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Goudge's recommendation to tighten lawyer eligibility for get- ting a legal aid certificate in the most serious cases, such as the pediatric homicides so prone to error during Smith's time as a leading pediatric forensic pathologist. At the same time, coun- sel named to the short list of those eligible for legal aid funding in major cases would receive much higher pay. Under the second option, Legal Aid Ontario would exercise more oversight over lawyers' work. An exceptions commit- tee comprised of senior lawyers — which already exists as a mechanism for reviewing requests for extra funding in par- ticularly serious cases — would have the added responsibility for approving money to pay for a defence counsel's proposal to bring an unusual motion before the court. In that way, lawyers with expertise would help weed out frivolous defence strate- gies. "What we're recommending is that there be a more proac- tive control over the type or the specific motions that might be brought," says LeSage. "In other words, there should be some likelihood of success. There should be some evidence upon which the motion is based." LeSage acknowledges the idea carries risks, particularly since it raises concerns about the independence of the defence bar. But as he and Code pointed out, in British Columbia, the Legal Services Society has managed to both provide the guidance and oversight they advocate while instituting a system of sanction- ing lawyers deemed to have erred in their use of public funds. The result is that B.C. has had greater success in preventing high-profile cases from falling apart, according to Code. "B.C., curiously, is in some ways the jurisdiction that's been the most successful in managing these cases having successfully brought home the Air India case and the Pickton case with trials on the merits," he notes. In fact, Glen Orris, a veteran Vancouver lawyer who worked on Robert William Pickton's defence during his murder trial, says the B.C. oversight system works well. As a lawyer who sits on some of the Legal Services Society panels that review de- fence requests for additional funding, Orris argues the insis- tence that counsel manage public funds prudently is reason- able. Recently, for example, he was part of a panel considering a lawyer's request for a full transcript of the previous trial of a client who was subsequently severed from the co-accused. But after consulting with the panel, the lawyer agreed he only needed the testimony of a handful of witnesses, says Orris. Nevertheless, as lawyers across the country point out and as LeSage and Code spent a lot of time emphasizing, the prob- lems with long trials — and those cases that fall apart — aren't restricted to the trend of inexperienced counsel taking on se- rious matters. "It's unfortunate that anyone would blame de- fence lawyers for a delay based upon this," says Brian Beresh, a senior member of the bar in Edmonton. Beresh admits legal aid rates sometimes do deter experi- enced lawyers from taking on cases, but rather than blame the defence for delays, he says the prosecution and the police com- plicate trials through what he calls "excessive charging" of peo- ple. "It appears to be that that assists police forces when they go for funding to justify their claims for an increase. But it causes a tremendous backlog in the system." Orris, too, criticizes po- lice and Crowns for needlessly making cases more complex. "What they're using now, and I'm dealing with a number of cases, is the criminal organization counts as additional counts," he says. In one instance, a client accused of three counts of murder is also facing additional charges related to involvement in a criminal organization. "To me, it's a ridiculous waste of time to deal with [criminal organization] counts in addition to a murder count," says Orris. "If you can't get the murder, you don't get the [criminal organization]. If you get the murder, you don't need the [criminal organization]. There can't be any consecutive time for a life term." LeSage and Code, in fact, single out police and prosecutors as other sources of the backlogs plaguing the justice system. In particular, they're sometimes guilty of providing incomplete and tardy disclosure, which creates delays as defence lawyers battle in court for access to evidence against their clients. But at the same time, defence counsel are often guilty of making frivolous and sometimes excessive demands for disclosure, which also slows the process down. The issue is one that Wa- chowich has seen balloon into a major headache since the R. v. Stinchcombe decision that set the standard for full disclosure to the defence. Speaking of the late Supreme Court justice John Sopinka, who wrote the decision in Stinchcombe, Wachowich says: "My good friend would be turning in his grave if he knew that decision would prolong trials rather than expedite mat- ters." But as LeSage and Code point out, many of the problems leading to trial delays as well as cases falling apart aren't a re- sult of mistakes or omissions either by defence lawyers, Crown Canadian Law List, 2009 Order your copy today! Hardbound • Published February each year • Standing order $140* • P/C 0600140999 Current edition only $156* • P/C 0600010999 • ISSN 0084-8573 HA0109 *Ontario/British Columbia/Atlantic provinces must include 13%/12%/13% taxes respectively on all directory orders. Your instant connection to Canada's legal network, in print and electronically! Canadian Law List goes beyond the traditional legal listings to instantly connect you to Canada's legal network. 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