New Approaches to Criminal Trials

The Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice

May, 2006

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Dear Chief Justice Smith,

The undersigned members of the Chief Justice’s Advisory Committee on Criminal Trials are pleased to present our report for your consideration.

Acknowledgments

In the course of preparing the recommendations and paper, the committee was assisted by the judges of the Superior Court of Justice, who provided constructive suggestions throughout the process; members of the bar, who provided suggestions and critiqued the recommendations in writing and during consultations; Legal Aid Ontario, who assisted the committee in preparing the chapter on legal aid issues and in formulating the recommendation in that area; the Court Services Division of the Ministry of the Attorney General, whose representatives met with the committee and reviewed the committee’s recommendations, providing helpful insight; and the Ministry of Public Safety officials, who assisted in regard to corrections issues. The committee is grateful for the advice, criticism and guidance received.

The committee is also indebted to Pauline Rosenbaum, Counsel and Manager of Legal Research in the Office of the Chief Justices, for her assistance in conducting the research for the committee and in editing the paper.

Ruth Dean, Administrative Assistant to the Regional Senior Justice of the Central West Region, arranged the committee meetings, kept records from the meetings, prepared the paper and endured the multitude of changes. All of the committee members appreciate her efforts on our behalf.

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Index

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Introduction

[1] For at least 15 years, experienced and respected members of the judiciary have raised concerns about the increasing length of criminal trials. In 1992, Mr. Justice Finlayson wrote:

Unless, we, as 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. As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process.[1]

[2] Former Chief Justice Lamer, in a speech delivered in Toronto to the Empire Club on April 13, 1995, said:

Some trials are so long that one wonders whether the process will not collapse under its own weight. I think our greatest challenge over the next several years will be to cope with complexity and prolixity in legal proceedings. We must find ways to retain a fair process, but in the context of a process that can achieve practical results in a reasonable time and at reasonable expense. If ways to do this cannot be found, I fear that our legal system will become simply irrelevant for most purposes.

[3] Delivering the John Sopinka lecture on Advocacy at the annual conference of the Criminal Lawyers’ Association on October 21, 2005, Mr. Justice Michael Moldaver of the Court of Appeal for Ontario, a defence counsel for 17 years and judge of the Supreme Court of Ontario for 4 ½ years, stated:

The message I bring to you today is not a happy one. It concerns the length of criminal trials and the impact this is having on our criminal justice system and the public’s faith and confidence in it.

I, for one, am deeply concerned. To be blunt, I don’t like what I am seeing. Criminal Trials are spinning out of control. Sadly, they have taken on a life of their own and if they haven’t already done so, they are fast becoming the masters of a system they are meant to serve.

Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if the public comes to view the system with distain and contempt, then the system will have lost its reason for being. And the consequences, I fear, will be serious.

…

… [W]hen I speak of long criminal trials, I am not referring to the Air Indias or the Hells Angels. Mega trials of that nature are clearly problematic, but I see them as exceptions, and the problems associated with them will almost invariably have to be dealt with on a case-by-case basis. The long criminal trials about which I am speaking are your standard, ordinary, every-day murder trials, sexual assault trials, robbery trials, drug trials and the like. Those are the trials whose complexion has changed so dramatically over the past twenty years. Those are the trials that bear virtually no resemblance to the trials I engaged in as a defence counsel thirty years ago. To me they are almost unrecognizable.

…

… The last thing I want to do is to leave you with the impression that I am singling out the defence bar as the sole or even primary cause of lengthy trials. I am not. The problem is a collective one. It belongs to Parliament, it belongs to the judiciary, it belongs to crown attorneys, it belongs to the police, and yes, it belongs as well to the defence bar.

…

The criminal trial process is in a state of crisis. It is spinning out of control. We need to find solutions and we need to act on them now. The time for petty bickering has long since passed.

[4] The concern about lengthy criminal trials is not restricted to Canada. The 1992 report of Australian Professor Mark Aronson, Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure,[2]identified the principal reasons for unduly long trials as case preparation on the eve of trial, and ineffectual pre-hearing conferences.

[5] While not directly examining ways to shorten trials, two reports in the 1990s made recommendations that had the potential to improve trial efficiency. Regrettably, many judges and counsel have ignored the recommendations.

[6] In 1993, the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Report),[3]while focusing on the early stages of criminal litigation, also made recommendations that would have resulted in shorter, more efficient and focused trials. To a large extent those recommendations have been ignored by many judges and counsel.

[7] In 1997, Chief Justice Patrick LeSage of the Ontario Court of Justice – General Division, in establishing the Criminal Justice Review, noted:

We are not disposing of cases quickly enough … trials are taking much too long. We must find some ways to make trials more efficient.

[8] In 1999, the Criminal Justice Review released its report,[4] which examined a wide variety of issues in the criminal justice system. The committee recommended improved procedures that would have assisted in making trials more focused. Those recommendations have also been ignored by many judges and counsel.

[9] Both reports examined criminal litigation in the provincial and superior courts. This report focuses on trials in the Ontario Superior Court of Justice. Criminal litigation in the Superior Court of Justice has many features not found in the Ontario Court of Justice. Generally, when cases first appear in the Superior Court, Crown and defence counsel will have already discussed the case. Most cases have had judicial pre-trial conferences, at least basic disclosure has been made to the defence, almost all have had a preliminary inquiry or an out-of-court “discovery”, and all accused would have been advised of the prosecution’s best offer on an early resolution and rejected it. In addition, it is estimated that roughly half of the criminal trials in the Superior Court are held with a jury. Finally, with the exception of Toronto, all other regions have circuiting courts, with sittings held several times throughout the year.

[10] In 2002, Parliament enacted s. 482.1 of the Criminal Code, permitting courts to establish rules for case management, to address the concerns being raised regarding the length of trials. The section states:

(1) A court referred to in subsection 482(1) or (2) may make rules for case management, including rules

(a) for the determination of any matter that would assist the court in effective and efficient case management;

(b) permitting personnel of the court to deal with administrative matters relating to proceedings out of court if the accused is represented by counsel; and

(c) establishing case management schedules.

(2) The parties to a case shall comply with any direction made in accordance with a rule made under subsection (1).

(3) If rules are made under subsection (1), a court, justice or judge may issue a summons or warrant to compel the presence of the accused at case management proceedings.

(4) Sections 512 and subsection 524(1) apply, with any modifications that the circumstances require, to the issuance of a summons or a warrant under subsection (3).

(5) (does not apply to the Superior Court)

(6) Subsections 482(4) and (5) apply, with such modifications that the circumstances require, to rules made under subsection (1).

[11] In 2005, Chief Justice Heather Smith of the Ontario Superior Court of Justice, with the approval of the Council of Regional Senior Judges, established an advisory committee to examine why criminal trials were longer. The committee’s role was to make recommendations for shortening trials and making them more focused without compromising prosecution or defence rights to a fair trial.

[12] While the committee was initially to focus on “long criminal trials”, it soon became apparent that there were at least as many, if not more, problems caused by short trials taking far longer than originally estimated. Accordingly, the committee’s focus changed to all criminal trials.

[13] The committee canvassed the judges of the Superior Court, seeking input on why trials were longer, and what steps could be taken both to shorten the trials and make their duration more predictable.

[14] The committee started their examination by considering the information provided by the judiciary, the bar, and the committee members. The committee was greatly assisted by the thorough examinations of how other jurisdictions have dealt with the problems of lengthy criminal trials in John Pearson’s paper, “Shortening Unduly Long Criminal Trials – Some Foreign Ideas”. Finally, the committee examined recommendations in previous reports, and appellate authority.

[15] The committee identified several areas in which criminal proceedings could be made more efficient through case management, including more effective pre-trial conferences, the use of particularized notices for pre-trial applications, the evidentiary basis for pre-trial applications, time limits on oral submissions and the calling of evidence, and enhanced trial management by the judiciary. The committee also identified a number of other recommendations to facilitate jury duty, address courtroom personnel, facilities and equipment issues, and promote enhanced cooperation and compliance with legal and constitutional obligations by correctional and police services.

[16] After drafting a series of tentative recommendations, the committee met with representatives from Legal Aid Ontario to discuss the recommendations’ implications to legal aid, and with representatives from the Court Services Division regarding the recommendations related to their division. The proposals were revised, and copies were provided to the Criminal Lawyers’ Association, the Ontario Bar Association, the Advocates’ Society, the County and District Law Presidents’ Association, and the Ontario Crown Attorneys’ Association for their input.

[17] The committee considered their submissions, and made further changes to the recommendations, with explanatory notes for some of the recommendations, before meeting with representatives from the associations.

[18] The final recommendations contained in this report are the product of consultation with the judiciary, the bar, Legal Aid Ontario and representatives from the Court Services Division. In part, the recommendations will become the Superior Court of Justice’s Criminal Case Management Rules, which will be incorporated into the Criminal Proceedings Rules of the Superior Court of Justice. Some recommendations will lead to amendments to the current rules, while others will provide the Superior Court judges with a handbook to assist in criminal case and trial management. Finally, it is hoped that the recommendations regarding Legal Aid Ontario, the Court Services Division, correctional officials, and police services will be acted upon with due dispatch to improve the administration of justice in Ontario.

[19] With these recommendations fully implemented, the committee is confident criminal trials will be shorter and more focused. We are also confident the rules do not impair the right of the accused to make full answer and defence. Neither do they impair the prosecution’s right to a fair trial.

[20] However, the rules and case management alone will not address the problems caused by lengthy trials. What is also required is a renewed commitment on behalf of all involved to make criminal trial procedure more efficient and less time-consuming. Changes in attitudes and in habits are also essential.

[21] As Lord Justice Auld found in his Review of the Criminal Courts in England and Wales (the Auld Report[5]) in 2001:

There is a culture of last-minute decisions, which must be attacked if there is to be any significant improvement.

[22] In our correspondence and consultations with the bar, many of its members have not embraced the recommendations. Some suggest the solution to longer trials is more judges, more courtrooms, more prosecutors, and more money for legal aid. With respect, none of these suggestions addresses the issue of trials taking too long.

[23] To be sure, the committee is not suggesting that the recommendations are the sole antidote for the problems in, and challenges faced by, the criminal justice system. They are not a substitute for adequate judicial resources from the federal government, adequate prosecutorial resources from the federal and provincial governments, or proper funding for legal aid from both levels of government.

[24] The recommendations are an attempt to address the problems caused by longer criminal trials, and an attempt to have trials focus on the triable issues. They are not intended to be, nor should they be seen as, a substitute for the provision of the requisite resources to make the criminal justice system work as efficiently as possible. The recommendations should be viewed as working in conjunction with the requests of the judiciary and the bar for adequate resources, rather than a substitute for the increases sought.

Why Criminal Trials Are Longer

[25] The committee compiled a lengthy list of reasons why trials are now longer than in the past, and frequently last far longer than the pre-trial estimations. The suggested reasons can be grouped under the headings below, and support Justice Moldaver’s conclusion that the problem of long trials is one to be shared by Parliament, the judiciary, prosecutors, defence counsel, police and accused persons.

[26] While not every committee member agrees with each suggestion, the committee believes that the majority of the reasons listed have contributed to the increased length of trials, and in trials lasting longer than anticipated.

Evidentiary and Procedural Issues

[27] The Charter: With the introduction of the Charter, evidence that had been illegally obtained became the subject of applications to exclude. Justice Moldaver, in his speech to the Criminal Lawyers’ Association, noted that pre-trial applications, largely Charter-based, have become a growth industry in Canada. He had previously noted that, in enacting the Charter, Parliament failed to create a code of procedure designed to deal with such basic issues as how, when, why, to whom, and by whom Charter applications are to be brought, thereby contributing to the length and complexity of trials.[6]

[28] Changes in the Law of Evidence: There have also been profound changes in the law of evidence, resulting in increased litigation and longer trials. These include the expanded scope of the principled exception to the hearsay rule, increased use of previous disreputable conduct evidence, third party record applications, and applications to determine the admissibility of previous sexual conduct of the complainant (Seaboyer applications).

[29] Increased use of Expert Witnesses: Even if not the subject of admissibility rulings, some forms of evidence, which are now introduced with greater frequency, take longer to present. For example, DNA evidence is now frequently called by the prosecution and/or the defence.

[30] Wiretap Evidence: Wiretap evidence has taken on greater significance in prosecutions. For example, lengthy investigations of criminal organizations, often involving many intercepted communications, almost invariably lead to long trials. Where the intercepted private communications are not in English, additional time is required to prepare the transcripts for disclosure.

[31] Videotaped Statements: While the use of videotaped statements is to be encouraged, it appears that videotaped statements are longer than statements hand-written and signed by the officer and the accused.

[32] Interpreters: Ontario has one of Canada’s most ethnically diverse populations. As a result, many trials have to be held with the accused and/or witnesses having the assistance of an interpreter, which can effectively result in a trial that takes twice as long to try.

[33] The recent judgment in R. v. Sidhu[7] revealed significant problems with the quality of interpretation services in Ontario. That judgment reiterated the comments of the Supreme Court of Canada judgment in R. v. Tran,[8] that it was generally preferable that interpretation be “consecutive” (after the words are spoken), rather than “simultaneous” (at the same time the words are spoken),[9] although consecutive translation effectively doubles the time necessary to complete the proceedings. In addition, many interpreters were trained that, when whispering to the accused using simultaneous translation, while verbatim interpretation was the objective, it was not essential, and that if an interpreter fell behind, he/she should not inform the court but keep interpreting, rather than falling further behind. As this method of interpreting is no longer appropriate, it is anticipated that there will be more consecutive translating, resulting in longer trials. While the Tran judgment left open the question of whether simultaneous translations might become more acceptable with technological advances, at this time it does not appear that a compelling case can be made for more simultaneous translation, for the reasons indicated inTran.

[34] Challenges for Cause: In some regions, cultural diversity results in increased challenges for cause. For example, in Brampton, as a result of the diverse population and the international airport, 75% of criminal trials involve a “visible minority”-based challenge for cause, which can lengthen the trial by a day or more.

[35] Ineffective Pre-trial Conferences: One of the most frequently cited causes of lengthier trials was ineffective pre-trial conferences. Again, the reasons for ineffective pre-trial conferences reflected the recognition that judges, Crowns and defence lawyers all have a responsibility to contribute to the effectiveness of the process.

Judges: It was suggested that some judges do not appear to regard the conferences as an important step in the litigation process, spending little time on the conferences, not encouraging compromises and agreements, not assisting in resolution discussions with appropriate input on reasonable dispositions, and/or not attempting to limit the issues in dispute.

Counsel: Having “agent” or junior lawyers attend who have not reviewed the file, have not completed the pre-trial form, and are unable or unwilling to take firm positions on admissions and/or resolution positions, frustrates the objectives of pre-trial conferences. It was also suggested that having counsel not bound by the positions taken at the pre-trial conference results in unproductive and ineffective conferences.

Defence Counsel: When counsel appear and are unwilling or unable to make admissions on non-contentious issues, and refuse to take a position on any issue because they do not have instructions from the client on the issue, the conference is not productive.

Crown Counsel: When Crown Counsel attend and are unable to take a position on resolution because they have not had input from the investigating officer, the complainant, or the family of the deceased or complainant, it can frustrate the objectives of pre-trial conferences. It was also suggested that the refusal of Crown Counsel to consent to re-elections to non-jury trials well in advance of the trial date, or on the trial date, results in longer trials.

Scheduling: Finally, in some areas the short time assigned for conferences is a disincentive for constructive discussions to occur.

Pre-trial Applications

[36] The most significant contributor to the lengthening of trials is pre-trial applications by both the Crown and defence. At present, with no case management in the vast majority of cases, and a 15-day filing rule for only some applications, procedural problems often result in delays or adjournments. The causes were identified as follows:

[37] Timing: First, the timing of applications is often the precipitating cause of delay in the trial or lengthening of the trial. The “eleventh hour” application often results in trials being significantly lengthened, or adjourned because one party is caught by surprise and requires time to properly respond.

[38] For example, where third party record applications are brought on the first date of trial, if the applicant meets the threshold test and the judge has to review the material, that task can be time-consuming and result in delay or an adjournment. Similarly, where a s. 11(b) trial delay application is argued at the outset of trial, particularly where there is an allegation of specific prejudice to the accused and oral evidence is called, the application itself can occupy a day or more of the scheduled trial time. Where the application is brought on the first day of a trial schedule with several judges sitting, other trials have to await the decisions in the s. 11(b) applications before starting.

[39] The Quality of the Notices of Application and Supporting Material/The Trial Judge’s Screening Function: The notices and supporting material, if any,[10] filed in support of applications often contain little more than boiler-plate, conclusory statements. These statements do not inform the opposing counsel or the trial judge as to what issue is being litigated. Of greater significance for the trial judge, these statements provide little insight into whether the application has a reasonable prospect of succeeding. On occasion, defence counsel seek to exclude evidence, even though the application has no realistic chance of success, and Crown Counsel seek to have ruled admissible evidence with limited, if any, probative value, or which has no reasonable prospect of being ruled admissible. In the result, judges are conducting too many unnecessary pre-trial applications.

[40] The Evidentiary Basis for the Application: Too often, counsel embark on lengthy applications with oral testimony, when written submissions, transcripts, “will state” statements or previous statements could be used as the evidentiary basis for the application. No doubt, where findings of credibility are required, oral evidence will be necessary. However, in many pre-trial applications, lengthy oral testimony is presented with prolix cross-examinations on marginally relevant or irrelevant issues.

[41] Preparation: Too often, counsel appear to be unprepared and/or preparing as the application evolves.

[42] Sanctions: The absence of sanctions for compliance with the rules frustrates efforts to have pre-trial applications proceed in an efficient manner.

[43] Appellate Scrutiny: Unlike American jurisdictions, where trial judges provide brief rulings as to the admissibility of evidence, our appellate courts require comprehensive reasons for decision on applications, necessitating time to provide the rulings during the trial.

[44] The Unanticipated Pre-trial or Mid-trial Application: Even when trials are effectively case managed and constructive pre-trial conferences are held, unexpected applications can be brought by non-parties. This most frequently occurs when media seek to intervene on publication issues. When that occurs, trial length increases.

Trial Issues

[45] The Role of the Judge: Members of the bar and some judges have suggested that trial judges could and should do more to control the trial process in the following ways. Trial judges are now less interventionist than in the past, resulting in counsel “pushing the envelope”, leading to longer trials. Judges fail to tightly control and compress the timelines of the court day. Some judges are devoted to fairness and completeness, yet ignore their role in ensuring the effective use of court time to advance the trial. Some judges fail to reinforce judicial expectations of professionalism and punctuality from counsel from the outset of the trial.

[46] For longer trials, judges may not conduct trial management conferences with counsel before the trial, to set agendas for pre-trial applications and realistic time estimates. Judges also fail to have counsel communicate with each other after each court day before they leave the courthouse, so that the other side knows what witnesses and potential issues are anticipated to arise, in what order, and whether proper disclosure exists.

[47] In some cases, assigned judges have little experience in criminal law, particularly in complex prosecutions, invariably resulting in longer trials. Concerns were also expressed regarding the fact that specialized judges are not being assigned for all or some criminal trials.

[48] Judges told the committee there remain difficult questions concerning when to intervene and when to leave the presentation of evidence and argument to counsel; in other words, when is it appropriate to enter the arena? While often tempted to intervene, many trial judges believe the appellate courts would not sustain a trial judge placing limits on counsel.

[49] The absence of meaningful sanctions for non-compliance with the rules of court, or with directions from the pre-trial or trial judge, frustrates or defeats effective trial management.

[50] Trial time estimates are often too short because of the failure to “build in” time for the unexpected events in trials. There should be an automatic increase to the estimate to account for the “unexpected”.

[51] Finally, some trials could be shorter if the appellate courts would resolve the “Fegan” issue[11], where an accused unsuccessfully seeks to exclude key evidence and wants to appeal that ruling, yet entering a guilty plea may preclude the appeal. The issue remains open as to whether the appropriate course of action is to enter a not guilty plea, file or proceed on an Agreed Statement of Fact, not call a defence, make no submissions, and the trial judge entering a conviction if there was sufficient evidence to warrant a conviction.

The Role of Counsel

[52] In the responses received by the committee, it was suggested that in some cases and/or jurisdictions the level of distrust between the prosecution and defence counsel leads to longer trials. While focused trials are more likely to advance the interests of the accused and the community, in some trials counsel will not admit issues that are obviously going to be established or determined against them. In others, it appears counsel are reluctant or unwilling to make the “tough calls” counsel are required to make. They also fail to ask themselves a critical question: How can I make the task of the trier of fact easier?

[53] As one experienced judge expressed it, the essential attributes of an advocate are competence and courage: a lawyer must have the competence to identify the important issues in the case, and the courage to let the rest go. As Mr. Justice John Laskin describes it, “a good advocate requires courage of selection”. [12]

[54] On occasion, counsel are not prepared, and seek additional “court time” to interview witnesses or prepare argument, or fail to have witnesses available to testify.

[55] Finally, counsel often underestimate the time required to conduct the trial and proceedings within the trial.

[56] Crown Counsel: In his 2005 comments to the Criminal Lawyers’ Association conference, Justice Moldaver addressed the role of Crown Counsel today as follows:

I think the job of crown attorney these days is more difficult than it was thirty years ago. Again, without being judgmental, we are living in an era where victim’s rights have come to the fore. As a consequence, the Office of the Crown is subject to far greater public scrutiny and crowns today are feeling added pressure from victims, families of victims and victim’s interest groups that simply didn’t exist thirty years ago.

At times, I believe that this can impact on their objectivity and lead to overcharging, refusal to accede to reasonable defence requests and pushing the evidentiary envelope well beyond what is required to obtain a conviction.

To be sure, all of these things add to the length of criminal trials. My colleagues and I are trying to alert crowns to this, both in our judgments and in educational seminars. It is, of course, vitally important to the administration of criminal justice that crown attorneys maintain the objectivity required of them in their role as “quasi-judicial officer”.

[57] It was also suggested to the committee that some longer trials could be attributed to “over-prosecutions”, where Crown Counsel proceed on too many counts on an indictment, call unnecessary witnesses and advance positions with limited probative value. Questions were raised whether Crowns are effectively screening throughout the litigation for “reasonable prospects of conviction”.

[58] It was also suggested that inexperienced Crowns are assigned to complex cases, increasing the length of trials.

[59] Defence Counsel: Justice Moldaver found that the life of a defence counsel, as was the case with prosecutors, was easier in the pre-Charter era, with counsel not having as many choices to make. While there were evidentiary issues to be explored, they “tended to be narrow in scope and not terribly exotic”. With the advent of the Charter, defence counsel were faced with the opening of a new vista, with a range of choices available “the likes of which you could scarcely have imagined”. Overnight it became more difficult to advise clients on whether they should go to trial. Less certainty meant less predictability in the final outcome.

[60] 1982 marked the beginning of a new era, an era of learning and experimenting with the Charter. Justice Moldaver continued:

But now, I believe, a new era has dawned. Now, I believe, the time has come for you to step back and take stock. Now, I believe, the time has come for you to be much more discerning in your use of the Charter. For the most part, you have the learning to do so and I strongly urge you to act on it before it is too late.

What was acceptable advocacy ten or fifteen years ago is simply no longer acceptable today. Whereas there may have been a time when it was acceptable for you to throw up a medley ofCharter issues in the hopes that one or two might stick, I say those days are gone. Whereas there may have been a time when it was acceptable to err on the side of caution for fear of winding up on the wrong side of an “incompetent counsel” allegation, by and large, those days too are gone. You have the learning you need and the tools you need to prevent this.

What am I saying? Well, it’s simple. Most Charter issues that you are likely to encounter on a day-to-day basis have been thoroughly litigated, all the way to the Supreme Court of Canada. By and large, the governing principles are now firmly established. And where that is so, the time for experimentation is over. It’s finished. It’s done. Whatever capital you once may have had with the public in that regard has been used up. You have nothing left to spend.

In short, your state of learning today is such that you are capable of making reasoned decisions on most Charter issues you are likely to encounter. And let there be no mistake about it. As counsel, the choice is yours. Charter issues don’t just happen. They only happen if you make them happen.

…

Good advocacy requires you to make tough choices. Good advocates make those choices. Good advocates have a game plan. They pick their spots and they don’t waste the court’s time with frivolous and tenuous matters that have little or no chance of success. In short, they don’t play “throw it up and see if it sticks” with the court. As a trial judge, nothing upset me more. And I was not alone. It’s the worst form of advocacy and there is no place for it in the courtroom.

Good advocacy requires the courage of selection. And now, more than ever, I need you to be good advocates in your use of the Charter. I need you to understand that the Charter is not your “genie in the bottle” that you can summon up with impunity whenever the spirit moves you.

I need you to be good advocates in your use of pre-trial motions. I need you to stop viewing them as benign growths, and start seeing them for the malignant tumors they are. They are choking the life out of the criminal justice system and they have to be retarded and they have to be retarded now.

[61] It was suggested to the committee that defence counsel’s insecurity over the Crown’s intentions and over-reaction to prosecution positions leads to prolix, repetitive and/or argumentative questioning and objections.

[62] At times, inexperienced (and experienced) defence counsel are unwilling or unable to make admissions that would eliminate issues and witnesses, insisting on their right to make the Crown prove everything. On occasion, defence counsel take the position that, unless the Crown concedes an issue the defence seeks to establish or there is some other concession, they will not admit anything in the case, even though the evidence is readily available to establish the issue and it will not be challenged at trial. Some defence counsel also refuse to admit evidence or issues because their clients will not “permit” them to do so.

[63] Persons accused of criminal offences are now better informed and often more litigious than in the past. They widen the issues defence counsel explore, insisting they have the right to direct the defence. Defence counsel are caught in the conundrum between their obligations to the court, their duty to their client, and the risk of complaints from accused to the Law Society and/or civil actions for negligent representation. Some counsel feel that, when they assert their right and duty to control those aspects of the defence, which are properly matters for counsel to decide, accused persons will discharge counsel and retain other counsel who permit them to control all aspects of the defence.

[64] Where new counsel are retained shortly before the trial or on the eve of trial, they often take different positions regarding pre-trial applications and admissions, resulting in longer trials or adjournments.

[65] One judge suggested there was a new breed of defence counsel who are disrespectful of the court, refuse to comply with directions and orders, and appear to want to antagonize or “bait” the trial judge.[13]

[66] Legal Aid: Legal Aid Ontario was also cited as a cause of long trials. For example, some believe counsel on legal aid retainers have no incentive to shorten trials, on the theory that Legal Aid retainers are only profitable for those who go to trial and spin it out as long as possible. As long as lawyers are billing legal aid by the hour or the day, there is no incentive to make trials more focused and efficient. Some believe block fees would eliminate those concerns. Others feel Legal Aid Ontario places no limits on the issues to be raised or the funds available for a trial. Finally, the failure or inability of Legal Aid Ontario to match certificate assignments with lawyers who have relevant degrees of experience and expertise to undertake cases was noted as a reason trials are taking longer.[14]

[67] Self-represented Accused: One of the greatest challenges for trial judges is presiding at the trial of an accused who does not have counsel. There has been an increase in the number of self-represented accused, which inevitably increases the length of the trial.

[68] The criteria for legal aid funding are financial eligibility and the prospects of a jail sentence if convicted. Since virtually all cases in the Superior Court of Justice involve a realistic prospect of incarceration if convicted, the self-represented accused is a person who refuses to pay private fees despite having the ability to do so, refuses to contribute to a payment agreement with Legal Aid, or simply wants to represent him or herself, notwithstanding the availability of Rowbotham applications.[15] Accordingly, almost all self-represented accused want to act on their own behalf, because they believe they can effectively do so, they believe they will be given greater latitude by the judge, and/or because they seek to disrupt or frustrate the orderly conduct of the trial.

