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"The practice of having an in another recent high-profi le look at the criminal justice sys- tem. In fact, Ontario Court of Appeal Justice Stephen Goudge, in his inquiry into the province's pediatric forensic pathology sys- tem, recommended that the gov- ernment increase legal aid rates in order to encourage senior lawyers to take on child homi- cide cases, something he argued was necessary to avoid repeats of wrongful convictions resulting from the fl awed testimony of pa- thologists like the now-disgraced Dr. Charles Smith. In a similar vein, LeSage and articling student, again given legal aid rates, is something that's been dramatically reduced over the years. When I started, just about every criminal law firm had an articling student. There are hardly any of them anymore because, quite frankly, on the legal aid cases you can't afford to pay them." Code argued the government should increase legal aid from its current $97-per-hour maximum for the most senior lawyers. The result, they hope, is that the most competent defence counsel would return to the big cases. In that way, they predict that the mistakes that the more junior lawyers now left carrying the defence sometimes make would no longer clog up the system. The distinction, LeSage says, comes down to focus, some- — LAWRENCE GREENSPON, CRIMINAL LAWYER Wachowich, who notes Alberta's booming population, which has led to an increase in criminal charges, is another factor in the delays. To deal with the problem, Wacho- wich has instituted a policy of what amounts to calling errant lawyers into the principal's offi ce when trials take too long. "Both parties have to estimate how long the trial is going to take," he says. "Let's say they say it's going to take 15 days, which is three weeks, and it takes four weeks. They are then brought before me, and I ask 'why, how did this come about, what justifi cation [was there]?' There are no sanctions, but at least they know they're going to be coming to see the chief justice on this. All I can do is tell them to say fi ve Our Fathers and 10 Hail Marys and sin no more. I don't keep a list of that." The approach is a soft one, but Wachowich says it's generally thing he feels less-experienced counsel lack as they introduce a litany of occasionally fruitless motions on everything from dis- closure requests to challenges under the Charter of Rights and Freedoms. In Alberta, Court of Queen's Bench Chief Justice Al Wachowich sees examples of the problem in his courtrooms. "Our bar is a comparatively young bar, and you get lawyers coming in there who have really not characterized the issue as it relates to the trial," he says. "Therefore, there is a scattergun approach toward the defence." In some cases, lawyers during a trial will unleash surprise de- fences on the judge, he notes. "All of a sudden, [they'll say], 'my client's insane.' It could be anything. All of a sudden, during the course of a trial you see them shifting gears to go to some place else. A good counsel likes to run clean trials." Encouraging lawyers to focus their arguments during the pretrial process is one way Alberta's courts are tackling the is- sue. But despite those efforts, trials in Alberta's Superior Court are getting longer. Between 2003 and 2007, for example, the number of long trials — lasting between fi ve and 25 days — increased by 55 per cent to 67 from 43. At the same time, the number of very long trials, those exceeding 25 days, also went up. But the increase was minor given the small number of cases that reach that point, Wachowich notes. As a result, backlogs in the system are growing. "Our lead times are not as favourable as they were. We're still not in what I call 'a danger zone,' but we might be approaching it," says 28 FEBRU AR Y 2009 www. C ANADIAN Law ye rmag.com effective in reining in lawyers who shudder that word might get out that they got hauled in to see him. Still, both LeSage and Code, along with lawyers across the country, argue more systemic change would help rescue courts suffering under the combined effects of a lack of funding, increasingly complex procedures, and what many acknowledge to be a fl ight of se- nior counsel from the most serious cases. On the legal aid question, of course, the issue is a long-stand- ing one. But for Greenspon, it's something governments can no longer put off addressing as the tariffs have eroded to the point that they cover a fraction of what senior counsel can earn privately. The fact that the days of what LeSage says was the week-long standard for murder trials are now over only adds to the reluctance of experienced lawyers to take on the most seri- ous cases. "That, of course, is all made worse by the fact that se- nior lawyers are thinking twice about taking on a three-, four-, or fi ve-month trial on legal aid," says Greenspon. "Financially, it borders on irresponsible to do that. You can't afford to." Across the country, the complaints are similar. Josh Arnold, a Halifax lawyer who has practised for 18 years, notes that the erosion in public funding has turned him and his colleagues off some of the high-profi le cases. "You have to pick and choose your cases a lot more carefully. When I fi rst started doing de- fence work, I would take any murder case and any of the big- ger cases that were more complicated. I didn't care about what kind of money I was making. Now, I just don't feel I can do that because fi nancially they're such a drain." Still, in their report LeSage and Code outlined two key ways for fi xing legal aid in Ontario, one of which wouldn't necessar- ily involve a major increase in funding. On one hand, they echo