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counsel, police, or judges. The Charter, for example, has led to a litany of pre- trial motions that retard proceedings. At the same time, reforms to evidence laws, such as changes to the hearsay rule and new standards for assessing the voluntariness of confessions, have also slowed down the process. In ad- dition, criminal law in Canada has become both richer and more complicated. Similar to Or- ris' point, LeSage and Code note that the provisions for criminal organization charges have added a new element to many trials. "These offences have become a major experience in a courtroom." The consequence is what judges call a gap in knowledge of courtroom proce- dures among young lawyers, including the basic rules of decorum. But beyond "I would see it very much as a national problem manifested in virtually every jurisdiction." — MICHAEL CODE, REPORT AUTHOR feature of the modern mega-trial in On- tario, many of which are gang-related, and they obviously require considerable additional trial time to prove the addi- tional aggravating 'criminal organiza- tion' element, which can then result in a lengthy consecutive sentence," LeSage and Code say in their report. In one case, they note, the courts were able to deal with the underlying offence in about a week, whereas dealing with the aggravat- ing criminal organization counts took an additional six weeks. Goudge, meanwhile, observed an additional complicating factor in his report on Ontario's pediatric forensic pathology system. With scientifi c evi- dence becoming increasingly compli- cated, it has become more daunting for defence lawyers to challenge the fl awed testimony of experts for the Crown. As a result, he recommends the Ontario gov- ernment fund courses for both Crown and defence counsel so they can better act in cases involving pediatric forensic pathology. LeSage and Code, too, note that training, education, and mentoring for lawyers are another important element in resolving the court delays they high- lighted. "There is a role for law schools in teaching the students the practicali- ties [and] the fundamentals of conduct in a courtroom," says LeSage. "The stu- dents are much better educated today than they were in my day. But what they do lack is a sort of fundamental formal education, the decline in legal aid funding is another source of the prob- lem since it means senior lawyers are not only reluctant to accept serious cases, but in the ones they do take on they don't have the money to retain young lawyers as junior counsel. As a result, the people left to handle legal aid fi les don't get the same type of on-the-job train- ing, or mentoring, that they might have received in the past when they worked under more experienced counsel. In Halifax, for example, Arnold says none of the big law fi rms he's aware of have criminal law departments any- more, which means there are fewer op- portunities for young criminal lawyers to work alongside the veterans. At the same time, Greenspon says the crisis in legal aid has had another consequence. "The practice of having an articling stu- dent, again given legal aid rates, is some- thing that's been dramatically reduced over the years. When I started, just about every criminal law fi rm 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." The issue is one that also con- cerns LeSage. "Students don't get the same courtroom exposure that many of us had when we were articling. We car- ried the senior's bag, so to speak." To at least begin to address the gap, LeSage and Code recommended addi- tional legal aid funding to allow senior lawyers to retain junior counsel. But so far, whether and when the Ontario government, or any other jurisdiction, will answer the long-standing concerns about legal aid is unclear. Following the LeSage-Code report, Ontario Attorney General Chris Bentley announced his government would place major-case Crown prosecutors into police depart- ments — similar to a recommendation LeSage and Code made as a way of im- proving the pre-charge stage — but he shied away from any fi rm timelines on boosting the bud- get for legal aid. In Halifax, Ar- nold isn't optimis- tic that the repeat- ed calls for more money to not only improve fairness to the accused but also to grease the wheels of the criminal pro- cess will lead to changes any time soon. "There'll be a couple of disasters, and once those disasters happen, then people will start looking at it a little more close- ly," he says. Back in Ontario, meanwhile, Code is concerned about the prospects for action on legal aid. "We say that we've got to do all these things, that this is not the time for tinkering with the sys- tem and making a few changes. It really requires systematic, broad-based change to all the areas that we recommend." In fact, he and LeSage let no one off the hook, including the judges who, they say, have been too reluctant to push cases forward. "We say everybody bears re- sponsibility for these problems. . . . Part- ly, they're the responsibility of the courts and the legislature for law reform efforts that weren't sensitive to the fact that they were making trials way too complex. They're partly the fault of the judiciary for not being more forceful in managing these cases. They're partly the fault of the law society for not disciplining un- ethical and unprofessional conduct. They're partly the fault of legal aid for not overseeing it. They're partly the fault of the bar for not mentoring young law- yers. They're partly the fault of the Crown and police for not establishing effi cient disclosure practices and effi - cient oversight. We think it's very much a multi-faceted problem." Read the Report of the REVIEW OF LARGE AND COMPLEX CRIMINAL CASE PROCEDURES online at www.attorneygeneral.jus. gov.on.ca/english/about/ pubs/lesage_code www. C ANADIAN Law ye rmag.com FEBRU AR Y 2009 31