[69] Disclosure Issues: Disclosure issues often prolong trials or cause adjournments of trial dates. Given the prosecution’s obligation to provide timely and proper disclosure, and the steps instituted by the Ontario Court of Justice to ensure early disclosure, it is surprising how many cases arrive in the Superior Court with outstanding disclosure issues, and shocking how many disclosure issues arise on the eve of or during trials.

[70] The issues arise as a result of the defence’s failure to request and pursue disclosure, the Crown’s failure to provide it, or more frequently, the Crown’s failure to ensure the police fulfil their obligations.

[71] Police Issues:As Justice Moldaver noted, the police also play a role in lengthening trials by overcharging, failing to videotape confessions, failing to follow standard K.G.B. guidelines,[16] failing to make full disclosure, and losing evidence.

[72] In 1999 the Criminal Justice Review made a series of recommendations regarding police accountability relating to disclosure, including that police services designate a senior officer to certify that disclosure obligations are met. This recommendation has not been implemented province-wide, and problems persist in some jurisdictions. To be sure, from the perspective of the police services, there remains outstanding the issue of whether the police or the prosecution is responsible for the costs of producing disclosure.

[73] The laying of charges and participating in prosecutions are duties of the police under the Police Services Act (PSA)[17]. The PSA regulations indicate that it is contrary to the Code of Conduct of officers to neglect or omit to properly and diligently perform a duty or to fail to report anything that he/she knows concerning a charge, or to fail to disclose any evidence that he/she, or any persons within their knowledge, can give for or against any prisoner or defendant.[18]

[74] Notwithstanding the recommendations of the Criminal Justice Review and the provincial legislation, problems continue to occur regarding disclosure. Some officers appear to be unwilling or unable to accept and fulfill their disclosure obligations.

[75] Correctional Issues: Courts continue to be plagued in certain locations, such as those within the Maplehurst area, with prisoners arriving late for court, prisoners arriving in prison attire instead of their own clothing, and counsel being prevented from consulting with their clients in person as a result of frequent “lockdowns”, for various reasons.

[76] Juror Issues: Too often the forgotten participants in the trial process are jurors. When trials last longer than anticipated it causes problems for jurors and their families. When those difficulties result in jurors having to attend to other matters, trials are delayed. In long trials or trials that last longer than anticipated, financial difficulties can emerge for jurors which may result in delays in the trial.

[77] When counsel and/or the pre-trial judge have underestimated the time required for trial, the greatest impact may be on the jurors, who are the essential participants in the trial process, yet the poorest paid.

[78] On occasion, where a trial is to be conducted in French, it is difficult and time-consuming to empanel a French-speaking jury. Potential jurors are asked to indicate if they can read, speak and understand the French language. Many indicate that they are able to do so, despite not having spoken French since high school. When jury selection is delayed, trials take longer than estimated.

[79] Finally, the challenge for cause procedure is time-consuming, and requires prospective jurors to be in attendance for too long.

[80] Courtroom Equipment, Personnel and Facilities Issues: Where equipment is not available when required, and/or personnel in the courtroom are changed during a trial, trials take longer. For example, where there are only one or two monitors and VCRs or CD players in a large courthouse and there are more than two courtrooms, the potential exists for trials to be prematurely adjourned or delayed while everyone involved in the trial waits pending the availability of the required equipment.

[81] This can also apply when Elmo projectors (document cameras) are needed. The main issue of contention in regard to the projectors is the failure of counsel to use them when they are available. Rather than have each juror look at a photograph, for example, it can be shown on the projector for all to see at one time.

[82] A trial should proceed more efficiently if the registrar, reporter, and court service officers assigned to the case remain assigned to that case. Where different personnel are assigned, delays can occur as they familiarize themselves with the trial, the exhibits, and/or witnesses’ names.

[83] An additional cause of delay relates to court interpreters. As noted in the recent decision in R. v. Sidhu,[19]there are concerns regarding the quality of interpreting in Ontario. While these issues are being addressed by the Ministry, delays will occur until the situation is rectified.

[84] Finally, facilities issues can prolong trials. For example, many older courthouses have inadequate courtroom and/or hallway or other space for challenges for cause to be conducted expeditiously.

[85] Post-Conviction Issues: Sentencing is an important phase of the trial, a phase that has recently undergone significant changes that have lengthened the trial process. This is as a result of the increase in applications for dangerous offender and long term offender designations. Where these applications are brought, there is little if any, case management involved. Case management at this stage could result in Agreed Statements of Facts, admissions, or the “discovery” of some witnesses out of court with the transcript filed, when credibility will not be in issue. On occasion, the Crown will not advise the Trial Coordinator or the pre-trial judge that such an application is contemplated, which results in the assignment of a judge who may not be available for the application or may be from another jurisdiction, resulting in scheduling challenges.

[86] The second area resulting in longer sentencing hearings is conditional sentences. Where counsel seek a conditional sentence, the sentencing hearings almost inevitably are longer.

[87] Finally, defence counsel often seek enhanced credit for pre-sentence custody. Absent an agreement as to the conditions at the jail, an evidentiary basis must be established for the application, leading to increased time being required for the hearing.

The Effects of Long Trials – The Domino Effect

[88] Long trials place an enormous burden on the justice system and everyone involved in the trial. Even when a trial scheduled for three months takes three months to complete, its impact is felt throughout the region and on all the trial participants. When that trial takes six months to complete, there are ramifications of a greater nature. Even when a trial scheduled to take five days is not completed for eight days, there is an extremely negative impact on the criminal justice system and on the participants.

[89] For jurors the financial implications of jury duty can be significant even when the trial is completed on time. When a trial goes beyond the estimated length, the hardship can become severe. In addition, jurors may face additional disruption of their personal and business lives as a result of serving on long trials or those that last longer than anticipated.

[90] When trials last longer than estimated, the cases scheduled for that judge and courtroom cannot proceed. Where a trial lasts several months or longer, the effect on scheduling of other cases is significant. Other cases have to wait longer to be tried. When other trials have to be adjourned or cannot be scheduled in a timely way, the potential for a stay of proceedings due to unreasonable delay (pursuant to ss. 24(1) and 11(b) of the Charter) increases. When s. 11(b) issues begin to emerge in a jurisdiction, the unsuccessful stay applications themselves increase the length of trials. When the potential to have charges stayed for delay is realistic, the incentive to resolve cases is removed, or at least diminished, for some accused persons.

[91] As trials continue beyond the estimated duration, the domino effect on other cases is significant. With juries, it is impractical to adjourn trials to be continued at a later date. Rather, the case continues. Other judges have to be assigned to complete the trial judge’s other cases, or the other cases have to be adjourned. Other prosecutors have to be assigned and familiarize themselves with cases the trial Crown was to have conducted. Witnesses may have been prepared to testify in other cases which may have to be adjourned. Defence counsel generally have other cases scheduled for trial. Those cases may have to be adjourned.

[92] In non-jury trials, where the trial lasts beyond the estimated duration, the most common result is a bifurcated trial, one that often winds up being tried “on the installment plan” to avoid the domino effect described above. A bifurcated trial results in additional challenges for all involved, including the trial judge, particularly when credibility issues are involved.

[93] While no statistics are kept, it appears that the majority of accused persons facing trial on indictments have their defence partially or wholly funded by Legal Aid. The longer the trial, the greater expense to Legal Aid. Where accused are paying private retainers, the costs of longer trials may place extraordinary financial burdens on the accused, or become prohibitive.

Legal Aid in Criminal Trials

[94] Much of the criticism of the length of trials revolves around the premise that legal aid funding is a recipe for long trials. The following outline, prepared with input from Legal Aid Ontario , should assist in assessing the validity of the criticism.

[95] Panel Membership: In order to acknowledge a legal aid certificate, subject to some exceptions, every lawyer must have the following minimum related experience for admission to, and continued standing on, the criminal panel:

a) a minimum of 15 completed criminal law files in the previous year, including at least 3 contested trials, preliminary inquiries or appeals; or

b) a minimum of 20% of practice concentration in criminal law over the previous 2 years, and on an ongoing basis.

c) An applicant who has been certified as a specialist in criminal law by the Law Society of Upper Canada shall be deemed to meet the above standard.

[96] For lawyers who are new to the practice of criminal law, they may be admitted to the panel upon signing an agreement to:

a) acquire the minimum related experience within 2 years,

b) attend training courses, and

c) utilize mentoring for a period determined by the Area Director.

[97] Every member of the panel must complete a minimum of 6 hours of continuing legal education in criminal law annually.

[98] Fee Structure: At one time, many cases were dealt with by way of a block fee – one fee for all services in the case. Block fees have been abolished, and all fees are now paid on an hourly basis. For services such as bail reviews and prerogative applications, authorization is required from the Area Director before the application is brought. If authorization is granted, 5 hours are allowed for both court and preparation time for bail reviews, and for prerogative remedies 16 hours for preparation are allowed, with court time paid in addition at an hourly rate.

[99] Hourly Rates: For certificates issued after April 1, 2003, the base rate, paid to lawyers with less than 4 years’ experience in criminal law, is $73.87 per hour. For lawyers with 4 to 10 years’ experience in criminal law, the rate is $83.10 per hour. For lawyers with more than 10 years’ experience in criminal law, the rate is $92.34. While in the past lawyers’ accounts were subject to a statutory deduction (the lawyer’s contribution to legal aid), there is no longer a deduction.

Fees Payable for Pre-trial Conferences

[100] In addition to the tariff preparation hours noted above, Legal Aid Ontario will pay up to 2 hours for one pre-trial conference per case. If there has been a pre-trial conference in the Ontario Court of Justice, the only way counsel can get paid for the pre-trial in the Superior Court of Justice is to seek a discretionary fee increase above the tariff hours when the account is submitted.

[101] The committee believes that the current tariff has the potential effect of being a disincentive to effective pre-trial conferences. Counsel can prepare for and attend the conference with no assurance that they will be paid for the work performed.

[102] Since one of the objectives of pre-trial conferences is to reduce trial length, it appears counterproductive not to ensure counsel will be paid for the conference. We recommend that the criminal law tariff be amended to permit counsel to receive 2 hours for preparation and attendance at one pre-trial conference in the Superior Court of Justice. For any subsequent conferences ordered by a judge, counsel would be paid an hourly rate for preparation and the attendance.

[103] Co-counsel Rates: According to Legal Aid Ontario, where lawyers are authorized to act as co-counsel, they receive their full rate.

[104] Junior Counsel Rates: Where a lawyer is authorized as “junior counsel”, the hourly rate is $54.40 per hour for court time and $73.87 for preparation time, regardless of the lawyer’s years of experience.

[105] Annual Maximum Billings: Lawyers are limited to 2,350 hours per year in fees from Legal Aid, regardless of their hourly rate, and this applies to all cases.

[106] Counsel and Preparation Rates for Trials: Non-jury and jury trials, paid at the same rates, are governed by preparation maximums. For most trials, lawyers are paid their hourly rate for attending court, and 4 hours preparation for every day of court to a maximum of 64 preparation hours. Unless the lawyer has obtained approval for extra preparation, the maximum preparation permitted is 64 total hours for a case that lasts 13 days or more. The daily maximum permitted, including court and preparation time, is 10 hours.

[107] Prior to the trial, the tariff permits a maximum of 15 preparation hours for the first trial day. All preparation after approximately the 13^th trial day is payable at the discretion of the Deputy Legal Accounts Officer.

[108] The Big Case Management Program: Any case where the total fees and disbursements are anticipated to exceed $20,000, murder cases where the total fees and disbursements are anticipated to exceed $30,000, and any case with multiple accused where the collective fees and disbursements are anticipated to exceed $50,000, must be subject to Big Case Management.

[109] The program is intended to monitor and control case costs, in accordance with the standard of the reasonable client of modest means, to increase the predictability of case costs, to provide lawyers with appropriate resources for high quality and effective service delivery, to ensure that the criminal bar continues to accept certificates for big cases, and to develop and maintain a framework of accountability.

[110] Each case receives individual consideration. When a case is accepted into Big Case Management, the lawyer on the file must provide an Area Director with an opinion letter and supporting material. After the case is assessed, the lawyer is informed of how many preparation hours will be funded before the proceeding, and how many preparation hours will be funded during the proceeding, all on a per diem basis.

[111] Once a budget is confirmed, this is the maximum amount Legal Aid Ontario will authorize, and there is no residual discretion in the Legal Accounts Officer to allow payments in excess of the budget assigned. The assigned budget does not supersede the basic hourly rates, or the limit of 10 billing hours per trial day.

[112] In 2002, Big Case Managed cases represented less than 1% of the total certificates issued, but 22% of the fees paid.

[113] The Exceptions Committee: Where the total fees and disbursements are anticipated to exceed $75,000, the case must be referred to the Exceptions Committee.

[114] The Exceptions Committee consists of a group of highly experienced lawyers in private practice and experienced Area Directors. The committee is an advisory board that considers budget requests for preparation before and during proceedings. For example, the committee would consider a s. 8 application to exclude evidence, and determine if funds should be approved for additional preparation hours for that application. If the additional hours are denied, the lawyer can still bring the application, but is restricted to the hourly counsel fee and a total of 10 billing hours a day.

[115] Conclusion: What emerges from this brief review of the tariff is that Legal Aid restricts preparation hours but does not restrict hours spent in court. If counsel are in court, there is no limit on the hours for which Legal Aid will pay fees. Put another way, if the judge will listen, Legal Aid will pay. This is based on the position that Legal Aid will not limit the hours in court. Even if the application is without any merit, Legal Aid views it as the judge’s responsibility to limit counsel.

[116] In order to make trials shorter and more focused on the triable issues, the committee has made a series of recommendations to address inefficient pre-trial conferences, last minute preparation, and pre-trial applications that lack focus or merit. The starting point for these recommendations is effective pre-trial conferences where counsel know their case, and are prepared to make meaningful decisions. In order to achieve that objective, counsel must be paid for their preparation and attendance at pre-trial conferences which are mandated by Parliament in the majority of cases in the Superior Court, and by the rules of court in all cases. A tariff which does not ensure counsel will be compensated for this critical step in the litigation runs the risk of defeating the purpose of the recommendations, and works as a disincentive to counsel to prepare and conduct meaningful pre-trial conferences.

[117] The committee recommends the tariff be amended to pay counsel for their preparation and attendance at pre-trial conferences. While there will be an additional cost to Legal Aid Ontario before the trial, an effective pre-trial conference will save the plan funds by making trials more focused and shorter.

Recommendations Regarding Legal Aid

1. The committee recommends that the criminal law legal aid tariff be amended to enable counsel to bill Legal Aid Ontario for up to 2 hours for preparation and attendance at one judicial pre-trial conference in the Superior Court of Justice. For any subsequent pre-trial conference ordered by a judge, counsel should be paid an hourly rate for preparation and the attendance. These fees would be tariff items, without counsel having to ask for the exercise of discretion by the Legal Accounts Office.

The Role of Defence Counsel in Effective Case Management

[118] The role of defence counsel is more difficult and challenging today than at any time in the past. As Justice Moldaver acknowledged to the Criminal Lawyers’ Association:

Let me begin by saying that I don’t envy your task these days. I think that life as a defence counsel was easier in the pre-Charter era. We didn’t have near as many choices to make as you do today. In the pre-Charter era, when we started a trial, there was far more certainty than exists today. There simply weren’t a lot of choices.

[119] In addition to the challenges created by the Charter, persons accused of crimes have greater expectations of, and place more demands on, defence counsel. Some accused persons, faced with a defence counsel who asserts their right to control the conduct of the defence, or refuses to meet the accused’s every wish, will discharge the lawyer and retain counsel who will follow their every instruction. The following comments of a person charged with murder, after discharging his third counsel, are illustrative:

I’m trying to do this quickly. I’m not trying to keep anybody in jail. But if me and a lawyer are having a problem, and it’s just not in my best interests, that it’s just too faulty to go to trial, I got to do what’s in my best interests. I have my rights. I know my rights, right. And my rights in the system, because I’m equal under the law …

[120] A third area of concern for defence counsel arises from the threat of future litigation either as the subject of an “ineffective assistance of counsel” ground of appeal or as a defendant in a civil suit based on negligent representation. With far greater frequency than in the past, convicted persons are alleging on appeal that their counsel provided ineffective assistance.[20] Notwithstanding that there is a presumption of competent representation, [21] and that the ground of appeal rarely succeeds, defence counsel do not relish the prospect of responding to an allegation of ineffective assistance.

[121] The threat of defending a civil suit based on negligent misrepresentation was brought home to defence counsel, with what some counsel regard as a chilling effect, in Folland v. Reardon,[22] where the Court of Appeal reversed the decision on a motion for summary judgment, finding that there were genuine issues for trial.[23] The Plaintiff, who had been convicted and jailed for criminal offences, sued his former counsel, claiming he was negligent in the conduct of the defence.

[122] Doherty J.A. found there was a triable issue whether defence counsel was negligent. A defence counsel was negligent where he or she failed to meet the standard of a reasonably competent defence counsel.[24]

[123] Doherty J.A. went on to articulate the criteria for a reasonably competent lawyer:

In accepting the reasonably competent lawyer standard, I do not detract from the often repeated caution against characterizing errors in judgment as negligence. Lawyers make many decisions in the course of a lawsuit. Those decisions require the exercise of judgment. Inevitably, some of those decisions, when viewed with the benefit of hindsight, will be seen as unwise. The reasonable lawyer standard does not call for an assessment of the sagacity of the decisions made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous.

[124] Perhaps as a result of one or more of the above noted factors, some counsel appear to abdicate their duty to make decisions for the client or, more frequently, bring every conceivable motion, regardless of its factual or legal merit, in order to avoid allegations of incompetence or negligence. Rather than fulfilling their role as counsel, a role that includes making tough decisions and choices, some counsel simply do the client’s bidding, and fail to assess the prospects of success on applications.

[125] For example, with increasing frequency defence counsel are appearing at pre-trial conferences or at trial, telling judges either they have to get instructions from their client on admissions etc., or that their client will not admit or permit counsel to admit anything. That approach is inconsistent with the traditional role of counsel, and is inconsistent with appellate authority and the views of the leaders of the defence bar.

[126] In R. v. Samra,[25] Rosenberg J.A. quoted with approval the following statement of a barrister’s duty to his client from Lord Reid in Rondel v. Worsley:[26]

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help raise his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And so by acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.

[127] Addressing a Law Society of Upper Canada panel discussion in 1969,[27] G. Arthur Martin Q.C., one of Canada’s greatest defence counsel before being appointed to the Ontario Court of Appeal, examined whether the accused or counsel controlled the defence as follows:

In my view, basically, the proper relationship between counsel defending a criminal charge and his client is this – that counsel assumes total control and responsibility over the defence. It is, of course, for the client to decide whether to plead guilty or not guilty. Only he can decide this. In making that decision, it is the duty and function of counsel to advise him as to what course, in the opinion of counsel, it is best to follow, having in mind what the accused has told him, what the strength of the case is against him and any other relevant circumstances. The circumstances may be such as to require counsel to advise the client to plead guilty. The decision, however, rests with the client. Counsel may, however, with perfect propriety, subject to limitations which will be discussed later, decline to continue to act for a client who refuses to follow his advice. Obviously counsel should only exercise his right to refuse to continue to act when the disagreement between him and his client is so fundamental that it prevents counsel from fulfilling his proper function.

Once the decision to plead not guilty has been made, it is for the defence counsel to decide how the case is to be conducted in accordance with his best judgment as to what is in the best interest of the client. It is for defence counsel, for example, to decide whether the case should be tried with or without a jury, whether a particular witness should or should not be cross-examined; if he is cross-examined, how the cross-examination should be conducted.

If I might draw a comparison from the world of medicine, it is for the patient to decide whether he wishes to submit to surgery or not but, once he has decided to submit to a surgical operation, he can’t tell the doctor how to perform the operation. If the proper function of the lawyer is made clear to the client at any early stage of the lawyer-client relationship, then in my view most of the very difficult situations that will be discussed later will be avoided.

Now, I don’t suggest that whenever a client walks into your office to retain you, you commence by giving him a lecture as to what your function and role is because at that time he is probably a rather frightened and bewildered man and he is looking for help, not a law lecture. But some time, quite early in the process, you should tactfully let him know that you are in charge.

The role and the responsibility of the defence counsel is exactly the same whether he is acting for a client who is paying for legal services or whether he is acting under a legal aid certificate. It is perhaps somewhat easier to control the client who is paying you. You can say, “You are paying me for my advice, if you do not want to take it, retain another lawyer”.

I think there is a not unnatural tendency for a lawyer acting under a legal aid certificate to feel that the legally aided client hasn’t the same power, or the same privilege of discharging him and seeking another lawyer. Actually, that is not so. Under the Ontario plan a client may discharge his lawyer, if he is not satisfied with him, just as the lawyer may withdraw and refuse to act for a client whose instructions he is unable or unwilling to follow, provided, of course, that he doesn’t do so on the eve of a trial.

[128] Speaking on the same panel, Mr Justice Patrick Hartt reiterated Mr. Martin’s views:

… the whole secret to the proper and successful operation of the adversary system process, in my opinion, is the developing and continuation of a proper client-counsel relationship from the beginning. If that is done, and it is done in a proper way at that time, so as to make it perfectly clear to the client that the counsel is going to make the important decisions in relation to how the defence will be conducted and that he is not there just to mouth the words put forward by the client, a great number of problems that are set out here this morning will never arise. They do, in fact, arise, where the client is conducting the defence and the counsel is trying to please him and carry it on in a way the client thinks it should be done.

[129] Those views were somewhat modified by former Chief Justice Dubin, who concluded that the accused controlled four decisions: whether to plead guilty or not guilty; whether to have a preliminary inquiry or proceed directly to trial, where the option existed; whether to have a judge or a judge and jury trial; and whether to testify, provided counsel could ethically call the accused to testify.

[130] The Criminal Justice Review adopted the so-called Dubin Rules with the exception of whether or not there should be a preliminary inquiry,[28] concluding “defence counsel are responsible for all aspects of the preparation and presentation of their client’s case.” The committee found support for this conclusion in the Bar Admission Course Criminal Procedure Materials of The Law Society of Upper Canada. The 2005 Bar Admissions Course criminal law material instructs students as follows:

Once an accused decides to plead not guilty, defence counsel should assume complete control and responsibility over the manner in which the defence will be conducted. It is defence counsel’s function to determine the appropriate course of action, always keeping in mind the best interests of the client, and always taking time to keep the client abreast of developments in the case and the reasons for the crucial decisions made. Defence counsel should decide which witnesses will be called, whether a witness should be cross-examined, and the form such cross-examination should take.[29]

[131] Appellate authorities are consistent with this approach. In R. v. R. (A.J.),[30] the Crown cross-examined the accused about discussions he had had with his counsel, and about whether he intended to call certain witnesses. In finding the questions were improper, the Court noted in regard to the calling of witnesses:

Crown counsel would know full well that such decisions were for counsel and not the appellant. It was unfair to ask the appellant questions which Crown counsel knew he could not answer.

[132] In R. v. G. (D.B.),[31]the Supreme Court of Canada examined an ineffective assistance of counsel allegation, based on the tactical decision not to lead evidence, nor to cross-examine the complainant, concerning a tape recording that had been surreptitiously recorded a few days after the incident, in which she denied being sexually abused. The accused had been acquitted of the most serious of three sexual offences. In the appeal proceedings, trial counsel had satisfied the commissioner appointed by the Court of Appeal to conduct an inquiry concerning the fresh evidence, and the Court of Appeal, that his decision was competent, as he feared that if the tape was played it would impair the credibility of the main defence witness, and force the accused, who was regarded as a poor potential witness, to testify. The Court noted, per Major J.:

Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice. While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions. The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.

On the facts of this case, I conclude that counsel had the carriage of the defence and the implied authority to make tactical decisions, as the ones made here, in the best interest of the client. In any event, the failure to obtain instructions did not affect the outcome of the trial. There was no miscarriage of justice.

[133] In R. v. Samra,[32] Rosenberg J.A. concluded that the role of a properly retained defence counsel did not include “doing the accused’s bidding”. He continued:

There is an erroneous premise underlying the appellant’s submission in this case – that defence counsel is but a mouthpiece for his client. His argument must be that counsel is bound to make submissions no matter how foolish or ill-advised or contrary to established legal principle and doctrine, provided that is what the client desires. It is upon this premise that the appellant builds his argument that, since Mr. Black made submissions in his role as amicus with which the appellant disagreed, the trial judge erred in failing to discharge him.

[134] Rosenberg J.A. adopted G. Arthur Martin’s description of the role of defence counsel:[33]

The defence counsel is not the alter ego of the client. The function of defence counsel is to provide professional assistance and advice. He must, accordingly, exercise his professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.

[135] Finally, in R. v. DiPalma,[34] the Court examined allegations that trial counsel had failed to raise a number of constitutional arguments under ss. 7, 8, 11(b) and 15 of the Charter, that he had made admissions, including the admissibility of a K.G.B. statement, and that the appellant had personally prepared some documents, all without the appellant’s authorization or agreement, and refused to call certain witnesses. The Court found:

Moreover, in advancing this ineffective assistance of counsel argument, the appellant seems to be operating under the misapprehension that defence counsel is required to bring forward all evidence and argument suggested by the accused and to obtain approval from the accused before taking any action in the course of trial. But the proper role of defence counsel is not merely to do the bidding of the accused. Instead, defence counsel is expected and required to exercise independent judgment. R. v. Samra (1998), 129 C.C.C. (3d) 144 (Ont. C.A.). No doubt the appellant would have conducted his defence differently if he had been unrepresented. That fact alone casts no doubt on the competence of defence counsel.

[136] Accepting that the role of defence counsel is now significantly more difficult than it was in the past, the fundamental role of defence counsel as set out above has not changed. Defence counsel must control the conduct of the defence, and must not cede that obligation to the accused. With the exceptions of the matters listed above, it is for defence counsel to determine how the defence is conducted.

[137] This is not to suggest that the accused is to be kept in the dark regarding trial tactics. There is a fundamental distinction between abdicating the role of counsel to the accused on one hand, and on the other hand receiving input from the client and telling him or her about tactical decisions counsel have made. Indeed, absent a finding of ineffective assistance of counsel, the client is fixed with the steps taken in furtherance of the defence.[35]

[138] A properly conducted defence includes focusing on the triable issues. As Edward Greenspan recently told a continuing education conference audience, the “most desirable presentation of a typical case is one which manifests clarity and simplicity”: [36]

In order to properly prepare for and conduct a trial, you must have your defence firmly in view and you must know it. In most cases, I want the jury to know my defence as early as possible. I want them to know that there is an answer to the Crown’s evidence, so that they are assessing the evidence critically, from the word “go”. To me, there is nothing worse than the shotgun defence, an undirected attack on every piece of Crown evidence which has no theme and can only leave the jury bewildered as to your purpose and skeptical towards any evidence you may call. What possible purpose is served in disputing the continuity of exhibits when your defence is drunkenness or provocation?

[139] Where counsel prepare for the pre-trial conference and trial, identifying the triable issues and helping to focus the trial on those issues, case management will be facilitated without jeopardizing the right of the accused to make full answer and defence.

[140] Finally, with regard to a culture that appears to have developed whereby some accused persons believe they can simply keep changing lawyers until they find one who will do what they direct, to the extent that some lawyers have fostered that culture by abdicating their professional and ethical responsibilities to the client, they are not fulfilling the role of counsel. If all defence counsel adhered to the role of defence counsel described in the jurisprudence above, that culture would soon disappear.

