Pre-Trial Management of Criminal Cases
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Transcript Pre-Trial Management of Criminal Cases
Justice Michelle Fuerst
Superior Court of Justice
Newmarket, Ontario
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
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
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
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
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
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
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 kept in court file
Available to trial judge
Not accessible by public
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
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
Establish order for hearing of motions
Estimate court time required
Provide feedback
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
Consider creative but meaningful alternatives
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
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
Adjudicate issues related to disclosure of
evidence, admissibility of evidence, Charter,
expert witnesses, severance
• Decision of case management judge binds
parties unless trial judge satisfied it would not
be in interests of justice, e.g. new
jurisprudence