cases for trial which really will go to trial and try the cases they prepare.

To accomplish all this, crown and defense counsel need to talk to each other and their respective clients prior to a plea being made, and to attend at the arraignment hearing to allow the judge to make some scheduling decisions to prevent overbooking. The latter is an annoyance to lawyers who have clients with firm instructions. However the quid pro quo for attendance at the arraignment hearing is trial date certainty.

Crown is making an effort to advise the accused of the penalty they will be seeking. Will this result in some innocent person pleading guilty? As far as I know the judiciary is as careful now as ever not to accept guilty pleas in those cases where there is any hint that an accused person is doing it for convenience.

There is a 70 per cent attrition rate for trials on the day of trial shared equally between guilty pleas, stays and no shows by accused. If we continue to send most witnesses home, without testifying, how long before the administration of justice is in such disrepute that fundamental rights like right to counsel, right to silence and access to justice come under the scrutiny of cost analysis based not on clients, but on tax payer demands.

The Criminal Caseflow Management Rules are about how we get from an unacceptable attrition rate to something that allows trial date certainty. The Criminal Caseflow Management Taskforce with their several hundred years of experience thought that these rules will assist in getting us there.

This article was published in the December 1999 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.