The Role of the Crown in Effective Case Management

[141] Just as the role of defence counsel is more challenging and difficult than in the past, the demands and pressures on prosecutors have grown to a similar extent. The changes to the law noted earlier have increased the workload of prosecutors. Complainants and victims’ families have more information and greater expectations than in the past.

[142] We also heard from Crown Attorneys, that more prosecutors are urgently required to meet the increased caseload demands, particularly in jurisdictions where the homicide rate has increased, or where there are mega-trials pending. Those trials place an enormous strain on prosecutorial resources as a result of disclosure obligations, pre-trial applications, facilities and security concerns.

[143] In spite of these significant pressures, it is Crown Counsel who is responsible for the prosecution in the courtroom, a role that requires difficult decisions to be made.

[144] Just as defence counsel have a responsibility to “screen” the applications and pursue those that are viable and advance the interests of the accused, the prosecutor has a similar responsibility to the court. Advancing applications regarding evidence that has marginal relevance, or for which the factual or legal foundation is problematic, is inconsistent with the proper role of Crown Counsel.

Judicial Pre-Trial Conferences

CROWN COUNSEL: … we have S. as well …

DEFENCE COUNSEL: I can indicate, your Honour, on S., there’s not much going to be done. It’s going to be a trial. So whether my friend needs his file or not …

THE COURT: Have you had a pre-trial yet?

DEFENCE COUNSEL: This is what this was for, I think, to determine the trial date.

THE COURT: Okay. Well, I think we have to do a pre-trial …

DEFENCE COUNSEL: And I’ve indicated, if I’m able to waive it, I’d waive it, because there’s … it’s a matter of self-defence. That’s going to be the defence… I’m just afraid I’m going to miss my – I have two other matters.

_________

[145] The Superior Court of Justice has one set of rules for criminal procedure.[37] They require that a pre-trial conference be held in all cases, and that counsel complete pre-trial conference forms.[38]Despite the language of the rule, pre-trial conferences are routinely held without both counsel preparing a pre-trial conference report. Some jurisdictions schedule the conferences for 15 minutes or less, others for 45 minutes. At some conferences, only resolution issues are discussed. At others, only pre-trial applications and time estimates are discussed. In Toronto, an estimated 20-25% of defence counsel do not appear for the conferences. Against this background of inconsistency, the committee examined the role of the pre-trial conference.

[146] Pre-trial conferences are held pursuant to the Criminal Code and the rules of court. Section 625.1(1) of the Criminal Code provides that conferences should consider the matters that, to promote a fair and expeditious hearing, would be better determined before the start of the proceeding, and other similar matters, and to make arrangements for decisions on those matters. Section 625.1(2) directs that pre-trial conferences be held for all cases scheduled to be tried by a jury “to consider any matters that would promote a fair and expeditious trial”.

[147] Section 482 of the Criminal Code permits superior courts to make rules of court. Pursuant to s. 482.1, a superior court may make rules for case management, including for the determination of any matter that would assist in conducting effective and efficient case management and establishing case management schedules. Case management rules may be enacted by a superior court pursuant to s. 482(3), to regulate the pleadings, practice and procedures in criminal matters, including pre-trial conferences held under s. 625.1.

[148] Rule 28.01 of the Rules of Criminal Proceedings requires a pre-trial conference to be held for every trial, unless ordered otherwise by a judge. Each counsel attending must be fully briefed in respect of the issues to be discussed, or if the accused is not represented by counsel, the accused must personally attend the pre-trial conference. Rule 28.03 permits the presiding judge to enquire, inter alia, into the simplification of such issues as remain to be contested at trial, the possibility of obtaining admissions and agreements, and the estimated duration of the trial proceedings.

[149] From a review of the legislation and rules, it is apparent that Parliament and the Court intend the conferences to be meaningful, important, and productive steps in the criminal litigation process. At times those objectives are achieved under the current system, particularly in homicide trials. However, too often the conferences become meaningless and non-constructive steps in the litigation process, a token appearance to indicate the plea, coupled with an uninformed guess as to how long the trial will take. In some jurisdictions, a culture has developed amongst the judiciary and the bar in which it is expected that nothing will be accomplished at a pre-trial conference. Not surprisingly, with that expectation little if anything is accomplished. Even in the cases and jurisdictions where pre-trial conferences are constructive, changes can be made to make the conferences more effective and efficient, resulting in shorter trials.

[150] A properly conducted pre-trial conference addresses both resolution and case management issues. In regard to resolutions, it is essential that the pre-trial judge know the evidence upon which the Crown relies to prove the charge, be in a position to assess the strengths and weaknesses of that evidence, and be able to provide counsel with an informed opinion regarding an appropriate sentence. Where counsel bring suggested sentencing positions, the presiding judge should be able to provide informed input on the positions advanced.

[151] The case management function requires the judge to be able to discuss the legal issues that will arise, and how counsel seek to present the evidentiary bases for the applications. The judge should also be in a position to facilitate agreements on evidence to be introduced.

[152] In 1999, the Criminal Justice Review[39] identified two main obstacles to successful pre-trial conferences: unprepared or obstinate counsel who were unwilling to take binding positions or obtain instructions in order to clarify the issues; and a lack of full and timely disclosure. While there remain ongoing concerns regarding disclosure after a committal for trial, the reference in the Criminal Justice Review included late disclosure concerns in the Ontario Court. The concern about the contributions by defence counsel remains.

[153] However, the failure to have constructive pre-trial conferences is not the sole responsibility of the defence bar. When pre-trial conferences are ineffective, the responsibility must be shared by all participants in the conference. While some defence counsel must change their approach to conferences, Crown Counsel and the judiciary must also make more meaningful contributions to ensure pre-trial conferences are more productive and effective in addressing case management and resolution issues.

[154] Too often, defence counsel approach the conference as a necessary evil, an attendance to be arranged and approached as something to be worked into a brief slot in their schedules during which they attend and listen, rather than speak and contribute. On occasion, it appears that some counsel have left their cars running and simply dropped in to fulfil their statutory obligation. Where courts permit this approach, they encourage this attitude toward pre-trial conferences.

[155] At times, counsel of record send junior counsel from their firm, or another counsel (agent) who knows little about the case except that trial counsel advises there will be a trial with no admissions. In other cases where counsel of record attend, the response to questions from the presiding judge on items such as whether there will be a challenge for cause, or any Charter motions, is “I will advise”, “Not at this time”, “I will file the requisite notice if I am going to bring the motion”, or “I have to get instructions from my client”.

[156] These approaches defeat the objectives of the pre-trial conference, are contrary to the current rules of court, which require that counsel attending be fully briefed in respect of the issues to be discussed at the pre-trial conference, and are contrary to the recommendation of the Criminal Justice Review that “defence counsel attending should attend with complete instructions and have full authority to deal conclusively with the matter.”

[157] These positions also stand in stark contrast to the position of some counsel when a trial date is set in Assignment Court. At times, the same counsel, who are unable or unwilling to say if there will be any Charter motions, want the first available date, since the accused, as is his or her right, seeks a trial within a reasonable time. In R. v. Askov[40]and R. v. Morin,[41]the Supreme Court of Canada held that the systemic delay started when the parties were ready for trial but the system could not accommodate them. Counsel who are unable or unwilling to advise if they are bringing applications for which the defence has the burden of proof, imply they are ready for trial.[42]

[158] Crown Counsel may attend pre-trial conferences despite either not being familiar with the file or not being assigned as the trial Crown. In either situation he or she may not be prepared to take positions on issues such as whether the Crown will seek to obtain a ruling on the admissibility of the accused’s statement. While the committee acknowledges that, in larger Crown offices, a case may not be assigned until shortly before the trial date, attending counsel who are not prepared to take positions on the issues to be addressed defeats the purposes of the pre-trial just as effectively as those noted above for defence counsel.

[159] When either the Crown or defence attend a pre-trial conference without being fully informed and willing to take positions regarding the issues to be addressed at the conference, the objectives of the conference are defeated before it starts.

[160] Where the material provided to the pre-trial judge does not include pre-trial conference forms from counsel and/or a synopsis of the allegations, the judge cannot review the file in advance of the conference to identify issues for discussion.

[161] There may be occasions when a judge who is not as familiar with criminal law as others may conduct pre-trial conferences. The committee adopts the following recommendation from the Criminal Justice Review:

The Criminal Justice Review Committee recognizes that the judiciary in Ontario is highly qualified and able, but that not every judge may be suited to or interested in conducting judicial pre-trial conferences. Administrative judges should give careful consideration to the selection of judges conducting pre-trial conferences. Judges conducting pre-trial conferences should be experienced in criminal law, knowledgeable with regard to the range of penalty for offences, and be able to facilitate the resolution of issues.

[162] There are jurisdictions where 15 minutes or less are assigned for pre-trial conferences. In the majority of cases, particularly where the judge is not given pre-trial forms or a synopsis, again, the objectives of the conference are defeated before it starts.

[163] Where any of the events described above occur, the indictment is generally noted that a pre-trial conference was held and the case proceeds to trial with no meaningful attempt at resolution, no case management, and the real prospect that the trial will take longer than anticipated.

A New Approach to Pre-trial Conferences

[164] One of the root causes of longer trials is ineffective pre-trial conferences. Having identified the factors contributing to ineffective pre-trial conferences, the challenge for the committee became one of identifying procedures and approaches that would enhance the likelihood that conferences will be productive and meaningful, and will achieve the objectives of the conferences. The following recommendations are designed to meet those objectives. We are confident that, with the requisite commitment from the judiciary and the bar, a more effective pre-trial system will result — one that also leads to shorter, more efficient and focused criminal trials.

[165] We are also confident that these changes can be made without sacrificing the accused’s right to make full answer and defence or the Crown’s right to a fair trial. In the terms used by former Chief Justice Lamer, noted earlier, they do not affect the fairness of the trial.

[166] Neither do the recommendations change the informal nature of the pre-trial conference, nor the flexibility in the manner in which they are scheduled in the various regions.

The Scheduling of the Pre-trial Conference

[167] Counsel know their cases best at two times in the criminal trial process where a preliminary inquiry is held: immediately before and shortly after the preliminary inquiry; and, immediately before the trial. This reality flows from the fact that most counsel in criminal cases are in court the majority of their working day. When a preliminary inquiry is completed, both Crown and defence counsel move on to other cases, with other demands on their time. In order to maximize the benefits from a pre-trial conference, it must be held close to the earlier of the two “windows of opportunity”. Waiting until the eve of trial invites the “eleventh hour surprise” from one side or the other, adjournments and an inefficient trial scheduling system. It also precludes any case management.

[168] In order to effectively determine the degree of case management required in any case, it is imperative that counsel meet with a Superior Court judge soon after the completion of the preliminary inquiry. No doubt there will be cases in which counsel may need to explore issues that arose at the preliminary inquiry or to obtain further disclosure. The early intervention of a Superior Court judge will facilitate those procedures, and avoid “last minute” adjournment applications because of outstanding issues.

[169] Under the current practices and rules, without meaningful discussions at pre-trial conferences, counsel can file Charter notices 15 days before trial. Effective case management and trial scheduling is precluded when issues arise 15 days before trial.

[170] The committee recommends that, in the absence of an order from a Superior Court judge, the pre-trial conference should be held within 60 days of committal for trial. The first attendance in the Superior Court should be the Assignment Court immediately following the committal, to facilitate the scheduling of the pre-trial conference.[43] Whether a case is remanded directly from the committal for trial in the Ontario Court of Justice to an assignment court, or to a pre-trial date, should be left to the discretion of the Regional Senior Judge or their designate in each region.

[171] The manner in which the pre-trial conferences are scheduled should also be left to be determined by the Regional Senior Judge in each region, taking into account regional considerations and demands. However, pre-trial conferences should not be scheduled in a manner that places unrealistic time constraints on the conference. For example, scheduling several conferences before the start of the regular court day places unrealistic time constraints on all involved. It also has the potential to send the wrong message to all participants – that pre-trial conferences are unimportant events to be “sandwiched” between other commitments of the judge and counsel. There should be sufficient time to permit full and frank discussions at all pre-trial conferences of case management and resolution issues, unless the accused will definitely be pleading guilty.

[172] While it will be for the Regional Senior Judges to determine the length of time assigned to each pre-trial conference, the committee recommends that between 30 and 45 minutes are required to complete an effective pre-trial conference in routine cases that will proceed to trial. That time period would include an appearance in court to set or confirm a trial date, and put on the record issues agreed upon or orders made and time estimates.

[173] For longer or more complex cases, the Regional Senior Judge on his or her initiative, or upon the request of counsel, should provide additional time for the pre-trial conference.

[174] During the committee’s consultations with the bar, concerns were raised regarding the number of pre-trial conferences and time required to conduct them, given the judicial complement in the Ontario Superior Court of Justice. In particular, concerns were raised regarding the availability of judges in Toronto to conduct pre-trial conferences. When examining these concerns, it is important to note that while the recommendations will require additional judicial resources to be assigned to the pre-trial conferences, there should be a saving of judicial resources for trials.

[175] In addition, we anticipate there will be a commitment by all Regional Senior Judges to make judges available to conduct the pre-trial conferences in the manner contemplated by the recommendations. In Toronto, additional judicial resources for pre-trial conferences have already been committed. This is consistent with Regional Senior Judge Winkler having increased the total number of judges conducting criminal matters from 23 in 2004 and 2005, to 26 this year. The committee is confident that judicial resources will be available to implement the recommendations.

[176] The committee recognizes that the Superior Court of Justice is a generalist, circuiting court with judges appointed from a wide variety of backgrounds. However, given the enhanced significance of judicial pre-trial conferences, it is essential that, where feasible, the judges assigned to conduct pre-trial conferences should be experienced, knowledgeable, and interested in criminal law. They should also be able to provide counsel with appropriate ranges of sentences for the offences. In addition, the judge should possess resolution skills to assist in resolving some or all of the issues in dispute. Finally, the assigned judge must have sufficient time to prepare for the pre-trial conference by reviewing all of the material filed in advance.

[177] We agree with the Criminal Justice Review recommendation noted earlier that, while Ontario benefits from a “highly qualified and able” judiciary, not every judge may be suited to or interested in conducting pre-trial conferences. In scheduling judges to conduct pre-trial conferences, Regional Senior Judges should give careful consideration to the selection of judges conducting the conferences.

[178] After the preliminary inquiry and before the pre-trial conference, counsel should attempt to identify the issues in dispute, the admissions to be made, the pre-trial applications to be brought and the evidentiary basis upon which the application will proceed, and the triable issues.

The Pre-trial Conference Form

[179] Under the current Rules, counsel are required to complete one of two forms, depending on the nature of the case: Form 17, entitled Pre-hearing Conference Report (Long Form), is generally used in homicides and longer cases; and Form 18, entitled Pre-hearing Conference Report (Short Form), is used in all other cases. Counsel are required to jointly prepare the form in draft to be presented to the pre-trial judge.[44]

[180] The pre-trial judge may complete one of the forms for the trial judge, and provide a copy to counsel or a self-represented accused.[45] Unless both counsel consent, the pre-trial judge shall not disclose to the trial judge any communication or discussion relating to a plea of guilty, unless the accused will be pleading guilty.[46]

[181] One of the first steps taken by the committee was to survey the Regional Senior Judges to determine how often the current forms were being completed. In some regions they are routinely completed. However, in the majority of cases, particularly in Toronto in trials anticipated to take less than 3 weeks, they are rarely completed. In many areas, the judiciary have not required counsel to complete the forms.

[182] It is also apparent that in most jurisdictions the forms are not “jointly prepared” and presented to the pre-trial conference judge. On occasion, both counsel complete the forms separately, and provide them to the presiding judge.

[183] The committee recommends that Crown and defence counsel, as well as self-represented accused,[47] complete separate forms for the following reasons. First, while having both counsel prepare a joint form would be ideal, practically it has proven to be unworkable. If the Crown does not complete the form, the defence rarely completes one. It also often requires the defence counsel to respond in a short time period, since the rules do not include when the forms are to be exchanged. Having defence counsel and self-represented litigants complete separate forms will result in a more efficient pre-trial system. The Crown will be required to serve and file the form not later than 10 days before the pre-trial conference date, and the defence not later than 5 days before, unless the defence has notified the Crown that the accused will definitely be pleading guilty, in which case no forms are required.

[184] Second, the completed forms should be filed with the court in advance of the pre-trial, to permit the judge to review them. While the recommendations contemplate separate forms, counsel are encouraged to file a joint pre-trial conference report. Rather than copying and faxing the form to the other counsel, we encourage counsel to use e-mail to serve the report.[48]

[185] While practices vary from jurisdiction to jurisdiction, in some areas the pre-trial judge is not provided with a synopsis of the case. This prevents the judge from examining the allegations before the pre-trial conference. The Crown should provide a synopsis of the allegations, which includes how the Crown intends to prove the allegations.

[186] A synopsis provided by a Crown to the pre-trial judge may resemble the following:

On Tuesday, October 12, 2004 the accused went to the dwelling house located at 435 Jones Street, broke a rear window, entered the house and stole jewelry and other valuable items valued at $10 000.

[187] That type of summary does not indicate whether the Crown relies on fingerprint or DNA evidence, a confession, and/or accomplice evidence in order to prove the allegations. The evidence upon which the Crown relies to prove the allegations is an essential component of an informative synopsis. No doubt a synopsis prepared after the preliminary inquiry would be most informative. However, even if the synopsis was prepared for the bail hearing and does not reflect the evidence from the preliminary inquiry or as developed from subsequently obtained statements, it will suffice to provide the nature of the allegations and how the Crown intends to prove the case. Counsel can advise the presiding judge of any changes in the evidence from the preliminary inquiry.

[188] The committee has also determined there should be one form for all cases, instead of the short and long forms currently in use. While we considered having two forms, there is difficulty in determining where to draw the line between short and long trials. The reality is that many “short” trials last longer than anticipated because issues arise that had not been foreseen by one or both counsel. The “unexpected” motions or issue can arise in long and short trials. The form will direct counsel’s attention to all of the potential issues listed in the form.

[189] The proposed form is detailed, and requires counsel to consider their positions and how the case will be tried before the pre-trial conference. It is intended to direct counsel’s mind to all of the issues that can arise in a criminal trial. Experience to date in Ontario jurisdictions using similar forms shows that using the detailed form allows all participants to identify issues not previously anticipated.

[190] Consistent with the significance of the pre-trial conference form in our recommendations, counsel of record and the assigned Crown, or the Crown attending the pre-trial conference who must be able to bind the trial Crown, must sign the pre-trial conference form. Even where counsel of record have an agent appear for the pre-trial conference, the form must be signed by counsel of record.

[191] By addressing all of the issues in the form, the Crown, defence counsel and the pre-trial judge will all be better prepared to conduct a meaningful and productive pre-trial conference. For the short trials, it is not anticipated that it will take counsel more than 10-15 minutes to complete the form. Longer and more complex trials will take longer. However, those are the cases most likely to take substantial court time, and for which greater front-end preparations are necessary.

[192] Where a party has not filed the pre-trial conference report in accordance with the rules, the judge may adjourn the pre-trial conference, and make orders for the serving and filing of the forms.

[193] The only time that counsel are not required to complete the form is when the accused will definitely be entering a guilty plea. In those circumstances, the pre-trial conference will focus on the resolution component and not case management. Where there will be a plea of guilty, defence counsel is required to notify the Crown at least 10 days in advance of the pre-trial conference, or as soon as counsel has received appropriate instructions.

Specific Provisions in the Pre-Trial Form

[194] In our consultation with the bar, objections were raised regarding portions of the form the defence are required to complete, indicating if there would be defence evidence regarding “character of the victim” and “defences which might reasonably be anticipated to arise”. The committee notes that such requirements have been on Form 17 since 1994 without objection.

[195] In regard to evidence of the character of the victim, where the defence seeks to call evidence of previous sexual activity by the complainant in a sexual assault prosecution, the defence must bring aSeaboyer application.[49] Similarly, where the defence seeks to lead evidence of “other suspects” or “third party suspects”,[50] or evidence of the deceased’s or complainant’s propensity for violence,[51] a ruling is required. Finally, in terms of “defences which might reasonably arise”, it is a rare case where the defence is not known to all parties by the time they arrive for a pre-trial conference in the Superior Court.

[196] Regarding other pre-trial applications, the onus is on the accused who seeks to have ruled inadmissible evidence which is presumptively admissible, such as the results of searches, or who seeks to have ruled admissible evidence which is presumptively inadmissible, such as evidence of “other suspects”. In this context, there is nothing in the form which restricts or limits the rights of accused persons to make full answer and defence, and nothing that introduces new “defence disclosure” that does not already exist.

[197] The form also includes the Crown’s position on sentence if there were to be a guilty plea, and what the Crown would seek upon conviction after a trial. Every pre-trial conference should include discussions with regard to the appropriate range of sentences that might be imposed on a plea and after trial. Even where the accused has instructed counsel that he or she is not guilty of the offence, it is counsel’s responsibility to determine the Crown’s positions, and to convey those positions to the accused, to provide him or her with the extent of the jeopardy he or she faces.

[198] In discussing potential sentencing positions after trial, it must be acknowledged that new information may emerge during the course of the trial, in a pre-sentence report or in Victim Impact Statements, which could affect post-trial positions. In these circumstances, it is unreasonable to preclude Crown Counsel from reconsidering their positions on sentence, after a trial. The position advanced at the pre-trial conference, nevertheless, should be an informed position based on the information available to the Crown at that time.

[199] All references to sentencing positions must be removed from the court file. The trial judge should not be able to look through the file and determine the positions discussed at the pre-trial conference. The only person who should have access to the notes of those discussions is the pre-trial judge, who should keep a copy of the form with the sentencing references, in case there is a request for a further pre-trial conference.

[200] While the section relating to Corbett applications is on many pre-trial forms currently in use, it should only be referred to on the sentencing page, in case the trial were to be held without a jury. In those circumstances, the accused may not testify, and it would be inappropriate for the trial judge to have access to the accused’s criminal record during the trial.

Compliance with Case Management Rules

[201] Whether to impose sanctions for non-compliance with the case management rules was raised throughout our discussions and consultations.

[202] Section 482.1(2) of the Criminal Code provides that the parties to a case shall comply with any direction made in accordance with the case management rules. Orders made at pre-trial conferences are orders of the Court. While judges of the Superior Court of Justice have the jurisdiction to control proceedings where counsel and or litigants fail to comply with the rules of court and orders made under the rules, it is anticipated that counsel and self-represented litigants will comply with the rules and complete the forms. However, where the conduct of counsel or self-represented litigants is calculated to frustrate the objectives of the pre-trial conference or other rules, to delay the proceedings, or is unethical or contemptuous, they should anticipate that appropriate sanctions will be imposed.[52]

[203] Since the pre-trial conference forms contain material protected by litigation privilege and settlement privilege, members of the public, the media, and counsel not involved in the case do not have a right to examine the contents of the reports. They are not public documents.

The Nature of the Pre-trial Conference

[204] The current Rule 28.03 provides that unless otherwise ordered by the pre-trial judge:

a pre-trial shall be an informal meeting conducted in chambers at which a full and free discussion of the issues raised may occur without prejudice to the rights of the parties in any proceeding thereafter taking place.

[205] A note at the start of current Form 17 states:

THE POSITIONS HEREIN ARE TENTATIVE. ALL AGREEMENTS ARE WITHOUT PREJUDICE AND PURELY FOR THE ASSISTANCE OF THE COURT IN THE RESOLUTION OF TRIAL PROBLEMS. IF ANY CHANGE BECOMES NECESSARY, THE SOLICITORS WILL ENDEAVOR TO ADVISE EACH OTHER AND THE COURT PROMPTLY

[206] Perhaps as a result of the combined effect of Rule 28.03 and the note, a culture has developed with some counsel who believe that neither party is obliged to take firm positions or assist in delineating the triable issues. It has also fostered the culture in which some counsel feel there is no obligation to take any positions to assist in case management.

[207] That culture must be changed in order to achieve effective case management and make trials more efficient and focused. Indeed, there is a significant body of authority supporting a different approach, one that encourages more meaningful pre-trial conferences.

[208] The current rules[53] provide that the presiding judge may inquire as to:

a) the possibility of resolution of any or all of the issues in the proceedings, including wherever possible disposition of any or all counts contained in the indictment whether by plea of guilty or otherwise;

b) the simplification of such issues as remain to be contested at trial;

c) the possibility of obtaining admissions and agreements so as to facilitate an expeditious, fair and just determination of the proceedings; and,

d) the estimated duration of the trial proceeding.

[209] In 1993, the Martin Committee found pre-trial conferences useful and necessary. Even though the focus of that committee’s work was on disclosure and resolution, they recommended that participating counsel must be fully familiar with the case and in a position to make admissions or agreements on behalf of their client or for the Crown. Any agreement reached, or position taken on issues other than sentence, should be recorded in writing by the judge. Neither of those recommendations support the position that counsel are not expected to take binding positions at a pre-trial conference.

[210] In 1999, the Criminal Justice Review recommended that the Crown attending pre-trial conferences must be “experienced and have full authority to deal conclusively with issue resolution and guilty plea negotiations”. Defence counsel attending “should have complete instructions and authority to deal conclusively with the matter”. That committee also recommended that “at a minimum” the pre-trial conference should address, among other issues, whether continuity can be waived or dealt with by affidavit evidence, whether witnesses can be waived or their evidence agreed upon, and whether written submissions on legal or evidentiary issues can be provided to the trial judge rather than oral argument.

[211] Regrettably, the experience since the Martin Report and the Criminal Justice Review is that, often neither Crown Counsel nor defence counsel are fulfilling their obligations as anticipated by the committees. Too often, pre-trial conference judges have augmented the problems by not requiring counsel to comply with their obligations, thereby contributing to the current pre-trial conference culture. The result is an ineffective pre-trial conference with little, if any, case management occurring.

[212] In R. v. C.R.G.,[54] Rosenberg J.A. wrote:

The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case.

[213] None of the objectives identified by Rosenberg J. A. are achievable at a pre-trial conference where the parties are permitted to take tentative positions, without any obligation to advise the court and the other parties when they change their positions.

[214] Taking reasonable and responsible positions in regard to the triable issues is not inconsistent with the role of defence counsel. Indeed, the Court of Appeal has recognized that where numerous and protracted pre-trial conferences lead to a guilty plea and result in a tremendous saving of state expenditures, a sentence substantially shorter than might otherwise have been imposed was appropriate.[55]

[215] It is anticipated that responsible counsel will assist the court by taking reasonable and realistic positions on the pre-trial form and at the conference. Having completed the form, and having directed their minds to all of the issues that might arise, it should be a rare occurrence when counsel contemplate a motion at the courtroom door on the morning of trial.

[216] While the committee’s recommendations regarding pre-trial conferences involve significant changes, they do not “cast in stone” for all time counsel’s positions from the conference. Trial tactics may change as preparation progresses, the law may change in regard to applications counsel had considered and decided not to pursue, and unanticipated events might occur during preparation for trial or in the course of the trial. Where counsel change their minds before the start of trial, the recommendations require that they advise the other party or parties as soon as that decision has been made, and not to wait until the filing date.

[217] While we appreciate that having counsel advise the other parties they will be receiving a Notice of Application in accordance with the rules may, at first blush, appear redundant, the committee is of the view that permitting either counsel simply to file applications at the filing deadline effectively eliminates effective case management. For example, if counsel completes the pre-trial conference form, indicating there will be no challenge to the admissibility of intercepted private communications, but then changes positions and serves and files a Garofoli application 15 or 30 days before trial, it may not give the responding party(ies) sufficient time in which to respond. The application would also have the potential to significantly increase the estimated trial time, and affect the date scheduled for jury selection. These are all issues that must be addressed at a pre-trial conference, and which cannot be left for counsel to decide on the 15^th or 30^th day before trial, or later. Accordingly, counsel are required to advise of any change in their positions as soon as that occurs, and to arrange a further pre-trial conference so appropriate adjustments can be made.

