MARCY SEGAL: TRANSPARENCY IN THE JUSTICE SYSTEM

Recently, I spoke out about the new “triage” court in Newmarket. Essentially, instead of knowing your trial judge ahead of time (for example a week or less before trial), you are not allowed to know until the day of Trial. You are to start in the “triage” court and once the case is ready to go (all or most witnesses are present), then your matter is transfered to a Trial Court. It is only then that you know who will be presiding over your case.
For some lawyers, they have voiced serious concerns regarding this new system. How are they to assess whether the case should be litigated if they do not know in advance who their jurist will be? Some have argued that the new system will not work because they cannot give their clients appropriate advice.
I think that is hogwash. By the time the case is set for Trial, hasnt there already been a decision to litigate the matter? I suppose if you knew in advance that your judge is a “convicter”, then you can tell your client that it is not likely that you will be acquitted so plead guilty. I also suppose that if you knew in advance that your Judge was an “acquitter”, then you would be able to tell your client that he/she is likely to win so dont plead. But, they are missing the point: Trials should be set because there are either triable issues, or your client is innocent of the charge, or your client instructs you to fight the charge, regardless of their guilt or innocent. I take no issue with any of that. Although it may be more stressful not to know in advance, it is part of the process.
What I expect is a fair trial by every Judge. Even when I know I have a Judge that is inclined to convict, I will advise the client, but I will never plead a client who is not guilty. I will spend my time in Court making sure that the Judge acts fairly, even if I receive stress from my dealings with him or her. It is up to the players to remind Jurists that innocent until proven guilty is the starting point and follows throughout the process until the decision is made. Judges that are too defence oriented and are transparent about it make me feel uncomfortable. I dont want favours. I want fairness. It must be very difficult for a crown to advise its witnesses that the Judge hardly convicts.
If you want justice to be fair, you need to advocate for it at all levels. And my opinion does not conflict with my mantra: It is my job to use all of my energy, experience, insight and wisdom to achieve the result that the client wishes. I will never give up, no matter who the Judge is. If more counsel remind those “convicters” judges that we are aware of the bias, perhaps the Judge will change his/her ways Maybe not. If this new court makes our job harder, I say, oh well. I love a challenge.