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

2. Judicial Pre-Trial Conference
Criminal Code s : 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 : 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 : 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