[218] The failure of counsel to advise on the pre-trial conference form that an application will be brought, will be a factor the trial judge takes into consideration in determining whether the application will be heard, even if a notice of application has been filed within the period specified in the rules.

[219] The same criteria apply where an accused retains new counsel after conducting the pre-trial conference him or herself, or after another counsel conducted the conference. New counsel is bound by the positions taken on the form previously filed and at the pre-trial conference, unless the new counsel notifies the Crown, counsel for any co-accused and the Trial Coordinator that they will be taking a different position. Where the new counsel seeks to take a position different than indicated on the initial form or at the pre-trial conference, counsel must serve and file a new form, and arrange for a further pre-trial conference to be held. The failure to notify the other parties and the Trial Coordinator of a changed position will be a factor considered by the trial judge in determining whether the application or new position has prejudiced the other party, and whether the application should proceed.

The Venue of Conferences

[220] As a general rule, pre-trial conferences for accused who are represented by counsel are held in a pre-trial room, the judge’s chambers, or another suitable room at the court house.

[221] The pre-trial conference judge has the discretion to record pre-trial conferences with counsel. In cases of unusual complexity, particularly those likely to involve multiple parties and the use of substantial court time, pre-trial conference judges should consider recording the conferences, or at the very least create a record of positions, agreements, concessions, undertakings, time estimates, and outstanding issues. The recording will prevent misunderstandings as to what was discussed and agreed upon, will facilitate subsequent review of the conference, and will prevent any party from acting unfairly or improperly.[56] Pre-trial judges may also consider recording conferences if there is a significant degree of animosity between the parties.

[222] Where an accused is not represented by counsel, the conference shall be held in a courtroom closed to the public and other counsel, on the record, but subject to a common law publication ban. The recording of the conference is for the benefit of the pre-trial judge only, and transcripts cannot be ordered by either party without the prior approval of the pre-trial judge.

[223] If a transcript is ordered, the other party should be notified. If a transcript is prepared, it should be subject to a common law publication ban.

Attendance of the Accused

[224] Under the current rules the accused must attend the pre-trial conference, unless a judge orders otherwise.[57] Where an accused is not in attendance, a judge may require him or her to “be available for consultation with counsel regarding matters to be considered at the pre-trial conference”.[58]

[225] Those rules were enacted before accused were permitted to appear by designation of counsel.[59] In our consultations with the bar, concerns were expressed regarding the accused being required to attend the pre-trial conference. Some suggested that accused persons should be free to work or attend school rather than attend for pre-trial conferences when they are not permitted in the pre-trial room. Others believe it is essential for the accused to attend to instruct counsel, and in the event the case can be resolved.

[226] After careful consideration, the committee is recommending the rule be changed to provide that where the accused is represented by counsel, he or she is not required to attend the pre-trial conference, unless ordered to do so by the Assignment Court judge or a judge at a previous pre-trial.

[227] There are two issues regarding accused persons appearing by designation. Subsections 650.01 (1) and (2) of the Criminal Code provide that:

(1) An accused may appoint counsel to represent the accused for any proceeding under this Act by filing a designation with the court.

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.

[228] First, on occasion counsel will appear “by designation” when they are not retained. In that situation, it is difficult to see how counsel can appear pursuant to a designation. However, there may be occasions when an accused will retain counsel for the purpose of negotiating a resolution or attending a pre-trial conference on their behalf, although counsel is not retained for trial. In those circumstances, the form should clearly indicate the limited retainer of counsel.

[229] Second, at the present time there is no standard designation of counsel form. This has resulted in a wide variety of forms being used across the province.

[230] In the circumstances, the committee recommends that the designation form (Form 18) appended to this paper be used for all attendances in the Superior Court of Justice. That form must indicate that the accused has retained counsel, whether the retainer is limited to one attendance, and that the accused undertakes to remain in contact with counsel.

The Role of Counsel in General

[231] Speaking at a recent Law Society program, Mr. Justice Ted Minden addressed the approach of counsel at pre-trial conferences. His comments reflect the committee’s conclusions regarding pre-trial conferences. He spoke of an approach that acknowledges the pre-trial as an important part of the trial process and a time for effective advocacy, and that counsel who are prepared, focused and candid can do much to advance their position. Accomplishing those objectives requires thought and preparation before the conference.

[232] Defence Counsel: In addressing the role of defence counsel, Justice Minden said they should identify two or perhaps three triable issues, and “bet the farm” on them. When discussing these issues, counsel should point out why the prosecution’s case on an essential issue is vulnerable legally, factually or both. It may even assist to provide authorities on the issue. By the time a case gets to the Superior Court pre-trial, these issues are not, and should not be, “state secrets”. These discussions may lead to the judge offering an opinion on the strength of the case, or to the prosecutor reconsidering the strength of the case. Whether the result is a withdrawal or a resolution on a reduced charge, the accused will have been well represented.

[233] Whether discussing resolution or the strength of the case, it will be helpful to assemble background material painting a thorough and persuasive picture of the client’s personal circumstances, and the mitigating factors relating to the accused and the offence.

[234] Effective preparation for the pre-trial conference also requires preparing the client, setting out what Counsel is attempting to accomplish, and anticipating that there may soon be some tough decisions to make.

[235] In a case which may not resolve at the pre-trial conference, counsel should identify any non-contentious issues or those that may give rise to appropriate admissions. While these decisions should ordinarily be made before the conference, it may be appropriate in some cases for counsel to ask for a short period of time to finalize their position and return to a further conference.

[236] Counsel should also examine the potential pre-trial applications, and be in a position to articulate in a clear and concise manner the nature of the application, the evidence which will be relied upon, and how the evidentiary basis for the application will be introduced. Since the pre-trial judge will be preparing a pre-trial conference report that will be given to the trial judge, the reasons advanced for the motion and the evidentiary basis will be part of the report and start resonating with the trial judge as soon as he or she reads the report. A pre-trial report that is consistent with counsel’s approach at trial is likely to lead to the trial judge thinking, even subliminally, that counsel has a carefully considered game plan and is raising issues that need to be litigated.

The Role of the Crown

[237] Justice Minden also addressed the role of Crown Counsel, suggesting that the best advice for prosecutors before a pre-trial conference was to “grab the file and give it a shake”, reading, as all good Crowns do, between the lines, applying analytical skills and good judgment. The Crown should familiarize her or himself with the preliminary inquiry transcript, or at least speak to the Crown who conducted the hearing or discovery. The preparation should focus on what evidence actually exists to support the allegations, the strengths and weaknesses of that evidence, and whether there are holes that can be filled. After this analysis, the Crown should be in a position to give the pre-trial judge his or her best and most candid assessment, including whether there is room to compromise.

[238] As is the case with defence counsel, the Crown should examine how best to pare down the trial, without really giving up anything, to make proceedings more streamlined and comprehensible. The Crown should also identify before the pre-trial conference the issues upon which agreements or admissions will be sought.

[239] Crowns should also examine the number of counts in the indictment. Why proceed on a 16-count indictment, if a 4-count indictment, covering the most serious allegations, would better focus the trial? If the factual basis of 2 counts are the same and would result in the application of the Kienapple[60]principle, is there a need to proceed on both counts?

[240] With respect to pre-trial applications, such as seeking rulings as to the admissibility of the accused’s statement or “similar fact evidence”, Crown Counsel should be in a position to articulate in a clear and concise manner the nature of the application, the evidence to be relied on, and any relevant authorities for or against admissibility. Prosecutors should also consider how the evidentiary basis for all pre-trial applications should be placed before the court.

[241] As was the case with defence counsel’s applications, since the pre-trial judge will be preparing a pre-trial conference report that will be given to the trial judge, the reasons advanced for the motion and the evidentiary basis will be part of the report, and will start resonating with the trial judge.

The Role of the Pre-trial Judge

[242] Whether counsel is prosecuting or defending a case, the most effective advocates are well prepared. The same applies for pre-trial conference judges. A constructive pre-trial conference, particularly one in which the case management function is achieved, requires a well-prepared judge who is familiar with the allegations, the evidentiary basis upon which the prosecution intends to establish the allegations, and the positions of counsel. While it may be possible to conduct an effective pre-trial without any advance preparation, the likelihood of an effective conference is increased substantially when the judge has reviewed the material filed. Reviewing the file in advance permits the judge to focus the conference on the issues in dispute, and the conference time can be used productively in seeking to achieve agreements, instead of taking the first 5 to 10 minutes to determine what the case is about.

[243] The judge must take an active role in the conference, rather than being a passive observer or acting only as the “recording secretary”. Where one or both counsel may be disinclined to make a meaningful contribution, it is the duty of the judge to encourage frank discussions, making sure that all parties “roll up their sleeves” and contribute.

[244] It is also anticipated that the judge will attempt to “forge responsible compromises” between counsel, in terms of the manner in which evidence is to be presented on pre-trial applications and other issues. Counsel should be encouraged to reach agreements as to how the evidence will be presented, subject to the overriding discretion of the trial judge. The pre-trial judge may make recommendations as to how the evidence is to be presented on pre-trial applications or on non-contentious trial issues.

[245] There will be trials where counsel will be able to agree on issues, and the manner in which evidence will be presented to the jury to facilitate juror comprehension. For example, if expert evidence is not disputed, counsel should be encouraged to prepare a plain language agreed statement of facts.

[246] A second example is found in The Supreme Court of England and Wales Magistrates’ Court, England and Wales Criminal Procedure Rules, 2005, which asks if expert evidence should be presented in a particular way in order to be more readily understood by the jury. The Rules also question if it would be helpful if the experts consulted together, and if possible agreed on a written note of points of agreement and disagreement with a summary of reasons.

[247] There are cases where the trial will run more efficiently if all counsel know in advance which witnesses will be called by the Crown, and the order in which they will be called. Often there are witnesses the Crown has disclosed who the defence wants called. When the Crown decides not to call them, and has neither advised the defence nor subpoened the witness, the result may be an adjournment in the trial.

[248] While the pre-trial judge will have the jurisdiction to order the production of the witness list, it is not anticipated that this will be a frequent occurrence. Where witness lists are discussed at the pre-trial conference and an order made for production, there must be flexibility. It may be appropriate for the list to include witnesses the Crown will definitely call, are likely to call, or may call. It may be that the pre-trial judge would direct the lists be available a fixed number of days before the trial.

[249] Whenever witness lists are provided pursuant to an order or otherwise, counsel would not be precluded from calling additional witnesses, deciding to call fewer witnesses, or changing the order as the trial unfolds.

[250] The judge will also prepare a pre-trial report to the trial judge, and a one-page report to the Trial Coordinator noting special requirements such as interpreters, child-friendly courtrooms or disability related needs. The report should also identify whether any judge(s) would have conflicts hearing the case. The report to the trial judge will permit the assigned judge to review the issues discussed at the pre-trial conference, and prepare for the legal and trial-management issues to be addressed.

[251] Where feasible to do so, a follow-up pre-trial or trial management conference should be held close to the trial date. In complex or lengthy cases, a trial management conference should be held with the trial judge. This conference may be held by conference call where directed by the trial judge. The pre-trial conference judge may also order that a further case management conference be held with the trial judge, and direct the date for the conference.

[252] One of the most important functions of the pre-trial conference judge is setting dates for serving and filing material. In the absence of an order by the pre-trial conference judge, notices of applications must be filed not later than 30 days before trial.[61] In the majority of cases, that date will be sufficient to permit all parties to prepare properly. There will, however, be cases where an earlier date will be required, to ensure that the responding party(ies) have adequate time to reply.

[253] There may also be cases where counsel are unwilling or unable to provide realistic positions or to provide sufficient details on anticipated motions. In those cases, the pre-trial conference judge may require the notices to be filed well in advance of the trial date and order a further pre-trial conference to obtain the information required at the conference.

Issues to be Addressed at the Pre-trial Conference

[254] Disclosure: Given the Crown’s obligation to provide disclosure in a timely fashion, the number of cases in which outstanding disclosure issues remain after committal for trial is surprising. While some cases involve delayed production of items the Crown agrees must be disclosed, many involve items the Crown believes it cannot or is unable to disclose.

[255] The current law precludes the pre-trial conference judge from making remedial orders on contested issues such as disclosure.[62] However, that does not mean that disputed disclosure issues have to proceed to a s. 7 Charter application.

[256] The experience and expertise of pre-trial judges can often resolve disclosure disputes by forging “responsible compromises”,[63] avoiding delay and protracted litigation.

[257] Where, despite the best efforts of all counsel and the presiding judge, an agreement cannot be reached, counsel should be encouraged to agree that the pre-trial judge can make the ruling on the outstanding disclosure issues. Where the parties agree to this procedure, the ruling must later be incorporated into the trial proceedings.

[258] In many cases contested disclosure issues could be determined by a judge other than the trial judge. Having disclosure issues argued on the date set for the start of the trial or pre-trial applications places the trial date in jeopardy should the disclosure be ordered, because the party receiving the disclosure often requires time to assess its import and to conduct further investigations. While in an ideal world, trial judges would be assigned to a trial well in advance, thereby permitting disclosure applications to be heard well in advance of the trial, in most regions it is impossible to schedule trial judges in advance of the trial date in the vast majority of cases. With overbooking of trial lists a necessity, many trials are assigned to the trial judge on the day the trial or pre-trial applications start.

[259] Having regard to these considerations, the committee recommends that the federal government examine whether or not an amendment to the Criminal Code should permit judges of the trial court to make disclosure rulings in advance of the trial date.

[260] Addressing Time Limits on Oral Submissions at the Pre-trial Conference: The expanded use of placing time limits on counsel’s submissions is an effective means of focusing submissions. Particularly in cases where counsel have filed facta or memoranda of legal arguments, the submissions are like oral argument in the Supreme Court of Canada and the Court of Appeal. Both of these courts apply and enforce time limits on the arguments of counsel.

[261] The pre-trial conference form counsel are required to complete includes counsel’s estimates of the time required for the evidence and argument for each pre-trial application, and for trial. We recognize that estimating the time required for evidence and argument is not a science. Nevertheless, in order to case-manage criminal litigation effectively, counsel must assist the pre-trial judge in arriving at a realistic time estimate for the applications and trial.

[262] While the committee encourages the use of time limits on oral submissions, it will be up to a trial judge, who retains exclusive jurisdiction to set time limits, to determine whether to impose and enforce the limits on a case by case basis.

[263] It is expected that the pre-trial judge may make recommendations on the time required for oral submissions to the trial judge based on counsel’s estimates and his or her experience. Having discussed the issue, counsel will be alert to the fact that time limits have been recommended, and are likely to be enforced by the trial judge. This will assist counsel in their trial preparation. Otherwise, absent discussion of time estimates at the pre-trial conference, counsel could prepare without any regard to time limits, and appear before a judge who imposes time limits on their arguments, taking counsel by surprise.

[264] Where counsel believe the recommended time limits are insufficient, they may request in the Notice of Application or responding material that additional time be permitted, and state the time requested. In circumstances where a respondent is not required to file responding material, but is of the view the recommended time limit is insufficient, the respondent must provide a written application for additional time, 15 days before trial.

[265] Other Issues to be Addressed by the Pre-trial Judge: In addition to the areas which the pre-trial judge may address pursuant to the current Rule 28.01(2), the pre-trial judge needs to address other issues in order to make the conferences more productive and enhance case management. The committee recommends the pre-trial judge do the following:

a) Review the contents of counsel’s pre-trial forms, and clarify any outstanding issues.

b) Determine the issues in dispute, and encourage counsel to make admissions of fact pursuant to s. 655 of the Criminal Code or indicate issues that are not contested.

c) Discuss whether witnesses can be waived or their evidence agreed upon.

d) Simplify such issues as remain to be contested at trial

e) Review with counsel the manner in which evidence is to be presented in jury trials, so as to assist jury comprehension.

f) Address any outstanding disclosure issues and attempt to reach an agreement between counsel, or ascertain if counsel would consent to having the pre-trial judge, or a judge other than the trial judge, determine the outstanding issues, provided the ruling became part of the trial proceeding.

g) Consider whether to make orders regarding the Notices of Application to be filed.

h) Consider setting schedules for serving and filing notices, facta, records and Crown witness lists.

i) Discuss the manner in which evidence will be presented in pre-trial applications on non-contentious issues, for example, by agreed statements of fact, preliminary inquiry transcripts, affidavits, “will states”, or viva voce evidence.

j) Consider making a recommendation to the trial judge regarding the order in which the pre-trial applications will be heard.

k) Decide whether facta are required for applications and, where facta or memoranda of arguments are ordered, the length of the facta or memoranda.

l) Decide whether written submissions on legal or evidentiary issues can be provided to the trial judge, rather than oral argument.

m) Discuss whether, in a document-intensive case, affidavits pursuant to ss. 29 and 30 of the Canada Evidence Act can be waived.

n) Discuss whether the prosecution requires all of the counts currently on the indictment to enable a just determination of the allegations, or whether the number of counts can be reduced.

o) Determine whether the accused and/or any witness will require the assistance of an interpreter. Where interpretative services are required, arrangements should be made to have the person requiring the assistance meet with the interpreter in advance of the trial date, to ensure that there are no difficulties with the interpreter.

p) Determine whether technological equipment will be required for the trial, and complete the form to notify the Trial Coordinator of the requirement.

q) Determine whether a case management judge should be assigned by the Regional Senior Judge or his or her designate because of the complexity and/or anticipated length of the trial, or for any other valid reason.

r) Where a case management judge is not assigned, determine if a further pre-trial conference should be held, either on his or her initiative or at the request of counsel, with the same judge or any judge of the court.

Resolution Discussion

[266] In many pre-trial conferences, defence counsel take the position that, in the absence of instructions from their client to do so, they cannot discuss resolution, even on a hypothetical basis. Crown Counsel often take the position that they have not considered a position on resolution because defence counsel had not asked for a position or had consistently said that the case could not be resolved.

[267] With respect to those who take a different view, the committee believes it is the responsibility of all counsel and the pre-trial judge to consider resolution positions. From the perspective of defence counsel, whether an accused admits or denies the allegations, in order to make informed decisions and to know the extent of the jeopardy he or she faces, the accused must know the Crown’s position on sentence before and after trial. Indeed, the Supreme Court of Canada has noted that it is the duty of counsel to make an accused aware of the possible sentence he will be facing if found guilty.[64]

[268] The following resolution issues should be addressed at every pre-trial conference:

The Crown’s position on sentence before trial and after a conviction, including the offences upon which pleas would be sought, credit for pre-sentence custody and corollary orders requested, such as DNA and SOIR (Sex Offender Information Registration Act) orders.
The defence position regarding appropriate sentences before and after trial premised on the Crown being able to establish guilt.
The pre-trial conference judge’s opinion as to suggested range of sentence.

Conclusion

[269] In Mr. Justice Minden’s address, referred to earlier, he succinctly summarized the committee’s approach to and recommendations regarding pre-trial conferences:

Much has been said lately about managing unmanageable trials and reversing the unwelcome trend of trials that take much longer than anticipated.

Let me close by respectfully suggesting that more focused trials mean fairer trials.

The productive use of out of court time only enhances the quality of in court time. We all have a role to play in this, and a big part of it is taking pre-trials seriously.

For counsel, this means not only preparation; it means early preparation, being prepared to make the call, and sometimes, the tough call, at an earlier stage than historically we have been used to.

Every day, experienced prosecutors and defence counsel use their skills in achieving favourable resolutions of cases or parts of their cases.

I invite you to reject the notion that a pre-trial is simply a necessary evil or a way station en route to the courtroom door. Think of it, rather, as a proceeding you can use as part of the advocate’s toolkit.

Recommendations Regarding Pre-trial Conferences

Timing

1. The pre-trial conference shall be held within 60 days of the committal for trial, unless ordered otherwise by a judge of the Superior Court of Justice.

The Pre-trial Conference Report

1. There shall be one comprehensive pre-trial form for all criminal cases in the Superior Court of Justice.

2. Copies of the pre-trial forms must be available in Assignment Courts, Trial Offices and on the Court’s website.

3. The form must be completed in full by counsel or self-represented accused, unless otherwise ordered by a judge, or unless the accused will definitely be pleading guilty and the only issue to be addressed at the conference is sentence.

4. Where defence counsel knows that the accused will definitely be pleading guilty, counsel shall advise the Crown at least 10 days before the pre-trial conference, or as soon as counsel has received appropriate instructions on the plea.

5. Prior to the first pre-trial conference, all counsel of record and the Crown assigned to conduct the trial, or counsel who can bind the Crown, are required to complete and sign Form 17.

6. The Crown’s copy of Form 17 must include a brief synopsis of the allegations, including how the Crown intends to prove the allegations.

7. The Crown’s copy of Form 17 must also include the Crown’s position on sentence if there were a plea before trial, the counts upon which the Crown would want pleas, and whether the Crown’s position would have to be a “joint submission”, as well as the position on sentence upon conviction based on the information available to the Crown at that time.

8. All counsel must complete their positions on each issue in Form 17, and not indicate “will advise” or “not as yet”.

9. Before the pre-trial, counsel are encouraged to meet to limit the issues in dispute and reach agreements as to the evidence to be introduced.

10. The Crown is required to serve and file the form not later than 10 days before the pre-trial conference, and the defence not later than 5 days before, unless otherwise ordered by a judge of the Superior Court. Where the Crown has failed to serve and file the form, the defence must still complete the form to the extent possible.

11. If either party changes the positions taken on the pre-trial form, they must provide written notice to the other party(ies) and the Superior Court Trial Coordinator, together with any notices required by the rules. If counsel have not indicated on the form that an application will be brought, or have changed their position in regard to an application without advising the other side and the Trial Coordinator, and seek to bring the application, the presumption is that the application will not be heard. In determining whether to hear the application, the trial judge shall consider the factors set out in the recommendation under Chapter X – the Trial Judge’s Management Function.

12. Where new counsel has been retained, or an accused who was self-represented at the pre-trial conference and completed the pre-trial form retains counsel, the new counsel is required to review the pre-trial form filed by the previous counsel or the accused. It will be presumed that the new counsel is bound by the positions taken on the form and at the pre-trial conference, unless the new counsel notifies the Crown, counsel for the co-accused, if any, and the Trial Coordinator that they will be taking a different position. Where new counsel seeks to take a different position than indicated at the first pre-trial conference, counsel must serve and file a new pre-trial conference report, and arrange a further pre-trial conference. Otherwise, there is a presumption that the application will not be heard. In determining whether to hear the application, the trial judge shall consider the factors set out in the recommendation under Chapter X – The Trial Judge’s Management Function.

13. The forms provided by counsel, as well as the pre-trial judge’s report or other equivalent pre-trial memoranda, will be provided to the trial judge.

14. As the forms prepared by counsel and the pre-trial judge contain material protected by both litigation and settlement privilege, they shall be kept in a separate part of the court file, and shall not be accessible to the public or the media.

15. The sentencing positions advanced by the Crown, the accused’s criminal record, and issues regarding Corbett applications shall be removed from the Crown’s form by the pre-trial judge, and kept separate from the court file.

The Conduct of the Pre-trial Conference

1. Pre-trial conferences for accused who are represented by counsel should be held in pre-trial conference rooms, the judge’s chambers or other suitable rooms at the courthouse.

2. Where an accused is not represented by counsel, the conference shall be held in a courtroom which is closed to the public and other counsel. The conference should be recorded and subject to a publication ban. The recording of the conference is for the benefit of the pre-trial conference judge only, and transcripts cannot be ordered by either party without notice to the other parties and the prior approval of the pre-trial judge. Where transcripts are ordered, they should be subject to a common law publication ban.

3. Crown Counsel attending the pre-trial conference must be able to make commitments on behalf of the Crown regarding to issues it is reasonably anticipated will be discussed at the pre-trial conference having regard to the pre-trial forms, subject to counsel and the Court being notified of a different position.

4. Defence counsel attending the pre-trial conference, whether counsel of record or otherwise, must be in a position to make commitments on behalf of the defence in regard to issues it is anticipated will be discussed having regard to the pre-trial form, subject to counsel and the Court being notified of a different position.

5. Unless otherwise ordered by a judge of the Superior Court, an accused who is represented by counsel is not required to attend the pre-trial conference, provided counsel has completed a Designation of Counsel, Form 18, and provided the case is not anticipated to resolve at the pre-trial. Local practices and geographical considerations should be taken into consideration in determining if the accused is required to attend.

6. Where possible, the judges assigned to conduct pre-trial conferences should be interested in conducting pre-trial conferences, able to facilitate the resolution of issues, and experienced and knowledgeable in criminal law procedural, evidentiary, and sentencing issues.

Jurisdiction of the Pre-trial and Case Management Judges

1. The judge may excuse counsel or a self-represented accused from compliance with any Rule of Court.

2. In regard to case management, the judge may also address:

a) The contents of counsel’s pre-trial forms, and clarify any outstanding issues.

b) The issues in dispute, and encourage counsel to make admissions of fact pursuant to s. 655 of the Criminal Code, or to indicate issues that are not contested.

c) Whether witnesses can be waived or their evidence agreed upon.

d) The simplification of such issues as remain to be contested at trial.

e) The manner in which evidence will be presented on pre-trial applications, for example, via an agreed statement of fact, preliminary inquiry transcript excerpts, affidavits, “will states”, or viva voce evidence. Counsel should be encouraged to reach agreements on the manner of introducing the evidence. The pre-trial judge may make recommendations as to the manner in which the evidence should be introduced. However, the final determination as to how the evidence is to be introduced is the trial judge’s.

f) Whether counsel would consent to a judge other than the trial judge presiding at the pre-trial applications. Where counsel consent on the record to this procedure, a judge other than the trial judge can conduct the pre-trial applications, and the rulings are incorporated into the trial record.

g) The manner in which evidence is to be presented in jury trials, in an effort to assist jury comprehension.

h) Address any outstanding disclosure issues. The pre-trial judge may attempt to reach an agreement between counsel, or ascertain if counsel would consent to have the pre-trial judge, or a judge other than the trial judge, determine the outstanding disclosure issues, provided the ruling became part of the trial proceeding.

i) Whether to make orders regarding the Notices of Application to be filed.

j) The setting of schedules for serving and filing notices, facta, records and Crown witness lists.

k) Whether facta are required for applications and, where facta or memoranda of arguments are ordered, the length of the facta or memoranda.

l) Whether written submissions on legal or evidentiary issues can be provided to the trial judge, in lieu of oral argument.

m) Counsel’s time estimates for each application and the trial. The pre-trial judge may provide counsel with suggested time limits for arguments, reminding counsel and self-represented accused that they can expect to be kept to any time limits imposed by the trial judge. While the pre-trial judge can make suggestions regarding time limits, the discretion whether to impose time limits on arguments or evidence is that of the trial judge. Where counsel seek more time than what has been suggested by the pre-trial judge, they shall indicate that additional time is requested in their Notice of Application or responding material. Where no written material is filed by counsel seeking more time, they shall provide written notice 15 days before the trial.

n) Whether in a document-intensive case, affidavits pursuant to ss. 29 and 30 of the Canada Evidence Act can be waived.

o) Whether the prosecution requires all of the counts currently on the indictment to enable a just determination of the allegations, or whether the number of counts can be reduced.

p) Whether the accused and/or any witness will require the assistance of an interpreter. Where interpretative services are required, arrangements should be made to have the person requiring the assistance meet with the interpreter in advance of the trial date, to ensure that there are no difficulties with the interpreter.

q) Whether technological equipment will be required for the trial, and complete the form to notify the Trial Coordinator of the requirement.

