Pre-Trial Management of Criminal Cases

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Justice Michelle Fuerst
Superior Court of Justice
Newmarket, Ontario

Criminal Code s. 625.1: Judicial pre-trial
conference mandatory for jury cases; may be
ordered for non-jury case

Why: To consider matters that, to promote
fair and expeditious hearing, would be better
decided before start of proceedings, and to
arrange for decisions on those matters

Identify and narrow matters in issue

Impose form of trial management, e.g.
hearing of motions

Assist trial judge to prepare for trial

Facilitate resolution of cases at early stage

In Superior Court, “pop up motions” esp. under
Charter prolonging trials beyond anticipated
completion dates

Complaints from counsel about surprise
applications

Complaints from jurors about length of
proceedings, breaks in proceedings

Domino effect on scheduling; s. 11(b) concerns

JPTs required under Criminal Proceedings Rules,
within 60 days after committal for trial

Before trial date assigned

Crown and defence counsel required to
complete and file lengthy 20+ page pre-trial
form in advance

Presiding judge completes written Report to
Trial Judge

Crown counsel assigned to case, or pre-trial
Crown able to take informed positions on behalf
of Crown

Defence counsel retained to conduct trial, or
another counsel authorized to take positions on
behalf of defence

Specifically assigned judge with criminal law
experience and facility with case management

In chambers

Not on record

No court staff

No accused

If accused self-represented, in open court deemed
extension of chambers, on the record with accused
present

Understanding of confidentiality

Counsels’ JPT form includes:




Synopsis of offence
Information about anticipated motions
Defences likely to arise
Other matters relevant to trial scheduling

JPT judge reviews in advance

JPT judge completes comprehensive written
report including parties positions’ on legal
issues, materials filing deadlines

Report kept in court file

Available to trial judge

Not accessible by public

No trial date set or even targeted until JPT
completed

Delay on part of any party in JPT process
noted on Indictment and attributed for s.
11(b) purposes

Lack of full participation in JPT process taken
into account if new motions at trial

Consistency in approach on part of judiciary

Obligations imposed on counsel, esp.:
 Provide necessary information e.g. about motions to be
brought
 Take positions that bind at trial
•
Identification of evidentiary foundation for motions, materials
to be filed, filing timetable

Assignment of “homework”

Follow-up JPTs

Establish order for hearing of motions

Estimate court time required

Provide feedback

Require counsel to come prepared to discuss
resolution

Offer frank assessment of positions
• Request caselaw to support positions that seem
unreasonable

Offer suggestions e.g. about further information
that might facilitate resolution

Consider creative but meaningful alternatives

Criminal Code s. 551.1: Permits appointment of
case management judge for particular case, by
Chief Justice or designate

Prior to jury selection

Test: Necessary for proper administration of
justice

Case management judge may or may not be trial
judge

Criminal Code s. 551.3: May exercise powers trial
judge has before trial

Assist parties to identify witnesses

Encourage admissions

Encourage steps to promote fair and efficient trial

Establish schedules and impose deadlines

Assist parties in identifying evidentiary issues

Adjudicate issues related to disclosure of
evidence, admissibility of evidence, Charter,
expert witnesses, severance
• Decision of case management judge binds
parties unless trial judge satisfied it would not
be in interests of justice, e.g. new
jurisprudence
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