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Pre-Trial Management of Criminal Cases

Justice M ichelle Fuerst Superior Court of Justice Newmarket , O ntario. Pre-Trial Management of Criminal Cases. Judicial Pre-Trial Conference. Criminal Code s. 625.1: Judicial pre-trial conference mandatory for jury cases; may be ordered for non-jury case

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Pre-Trial Management of Criminal Cases

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  1. Justice Michelle Fuerst Superior Court of Justice Newmarket, Ontario Pre-Trial Management of Criminal Cases

  2. Judicial Pre-Trial Conference • Criminal Code s. 625.1: Judicial pre-trial conference mandatory for jury cases; may be ordered for non-jury case • Why: To consider matters that, to promote fair and expeditious hearing, would be better decided before start of proceedings, and to arrange for decisions on those matters

  3. Purpose of JPT • Identify and narrow matters in issue • Impose form of trial management, e.g. hearing of motions • Assist trial judge to prepare for trial • Facilitate resolution of cases at early stage

  4. Ontario Experience • In Superior Court, “pop up motions” esp. under Charter prolonging trials beyond anticipated completion dates • Complaints from counsel about surprise applications • Complaints from jurors about length of proceedings, breaks in proceedings • Domino effect on scheduling; s. 11(b) concerns

  5. Ontario Superior Court Model • JPTs required under Criminal Proceedings Rules, within 60 days after committal for trial • Before trial date assigned • Crown and defence counsel required to complete and file lengthy 20+ page pre-trial form in advance • Presiding judge completes written Report to Trial Judge

  6. The Parties • Crown counsel assigned to case, or pre-trial Crown able to take informed positions on behalf of Crown • Defence counsel retained to conduct trial, or another counsel authorized to take positions on behalf of defence • Specifically assigned judge with criminal law experience and facility with case management

  7. The Place • In chambers • Not on record • No court staff • No accused • If accused self-represented, in open court deemed extension of chambers, on the record with accused present • Understanding of confidentiality

  8. Report to Trial Judge • Counsels’ JPT form includes: • Synopsis of offence • Information about anticipated motions • Defences likely to arise • Other matters relevant to trial scheduling • JPT judge reviews in advance • JPT judge completes comprehensive written report including parties positions’ on legal issues, materials filing deadlines

  9. Report to Trial Judge (cont’d) • Report kept in court file • Available to trial judge • Not accessible by public

  10. The “Buy-In” • No trial date set or even targeted until JPT completed • Delay on part of any party in JPT process noted on Indictment and attributed for s. 11(b) purposes • Lack of full participation in JPT process taken into account if new motions at trial

  11. Effective JPT • Consistency in approach on part of judiciary • Obligations imposed on counsel, esp.: • Provide necessary information e.g. about motions to be brought • Take positions that bind at trial • Identification of evidentiary foundation for motions, materials to be filed, filing timetable • Assignment of “homework” • Follow-up JPTs

  12. Effective JPT (cont’d) • Establish order for hearing of motions • Estimate court time required • Provide feedback

  13. Resolution Discussions • Require counsel to come prepared to discuss resolution • Offer frank assessment of positions • Request caselaw to support positions that seem unreasonable • Offer suggestions e.g. about further information that might facilitate resolution

  14. Resolution Discussions (cont’d) • Consider creative but meaningful alternatives

  15. Case Management Judge • Criminal Code s. 551.1: Permits appointment of case management judge for particular case, by Chief Justice or designate • Prior to jury selection • Test: Necessary for proper administration of justice • Case management judge may or may not be trial judge

  16. Powers • Criminal Code s. 551.3: May exercise powers trial judge has before trial • Assist parties to identify witnesses • Encourage admissions • Encourage steps to promote fair and efficient trial • Establish schedules and impose deadlines • Assist parties in identifying evidentiary issues

  17. Powers (cont’d) • Adjudicate issues related to disclosure of evidence, admissibility of evidence, Charter, expert witnesses, severance

  18. Binding Parties • Decision of case management judge binds parties unless trial judge satisfied it would not be in interests of justice, e.g. new jurisprudence

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