3. The following resolution issues should be addressed at every pre-trial conference:

a. The Crown’s position on sentence before trial and after a conviction, including the offences upon which pleas would be sought, credit for pre-sentence custody and corollary orders requested, such as DNA and SOIR orders.

b. The defence position regarding appropriate sentences before and after trial premised on the Crown being able to establish guilt.

c. The pre-trial conference judge’s opinion as to suggested range of sentence.

4. The judge may recommend to the Regional Senior Judge that a case management judge be assigned to the case.

5. Where a case management judge is not assigned, the pre-trial judge may direct that further pre-trial conferences be held at the discretion of the pre-trial judge or upon request of either counsel, with the same judge or any judge of the court as directed by the pre-trial judge.

6. Where feasible to do so, a follow-up pre-trial or trial management conference should be held close to the trial date. In complex and lengthy cases, a case management conference should be held with the trial judge. This conference may be held by conference call where directed by the trial judge. The pre-trial judge may order that a further case management conference be held with the trial judge, and set the date for the conference.

Notices of Applications and the Material in Support

[270] In delivering the Sopinka Lecture referred to earlier, Mr. Justice Moldaver described pre-trial motions as this country’s greatest growth industry. After reviewing some of the reasons why there are more pre-trial applications, he continued:

The judiciary, I believe, is also responsible at times for not putting a quick end to motions that are frivolous and vexatious; for allowing motions that are little more than fishing expeditions to go on endlessly, and for failing to rein in counsel who, for one reason or another, have stopped communicating in a meaningful and productive way, and instead are at each other’s throats.

[271] In R. v. Pires; R. v. Lising,[65] the Supreme Court of Canada quoted with approval the following comments of former Chief Justice McEachern of the British Columbia Court of Appeal:[66]

Generally speaking, I believe that both the reasons for having, and not having a voir dire, and the conduct of such proceedings, should, if possible, be based and determined upon the statements of counsel. This is the most expeditious way to resolve these problems: see R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.) at 62; R. v. Hammill (1984), 14 C.C.C. (3d) 338 (B.C.C.A.); and R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) at 301. I suggest that judges must be more decisive in this connection than they have been in the past because far too much judicial time is consumed by the conduct of these kind of inquiries.

[272] In R. v. Pires, Charron J., writing for the unanimous Court, held:[67]

The concerns over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one counsel when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

[273] The ability of judges to screen pre-trial motions is not a new concept to criminal law in Ontario. In two 1992 judgments, Finlayson J.A. addressed the issue. In Durette,[68]he cited the need to strive to restrict pre-trial motions to matters of substance, where defence counsel can establish some basis for a violation of a right. In Kutynec,[69]he wrote:

… the trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application… If the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry. In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a manner which infringed theCharter, or a finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss the motion without hearing evidence.

Where an accused bears the burden of proving the admissibility of evidence, it is incumbent on counsel to put forward a factual and legal basis on which the evidence could be admitted. Counsel is not entitled to proceed immediately to a voir dire on the issue. The same principle should be applied where the onus is on the accused to establish that certain evidence is inadmissible.

…

I think it would be a rare case where the Crown has provided full disclosure, the accused has had an opportunity to have a preliminary inquiry, and the matter has been thoroughly pre-tried, that the defence would be unable, at the outset of trial, to outline the nature of the alleged violation and to summarize the nature of the evidence counsel will call on the application. Armed with this information, the trial judge can weed out the applications which have no basis in fact or law, and can decide how and when those with potential merit should be resolved. If, on the other hand, it should appear that the accused has not taken full advantage of all the opportunities to him to be apprised of the case against him in light of the defences available to him, then he should expect little sympathy from the trial judge when he asks for permission to explore a Charter remedy.

[274] While Kutynec suggests that the notice and provision of the details upon which the application is based should be made orally at the start of trial, in the 14 years since the release of the judgment, rules have been enacted requiring written notices to be filed which include the evidentiary basis for applications under s. 24(1) in the Superior Court of Justice.[70] With respect, as Charter litigation has evolved, to permit counsel to provide the evidentiary basis orally at the outset of trial would lead to disputes over the evidence given at the preliminary inquiry, and of greater importance, would inevitably lead to adjournments, as the responding party sought time to prepare. In trials in the Superior Court of Justice there is no compelling reason why counsel should not be required to provide in writing a concise, case-specific Notice of Application, setting out the legal basis upon which exclusion or admission is sought, as well as a summary of the evidentiary basis upon which the application is based with reasonable particularity. The notices should not be generic or of the “boiler-plate” variety.

[275] The notice and supporting material must provide the trial judge with sufficient detail to permit him or her to conduct a “threshold screening”, to determine if the order requested could be obtained on the basis of the written material filed. Where the notice fails to provide a basis upon which the order could be obtained, the trial judge should not hear the application, since on the basis of the material filed, the relief requested could not be obtained or had no reasonable likelihood of being obtained.

[276] While concerns were raised by the bar that this aspect of the rules would lead to increased litigation over whether the notice and material in support met the requirements of the rules and the threshold, the committee feels that, where the material filed is deficient, there will be little need for any argument regarding the content. If the material filed is so deficient that the trial judge cannot determine whether there is a reasonable prospect that the application could succeed, there is no need for lengthy submissions in court. The application should simply be dismissed by the trial judge under the new rules. All counsel will have adequate notice that if the written material filed fails to disclose the requisite bases upon which the relief sought could be granted, the application will not proceed.

[277] For example, the following notice was recently filed 5 days before trial, despite an endorsement by the pre-trial conference judge that the accused was required to file a detailed Kutynec notice 15 days before trial. It was the only document filed in support of the application:

TAKE NOTICE that an application for an Order excluding evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms will be brought before the presiding Trial Justice of the Ontario Superior Court of Justice, Brampton, Ontario, on January 3, 2006 at 10:00 a.m. on the basis of police violations of the rights of the accused under s. 8 and s. 9 of the Charter. The basis for this application is that the police had no justification for removing the accused from his vehicle and for searching it thereafter, and such further grounds as may become evident at trial.

[278] While not representative of most notices of pre-trial applications filed, it reflects an extreme example of the practice of some counsel to file generic, “boiler plate”, and/or conclusory notices without supporting evidence. It is impossible to determine from reading the material filed what the evidentiary basis is for the application, or whether it has any reasonable prospect of success. In these circumstances, the committee anticipates that the application would be dismissed without further argument, because on the material filed there is no indication on what basis it could succeed. Pre-trial applications should not be fishing expeditions, with counsel seeking to find a Charter violation. Neither should they become “try-out camps” or “examinations for discovery” for witnesses’ trial evidence.

[279] Under the current rules there is no requirement for the Crown to file notices of application to introduce evidence, even evidence that is presumptively inadmissible. Under these circumstances, it is impossible for the trial judge to conduct a similar “threshold screening function” for Crown applications. The committee can find no practical or legal reason why the Crown should not be required to comply with similar filing requirements.

[280] Accordingly, the committee recommends that, where either party seeks to exclude evidence that it is reasonably foreseeable the other party will seek to introduce, and which is presumptively admissible at common law, a written Notice of Application and supporting material, such as an affidavit, must be filed, setting out the legal and evidentiary basis upon which the evidence should be excluded. For example, a Notice of Application and supplementary material must be filed where the accused seeks to preclude the Crown from using evidence of the accused’s criminal record in cross-examination, or where the accused seeks to exclude evidence pursuant to s. 24(2) of the Charter.

[281] Similarly, for all issues that it is reasonably foreseeable will arise, where either party seeks to have admitted evidence that is presumptively inadmissible at common law, a written Notice of Application must be filed, together with supporting material, such as an affidavit, setting out the legal and evidentiary basis upon which admission is sought. For example, the Crown would be required to file the appropriate notice and supporting material should the Crown seek to introduce evidence of prior disreputable conduct (similar fact evidence) that involves conduct outside of the counts in the indictment. Similarly, if the defence sought to introduce evidence relying on the principled exception to the hearsay rule, notices and supporting material would be required.

[282] In either scenario, the material filed will permit the trial judge to perform the threshold screening function, and avoid evidentiary hearings on frivolous applications with no foundation or prospects of success.

[283] In our consultations with the bar, issues were raised regarding the notices Crowns would be required to file when the prosecution seeks to introduce the statement of the accused into evidence, or to obtain a ruling on admissibility should the accused testify and the only voir dire issue will be voluntariness. The committee believes that the notice should include the date and time the statement was taken; whether it was recorded, and if so, how it was recorded; the names of the officers involved in taking the statement; and at least an overview of the content of the statement, including whether cautions were administered. Crown counsel may file a copy of the statement, the videotape of the statement if one exists, or a transcript if one exists with the notice, to assist the trial judge.

[284] A second area of concern was the notices required where the defence seeks to challenge a warrantless search pursuant to s. 8 of the Charter. Pursuant to the recommendation, the accused would be required to file the Notice of Application and supporting material. The question that arose was whether the defence would only be required to file a notice indicating that it was a warrantless search, and therefore presumptively unreasonable, leaving the Crown to respond with material upon which the trial judge could conclude that the search was reasonable.

[285] Under the new rules, on this scenario, the defence would not be entitled to merely “establish” that the search was warrantless. While a warrantless search is prima face unreasonable, the fruits of the search are not prima face inadmissible. They remain admissible until the applicant, the accused, establishes that they should be excluded pursuant to s. 24(2) of the Charter. Accordingly, where there is a warrantless search, the accused’s Notice of Application and supporting material must include the legal and evidentiary basis upon which the evidence, presumptively admissible, could be excluded.

[286] The pre-trial judge should address the notice requirements in every case. While the notice requirements in the rules are the presumptive procedure, the pre-trial judge has the jurisdiction to exempt either counsel from filing notices of application and supporting material. Counsel can ask the pre-trial judge to provide orders as to the notices to be filed. It may be that after hearing submissions, the pre-trial judge will dispense with or modify the requirements in the rules. However, in the absence of an order by the pre-trial judge, the filing requirements in the rules apply.

The Timing of Notices

[287] A practice of requiring notices to be filed 15 days before trial has developed for s. 24(2) applications, and is mandated by Rule 27.04 for s. 24(1) applications. On occasion, 15 days’ notice has proven insufficient for opposing counsel to respond, resulting in adjournments or delays in the trial starting. If the notice and supporting material are not filed until 15 days before trial, and if either side wished a further pre-trial conference to address the issues raised, it could be difficult to arrange one, given the short time.

[288] The committee believes the standard should be changed to 30 days before trial, with the responding material required 10 days before trial, subject to the discretion of the pre-trial conference judge to order either a longer period in cases where additional time will be required for the responding party to properly prepare, or a shorter period if he or she determines neither party would be prejudiced.

Supporting Material

[289] While facta or memoranda of legal arguments are encouraged so that the application is more focused, the committee recognizes that for some applications, facta may not assist the trial judge or result in a more efficient pre-trial application.

[290] The current practice is that counsel are required to file facta for applications pursuant to s. 24(1) of the Charter. That practice will continue. While there is currently, and will be, no rule mandating facta on s. 24(2) applications, the pre-trial conference judge will have the jurisdiction to order facta to be prepared for any application where the pre-trial judge believes it will facilitate the hearing of the application. Where facta are required by the rules or ordered at the pre-trial conference, the applicant must file the facta 30 days before trial, unless ordered otherwise by the pre-trial judge. The respondent’s facta must be filed 10 days before trial.

[291] There is currently no rule limiting the length of facta filed in support of applications. In some cases counsel file very lengthy facta, which include detailed references to evidence and authorities. When counsel appear in either the Court of Appeal or Supreme Court of Canada, limits are placed on the length of facta. There is no practical reason why the length of facta should not be fixed at the pre-trial conference. Accordingly, if facta are required pursuant to the rules, or are ordered at the pre-trial conference, the pre-trial judge shall direct the maximum length of facta to be filed. Where the pre-trial judge does not address the length of facta, facta shall not exceed 20 double-spaced pages.

[292] There may be cases where the pre-trial judge, after discussing the issue with counsel, determines that memoranda of arguments rather than facta should be required. The pre-trial judge will also have the jurisdiction to direct that memoranda of arguments be filed.

[293] Casebooks are also of great assistance to the court. Where facta or memoranda of arguments are to be filed, casebooks should be filed. Too often, each counsel files substantial casebooks, without consideration of the cases filed by the other party. Too often, counsel file voluminous casebooks and refer to a limited number of cases in argument.

[294] To facilitate the hearing of pre-trial applications the committee recommends the following with regard to casebooks: counsel are encouraged to file joint casebooks, or at the very least, to review the cases filed by the party who is required to file first, and not duplicate cases that are already filed with the court. Casebooks should only include those cases counsel intend to rely upon in oral submissions. To assist the court and the other party, the sections of the cases upon which counsel rely must be highlighted or side barred. Counsel are encouraged to use double-sided printing in preparing the casebook. For the assistance of the court reporter, counsel are encouraged to provide the reporter with at least a list of the case citations from the casebook, if not a copy of the casebook itself.

[295] While there is currently no rule requiring casebooks to be served and filed, there is no reason why all documents in the case other than casebooks have to be served and filed. Therefore, casebooks must be served and filed on the date the party’s factum is due. Where no facta are required, but where a casebook will be submitted to the Court, counsel shall serve and file its casebook not later than 5 days before the application or trial date.

Summary of Recommendations Regarding Pre-trial Applications and Supporting Material

1. A written Notice of Application must be filed by a party seeking to have admitted evidence that is presumptively inadmissible at common law for all issues that it is reasonably foreseeable will arise, such as previous disreputable conduct (similar fact evidence) or statements of the accused to persons in authority.

2. A written Notice of Application must be filed by a party seeking to exclude evidence that is presumptively admissible at common law for all issues that it is reasonably foreseeable the other party will seek to introduce into evidence, such as cross-examination on the accused’s criminal record, evidence obtained as a result of a search, or for any relief under s. 24(2) of the Charter.

3. A written Notice of Application must be filed by a party seeking relief under s. 24(1) of the Charter.

4. The Notice of Application must be served and filed not less than 30 days before the first day scheduled for pre-trial applications, unless otherwise ordered by the pre-trial or trial judge.

5. Any Notice of Application must disclose the basis upon which the trial judge could make the order admitting or excluding the evidence, must be case-specific and not in generic language, must set out with reasonable particularity the grounds upon which the application for admission or exclusion is made, and must provide a detailed summary of the evidence upon which the applicant relies.

6. Where an application seeks to have evidence admitted or excluded, the Notice of Application and supporting material must provide sufficient detail for the trial judge to conduct a threshold screening, to determine if the order requested could be obtained on the basis of the written notice and supporting material. Where the notice and supporting material fail to provide a legal or evidentiary basis upon which the relief sought could be obtained, the trial judge may not hear the motion, and may rule on the basis of the notice and supporting material without hearing arguments.

7. Facta are required for every application where relief is sought under s. 24(1) of the Charter.

8. Facta are not required where relief is sought under s. 24(2) of the Charter or for any other application, unless the pre-trial or trial judge orders otherwise.

9. The applicant’s factum must be served and filed on the date the Notice of Application is required to be filed, i.e. 30 days before the trial, unless ordered otherwise by the pre-trial judge.

10. The respondent’s factum must be served and filed not later than 10 days before the trial, unless otherwise ordered by the pre-trial or trial judge.

11. Where facta are required pursuant to the rules, or where the pre-trial judge orders facta, the pre-trial judge shall direct the maximum length of facta to be filed on any application. In the absence of an order by the pre-trial judge, the facta shall be double spaced and not exceed 20 pages.

12. The pre-trial judge may order counsel to file memoranda of arguments instead of facta.

13. Casebooks are to be produced legibly, served on the other party and filed on the date the party files their facta. Where no facta are required, the respondent shall file its casebook not later than 5 days before the application or trial date, unless otherwise ordered by the pre-trial or trial judge.

14. Counsel are encouraged to file joint casebooks, and not duplicate copies of the cases already filed by the applicant when responding.

15. Casebooks are to include only cases to be relied upon in oral submissions.

16. The portions of cases to be relied upon in oral submissions are to be highlighted or side-barred.

17. Counsel are encouraged to use double-sided printing for casebooks.

18. While the notice and filing requirements in the rules are the presumptive procedure, the pre-trial judge has the jurisdiction to exempt either counsel from filing notice or any other material. In the absence of an order from the pre-trial judge the filing requirements in the rules applies.

Trial Scheduling Issues

Trial Readiness Dates

[296] Notwithstanding the recommendations for more effective pre-trial conferences and Notices of Application and supporting material, counsel will still be in the best position to assess their case shortly before the trial date. It is at that time that counsel will have filed their notices and supporting material, interviewed their witnesses, and assessed any changed circumstances since the preliminary inquiry and pre-trial conference. Some jurisdictions currently have a “Trial Scheduling” or “Status Court” within a week of the trial date, but others do not. Those that do not often have the Trial Coordinator contact counsel to determine if they are ready for trial. In some areas where sittings are held, assignment or trial scheduling courts are held within a week or two of the start of the sittings.

[297] The committee recommends that all jurisdictions have counsel confirm that they are ready for trial, that all filing requirements have been met, and that there are no changes from the positions indicated at the pre-trial conference, within 5 to 15 days of the trial date. Having the confirmation date during that time period will permit all participants to examine trial scheduling after all applications have been filed, late-breaking developments have been assessed, and any guilty pleas have been entered in advance of the trial date where feasible.

[298] The details for implementing this procedure will be left to the Regional Senior Judges in each region, to accommodate the best interests of the bench, the bar, jurors, witnesses and the public in the region.

[299] The confirmation procedure should not necessarily require a court attendance, subject to the overriding discretion of the Regional Senior Judges. For example, a jurisdiction might consider having an assignment court during the week before the commencement of the sittings or the trial date, at which counsel would be required to appear unless both counsel have served and filed a completed Trial Readiness form. If both sides were prepared to proceed in accordance with the pre-trial reports filed, no attendance would be required. If only one party filed, the other party would be required to attend.

[300] If either party indicates on the form that their position has changed in regard to the anticipated length of trial, the mode of trial, or that applications will be brought that were not indicated at the pre-trial conference, counsel must attend the court appearance before the trial date.

[301] The Trial Readiness Form (Form 18-C-1 and Form 18-C-2) is one that jurisdictions may require counsel to serve and file in advance of the Trial Readiness or Status Court. While counsel are permitted to serve the form electronically, it would have to be either faxed or filed at the Trial Office until such time as e-filing is available.

[302] This procedure would not remove the necessity of counsel complying with the current Criminal Proceedings Rules of the Superior Court of Justice for adjournment applications (Rule 26), or removing counsel from the record (Rule 25).

The Assignment of Trial Judges

[303] The assignment and scheduling of judges is the responsibility of the Regional Senior Judge.[71] The committee appreciates that in the assignment of judges, consideration must also be given to the significant variations from region to region regarding local practices, judicial complement, and geographic considerations.

[304] While the Superior Court is a generalist court, we recognize that the judges of the court upon their appointment bring to the bench varying levels of experience in criminal, family and civil law. The demands of the court mandate that all judges be prepared and available to be assigned to criminal trials. Indeed, all members of the Court of Appeal and Supreme Court of Canada hear cases in all areas of law.

[305] The fact that a judge did not practice criminal law should not preclude the judge from presiding over criminal trials. Indeed, some judges who acquire exceptional reputations for their conduct of criminal trials in the Superior Court, did not practice criminal law prior to their appointment. While prior experience in criminal law is a significant attribute upon appointment, it is not a guarantee that the judge will conduct more efficient and focused trials than a judge without criminal law experience upon appointment.

[306] In exercising their discretion in trial assignments, the Regional Senior Judges should consider the demands on judicial resources in all areas of law, the preferences of the judges in their region, the strengths of the judicial complement in the region, and the need to match the available judicial resources to the case, in order to have trials conducted in as efficient and timely a manner as possible. The Regional Senior Judge should, wherever possible, assign trial judges to the judges’ strengths. Acknowledging that the Superior Court of Justice is a generalist, circuiting court, certain cases will require the assignment of a judge with effective trial management skills, as well as prior knowledge, expertise and experience in complex criminal law matters.

Recommendations Regarding Trial Scheduling

1. Between 5 and 15 days before the scheduled trial date, or the date upon which the sittings commence, counsel should be required to confirm they will be prepared to proceed on the trial date, that their witnesses are available, that the positions advanced in the pre-trial form and at the pre-trial conference have not changed, that no new applications will be brought, and that the time estimates remain as indicated at the pre-trial conference.

2. In exercising their discretion in trial assignments, the Regional Senior Judges should consider the demands on judicial resources in all areas of law, the preferences of the judges in their region, the strengths of the judicial complement in the region, and the need to match the available judicial resources to the case, in order to have trials conducted in as efficient and timely a manner as possible. The Regional Senior Judge should, wherever possible, assign trial judges to the judge’s strengths. Acknowledging that the Superior Court of Justice is a generalist, circuiting court, certain cases will require the assignment of a judge with effective trial management skills, as well as prior knowledge, expertise and experience in complex criminal law matters.

The Trial Judge’s Management Function

Pre-Trial Applications

Regardless, I needn’t remind you about the sea-change the Charter has brought about. In that regard, as all of you know, pretrial motions top the list by a country mile. In the past twenty-three years, they have become this country’s greatest growth industry.

The trend we are seeing today is truly remarkable. In our review of trial transcripts, what we are noticing is that pre-trial motions regularly last two to three times longer than the trial itself. So when I speak of a six-month trial, what I’m really speaking of is a trial in which four to four and a half months are taken up with pre-trial motions. Regularly, these motions are initiated by the defence, but not always. As you know, with the advent of the Charter, third party motions have taken root, and they are becoming more and more prevalent and taking up more and more court time.[72]

[307] The committee agrees with the comments of Mr. Justice Moldaver that the growth in pre-trial applications is the greatest cause of trials being longer. We would add that they are also the greatest reason why trials last longer than anticipated.

[308] In 1978, the so-called Dredging trial^[73] was held in Toronto. The trial involved 11 individuals and 9 corporations, charged in a 53 count indictment. The trial took 197 days over 15 months. The pre-trial motions lasted 6 days. If that trial were held today, it could reasonably be anticipated that the pre-trial motions would take at least a year. The increased motion time would be the result primarily of the changes in the law of evidence, including the advent of the Canadian Charter of Rights and Freedoms.

[309] Today, there are trials in which the motions take on a life of their own, and some where each application appears to spawn further applications, none of which were discussed at the pre-trial conference. When counsel, whether Crown and/or defence, start their trial preparation on the eve of trial or later, the chances of the trial lasting longer than it should, and longer than anticipated, are enhanced.

[310] In order to address these events, the committee has recommended significant changes to the pre-trial conference procedures and to the notice requirements, which have been outlined earlier. The recommendations regarding the conduct of pre-trial applications follow from those suggestions and address three areas: the judge’s discretion to decline to hear the application when pre-trial application rules are not followed; the judge’s discretion to decline to hear the application when the notice and supporting material do not provide a basis upon which the relief sought could be granted; and the discretion of the trial judge to determine the manner in which evidence may be presented on an application.

The Judge’s Discretion to Decline to Hear the Application

[311] The trial judge has an inherent discretion to decline to hear pre-trial applications where the applicant has not complied with the rules of court or where, on the basis of the material filed, the trial judge concludes that the application could not succeed. These aspects of the case management rules are not innovations created by the committee. That the discretion already exists is well established.[74] The committee has included these areas in the case management rules to provide a clear statement to all counsel and the judiciary as part of the case management rules that the authority exists, and that it should be exercised in the appropriate case.

[312] However, it is not the committee’s intention to establish a rigid, inflexible procedural straightjacket for judges or counsel. The rules include significant discretion for trial judges and flexibility in the application of the rules. It is the committee’s intention to raise the level of acceptable standards of practice for pre-trial applications, and to make it clear that the application may not proceed if the prerequisites are not established.

[313] With respect, the view of some members of the bar that the remedy for non-compliance should be an adjournment, is neither realistic nor conducive to effective case management. Rather, it fosters poor advocacy and ineffective case management, and prolongs or delays trials. In addition, the approach advocated by some counsel displays a patent disregard for the interests of complainants, victims, witnesses, jury panel members, other accused persons, and the public, in having realistic trial dates set.

[314] Under the recommendations, counsel must indicate in the pre-trial conference report that an application will be brought. Where counsel have not so indicated, even if the appropriate notices and supporting material are filed, leave of the court must be obtained to bring the application. We appreciate that counsel traditionally have not taken firm positions on applications at an early stage in the Superior Court proceedings. As noted above, that approach is inconsistent with effective case management.

[315] While counsel are required to notify the pre-trial judge of all applications, and while the presumption is that without notification at a pre-trial conference the motion will not be heard, it is not an absolute prohibition. Where counsel change their position from that indicated on the form and as discussed at the pre-trial conference, or where new counsel is assigned or retained, it is the responsibility of counsel to advise the other party(ies) and the Trial Coordinator of the change in position, and to arrange a further pre-trial conference where that change involves bringing an application that had not been indicated previously.

[316] When counsel have not indicated that an application will be brought on the pre-trial conference form or at the pre-trial conference, and have not arranged for a further pre-trial after they decide to bring the application, the presumption is that the application will not be heard. It will be for the trial judge to determine, in the exercise of his or her discretion, whether the matter should proceed. Where the application is brought on the eve or morning of trial, without a proper Notice of Application and supporting material, counsel should anticipate a most difficult challenge in having the application heard. The practice of attending court on the morning of trial, intending to explain the application orally to the trial judge, is to be discouraged. In these circumstances, it would be a truly exceptional case where the trial judge would be expected to hear the application or entertain an adjournment application to allow counsel to perfect the application.

[317] In exercising the discretion whether to permit an application that does not comply with the rules to proceed, a trial judge will be guided by whether or not the interests of justice require the application be heard, including:

i) the merits of the application as reflected in the Notice of Application and supporting material filed;

ii) any explanation why opposing counsel and the Trial Coordinator were not notified of the changed position;

iii) whether counsel indicated in the Trial Readiness Report or at a Status Court that the application would be brought;

iv) where notices were not filed, any explanation why the rules were not complied with;

v) any prejudice that will occur to the other party(ies);

vi) any inconvenience to the jury panel;

vii) any impact on the scheduling of other cases;

viii) Rule 2.01:

2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

a) may grant all necessary amendments or other relief in accordance with rule 2.02 on such terms as are just, to secure the just determination of the real matters in dispute;

or

b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part

ix) Rule 2.02

2.02 The court may, only where and as necessary in the interests of justice, dispense with compliance with the rules.

x) any other factors the judge determines are relevant to the application.

[318] The rules must also be interpreted in the context of the trial process, a process which often changes from day to day. The comments of the Court of Appeal in R. v. Archer[75] with regard to defence tactics and positions apply with equal force to the Crown:

Defence tactics are of necessity subject to constant change as the topography of the trial changes. What may be seen as being in the accused’s best interests at one stage of the trial may be seen as detrimental to those interests at a later stage.

[319] As a result of rulings obtained, tactics may change and different witnesses may be called. In some instances, witnesses whose presence was anticipated cannot be located. In others, witnesses who were expected to give evidence in substantial agreement with their previous statements do not do so. In these and other circumstances, positions taken at the pre-trial conference, or indeed, in pre-trial applications, may have to be revisited.

