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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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