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| Patrick J Ducharme |
A View from the Bench
The Court of Appeal for Ontario has held that trial Judges have the power to manage a criminal trial.1 Two years later the Supreme Court of Canada wrote, “for our Justice system to operate, trial Judges must have some ability to control the course of proceedings before them.”2 These comments may be part of an ever-increasing sense of frustration, if not despair, festering within the psyche of trial Judges throughout this country.
A trial Judge has an inherent jurisdiction to control the trial process that includes the power to manage the conduct of a trial. A trial Judge has the power to call witnesses, to raise legal issues not advanced by the parties, and, to comment on evidence in a jury trial.3
Many Judges apparently feel that trials have become difficult, even impossible to manage in some circumstances.4 Some of our trial Judges lack confidence in their ability to conduct a trial from start to finish without committing reversible error. Regularly, these fears prove to be well founded. Criminal trials are becoming more difficult, time consuming and complex.
Sometimes counsel leave their sense of civility at the courtroom door to the detriment of the trial process.5 Charter issues also have had a profound effect. One very experienced trial Judge recently expressed this sentiment: “Unfortunately, no issue ever seems simple anymore, even “exceeding charges” (referring to charges of having more than 80 mg of alcohol in 100 mL of blood while in care or control or driving a motor vehicle “.6
Generally, Charter issues have increased the length and complexity of criminal trials. Expect our trial Judges in the future to exercise more and more control over the process itself. And, new legislation aimed at streamlining mega-trials and providing more tools to move lengthy trials along has recently been passed into law. This new legislation will be discussed below.
In Pires and Lising7 Madam Justice Charron quoted with approval the following statement from Finlayson J.A. thirty years ago in Durette:8
Unless we, as a court, can find some method of rescuing our criminal trial process from the almost Dickinsonian procedural morass that it is now bogged down in, the public will lose confidence with our traditional adversarial system of Justice. As Jonathan Swift might have said, we are presently sacrificing Justice on the shrine of process.
The problems associated with “mega-trials” have led to extreme government action. Several legal studies have spawned various recommendations for procedural changes in the way trials are conducted. On August 15, 2011 the Fair and Efficient Trials Act came into force. The stated purpose of the Act was to “streamline procedures so that those involved in organized crime, white-collar crime, and/or terrorism related offences. are brought to Justice swiftly”.
The case of R .v. Schertzer et al9 dealing with five experienced Toronto police drug investigators alleged to have stolen drugs from accused parties and taking money from their houses and safety deposit boxes collapsed by order of Mr. Justice Nordheimer for delay and the Attorney General for the Province of Ontario at that time, Chris Bentley, immediately announced an investigation. He claimed that his government was going to make efforts to repair our procedural morass. What developed from this is a province wide study entitled, “Justice on Target”.
Simultaneously in many municipalities across the province of Ontario, committees were struck to make recommendations on improving the procedure for criminal trials to make them more efficient. This effort followed a committee established in May 2006 by the Ontario government called The Ontario Chief Justices Advisory Committee on Criminal Trials in the Superior Court of Justice. This group issued a report entitled, “New Approaches to Criminal Trials”.
From these two reports came various amendments to the Code including section 482.1 which came into effect on October 16, 2006. Following the collapse of R. v. Beauchamp et al10 the Head of Prosecutions in Québec established a working group to make recommendations on how to streamline the procedure in such mega-cases. Then, on February 25, 2008 the Ontario Attorney-General appointed the Honourable Justice Patrick Lesage and then Prof. Michael Code (now Justice Code) to conduct a review of large and complex criminal case procedures in order to identify issues and recommend solutions to move large, complex cases through the Justice system more efficiently.
Common elements of the procedural reforms include case management, alternate Judges available to deal with procedural matters while the trial Judge continues with the trial proper, more and efficient pre-trials. Pursuant to section 482 each level of court is entitled to make its own Rules that govern the procedural handling of cases in that court.
One of the procedural amendments to the Criminal Code arising out of these efforts is section 551.1 which now provides that upon application by the prosecutor or the accused or on the court’s own motion, the Chief Justice of the court before which the trial is to be or is being held may, if he or she is of the opinion that it is necessary for the proper administration of justice, appoint a Judge as a case management Judge for the trial at any time before the jury selection, if the trial is before a Judge and jury, or before the stage at which the evidence on the merits is presented, if the trial is being heard by a Judge without a jury or a provincial court Judge.
The appointment of a case management Judge is not automatic. It requires the exercise of discretion by the Chief Justice of the relevant court. It is significant that the appointment of such a Judge is applicable for trials in both summary conviction and indictable matters. Subsection 3 provides for the powers that may be exercised by a case management Judge.
Also, section 653.1 of the Code provides that unless the court is satisfied that it would not be in the interest of Justice, rulings related to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made, or could have been made, before the stage at which the evidence on the merits is presented.
Prior to this amendment, the Ontario Court of Appeal in Schertzer11 declined to order the many and varied rulings of Nordheimer J. delivered over many months prior to the calling of evidence to be binding on the parties. Instead of ordering a continuation of the trial after the court overturned his decision on delay, the court ordered a new trial and specially ordered that the trial was to take place before new trial Judge who would not be bound by the prior rulings of Nordheimer J. It seems in instances like this our courts may be the author of their own procedural morass. The Court of Appeal for Ontario, in this instance, ignored section 653.1 in favour of a legal smack down of the prior rulings of the trial Judge, apparently not satisfied by Nordheimer J’s trial rulings notwithstanding the court’s apparent inability to express in cogent terms why it was not satisfied that the trial Judge’s prior rulings were in some way wrong, inadequate, or not in the interests of Justice.
That decision meant that many months of pre-trial applications needed to be re-considered by the new trial Judge upon the ordering of a “new” trial, rather than a continuation. Ironically, despite Finlayson J.A.’s complaint about the “Dickinsonian procedural morass”, his appellate colleagues rendered a decision that added to the prolongation of pre-trial applications at considerable expense to the public, the defence and the prosecution. The appellate court, by its own decision concerning this very topic was an exemplar of the Dickinsonian procedural morass it had identified as in need of repair. So much for the court’s theory of leading by example. The appellate court effectively welcomed themselves aboard the Dickinsonian train. The appellate court effectively rendered a decision that said, “Do as we say, but do not actually do what we ourselves do.”
Several amendments to the Code were made shortly after this decision of the Court of Appeal. The amendments sought to change the way trials, and pre-trial motions would be conducted, particularly for mega-trials. The amendments removed the former rigidity that prevented pre-trial Judges or case management Judges from going beyond their traditional persuasive roles. The amendments permit binding rulings to be made by Judges appointed solely to manage the case and make preliminary rulings on trial motions that effectively became part of the trial record and binding on the parties to the litigation.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure Volume 2, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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