The Trial Judge’s Screening Function

[320] Too often, pre-trial applications appear to start as fishing expeditions to attempt to find a Charter breach, or as efforts to try to create a basis for a prior disreputable conduct finding. Bearing in mind the onus on the applicant in these and other pre-trial motions, the committee recommends that trial judges require proper Notices of Application and supporting material to be filed to permit them to fulfil their threshold screening function. This function was confirmed by the Court of Appeal in R. v. Felderhof,[76] where Rosenberg J.A. noted the trial management power included the power to require an offer of proof, before embarking on a lengthy voir dire.

[321] The threshold screening of applications requires the trial judge to review only the written material filed in support of the application. It does not involve permitting counsel to “fill in the gaps” in the written material with oral submissions, for example, as to the factual basis for the application. As noted earlier, it is not anticipated that this threshold screening will result in large numbers of applications being dismissed on the basis of the written material. The committee expects that counsel will endeavour to comply with the rules, and ensure they provide the trial judge with sufficient material to establish that there is a legal and factual foundation for the application. However, it is essential that all counsel be aware they have to meet that threshold, instead of the current practice of simply embarking on a application without establishing there is a reasonable likelihood of succeeding.

The Evidentiary Basis for Pre-trial Applications

[322] Too many applications proceed on the basis of oral testimony when other, more efficient, sources of obtaining the evidentiary basis are available. While we have recommended that pre-trial judges must address the evidentiary basis upon which applications will be based, and try to reach an agreement among counsel as to the basis, it is the trial judge who decides how the evidence is to be presented.

[323] As the Court of Appeal held in R. v. Snow,[77] the defence is not entitled to insist on witnesses being called. In that case, the Crown sought to tender “similar fact evidence”, and relied on transcripts of the accused’s earlier guilty pleas. The Court of Appeal upheld the trial judge’s decision to proceed without oral testimony as follows:

The appellant submitted before this court that the procedure adopted by the trial judge constitutes an error of law. We did not call upon the respondent on this ground of appeal as, in our view, it is without merit. The procedure adopted by the trial judge was appropriate in the circumstances of this case. This was not evidence (for example, a statement by the accused) where the Crown was required to prove certain facts (voluntariness) as a prerequisite for admissibility. In the circumstances of this case, admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor was there uncertainty about what the witnesses might say. The trial judge was entitled to adopt a more expeditious procedure that was entirely adequate to test the admissibility of the similar fact evidence: R. v. D. (G.N.), (1993), 81 C.C.C. (3d) 65 (Ont. C.A.); R. v. Carpenter (No. 2) (1982), 1 C.C.C. (3d) 149 (Ont. C.A.);R. v. Dietrich, (1970) 1 C.C.C. (2d) 49 (C.A.) at 62.[78]

[324] In making that determination, the trial judge should not proceed on the basis of the erroneous presumptions that counsel are entitled to call viva voce evidence, or that every application requires viva voce evidence. To be sure, where the ruling will require findings of credibility, it will inevitably require some oral testimony. However, it may be that portions of the evidence can be entered by way of an Agreed Statement of Fact, transcripts, or “will say” statements. In other cases, where there are no findings of credibility to be made, the application should proceed on an evidentiary basis other than viva voce evidence, a procedure which protects the fair trial rights of the accused and the Crown, while promoting a more efficient trial process.

Issues Requiring Further Study

[325] While outside the scope of case management rules, the committee is also recommending that the Department of Justice examine whether rulings on pre-trial applications in cases where there is a mistrial, either as a result of a jury disagreement or a ruling of the trial judge, should be applied to the next trial, in the absence of a ruling by the “second” trial judge that the motions must be re-litigated.

[326] As noted above, many trials involve lengthy pre-trial applications. Where the rulings are obtained and a mistrial follows, the current practice is that unless the same trial judge is assigned, the pre-trial applications are re-litigated unless counsel consent.[79]

[327] A similar situation occurs where a ruling is obtained, and a subsequent trial involving the same accused requires a ruling on the same issue. For example, where severance of counts is ordered, the accused may have provided a statement to police in regard to all offences. At the first trial, the statement is admitted or excluded. At the second trial, it could be argued that the admissibility of the same statement must be re-litigated, where a different trial judge presides.

[328] The Department of Justice should examine whether it is appropriate to amend the Criminal Code to provide that where rulings have been obtained on pre-trial applications and a mistrial is declared, or the same issues must be determined in another trial involving the same accused, the rulings apply to any subsequent trial before a different trial judge, in the absence of an order from the new trial judge that the interests of justice require the applications be re-litigated.

Summary of Recommendations Regarding Pre-trial Applications

1. Where counsel has not indicated in the pre-trial conference form and at the pre-trial conference that an application would be brought, and not notified the other party(ies) and the Trial Coordinator and arranged a further pre-trial conference, the presumption is that the application will not be heard, whether or not counsel has complied with the filing requirements in the Rules.

2. The pre-trial judge has a discretion whether to hear applications that do not comply with the rules of court including situations where counsel did not indicate at the most recent pre-trial conference that the application would be brought. In exercising this discretion the trial judge shall consider:

a) the merits of the application as reflected in the Notice of Application and supporting material filed;

b) any explanation why opposing counsel and the Trial Coordinator were not notified of the changed position;

c) whether counsel indicated in the Trial Readiness Report or at a Status Court that the application would be brought;

d) where notices were not filed, any explanation why the rules were not complied with;

e) any prejudice that will occur to the other party(ies);

f) any inconvenience to the jury panel;

g) any impact on the scheduling of other cases;

h) Rule 2.01:

A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

a) may grant all necessary amendments or other relief in accordance with rule 2.02 on such terms as are just, to secure the just determination of the real matters in dispute;

or

b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part

i) Rule 2.02:

The court may, only where and as necessary in the interests of justice, dispense with compliance with the rules.

j) any other factors the judge determines are relevant to the application.

3. Before starting an application, the trial judge shall conduct a threshold screening on the basis of the written material filed. Where the material does not provide an evidentiary and legal basis upon which the relief sought could be ordered, the trial judge should dismiss the application without hearing submissions or evidence.

4. The trial judge determines the manner in which evidence is presented on applications. Where feasible and appropriate to do so, the application should proceed on the basis of agreed statements of fact, excerpts for transcripts, affidavits or “will state” statements instead of oral testimony.

5. The Department of Justice should examine whether there should be an amendment to the Criminal Code to deem rulings on applications made in cases of mistrials, or where admissibility of the same evidence was determined at another trial involving the same accused, presumptively applicable to subsequent trials. This should be the case unless the subsequent trial judge finds that the interests of justice require the issues to be re-litigated.

Trial Management

[329] Central to the adversary system is the concept that it is the lawyers who prepare and present the case before an independent decision-maker.[80] It has been said that the manner in which the prosecution presents its case is within its discretion, and is not subject to supervision by the trial judge.[81] Similarly, trial judges must respect the separation of the roles of counsel and the trial judge, confining themselves as much as possible to their own responsibilities.[82]

[330] Trial judges would prefer to be, and should be, passive observers, presiding over trials in which all counsel are prepared, are focused on the triable issues, treat the court and opposing counsel with respect, and conduct fair cross-examinations on relevant issues. In trials conducted in this manner there is no need for the trial judge to become involved in trial management. Responsible counsel conduct the trial and the trier of fact makes the requisite determinations throughout the trial. Regrettably, not all trials are conducted in that manner. It is sometimes not possible for a trial judge to leave the conduct of a criminal case entirely to the parties.[83]

[331] In R. v. Felderhof, Rosenberg J.A. acknowledged the need in some cases for trial judges to intervene:

Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee, who must sit passively while counsel conduct the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial, or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court’s power to intervene to prevent an abuse of its process. Rather, the power is founded on the court’s inherent jurisdiction to control its own process.[84]

[332] In some cases, trial judges are required to intervene to ensure the trial is fair for both the accused and Crown, or to restrict repetitive or abusive cross-examinations or irrelevant or repetitive evidence. In addition, a trial judge has a duty to ensure that the accused receives a fair trial, notwithstanding the submissions of counsel.[85]

[333] While the scope of the trial management power has not been established by caselaw, Rosenberg J.A. has delineated some areas included in the authority in Felderhof at para 57:

I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called. The latter power is one that must be exercised sparingly because the trial judge does not know counsel’s brief. However, a judge would not commit jurisdictional error in exercising that power unless the effect of the ruling was to unfairly or irreparably damage the prosecution.

[334] The selective and judicious use of the trial management power described by Rosenberg J.A. will enhance the objectives of effective case management in criminal trials.

[335] That power, however, must be exercised sparingly. Where it limits cross-examination or directs the order in which witnesses are called, caution must be exercised.[86] Trial judges are entitled to restrict a line of cross-examination that would not further the resolution of the issues in the case and that may serve to distract and confuse the jury while needlessly prolonging the trial.[87] However, caution must be exercised where cross-examination is restricted:[88]

The judge has a duty to ensure that the accused is afforded the right to make full answer and defence, but he has the right and the duty to prevent the trial from becoming unnecessarily protracted by questions directed at irrelevant matters. This power must be exercised with caution so as to leave unfettered the right of an accused through his counsel to subject any witness’s testimony to the test of cross-examination. The judge must not improperly curtail cross-examination that is relevant to the issues or the credibility of witnesses, but he has power to protect a witness from harassment by questions that are repetitious or are irrelevant to the issues in the case or to the credibility of the witness …

[336] The trial judge’s ability to control the conduct of the trial in appropriate cases is not restricted to limiting defence counsel. While it may have been suggested that the role of the prosecutor involves the exercise of prosecutorial discretion not subject to supervision by the court, the Supreme Court of Canada has clarified that issue, holding that “prosecutorial discretion” is a term of art, and does not include tactical and other conduct before the court:^[89]

… prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics and conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter that forum.

[337] A final word on trial management relates to sentencing hearings. Where the prosecution seeks a declaration that the offender is a dangerous or long term offender, a further case management conference should be held with the trial judge or another judge of the court, to ensure that the evidence to be called on the application will be presented in most efficient manner without impinging on either party’s fair trial rights.

Civility in the Courtroom

[338] On occasion, trials last far longer than anticipated or than they reasonably should, because acrimonious relations between counsel find their way into the courtroom. At times, counsel preface their interjections with repeated allegations of misconduct by the other party. As Rosenberg J.A. held in Felderhof,[90] a trial judge is not required to listen to repeated allegations of misconduct:

…The defence has the right to make allegations of abuse of process and prosecutorial misconduct, but only where those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings. See R. v. Kutynec (1992), 70 C.C.C.(3d) 289 (C.A.). The trial judge was not obliged to repeatedly listen to those allegations outside of a specific Charter or abuse of process motion. Thus, I do not agree that the trial judge was obliged to listen to Mr. Groia’s complaints every time he was moved to make one. I have already stated my view that it is not appropriate for the defence to use allegations of abuse of process to circumvent the normal rules of evidence and have suggested a procedure to deal with this specific issue should it arise again at the resumed trial. More generally, the trial judge should have instructed Mr. Groia to refrain from his comments concerning abuse of process or prosecutorial misconduct until the time came to make his abuse of process motion. Mr. Groia’s obligation to advance his client’s case did not give him the right to continue to make claims of professional misconduct and abuse of process that had no substance and before he was prepared to fully argue the issues.

[339] Civility in the courtroom is not only the responsibility of counsel, but is also “very much the responsibility of the trial judge”.[91] Where counsel and the trial judge fail to discharge their responsibilities, the administration of justice is tarnished.[92] Indeed, a trial judge could lose jurisdiction in circumstances that do not amount to a reasonable apprehension of bias where the failure of the trial judge to intervene prevents a fair trial.[93]

[340] While Crown counsel have special responsibilities as “ministers of justice”, as officers of the court and as barristers and solicitors, defence counsel also have responsibilities to the court and to other counsel. They have a duty to uphold the standards of the profession.[94]

[341] All counsel and litigants have the right to expect that counsel will conduct themselves in accordance with The Law Society of Upper Canada’s Rules of Professional Conduct and the commentaries thereto.[95] These Rules are crystal clear – counsel are to treat witnesses, counsel and the court with fairness, courtesy and respect.[96]

[342] In regard to ensuring that counsel act civilly towards other counsel, Rosenberg J.A. adopted the following passages from the judgment of A. Campbell J. on the application: [97]

The fact that a counsel may be abrasive does not deprive the court of jurisdiction. It may be that some judges would put an early lid on Mr. Groia’s profusion of self righteous moral outrage and insist that he make his points without excessive rhetoric. A less patient judge or a more interventionist judge might have done more to curb the nasty edge in Mr. Groia’s rhetoric, and also more to discourage Mr. Naster from challenging adverse rulings. But it is a matter of judgment in every case whether it is best to intervene, and risk further inflaming a counsel whose zeal exceeds his civility or his judgment, or simply to let the storm pass and then move ahead. It is not the function of the trial judge to intervene constantly and curb every rhetorical excess. Many judges take the view that it is more productive in the long run to give such counsel as much rope as they want, out of concern that constant judicial reaction will simply provoke more rhetoric and further delay.

. . . . .

It is unfortunate that Mr. Groia took every opportunity to needle Mr. Naster with sarcastic allegations of professional misconduct. But prosecutors need thick skins and need not be easily baited. It is open to a judge, faced with cycles of provocation and reaction, to intervene strongly. It is also open to choose the path of complete non-intervention on the basis that judicial intrusion might simply excite further provocation. It is also open to take the middle ground adopted by Mr. Justice Hryn reflected in the above passages.

. . . . .

It cannot be said that Mr. Justice Hryn’s patient refusal to descend into the arena or to depart from his established position of judicial neutrality above the fray represents an error of law, let alone a jurisdictional error. [Footnotes omitted.]

[343] Rosenberg J.A. continued:[98]

I agree with the conclusion of the very experienced application judge that the prosecution was not prevented from having a fair trial and, just as importantly, I accept his understanding of the role of a trial judge. I would just add these comments.

It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the civil context. Morden J.A. of this court expressed the matter this way in a 2001 address to the Call to the Bar: “Civility is not just a nice, desirable adornment to accompany the way lawyers conduct themselves, but, is a duty which is integral to the way lawyers do their work.” Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. As Kara Anne Nagorney said in her article, “A Noble Profession? A Discussion of Civility Among Lawyers” (1999), 12 Georgetown Journal of Legal Ethics 815 at 816-17: “Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society . . . Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.” Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. Such conduct diminishes the public’s respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication.

Nothing said here is inconsistent with or would in any way impede counsel from the fierce and fearless pursuit of a client’s interests in a criminal or quasi-criminal case. Zealous advocacy on behalf of a client, to advance the client’s case and protect that client’s rights, is a cornerstone of our adversary system. It is “a mark of professionalism for a lawyer to firmly protect and pursue the legitimate interests of his or her client”. As G. Arthur Martin said, “The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society”. Counsel have a responsibility to the administration of justice, and as officers of the court, they have a duty to act with integrity, a duty that requires civil conduct.

Recommendations Regarding the Trial Management Function

1. Trial judges have the inherent discretion and power to ensure the trial proceeds in an orderly and focused manner. This power includes the authority to place reasonable limits on oral submissions, to direct that the submissions be made in writing, to direct the manner in which a voir dire is conducted, to restrict cross-examination that is repetitive or abusive, to limit evidence that is irrelevant or repetitive, and to maintain order and civility in the courtroom. The powers must be exercised sparingly and with caution. However, the selective and judicious use of trial management powers will enhance the objectives of effective trial management.

2. Where the prosecution seeks a declaration that the offender is a dangerous or long-term offender, a further case management conference should be held with the trial judge or another judge of the court to ensure that the evidence to be called on the application will be presented in most efficient manner without impinging on either party’s fair trial rights.

Juror Issues

… trial by jury interests large numbers of people in the administration of justice and makes them responsible for it. It is difficult to over-estimate the importance of this. It gives a degree of power and of popularity to the administration of justice which could hardly be derived from any other source.[99]

______________________

[344] Juries play a vital role in the administration of justice in Ontario. In the highest profile and most serious cases, the jury makes the most important determination, whether the accused is guilty or not guilty. Despite this critical role in the criminal justice system, too often jurors are forgotten. When trials last for weeks, months or years, the burdens placed on jurors rival or exceed those placed on every other participant in the justice system. Yet, they often have to continue their duty in spite of financial challenges and substantial inconvenience to their personal lives. When jurors are unable to continue serving, the trial is placed in jeopardy. Jurors, entrusted with the most important of decisions, should not carry the additional burdens of external pressures while fulfilling their essential role.

[345] The committee believes that significant changes can and should be made to improve the lot of jurors in Ontario in the following areas:

The Jury System in Ontario

[346] Pursuant to the Juries Act,[100] a person is eligible to serve on a jury once every three years. The 3-year period applies to jury panel members who were summoned for jury duty and not selected for a jury, as well as those who served on a jury. While jurors must be at least 18 years of age, there is no maximum age restriction. Those convicted of indictable offences for which they have not received a pardon are ineligible for jury duty.

[347] The potential jurors’ names are taken from the most recent enumeration lists, obtained from the Ontario Property Assessment Corporation. Names are selected randomly from each county and district, and a questionnaire for jury service is mailed to those selected. The enumeration lists are updated once every three years, and do not reflect changes in personal circumstances within that period.

[348] When an enumeration occurs, persons at the household indicate their date of birth and citizenship. When the random selection process is requested, the Ontario Property Assessment Corporation selects persons for each district who have indicated on the enumeration form they are over 18 years of age and Canadian citizens. Each year the start point of the file is altered, creating the random selection process.

[349] As a screening procedure to determine eligibility, questionnaires are mailed to individuals to determine their ability to be considered as potential jurors. The questionnaire is not a summons for jury duty. The jury panels are determined on the basis of the responses to the questionnaire.

Information Received when Selected for a Panel

[350] The jury selection process is facilitated where jurors have information available to them regarding the schedules, procedures and expectations before they attend the courthouse. Difficulties can arise when they arrive with insufficient information.

[351] Currently jury panel members are given an informational brochure, entitled “Frequently Asked Questions about Jury Duty”. That publication, as well as brochures entitled “General Information About the Jury System”, “General Information About the Jury Questionnaire” and “Frequently Asked Questions About the Jury Questionnaire” are available on the Ministry of the Attorney General’s website.[101] Some of the information in “Frequently Asked Questions About Jury Duty”, last revised in 1998, should be amended. For example, potential jurors are told:

. . . panel members are “on-call” for 2 to 3 weeks, although their actual attendance at the courthouse is normally 3 to 5 days in Toronto, or 1 to 2 days outside Toronto. Outside Toronto, these may be either consecutive Mondays or will depend upon the number of trials that require juries that are scheduled to commence during that “on-call” period.

If you are selected from the panel to sit on a jury, the length of time you may be required to attend will depend upon the nature of the trial. The presiding justice may advise you of the estimated length of trial during the jury selection process.

[352] There are few areas of the province where jurors are “on call” for 2 to 3 weeks. While Toronto has panels every week, other large centres have panels most weeks. No doubt this outdated information is a result of having a “one size fits all” brochure for a province with vast diversity in the local practices with jurors.

[353] Many potential jurors wonder whether jury duty will affect their entitlement to Employment Insurance benefits. The website currently states that recipients can serve on juries and continue to receive benefits. They are advised to contact their nearest E.I. Centre for information and confirm. As noted below, the fees received for jury duty are deducted from the E.I. benefits.

[354] We recommend that the information provided to potential jurors should be more comprehensive and informative. For example, the Queensland Court[102] provides three publications, which are obtainable online:

a) Juror’s Handbook, which addresses questions such as “How long will I have to be available?”; “What should I wear?”;”What does empanelling mean?”; and, “What do I do if someone approaches me about my jury duty?”

b) Guide to Jury Deliberation, which outlines the role of the foreperson (jury speaker), discusses the evidence and law, voting, getting assistance from the court, the verdict and once jury duty is over.

c) Jurors Support Program for jurors who experience ongoing distress after the trial.

Fees

[355] In 1973, jurors were paid $10 a day once selected. In 1978, the rate increased to $10 a day for the first 10 days and $40 thereafter. Pursuant to the current provincial legislation enacted in 1989, jurors receive no fees for the first 10 days of trial, $40 for days 11 through 49, and thereafter, $100 per day.[103] The fees are considered income for services, and are taxable. A juror receiving Employment Insurance benefits must declare the earnings, which are deducted from the benefits.[104] Employers are required to allow employees to attend for jury duty, but are not required to pay their salary while they are serving, although some employers have arrangements to continue to pay the salaries of employees serving jury duty.

[356] By way of comparison[105]:

a) Alberta’s fees are $10 per day for the first 5 days of trial and $40 a day thereafter. Expenses can be claimed by jury panel members, but not selected jurors;

b) British Columbia’s fees are $20 per day for the first 10 days of trial, $60 for the 11^th to 49^th day, and $100 thereafter, expenses are paid for selected jurors only;

c) Manitoba’s fees are $30 a day after the first 10 days, with expenses not to exceed $10 a day after the first 10 days of trial;

d) New Brunswick’s fees are $20 for a half day (4 hours or less) and $40 for a full day (over 4 hours), with expenses at the government rate including meals, unless the expense is covered from another source;

e) Nova Scotia’s fees are $40 a day with only travel expenses paid at 20 cents a kilometer;

f) Prince Edward Island’s fees are $40 a day and expenses at the government rate;

g) Quebec’s fees are $90 a day, and an additional $45 if there is an evening hearing. If the deliberation includes a night at a hotel, $90 for the night, plus expenses, including child care and psychological treatment; and

h) Saskatchewan’s fees are $15 a day when summoned for jury duty, $80 a day if selected, provided the juror’s employer is not paying their salary, and travel expenses at the government rate[106].

[357] Under the current Ontario system, if a judge is required to conduct a voir dire, or if for any other reason the trial does not sit on a day, the jurors are not paid. This can result in additional hardship for jurors whose jobs have been temporarily filled by replacement workers, resulting in the juror receiving no payment for the day regardless of the length of the trial. To avoid this hardship, the committee recommends that once a trial starts, absent exceptional circumstances, the jurors are to be paid for court days whether they are required to attend or not.

[358] In addition, we are unable to ascertain any rational basis why jurors about to embark on a lengthy trial are not paid the highest rate from the start of the trial. For example, if the trial is expected to last 5 months, there is no rational basis for not paying jurors for the first 10 days, and paying a lower rate for days 11 to 49 as compared to days after the 50^th day.

[359] To illustrate the effect of the current level of juror remuneration, if a juror were to sit on a 49-day trial, and was at court 6 hours a day, they would serve 294 hours and be paid $1,560, receiving $5.30 per hour. The minimum wage in Ontario is $7.75 per hour.

[360] In addition, jurors have incidental expenses associated with their jury duty, such as travel costs for mileage, taxis or public transit, meals while not sequestered, and child care expenses. A travel allowance is only payable to jury panel members who live more than 40 kilometres from the courthouse. Once selected for jury, jurors receive a travel allowance for each day of trial if they live outside the city or town in which the court is located. Jurors who live in the same town or city receive no travel allowance. Accordingly, jurors who travel to court by public transit in Toronto receive no travel expense. The travel expense for jurors who qualify for the allowance is 30 cents per kilometre. The rate paid to government employees is 33.75 cents per kilometre.

[361] Jurors are not compensated for any other expenses incurred while attending for jury selections or sitting on a jury. In the result, jurors, performing their civic duty, may receive little, if any, remuneration while incurring expenses that could surpass the fees received. Frequently, jury duty costs the jury members money in addition to their lost wages.

[362] There is an additional consideration as a result of the current fee structure. While jury duty is a civic duty of all Canadian citizens and may result in lost income, if the lost income and/or costs of serving to the potential juror result in the exclusion of significant numbers from the jury panel on the basis of hardship, the result may very well be an inability to empanel a jury representative of the community in which the trial is held.

[363] In suggesting the increases set out in our recommendations at the end of the chapter, we acknowledge there will be increased costs to the province for jury duty. However, given the importance of the jury system to the administration of justice, we believe the relatively modest expenditure is justified and necessary.

French Speaking Jury Panels

[364] Pursuant to s. 530 of the Criminal Code, “an accused is entitled to be tried before a judge or jury who speaks the official language of Canada that is the language of the accused or, if circumstances warrant, who speak both official languages”. Some jurisdictions in the province, such as Peel, have experienced significant difficulties empanelling a French speaking jury. When it is difficult or impossible to select a French speaking juror, the trial takes longer to complete, and may result in adjournments and/or an application to stay the proceedings for delay, pursuant to s. 11(b) of the Charter of Rights and Freedoms.

[365] In the questionnaire potential jurors receive, they are asked if they can read, speak and understand the French language. Often potential jurors check the box, only to advise upon being summonsed to court that they have not spoken French since high school, many years ago.

[366] In the General Information about the Jury Questionnaire jurors are told to mark the “yes” box if they have “a good knowledge and command of the French language”. It would be clearer to potential jurors if they were told that they must be fluent in French to the extent that they have a thorough and complete understanding of written and spoken French or that their fluency must be such that they would be able to serve on a jury where all of the evidence and legal instructions were given in French.

[367] We recommend that the information provided to jurors regarding jury duty be enhanced.

Facilities for Jurors

[368] The Court Services Division of the Ministry of the Attorney General has recently renovated jury rooms province-wide to provide improved facilities and services, including an ergonomic and comfortable environment. While the committee acknowledges these improvements in some locations, there remains a need to standardize and improve the remaining jury deliberation rooms to provide a comfortable and ergonomically correct environment. While the provision of ergonomic chairs for all jury boxes and deliberation rooms is a priority with the Court Services Division, we recommend they be given a high priority and be provided within 12 months.

Summary of Recommendations Regarding Jurors

1. The information made available to jurors before attending for jury duty should be revised and expanded.

2. Jurors should be paid $40 per day from the first date they are selected for a jury until the end of the 10^th day of trial, and thereafter $100 per day.

3. When the trial is expected to last more than 10 days, the jurors should be paid $100 per day for all trial days.

4. Jurors should be paid for days on which they are not required to attend court as a result of mid-trial applications, or if for any other reasons the court is not sitting.

5. Jurors should be compensated for expenses incurred as a result of their attendance for jury duty, including all travel expenses regardless of the distance between the courthouse and their residence, parking fees, reasonable expenses for meals, day care expenses and, where necessary, accommodations for jurors who have had to travel long distances to attend court.

6. Jurors should be paid the same mileage rate as government employees.

7. All jury deliberation rooms should be equipped with fridges, microwave ovens, couches and ergonomic chairs.

8. All jury boxes should be equipped with ergonomic chairs.

9. The Juror Questionnaire should be revised to ensure that only those potential jurors who have a thorough and complete knowledge of spoken and written French should indicate they can serve on a French jury.

Courtroom, Personnel and Facilities Issues Affecting Long Trials

[369] Trials can last longer than anticipated when difficulties arise with interpretation of the proceedings, technological equipment is not available or malfunctions, courtroom staff are changed in the middle of the trial, or courtroom or courthouse facilities impede the orderly conduct of the trial.

Interpreters

[370] Section 14 of the Charter of Rights and Freedoms states:

A party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

[371] This right has been analyzed by the Supreme Court of Canada to mean that at a minimum the accused has a right to competent interpretation.[107] The quality of interpretation must be high, although not to a standard of perfection. Summaries of the evidence are unlikely to meet the general standard of interpretation required. The constitutionally guaranteed standard of interpretation has been defined as one of continuity, precision, impartiality, competency and contemporaneousness. In court, this will generally mean that the interpretation will be consecutive (after the words are spoken) rather than simultaneous (at the same time the words are spoken).

