Simon's Legal Resources

Criminal - Critique

. R. v. Mackenzie [prolixity]

In R. v. Mackenzie (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, here brought against an acquittal which turned on whether "a prior judicial authorization has a lawful basis", here a search warrant.

Here the court critiques the 'prolix' nature of modern criminal law:

[63] .... It must be remembered that Garofoli hearings are not trials. Rather, they are a narrow, streamlined avenue to determine the admissibility of evidence. And they are specifically designed to avoid prolixity in proceedings.

[64] As early as Garofoli itself, the court addressed concerns over “prolixity”, placing reasonable limitations on cross-examinations of affiants: Garofoli, at p. 1465. This theme was picked up on in Pires, where the court repeated concerns over prolixity, noting that 15 years after Garofoli, “the constructive use of judicial resources” was equally, if not more, applicable: Pires, at para. 35.

[65] In my view, one would be hard pressed to find a justice system participant today who would not agree that there has been no retreat from prolixity in legal proceedings and, in fact, it continues on a steady march forward. It reminds one of the sage words of Finlayson J.A. in Durette, almost 35 years ago: unless courts “can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice”: R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 9 O.R. (3d) 557 (C.A.), at p. 573, rev’d on other grounds, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469.