In the most recent edition of the Criminal Lawyers Association Newsletter, there is a reprint of the speech given by Mr. Justice Marc Rosenberg of the Ontario Court of Appeal on his receipt of the prestigious Martin Criminal Justice Award. Justice Rosenberg was a distinguished member of the criminal defence bar before his appointment to the Court in 1995. The award, named after legendary criminal lawyer and appellate court judge G. Arthur Martin, is the highest expression of esteem the Association can give.
In his speech, Mr. Justice Rosenberg praised the criminal defence bar for their essential role in safeguarding constitutional rights and the right to a fair trial. Those in attendance however could not have missed Justice Rosenberg’s reference to comments made by his colleague on the Court, Mr. Justice Michael Moldaver, himself a distinguished criminal defence lawyer while in private practice. Speaking before the Association in 2005, Justice Moldaver had caused a firestorm when he voiced complaints about the ever increasing length of criminal trials and the number of motions brought by defence lawyers under the Charter of Rights. The suggestion that unmeritorious motions were being brought to increase legal fees or squander precious legal aid funds hit a raw nerve. While Justice Rosenberg did not refer directly to Justice Moldaver’s views, some of the comments he made were aimed in that direction:
“When complaints are voiced about Charter motions making trials longer and overly complex, we must all step back and think about the broader context in which those Charter applications are being brought. No doubt, there are some Charter motions that should have been left on the cutting room floor. But we cannot lose sight of the fact that there is no one else out there whose job, day in and day out, in every case, is to ensure that the state is held to account, and to abide by the fundamental rules and the supreme laws that we want our society to be guided by.”
There is no doubt that co-operation between the participants in the criminal justice system and the exercise of a firm hand by trial judges, will speed up the trial process and benefit the administration of justice. Justices Moldaver and Rosenberg would undoubtedly agree on the point. This extra-judicial debate between senior colleagues of a Canadian appellate court, however, is exceedingly rare.