[372] With 101 languages being interpreted in courts in Ontario, the Court Services Division faces a daunting challenge to meet these standards. Providing qualified interpreters in all languages, having two interpreters for cases that are to last longer than 2 days,[108] ensuring interpreters are available when most interpreters are “free lance” and not contract employees, and ensuring continuity of interpreters, are but some of the challenges.

[373] Where qualified interpreters are not available throughout trials the result is at best longer trials, and at worst adjournments, mistrials, or potential miscarriages of justice. The difficulties raised by unqualified court interpreters have been canvassed in R. v. Sidhu.[109] The steps taken by the Court Services Division in Court Services Division Directive, #2006/06, dated March 3, 2006,to rectify the difficulties are constructive and encouraging. We urge the Court Service Division to continue its efforts towards ensuring that qualified interpreters are provided for all criminal trials, according to the standards set by the Charter and the Supreme Court of Canada.

[374] Trials can also be delayed when the interpreter(s) are changed during the course of a trial. This is particularly so where there are different dialects of a language.

[375] We acknowledge there may be instances where a change in interpreters is required. However, the objective must be to have the same interpreter(s) throughout the trial. On those occasions when an interpreter must be replaced, the potential change must be brought to the attention of the trial judge by the interpreter’s coordinator, and the reasons for the change must be explained.

[376] There is also a need to establish an interpreter-coordinator in all court houses; whether that task is combined with others in centres where there is little need for interpreters, will have to be organized within the Court Services Division. The interpreters’ coordinator should be responsible for coordinating all interpreters for the courthouse in both provincial and federally prosecuted cases.

[377] Achieving the objectives of having qualified interpreters in courts and having trials proceed efficiently and without interruption is not the sole responsibility of the Court Services Division. The bar and the judiciary must play a role in ensuring that interpreters assigned for trials are able to provide the requisite interpretation. It is imperative, especially where accused persons or witnesses speak a particular dialect, that the interpreter(s) meet with the accused or the witness before the trial, to ensure there are no comprehension issues. Otherwise, when the difficulty emerges at trial, the trial may have to be adjourned or at least delayed until another interpreter is available.

[378] It is essential that the policies of the Court Services Division be reviewed and revised periodically to ensure that they comply with recent case law in areas such as language interpretation. When judgments that have an impact on interpreters are released, it is essential that procedures be in place to make changes to bring the Court Services Division manuals and policies into conformity with the law, and to inform all interpreters.

Technological Equipment in the Courtrooms

[379] One of the most frustrating causes of delay in criminal trials occurs when equipment such as DVD players and monitors is required, and none is available. When the increased use of videotaping statements of accused persons and witnesses is coupled with the expansion in the use of the principled exception to the hearsay rule (Khan[110] applications), there is an increasing need for this equipment in the courtroom. At times, as a result of the preliminary inquiry or other indications from the witness, counsel can anticipate the need for audio/visual equipment. In other instances, the need is not foreseen.

[380] While audio/video equipment is by far the most frequently used in the courtroom, at other times projectors, particularly Elmo projectors, speakers and projection screens are required. If they are not available, the result is trial delays.

[381] Attempting to predict the type of equipment that will be required, and when it will be needed, is not an easy task.

[382] Representatives from the Court Services Division told the committee they do not always receive advance notice of the need for equipment, which makes it difficult to fulfill requests immediately. Their policy is set out as follow is:

Historically, the provision of audio/video equipment for use in the court has been the responsibility of the parties. Although CSD is taking an enhanced role in the provision of equipment for court proceedings, this equipment is limited and is available on a first come, first serve basis only. If CSD equipment is not available for a proceeding, it is the responsibility of the parties to provide their own equipment.

[383] While we acknowledge the significant efforts the Courts Services Division is making to provide some technological equipment, the current policy fails to provide two essential components – predictability and consistency. By way of example, if a court facility has two DVD/VHS players and neither is in use in criminal proceedings the first 2 days of the week, this would permit a civil trial to use a DVD player. If both are required for criminal proceedings on Wednesday, the parties using the equipment in a civil case would have to obtain their own equipment on Wednesday. If an unforeseen need arises on Tuesday for the equipment in a criminal case, does that trial have to adjourn because the equipment is in use in the civil trial, or is the equipment taken from the other courtroom?

[384] Similarly, if equipment is in use in an impaired driving trial in the Ontario Court, and a witness unexpectedly has a memory failure or lapse in a Superior Court murder trial before a jury and only one DVD/VHS player is available, which case is adjourned?

[385] The inevitable result of providing only some equipment, is unpredictability and inconsistency, both of which are problematic, and both of which could cause delays in trials.

[386] The committee was told that the Court Services Division recently purchased 57 audio/visual equipment stations, which have been placed in courthouses across Ontario. These carts include a laptop computer, projector, documents camera (Elmo projector), speakers, printers, projection screen and DVD/VHS players. In our discussions with representatives from the Division, we were advised that the Division does not intend the components to be removed from the carts. Accordingly, when a courtroom requires any piece of equipment on the cart, the entire cart is taken to a courtroom. In the result, if courtroom #1 requires a projector and courtroom #2 requires a DVD/VHS player, only one court can proceed. The committee commends the Court Services Division for their recent efforts. However, the committee urges the Division to increase the availability of the basic technological and other equipment required in most courtrooms, by making individual components on the carts available separately.

[387] At some date in the future, no doubt courtrooms will routinely require certain equipment, such as document cameras, printers, and laptops. However, the committee recommends that the limited resources available for technological equipment be allocated to the items for which the courts currently have the greatest need, and that that equipment be available for most courtrooms. It is the committee’s opinion that there is a pressing need for additional VCR/DVD players. While not technological equipment, there are also courthouses where it is difficult, if not impossible, to locate an easel to facilitate showing a map or other exhibit. Determination of the number of DVD/VHS players, etc., and other local requirements for each court facility will have to be made on a local basis, taking into consideration the number of courtrooms, how often they are all in use, the projected use of the players, and the views of the bench and bar.

[388] We also recommend that each facility post a list of the available equipment on the Superior Court website and at each courthouse, advising the bar of the availability of the equipment, and that it will be the responsibility of the parties to provide all other equipment.

[389] A final note on equipment in the courtroom is worth mentioning. Even when the equipment is available, too often the first words from counsel when the equipment is to be used are, “Your Honour, I have no idea how to work this thing.” It is counsel’s responsibility to acquaint themselves with the operation of the equipment before the start of court.

Technological Equipment to Facilitate Pre-trial Conferences

[390] Throughout the recommendations, we have suggested there may be occasions where pre-trial conferences or trial management conferences with the trial judge may be held by conference call, with the consent of the judge. There may be occasions where several counsel will be involved. To facilitate these conferences, each Superior Court courthouse should have teleconference equipment available for Superior Court judges to conduct teleconferences.

Courtroom Personnel

[391] An efficient trial requires significant input from the judge and counsel. It also requires that qualified, competent registrars, reporters and Court Service Officers be assigned to the case, and to the extent possible, continue to be assigned to the case until completion.

[392] Virtually all of the persons noted above hold unclassified positions with the Ministry. We appreciate that the Court Services Division has an obligation to ensure working hours are fairly shared between staff members. However, when reporters, registrars or Courts Service Officers are changed in the course of a trial, it creates the potential for delay and interference with the orderly conduct of the trial, as the new personnel have to familiarize themselves with the parties involved, the manner in which exhibits are filed, etc.

[393] In part, the issue of fairly sharing available work hours will be addressed through the Court Services Division’s new “Workforce Revitalization Project”, which will convert many unclassified court support staff into classified positions. The project should permit the retention of trained staff, stabilize the court-support workforce, and improve the quality of candidates for these positions. The Court Services Division is currently negotiating with community colleges to develop and deliver refresher training for current court support staff, as well as comprehensive training for new staff across the province. We encourage the Division to pursue and finalize these arrangements at the earliest opportunity.

Court Facilities

[394] In the course of the committee’s deliberations, several areas regarding court facilities were identified as contributing to delays in trials: the lack of interview rooms where lawyers can meet with accused persons who are in or out of custody; prisoners boxes that are inadequate for trials with multiple accused persons; and the lack of flexibility in courtrooms, which precludes court assignment changes to accommodate proceedings such as jury selection in some cases with multiple accused persons.

Consulting Rooms

[395] Accused persons have the right to retain and instruct counsel without delay.[111] That right must be exercised in private.[112] The right continues throughout the trial process.[113] While it is counsel’s obligation to obtain instructions in advance of the pre-trial conference and trial on all issues it is reasonably foreseeable will arise, issues may arise that require input from the accused at the outset of the trial or as it progresses. When counsel are not able to meet with accused persons in private, whether in or out of custody, trials can be delayed.

[396] The Committee appreciates that the standards for new courthouses include two anterooms adjacent to each courtroom, designated as witness interview rooms, and private space in holding cell areas for counsel to meet with accused persons in custody. However, many courthouses do not comply with the standard for out-of-custody interview rooms, and many others have less than adequate facilities for in-custody interviews.

[397] While we understand that the Court Services Division is undertaking a review of the locations where interview rooms are not available, we urge the Division to complete the review as soon as possible, and to take whatever steps are required to provide accused persons and counsel with the facilities within which to exercise the accused’s constitutional rights.

Prisoners’ Boxes

[398] In cases where multiple accused persons are tried together, the prisoners’ boxes are frequently too small to accommodate all of the accused. While we appreciate that the accommodation of numerous prisoners is a “courts facilities’ best practices” issues, and the larger cases are dealt with on a case-by-case basis, we recommend that new court houses be built with at least one jury courtroom with a prisoners’ box to accommodate multiple accused persons.

Courtroom Flexibility

[399] New courthouses are to be built in accordance with the Courthouse Design Standards. Those standards include a variety of courtroom sizes, to respond to the various needs of the court. Acknowledging those standards, the committee believes more flexibility should be built into courthouse design. We accept that acoustic issues prohibit the use of flexible accordion-style walls to allow courtrooms to be partitioned and/or combined, and that on occasion the Court Services Division has set up video/audio between courtrooms for special trials, to allow spectators to view court proceedings. However, with the advent of mega trials, proceedings such as jury selection become problematic in even the larger courtrooms that currently exist.

[400] We commend the Court Services Division for their initiative in identifying courtrooms in each region that can accommodate large trials, and the need to build more large courtrooms to ensure capacity is available. We strongly urge the Division to accelerate that review and implementation of recommendations for larger courtrooms. The mega-trials pending in Toronto and elsewhere mandate a speedy response to these issues. When charges are laid in a mega-trial, steps should be taken immediately to make arrangements for court facilities for the trials.

[401] Related to courtroom flexibility is the need for any new court facility to provide for future population and caseload expansion in the region. Too often, courthouses are built that, within a few years of opening, are already inadequate to serve the population’s needs.

[402] With increasing frequency, “electronic courtrooms”[114] are being utilized. They lead to more efficient and shorter trials. While we acknowledge they are not required in every courthouse, and that those in existence are not used as frequently as other courtrooms, new courthouses should have accommodation for electronic courtrooms when the buildings open, or at the very least, should have the capacity to accommodate a quick and relatively inexpensive enhancement to an electronic courtroom.

Facilities Issues

[403] On occasion, when trials sit into the evening, or juries are deliberating after the usual court sitting hours, difficulties arise with air conditioning being turned down or off, or heat being adjusted. If the trial cannot proceed, the trial is delayed. Having received input on this issues from the Court Service Division, we recommend that each facility establish a protocol concerning after-hours court sittings to enable heating or air conditioning to be maintained at the same level as it is during regular court hours. As soon as it becomes apparent the court may be used after hours, the registrar of the court should be required to advise the Court Manager, who would work with building management to ensure that air quality is maintained.

Summary of Recommendations Regarding Courtroom Personnel and Facilities Issues

Interpreters

1. The committee encourages the Court Services Division to continue to address the important issues raised in R. v. Sidhu.[115] In particular, the administration of justice requires that accused persons and witnesses be provided with competent and qualified interpreters, in accordance with the criteria set out in R. v. Tran.[116]

2. Every courthouse should have a Coordinator of Interpreters, such that one person would be in charge of all interpreters. It may be that, in some facilities where the demand for interpreters is not large, the position would be combined with other duties.

3. All interpretive services should be coordinated through the Coordinator of Interpreters, regardless of whether the proceeding is prosecuted by the Attorney General of Ontario or the Department of Justice.

4. Where feasible to do so, the same interpreter(s) should be used throughout the trial. Where there is to be a change in interpreters, the potential change and the reasons for it should be brought to the attention of the trial judge by the Interpreters Coordinator as soon as the situation arises.

5. The judiciary and the bar must play a role in the provision of appropriate interpretive services to accused persons and witnesses. It is imperative that counsel arrange to have the accused and witnesses who require interpreters meet with the assigned interpreters before the scheduled trial date, to ensure that the accused or witness and the interpreter have no difficulties communicating with each other. This issue should be addressed by the pre-trial judge, noted on the pre-trial report to the trial judge and to the Trial Coordinator, and the timing of the interpreter interview arranged. This is particularly important where an accused or a witness speaks a particular dialect of a language.

6. It is essential that the policies of the Court Services Division be reviewed and revised periodically to ensure that they comply with recent caselaw in areas such as language interpretation. When judgments having an impact on interpreters are released, it is essential that procedures be in place to make changes to bring the Court Services Division manuals and policies into conformity with the law and to inform all interpreters.

Technological Equipment in the Courtroom

1. It is the responsibility of counsel to advise the Court Services Division well in advance of a trial date that technological equipment will be required for a trial.

2. The pre-trial conference judge should examine whether such equipment will be required, and should complete the report to the Trial Coordinator that it will be required.

3. The Court Services Division should be responsible for providing adequate basic technological equipment for all courtrooms, and notifying the judiciary, bar and public of the equipment that is available at each court location.

4. The basic equipment should include the equipment most frequently needed in courtrooms, such as monitors and DVD/VHS players, and easels. Each facility should have a sufficient quantity of this basic equipment, so that the equipment is available with minimal delay in every courtroom in the facility.

5. Before any equipment is purchased for courtrooms, it is imperative that there be consultation among the Court Services Division, the judiciary, and the bar, to identify the current needs of the court.

6. It is the responsibility of counsel introducing evidence by means of technological equipment to familiarize themselves with its use before court, and not as the equipment is being used in court.

Technological Equipment to Facilitate Pre-trial Conferences

1. To facilitate telephone conference-call pre-trial conferences or case-management conferences, each Superior Court courthouse should have teleconferencing equipment available to the Superior Court judges.

Courtroom Personnel

1. Where feasible, the Court Services Division should attempt to have the same interpreters, registrars, reporters and Court Services Officers assigned throughout a trial.

2. The Court Services Division is encouraged to complete and implement at the earliest possible date the “Workforce Revitalization Project”, to convert unclassified court support staff to classified positions.

3. The Court Services Division is encouraged to finalize arrangements with community colleges to develop and deliver refresher training for current court staff, and comprehensive training for new staff across the province.

Court Facilities

1. The Court Services Division is encouraged to complete its review of court houses where there are insufficient or inadequate rooms for counsel to consult with accused persons, whether in or out of custody, and with witnesses.

2. The Court Services Division is encouraged to ensure that all new courthouses be built with at least one jury courtroom that permits multiple accused persons to be in the prisoners’ box.

3. The Court Services Division should ensure that new court facilities have courtrooms with sufficient flexibility to permit multiple uses of the same room. In addition, each region should have at least one courtroom with the capacity for a mega-trial with multiple accused persons in custody.

4. The Court Services Division is strongly urged to accelerate the review and implementation of recommendations for larger courtrooms to accommodate mega-trials. It is imperative that steps be taken as soon as charges are laid to ensure that an adequate court facility will be available.

5. The Court Services Division is encouraged to ensure that all new court houses either have one electronic courtroom, or have the capacity to meet the need for such a courtroom quickly and at minimal expense.

6. Each court facility should establish a protocol for when courts sit beyond the normal court hours to hear evidence or for jury deliberations, to ensure there is adequate heat or air conditioning. As soon as the potential for court to sit beyond the normal hours arises, the court registrar should be required to advise the Manager of Court Operations.

Correctional Services and Prisoner Transportation Issues

[404] Some courts continue to experience delays as a result of prisoners arriving late for court, prisoners arriving in prison attire instead of their “street clothes”, or lawyers being prevented from seeing their client in regular interview rooms at the jail as a result of “lockdowns” for various reasons.

[405] These conditions prevent the orderly conduct of a trial, and lead to delays as jurors, judges, counsel, witnesses, court staff and spectators wait for the arrival of the accused, the arrival of the accused’s clothing, or for counsel to receive instructions. With most courts taking steps to ensure the jury does not know the accused is in custody, it is impossible to tell the jury the reason for the delay.

[406] As noted earlier, the accused has a constitutional right to retain and instruct counsel throughout the proceeding. When counsel are told they should not attend a jail because of a “lockdown”, or when they attend, only to be told they cannot see the client or have to conduct the interview by “phone” in the public area,[117] the right to counsel may be frustrated, counsel cannot get instructions, and trials are delayed.

Recommendations Regarding Correctional Services and Prisoner Transportation Issues

1. The administration and staff of correctional facilities responsible for preparing prisoners for transportation and the policing services responsible for transporting prisoners to court must have the prisoners at court at the time specified in the Warrant of Remand. The Warrant of Remand is an order of the court, which must be complied with.

2. Where accused persons are held in custody, it is essential that counsel have an opportunity to consult with their clients in private at the correctional facility. Frequent lockdowns deprive the inmate of his or her constitutional right to instruct counsel. In some instances, phone contact within the correctional facility can be of assistance to counsel and the inmate. However, it should not become the norm. In most instances, the right to retain and instruct counsel can only be provided where counsel and the accused person meet in an interview room, where the inmate and counsel can converse face to face, as opposed to over a telephone.

Police Issues

[407] As noted in the section on causes of delays in trials, a continuing cause is delayed or inadequate disclosure. While we acknowledge this significant issue continues to be addressed by the Ministry of the Attorney General and by Police Services across the province, particularly in terms of the costs of disclosure, this problem has plagued the criminal justice system since before the release ofStinchcombe in 1991. We strongly encourage all parties to resolve the outstanding issues, and implement all of the outstanding recommendations of the Martin Report and the Criminal Justice Review.

Recommendations Regarding Police Services

1. All parties involved in the provision of the constitutional right to disclosure are strongly encouraged to resolve the outstanding issues regarding the costs and provision of disclosure, and to implement all outstanding recommendations regarding disclosure in the Martin Report and Criminal Justice Review.

Conclusion

[408] Over the past 16 months, the committee has examined why criminal trials are taking longer than in the past and, in many cases, longer than anticipated. Our recommendations provide a comprehensive proposal to make criminal trials more efficient, more focused, and shorter. Through fundamental changes to the pre-trial system, enhanced requirements regarding pre-trial application notices and supporting material, more effective trial management and case management, we are confident that the recommendations have the potential to shorten trials, without sacrificing the interests of the accused or the prosecution. The objectives will be enhanced as well by improvements in areas within the jurisdiction of the Court Services Division and the Ministry of Community Safety and Correctional Services.

[409] However, the new rules and forms in themselves will not achieve the objectives. What is needed is a fundamental change in attitudes and habits on behalf of all participants in the criminal justice system, a system whose participants often do not readily embrace change. The bench and bar in particular must change their approaches to pre-trial conferences, pre-trial applications, and trial management. The bench and bar must adopt approaches that consider pre-trial conferences to be meaningful and important steps in the litigation process, that require informative written notices as a prerequisite before embarking on an evidentiary hearing, and that utilize trial management as a means of focusing the issues and arguments at trial.

[410] While all participants in the justice system must contribute toward the objectives, it will be for the judiciary to take a leadership role by changing the current culture of pre-trial conferences, insisting on compliance with the rules and effectively case and trial managing the cases they deal with. Without that leadership, we have serious reservations that there will be any improvements. Rather, it will revert to the “same old, same old” approaches. With the judges of the Superior Court leading by example and “raising the bar” in terms of their contributions to pre-trial conferences, demands and expectations of counsel at pre-trial conferences and pre-trial applications, we are confident the bar will meet the challenge, advocacy will improve, and trials become more focused and efficient.

[411] Finally, we are recommending that the new rules apply to cases in which the committal for trial is after October 15, 2006. This will permit educational programs to be conducted throughout the province, so that all counsel are well aware of the new rules. We are also recommending that the committee meet again in September of 2007 to review the manner in which the rules were implemented and make further recommendations, if required, taking into consideration the comments of the bench and bar over the next year.

Compilation of Recommendations

Recommendations Regarding Legal Aid

1. The committee recommends that the criminal law legal aid tariff be amended to enable counsel to bill Legal Aid Ontario for up to two hours for preparation and attendance at one judicial pre-trial conference in the Superior Court of Justice. For any subsequent pre-trial conference ordered by a judge, counsel should be paid an hourly rate for preparation and the attendance. These fees would be tariff items, without counsel having to ask for the exercise of discretion by the Legal Accounts Office.

Recommendations Regarding Pre-trial Conferences

Timing

1. The pre-trial conference shall be held within 60 days of the committal for trial, unless ordered otherwise by a judge of the Superior Court of Justice.

The Pre-trial Conference Report

1. There shall be one comprehensive pre-trial form for all criminal cases in the Superior Court of Justice.

2. Copies of the pre-trial forms must be available in Assignment Courts, Trial Offices and on the Court’s website.

3. The form must be completed in full by counsel or self-represented accused, unless otherwise ordered by a judge, or unless the accused will definitely be pleading guilty and the only issue to be addressed at the conference is sentence.

4. Where defence counsel know that the accused will definitely be pleading guilty, counsel shall advise the Crown at least 10 days before the pre-trial conference, or as soon as counsel have received appropriate instructions on the plea.

5. Prior to the first pre-trial conference, all counsel of record and the Crown assigned to conduct the trial, or a Counsel who can bind the Crown, are required to complete and sign Form 17.

6. The Crown’s copy of Form 17 must include a brief synopsis of the allegations, including how the Crown intends to prove the allegations.

7. The Crown’s copy of Form 17 must also include the Crown’s position on sentence if there were a plea before trial, the counts upon which the Crown would want pleas, and whether the Crown’s position would have to be a “joint submission”, as well as the position on sentence upon conviction based on the information available to the Crown at that time.

8. All counsel must complete their positions on each issue in Form 17, and not indicate “will advise” or “not as yet”.

9. Before the pre-trial, counsel are encouraged to meet to limit the issues in dispute and reach agreements as to the evidence to be introduced.

10. The Crown is required to serve and file the form not later than 10 days before the pre-trial conference, and the defence not later than 5 days before, unless otherwise ordered by a judge of the Superior Court. Where the Crown has failed to serve and file the form, the defence must still complete the form to the extent possible.

11. If either party changes the positions taken on the pre-trial form, they must provide written notice to the other party(ies) and the Superior Court Trial Coordinator, together with any notices required by the rules. If counsel have not indicated on the form that an application will be brought, or have changed their position in regard to an application without advising the other side and the Trial Coordinator, and seek to bring the application, the presumption is that the application will not be heard. In determining whether to hear the application, the trial judge shall consider the factors set out in the recommendation under Chapter X – the Trial Judge’s Management Function.

12. Where new counsel has been retained, or an accused who was self-represented at the pre-trial conference and completed the pre-trial form retains counsel, the new counsel is required to review the pre-trial form filed by the previous counsel or the accused. It will be presumed that the new counsel is bound by the positions taken on the form and at the pre-trial conference, unless the new counsel notifies the Crown, counsel for the co-accused, if any, and the Trial Coordinator that they will be taking a different position. Where new counsel seeks to take a different position than indicated at the first pre-trial conference, counsel must serve and file a new pre-trial conference report, and arrange a further pre-trial conference. Otherwise, there is a presumption that the application will not be heard. In determining whether to hear the application the trial judge shall consider the factors set out in the recommendation under Chapter X – The Trial Judge’s Management Function.

13. The forms provided by counsel, as well as the pre-trial judge’s report or other equivalent pre-trial memoranda, will be provided to the trial judge.

14. As the forms prepared by counsel and the pre-trial judge contain material protected by litigation privilege and settlement privilege, they shall be kept in a separate part of the court file, and shall not be accessible to the public or the media.

15. The sentencing positions advanced by the Crown, the accused’s criminal record, and issues regarding Corbett applications, shall be removed from the Crown’s form by the pre-trial judge, and kept separate from the court file.

The Conduct of the Pre-trial Conference

1. Pre-trial conferences for accused who are represented by counsel should be held in pre-trial conference rooms, the judge’s chambers or other suitable rooms at the courthouse.

2. Where an accused is not represented by counsel, the conference shall be held in a courtroom closed to the public and other counsel. The conference should be recorded and subject to a publication ban. The recording of the conference is for the benefit of the pre-trial conference judge only, and transcripts cannot be ordered by either party without notice to the other parties and the prior approval of the pre-trial judge. Where transcripts are ordered they should be subject to a common law publication ban.

3. Crown Counsel attending the pre-trial conference must be able to make commitments on behalf of the Crown in regard to issues it is reasonably anticipated will be discussed at the pre-trial conference having regard to the pre-trial forms, subject to counsel and the Court being notified of a different position.

4. Defence counsel attending the pre-trial conference, whether counsel of record or otherwise, must be in a position to make commitments on behalf of the defence in regard to issues it is anticipated will be discussed having regard to the pre-trial form, subject to counsel and the Court being notified of a different position.

5. Unless otherwise ordered by a judge of the Superior Court, an accused who is represented by counsel is not required to attend the pre-trial conference, provided counsel has completed a Designation of Counsel, Form 18, and provided the case is not anticipated to resolve at the pre-trial. Local practices and geographical considerations should be taken into consideration in determining if the accused is required to attend.

6. Where possible, the judges assigned to conduct pre-trial conferences should be interested in conducting pre-trial conferences, able to facilitate the resolution of issues, and experienced and knowledgeable in criminal law procedural, evidentiary, and sentencing issues.

Jurisdiction of the Pre-trial and Case Management Judges

1. The judge may excuse counsel or a self-represented accused from compliance with any Rule of Court.

2. In regard to case management, the judge may also address:

a) The contents of counsel’s pre-trial forms, and clarify any outstanding issues.

b) The issues in dispute, and encourage counsel to make admissions of fact pursuant to s. 655 of the Criminal Code, or to indicate issues that are not contested.

c) Whether witnesses can be waived or their evidence agreed upon.

d) The simplification of such issues as remain to be contested at trial.

e) The manner in which evidence will be presented on pre-trial applications, for example, via an agreed statement of fact, preliminary inquiry transcript excerpts, affidavits, “will states”, or viva voce evidence. Counsel should be encouraged to reach agreements on the manner of introducing the evidence. The pre-trial judge may make recommendations as to the manner in which the evidence should be introduced. However, the final determination as to how the evidence is to be introduced is the trial judge’s.

f) Whether counsel would consent to a judge other than the trial judge presiding at the pre-trial applications. Where counsel consent on the record to this procedure, a judge other than the trial judge can conduct the pre-trial applications, and the rulings are incorporated into the trial record.

g) The manner in which evidence is to be presented in jury trials, so as to assist jury comprehension.

h) Address any outstanding disclosure issues. The pre-trial judge may attempt to reach an agreement between counsel, or ascertain if counsel would consent to have the pre-trial judge, or a judge other than the trial judge, determine the outstanding disclosure issues, provided the ruling became part of the trial proceeding.

i) Whether to make orders regarding the Notices of Application to be filed.

j) The setting of schedules for serving and filing notices, facta, records and Crown witness lists

k) Whether facta are required for applications and, where facta or memoranda of arguments are ordered, the length of the facta or memoranda.

l) Whether written submissions on legal or evidentiary issues can be provided to the trial judge, in lieu of oral argument.

m) Counsel’s time estimates for each application and the trial. The pre-trial judge may provide counsel with suggested time limits for arguments, reminding counsel and self-represented accused that they can expect to be kept to any time limits imposed by the trial judge. While the pre-trial judge can make suggestions regarding time limits, the discretion whether to impose time limits on arguments or evidence is that of the trial judge. Where counsel seek more time than what has been suggested by the pre-trial judge, they shall indicate that additional time is requested in their Notice of Application or responding material. Where no written material is filed by counsel seeking more time, they shall provide written notice 15 days before the trial.

n) Whether in a document-intensive case, affidavits pursuant to ss. 29 and 30 of the Canada Evidence Act can be waived.

o) Whether the prosecution requires all of the counts currently on the indictment to enable a just determination of the allegations, or whether the number of counts can be reduced.

p) Whether the accused and/or any witness will require the assistance of an interpreter. Where interpretative services are required, arrangements should be made to have the person requiring the assistance meet with the interpreter in advance of the trial date, to ensure that there are no difficulties with the interpreter.

q) Whether technological equipment will be required for the trial, and complete the form to notify the Trial Coordinator of the requirement.

