Criminal Law

Shifting cases from Superior Court just 'optics': Neuberger

By Jennifer Pritchett, Associate Editor

The federal government's latest plan to reduce Superior Court backlogs will just burden lower courts with a heavier workload, Toronto criminal lawyer Joseph Neuberger tells

The plan calls for increasing the maximum penalty for all criminal cases heard in Provincial Court — known as “summary offences” — to two years less a day in jail in a bid to shift cases away from Superior Court, reports the Toronto Star.

Neuberger, a partner with Neuberger & Partners LLP, says the federal government’s proposal amounts to "optics" rather than a well-thought-out attempt to address stresses in the criminal justice system.

“A meaningful approach would be to invest in the infrastructure of the system," Neuberger says.

“That would include more funding for legal aid so quality legal services can continue to be provided by independent defence counsel and not legal aid staff lawyers, increased funding for policing and the Crown Attorney offices for enhanced staffing to deal with the heavy workload involved with dealing with disclosure and related matters, and meaningful screening of files with less reliance on incarceration and a more enlightened approach toward those people who find themselves in the criminal justice system,” he adds.

Neuberger says increasing maximum penalties for offences heard in Provincial Court would divert cases away from Superior Court potentially "by more Crown prosecutors electing to proceed summarily and the accused would have no right to a preliminary hearing and trial in the Superior Court.

"In many instances, lawyers are electing trials in the Provincial Courts and not opting for preliminary hearings on indictable matters," he says.

"Summary conviction [offences] that currently carry a maximum penalty of six months in jail include causing a disturbance and public nudity," explains the Star.

"Other summary offences, such as impaired driving, have maximum penalties of 18 months in jail, while a few dealing with sexual offences involving children already have a maximum penalty of two years less a day in jail," says the newspaper.

Some suggested in the Star article that the proposed amendments would impede access to justice because they would “prevent paralegals and law students from representing defendants in provincial court, as they regularly do now, because the Criminal Code only allows them to act in cases where the maximum penalty is six months in jail.”

Neuberger disagrees and says access to justice “must mean access to high-quality, experienced and knowledgeable legal counsel.

“Ontario has an abundance of outstanding criminal defence lawyers who offer services at varying rates in order to assist clients,” he says.

“Many law firms provide pro bono services and work efficiently to assist clients. The issue is not access to lawyers, but to a fair and balanced system of justice that takes into consideration the interests and rights of all who come before it.”

Neuberger says this proposed change regarding provincial court offences is the latest in what he describes as "an unhelpful shift in the view of the criminal justice system by politicians who precipitously react to rare cases that play out in mainstream media and social media to a moral panic when none exists.

“For instance, poorly thought-out comments on jury verdicts and court decisions do nothing to advance a fair and balanced system but create unnecessary problems and barriers to a fair trial,” he says.

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