3. The following resolution issues should be addressed at every pre-trial conference:

a) The Crown’s position on sentence before trial and after a conviction, including the offences upon which pleas would be sought, credit for pre-sentence custody and corollary orders requested, such as DNA and SOIR orders.

b) The defence position regarding appropriate sentences before and after trial premised on the Crown being able to establish guilt.

c) The pre-trial conference judge’s opinion as to suggested range of sentence.

4. The judge may recommend to the Regional Senior Judge that a case management judge be assigned to the case.

5. Where a case management judge is not assigned, the pre-trial judge may direct that further pre-trial conferences be held at the discretion of the pre-trial judge or upon request of either counsel, with the same judge or any judge of the court as directed by the pre-trial judge.

6. Where feasible to do so, a follow-up pre-trial or trial management conference should be held close to the trial date. In complex and lengthy cases, a case-management conference should be held with the trial judge. This conference may be held by conference call where directed by the trial judge. The pre-trial judge may order that a further case management conference be held with the trial judge, and set the date for the conference.

Summary of Recommendations Regarding Pre-trial Applications and Supporting Material

1. A written Notice of Application must be filed by a party seeking to have admitted evidence that is presumptively inadmissible at common law for all issues that it is reasonably foreseeable will arise, such as previous disreputable conduct (similar fact evidence) or statements of the accused to persons in authority.

2. A written Notice of Application must be filed by a party seeking to exclude evidence that is presumptively admissible at common law for all issues that it is reasonably foreseeable the other party will seek to introduce into evidence, such as cross-examination on the accused’s criminal record, evidence obtained as a result of a search, or for any relief under s. 24(2) of the Charter.

3. A written Notice of Application must be filed by a party seeking relief under s. 24(1) of the Charter.

4. The Notice of Application must be served and filed not less than 30 days before the first day scheduled for pre-trial applications, unless otherwise ordered by the pre-trial or trial judge.

5. Any Notice of Application must disclose the basis upon which the trial judge could make the order admitting or excluding the evidence, must be case-specific and not in generic language, must set out with reasonable particularity the grounds upon which the application for admission or exclusion is made, and must provide a detailed summary of the evidence upon which the applicant relies.

6. Where an application seeks to have evidence admitted or excluded, the Notice of Application and supporting material must provide sufficient detail for the trial judge to conduct a threshold screening, to determine if the order requested could be obtained on the basis of the written notice and supporting material. Where the notice and supporting material fail to provide a legal or evidentiary basis upon which the relief sought could be obtained, the trial judge may not hear the motion, and may rule on the basis of the notice and supporting material without hearing arguments.

7. Facta are required for every application where relief is sought under s. 24(1) of the Charter.

8. Facta are not required where relief is sought under s. 24(2) of the Charter or for any other application, unless the pre-trial or trial judge orders otherwise.

9. The applicant’s factum must be served and filed on the date the Notice of Application is required to be filed, i.e. 30 days before the trial, unless ordered otherwise by the pre-trial judge.

10. The respondent’s factum must be served and filed not later than 10 days before the trial, unless otherwise ordered by the pre-trial or trial judge.

11. Where facta are required pursuant to the rules, or where the pre-trial judge orders facta, the pre-trial judge shall direct the maximum length of facta to be filed on any application. In the absence of an order by the pre-trial judge, the facta shall be double spaced and not exceed 20 pages.

12. The pre-trial judge may order counsel to file memoranda of arguments instead of facta.

13. Casebooks are to be produced legibly, served on the other party and filed on the date the party files their facta. Where no facta are required, the respondent shall file its casebook not later than 5 days before the application or trial date, unless otherwise ordered by the pre-trial or trial judge.

14. Counsel are encouraged to file joint casebooks, and not duplicate copies of the cases already filed by the applicant when responding.

15. Casebooks are only to include cases to be relied upon in oral submissions.

16. The portions of cases to be relied upon in oral submissions are to be highlighted or side-barred.

17. Counsel are encouraged to use double-sided printing for casebooks.

18. While the notice and filing requirements in the rules are the presumptive procedure, the pre-trial judge has the jurisdiction to exempt either counsel from filing notice or any other material. In the absence of an order from the pre-trial judge, the filing requirements in the rules applies.

Recommendations Regarding Trial Scheduling

1. Between 5 and 15 days before the scheduled trial date, or the date upon which the sittings commence, counsel should be required to confirm that they will be prepared to proceed on the trial date, that their witnesses are available, that the positions advanced in the pre-trial form and at the pre-trial conference have not changed, that no new applications will be brought, and that the time estimates remain as indicated at the pre-trial conference.

2. In exercising their discretion in trial assignments, the Regional Senior Judges should consider the demands on judicial resources in all areas of law, the preferences of the judges in their region, the strengths of the judicial complement in the region, and the need to match the available judicial resources to the case, in order to have trials conducted in as efficient and timely a manner as possible. The Regional Senior Judge should, wherever possible, assign trial judges to the judge’s strengths. Acknowledging that the Superior Court of Justice is a generalist, circuiting court, certain cases will require the assignment of a judge with effective trial management skills, as well as prior knowledge, expertise and experience in complex criminal law matters.

Summary of Recommendations Regarding Pre-trial Applications

1. Where counsel has not indicated in the pre-trial conference form and at the pre-trial conference that an application would be brought, and has not notified the other party(ies) and the Trial Coordinator and arranged a further pre-trial conferences, the presumption is that the application will not be heard, whether or not counsel has complied with the filing requirements in the Rules.

2. The pre-trial judge has a discretion whether to hear applications not complying with the rules of court, including situations where counsel did not indicate at the most recent pre-trial conference that the application would be brought. In exercising this discretion the trial judge shall consider:

a) the merits of the application as reflected in the Notice of Application and supporting material filed;

b) any explanation why opposing counsel and the Trial Coordinator were not notified of the changed position;

c) whether counsel indicated in the Trial Readiness Report or at a Status Court that the application would be brought;

d) where notices were not filed, any explanation why the rules were not complied with;

e) any prejudice that will occur to the other party(ies);

f) any inconvenience to the jury panel;

g) any impact on the scheduling of other cases;

h) Rule 2.01:

A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

a) may grant all necessary amendments or other relief in accordance with rule 2.02 on such terms as are just, to secure the just determination of the real matters in dispute;

or

b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part

i) Rule 2.02:

The court may, only where and as necessary in the interests of justice, dispense with compliance with the rules.

j) any other factors the judge determines are relevant to the application.

3. Before starting an application, the trial judge shall conduct a threshold screening on the basis of the written material filed. Where the material does not provide an evidentiary and legal basis upon which the relief sought could be ordered, the trial judge should dismiss the application without hearing submissions or evidence.

4. The trial judge determines the manner in which evidence is presented on applications. Where feasible and appropriate to do so, the application should proceed on the basis of agreed statements of fact, excerpts for transcripts, affidavits or “will state” statements instead of oral testimony.

5. The Department of Justice should examine whether there should be an amendment to the Criminal Code to deem rulings on applications made in cases of mistrials, or where admissibility of the same evidence was determined at another trial involving the same accused, presumptively applicable to subsequent trials. This should be the case unless the subsequent trial judge finds that the interests of justice require the issues to be re-litigated.

Summary of Recommendations Regarding the Trial Management Function

1. Trial judges have the inherent discretion and power to ensure the trial proceeds in an orderly and focused manner. This power includes the authority to place reasonable limits on oral submissions, to direct that the submissions be made in writing, to direct the manner in which a voir dire is conducted, to restrict cross-examination that is repetitive or abusive, to limit evidence that is irrelevant or repetitive, and to maintain order and civility in the courtroom. The powers must be exercised sparingly and with caution. However, the selective and judicious use of trial management powers will enhance the objectives of effective trial management.

2. Where the prosecution seeks a declaration that the offender is a dangerous or long-term offender, a further case management conference should be held with the trial judge or another judge of the court to ensure that the evidence to be called on the application will be presented in most efficient manner without impinging on either party’s fair trial rights.

Summary of Recommendations Regarding Jurors

1. The information made available to jurors before attending for jury duty should be revised and expanded.

2. Jurors should be paid $40 per day from the first date they are selected for a jury until the end of the 10^th day of trial, and thereafter $100 per day.

3. When the trial is expected to last more than 10 days, the jurors should be paid $100 per day for all trial days.

4. Jurors should be paid for days on which they are not required to attend court as a result of mid-trial applications, or if for any other reasons the court is not sitting.

5. Jurors should be compensated for expenses incurred as a result of their attendance for jury duty, including all travel expenses regardless of the distance between the courthouse and their residence, parking fees, reasonable expenses for meals, day care expenses and, where necessary, accommodations for jurors who have had to travel long distances to attend court.

6. Jurors should be paid the same mileage rate as government employees.

7. All jury deliberation rooms should be equipped with fridges, microwave ovens, couches and ergonomic chairs.

8. All jury boxes should be equipped with ergonomic chairs.

9. The Juror Questionnaire should be revised to ensure that only those potential jurors who have a thorough and complete knowledge of spoken and written French should indicate they can serve on a French jury.

Interpreters

1 The committee encourages the Court Services Division to continue to address the important issues raised in R. v. Sidhu.[118] In particular, the administration of justice requires that accused persons and witnesses be provided with competent and qualified interpreters, in accordance with the criteria set out in R. v. Tran.[119]

2. Every courthouse should have a Coordinator of Interpreters, such that one person would be in charge of all interpreters. It may be that in some facilities where the demand for interpreters is not large, the position would be combined with other duties.

3. All interpretive services should be coordinated through the Coordinator of Interpreters, regardless of whether the proceeding is prosecuted by the Attorney General of Ontario or the Department of Justice.

4. Where feasible to do so, the same interpreter(s) should be used throughout the trial. Where there is to be a change in interpreters, the potential change and the reasons for it should be brought to the attention of the trial judge by the Interpreters Coordinator as soon as the situation arises.

5. The judiciary and the bar must play a role in the provision of appropriate interpretive services to accused persons and witnesses. It is imperative that counsel arrange to have the accused and witnesses who require interpreters meet with the assigned interpreters before the scheduled trial date, to ensure that the accused or witness and the interpreter have no difficulties communicating with each other. This issue should be addressed by the pre-trial judge, noted on the pre-trial report to the trial judge and to the Trial Coordinator, and the timing of the interpreter and the timing of the interpreter interview should be arranged. This is particularly important where an accused or a witness speaks a particular dialect of a language.

Technological Equipment in the Courtroom

1. It is the responsibility of counsel to advise the Court Services Division well in advance of a trial date that technological equipment will be required for a trial.

2. The pre-trial conference judge should examine whether such equipment will be required, and should complete the report to the Trial Coordinator that it will be required.

3. The Court Services Division should be responsible for providing adequate basic technological equipment for all courtrooms, and notifying the judiciary, bar and public the equipment that is available at each court location.

4. The basic equipment should include the equipment most frequently needed in courtrooms, such as monitors and DVD/VHS players and easels. Each facility should have a sufficient quantity of this basic equipment, so that the equipment is available with minimal delay in every courtroom in the facility.

5. Before any equipment is purchased for courtrooms, it is imperative that there be consultation among the Court Services Division, the judiciary, and the bar, to identify the current needs of the court.

6. It is the responsibility of counsel introducing evidence by means of technological equipment to familiarize themselves with its use before court, and not as the equipment is being used in court.

Technological Equipment to Facilitate Pre-trial Conferences

1. To facilitate telephone conference-call pre-trial conferences or case management conferences, each Superior Court courthouse should have teleconferencing equipment available to the Superior Court judges.

Courtroom Personnel

1. Where feasible, the Court Services Division should attempt to have the same interpreters, registrars, reporters and Court Services Officers assigned throughout a trial.

2. The Court Services Division is encouraged to complete and implement at the earliest possible date the “Workforce Revitalization Project”, to convert unclassified court support staff to classified positions.

3. The Court Services Division is encouraged to finalize arrangements with community colleges to develop and deliver refresher training for current court staff, and comprehensive training for new staff across the province.

Court Facilities

1. The Court Services Division is encouraged to complete its review of courthouses where there are insufficient or inadequate rooms for counsel to consult with accused persons, whether in or out of custody, and with witnesses.

2. The Court Services Division is encouraged to ensure that all new courthouses be built with at least one jury courtroom which permits multiple accused persons to be in the prisoners’ box.

3. The Court Services Division should ensure that new court facilities have courtrooms with sufficient flexibility to permit multiple uses of the same room. In addition, each region should have at least one courtroom with the capacity for a mega-trial with multiple accused persons in custody.

4. The Court Services Division is strongly urged to accelerate the review and implementation of recommendations for larger courtrooms to accommodate mega trials. It is imperative that steps be taken as soon as charges are laid to ensure that an adequate court facility will be available.

5. The Court Services Division is encouraged to ensure that all new courthouses either have one electronic courtroom, or have the capacity to meet the need for such a courtroom quickly and at minimal expense.

6. Each court facility should establish a protocol for when courts sit beyond the normal court hours to hear evidence or for jury deliberations, to ensure there is adequate heat or air conditioning. As soon as the potential for court to sit beyond the normal hours arises, the court registrar should be required to advise the Manager of Court Operations.

Recommendations regarding Correctional Services and Prisoner Transportation Issues

1. The administration and staff of correctional facilities responsible for preparing prisoners for transportation and the policing services responsible for transporting prisoners to court must have the prisoners at court at the time specified in the Warrant of Remand. The Warrant of Remand is an order of the court, which must be complied with.

2. Where accused persons are held in custody, it is essential that counsel have an opportunity to consult with their clients in private at the correctional facility. Frequent lockdowns deprive the inmate of his or her constitutional right to instruct counsel. In some instances, phone contact within the correctional facility can be of assistance to counsel and the inmate. However, it should not become the norm. In most instances, the right to retain and instruct counsel can only be provided where counsel and the accused person meet in an interview room, where the inmate and counsel can converse face to face, as opposed to over a telephone.

Recommendations regarding Police Services

1. All parties involved in the provision of the constitutional right to disclosure are strongly encouraged to resolve the outstanding issues regarding the costs and provision of disclosure, and to implement all outstanding recommendations regarding disclosure in the Martin Report and Criminal Justice Review.

Forms

Criminal Pre-trial Conference Report Form 17
Designation of Counsel Form 18
Trial Readiness Form: Form 18-C-1, Form 18-C-2
Recommended Instructions to Self-represented accused before pre-trial conferences
Report of Trial Judge

 

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May 12, 2006

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[1] R. v. Durette (1992), 72 C.C.C. (3d) 421 at 440 (Ont. C.A.).
[2] Mark Aronson, Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure (Victoria: The Australian Institute of Judicial Administration Inc., 1992).
[3] Ontario, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, G. Arthur Martin, Chairperson (Toronto: The Committee, 1993).
[4] Ontario, Report of the Criminal Justice Review Committee, Justice Locke, Regional Senior, Judge Evans and Murray Segal, Co-Chairpersons (Toronto, The Committee, 1999). Available online:https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/crimjr/
[5] Lord Justice Auld, Review of the Criminal Courts of England and Wales (London: Stationery Office, 2001).
[6] Mr. Justice Michael Moldaver, “The Impact of the Charter on the Criminal Trial Process – A Trial Judge’s Perspective”in J. Cameron, ed., The Charter’s Impact on the Criminal Justice System(Scarborough: Carswell, 1996).
[7] (2005), 203 C.C.C. (3d) 17 (S.C.J.).
[8] (1994), 92 C.C.C. (3d) 218.
[9] Tran at p. 249.
[10] The current rules do not require notices of application to exclude evidence under s. 24 (2) of the Charter.
[11] R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.).
[12] The views of Laskin J.A. are noted in the speech given by Moldaver J.A. to the Criminal Lawyers’ Association in October, 2005.
[13] See for example, R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.).
[14] Legal Aid Ontario counters that the current rates of pay under the tariff actually mitigate against the “spinning out” of trials for profit. It is concerned that its fixed base funding for the last several years, together with added responsibilities and pressures arising from special prosecutorial projects will limit available funds to properly defend complex cases, and further diminish the pool of experienced counsel willing to take certificate work. This is likely to be even more the case if lawyers were paid block fees. Legal Aid Ontario has a budget review process for every big case, to focus lawyers and restrict budgets. Legal Aid Ontario suggests a similar process should be implemented to assist Crowns.
[15] R. v. Rowbotham (1998), 41 C.C.C. (3d) 1 (Ont. C.A.).
[16] R. v. K.G.B., [1993] 1 S.C.R. 740.
[17] R.S.O. 1990, c. P.15, s. 42(1)(e).
[18] O. Reg. 123/98 s. 14, Schedule 2(c)(vi).
[19] (2005), 203 C.C.C. (3d) 17 (S.C.J.).
[20] For example, see R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.) and R. v. Seepersad, [2005] O.J. No. 1906 (Ont. C.A.).
[21] See R. v. B. (G.D.) (2000), 143 C.C.C. (3d) 289, [2000] 1 S.C.R. 520 (S.C.C.) at paras 26-35; R. v. Joanisse (1995), 44 C.R. (4th) 364 (Ont. C.A.) at 385-393; R. v. Wells, [2001] O.J. No. 81 (Ont. C.A.) at paras 56-76.
[22] (2005), 74 O.R. (3d) 688 (Ont. C.A.).
[23] See also Boudreau v. Beniah (1999), 40 O.R. (3d) 737 (Ont. C.A.).
[24] Ibid., at para 43.
[25] (1998), 129 C.C.C. (3d) 144 (Ont. C.A.).
[26] [1969] 1 A.C. 191 at 227-28.
[27] G. Arthur Martin, Q.C., “Defending a Criminal Case” in Special Lectures of the Law Society of Upper Canada (Toronto: LSUC, 1969). Panel Moderator: The Honourable G.A. Gale, Chief Justice of Ontario. Panellists: The Honourable Mr. Justice Hart, Lloyd Grayburn Q.C., G. Arthur Martin Q.C., Joseph Sedgwick Q.C.
[28] At p. 65.
[29] Stephen Skurka and James Stribopoulos, “Professional Responsibility in Criminal Practice”, 46^th Bar Admission Course Criminal Procedure Reference Materials (The Law Society of Upper Canada,Toronto: 2005) at 17.
[30] (1994), 94 C.C.C. (3d) 168 (Ont. C.A.).
[31] [2000] 1 S.C.R. 520.
[32] (1998), 129 C.C.C. (3d) 144 (Ont. C.A.).
[33] G. Arthur Martin Q.C., Role and Responsibility of the Defence Advocate (1969-70), 12 C.L.Q. 376 at 382.
[34] An unreported judgment from an in-writing appeal of the Court of Appeal for Ontario, released June 18, 2002.
[35] R. v. Savojipour [2006] O.J. No. 469 at para 15 (Ont.C.A.).
[36] Mr. Greenspan was speaking at the “8^th Annual Central East Advocacy Program”, on March 4, 2006.
[37] The Criminal Proceedings Rules of the Superior Court of Justice.
[38] Rules 28.01 and 28.02(3).
[39] At p. 65.
[40] (1990), 59 C.C.C. (3d) 449 (S.C.C.).
[41] (1992), 71 C.C.C. (3d) 1 (S.C.C.).
[42] In Morin and R. v. Sharma, Sopinka J. applied “inferred preparation time” beyond the date upon which the trial was set, in Morin, on an “over .80” charge, 2 weeks, and in Sharma, a charge of impaired driving causing bodily harm, 1 month. This approach has rarely been applied in Ontario since those judgments, and never by the Court of Appeal for Ontario, although the issue was referred to in R. v. M.(N.N.), [2006] O.J. No. 1802 at para 29.
[43] In two Toronto, Ontario Court “bureaus” the pre-trial date is set through the Ontario Court Trial Coordinators, which avoids appearances in Assignment Courts.
[44] Rule 28.01(3).
[45] Rule 28.04(2).
[46] Rule 28.04(2).
[47] A recommended summary of information to be provided to self-represented accused before the judicial pre-trial is appended to this paper.
[48] Regrettably, it is not yet feasible to have e-filing of the forms at court.
[49] R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 and s. 276 of the Criminal Code.
[50] R. v. Grandinetti (2005), 191 C.C.C. (3d) 449 (S.C.C.); R. v. Shchavinsky (2000), 148 C.C.C. (3d) 400 (Ont.C.A.).
[51] R. v. Scopelliti (1981), 63 C.C.C. (3d) 481 (Ont. C.A.).
[52] See R. v. Chapman (2004), 204 C.C.C. (3d) 457 (Ont. C.A.); R. v. Francis, [2006]O.J. No. 1287 (Ont. C.A.) at para 21.
[53] Rule 28.03(2).
[54] [2005] O.J. No. 3764 at para 30.
[55] R. v. Beier [1995] O.J. No. 2552 (Ont. C.A.).
[56] R. v. Gordon [1998] O.J. No. 4838 (Gen. Div.) per Hill J. at paras. 47-49.
[57] Rule 28.01(2).
[58] Rule 28.02(2).
[59] Pursuant to s. 650.01 of the Criminal Code.
[60] R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.).
[61] The current rule is 15 days. However, the committee is recommending that notices be filed 30 days before trial.
[62] R. v. S. (S.S.), (1999), 136 C.C.C. (3d) 477 per Watt J.
[63] R. v.West [2001] O.J. No. 3406 (S.C.J.) per Hill J.
[64] R. v. Jones (1994), 89 C.C.C. (3d) 353 (S.C.C.) at 399.
[65] [2005] S.C.R. No. 67
[66] In R. v. Vukelich (1996), 108 C.C.C.(3d) 193, leave to appeal refused, [1997] 2 S.C.R. xvi.
[67] R. v. Pires; R. v. Lising (2005), 201 C.C.C. (3d) 449 (S.C.C.)
[68] (1992), 72 C.C.C. (3d) 21 at 440.
[69] (1992), 70 C.C.C. (3d) 289.
[70] Rule 27.
[71] Pursuant to s. 14(2) of the Courts of Justice Act, subject to the authority of the Chief Justice.
[72] Mr. Justice Moldaver’s comments to the Criminal Lawyers’ Association.
[73] R. v. McNamara et al (No.1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), affirmed 19 C.C.C. (3d) 1).
[74] R v. Oliver (2005), 194 C.C.C. (3d) 92 (Ont. C.A.); R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.).
[75] R. v. Archer (2005), 202 C.C.C. (3d) 60 at para 90.
[76] (2003), 180 C.C.C. (3d) 498 at para 57.
[77] (2004), 190 C.C.C. (3d) 317.
[78] See also R. v. Felderhof (2003), 180 C.C.C. (3d) 498 at para 57 (Ont. C.A.).
[79] See R. v. Lee (2002), 170 C.C.C. (3d) 225 (Ont. C.A.) and R. v. Whitehead [2004] O.J. No. 4030 (Ont. C.A.).
[80] R. v. Marshall (2005), 200 C.C.C. (3d) 179 at para 109 (Ont. C.A.).
[81] R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.); Nelles v. Ontario [1998] 2 S.C.R. 170; and R. v. Cook (1997), 114 C.C.C. (3d) 481.
[82] R. v. Torbiak and Campbell (1974), 18 C.C.C. (3d) 229 (Ont. C.A.).
[83] Torbiak, at para 45.
[84] R. v. Felderhof (2003), 180 C.C.C. (3d) 498 at para 40 (Ont. C.A.).
[85] R. v. Samra (1998), 129 C.C.C. (3d) 144 (Ont. C.A.); R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.).
[86] Felderhof, at para 57.
[87] R. v. Savojipour [2006] O.J. No. 469 (Ont. C.A.).
[88] R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.).
[89] Kreiger v. the Law Society of Alberta (2002), 168 C.C.C. (3d) 97 (S.C.C.).
[90] Felderhof, at para 88.
[91] Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (Ont. C.A.).
[92] Felderhof, at para 94.
[93] Felderhof, at para 99.
[94] Felderhof, at para 94.
[95] Rule 4, Law Society of Upper Canada, Rules of Professional Conduct, Adopted by Convocation June 2000, Consolidated with Amendments, February 2005 (Toronto: LSUC, 2000).
[96] Felderhof, at para 96.
[97] Felderhof, at para 81.
[98] Felderhof, at para 82.
[99] Sir James Fitzjames Stephen, A History of the Criminal Law of England, (London: MacMillan and Co., 1883) at 572-3.
[100] R.S.O., 1990, c. J.3.
[101] https://www.attorneygeneral.jus.gov.on.ca/english/courts/jury/juryduty.asp
[102]http://www.courts.qld.gov.au/about/jury.htm
[103] Section 1 of R.R.O. 1999, Regulation 4 of the regulations made under the Administration of Justice Act.
[104] The deduction is the amount, if any, of the earnings that exceeds $50, if the claimant’s weekly benefits are less than $200, or 25% of the claimant’s weekly benefits if that rate is $200 or more.
[105] In setting out these figures we acknowledge that some provinces have few jury trials in comparison to Ontario. For example, Quebec has roughly 60 jury trials per year. Ontario has roughly 500.
[106] Queensland’s fees are $31 a day when summonsed for jury duty, $93 a day if selected for jury duty for the first 20 days of trial, and $124 for each day beyond the 20^th day.
[107] R. v. Tran (1994), 92 C.C.C. (3d) 218.
[108] Pursuant to the Ministry of the Attorney General’s Court Interpreters Manual.
[109] [2005] O.J. No. 4881 (S.C.J.).
[110] R. v. Khan [1990] 2 S.C.R. 531.
[111] S. 10(b) of the Canadian Charter of Rights and Freedoms.
[112] R. v. Jackson (1993), 86 C.C.C. (3d) 233 (Ont. C.A.).
[113] R. v. McCallum (1999), 131 C.C.C. (3d) 518 at para 32 (Ont. C.A.).
[114] Courtrooms with computers and monitors for the judge and counsel, as well as monitors for jurors and the accused.
[115] [2005] O.J. No. 4881 (S.C.J.).
[116] (1994), 92 C.C.C. (3d) 218 (S.C.C.).
[117] Counsel are permitted to consult with clients using the Access Defence program. Counsel schedule a time for their call with the inmate through the correctional facility. The inmate speaks on a phone in his/her living unit that is not subject to monitoring by Correctional staff.
[118] [2005] O.J. No. 4881 (S.C.J.).
[119] (1994), 92 C.C.C. (3d) 218 (S.C.C.).