 |
| Patrick J Ducharme |
The Rules of Criminal Practice require notice, not less than fifteen days before the date on which the trial proceedings are scheduled to commence, where the accused is seeking relief under the Charter.
If the deadline for serving and filing an application is missed, counsel may still apply to the court for an order to extend or abridge any time prescribed by the Rules on such terms “as are just.”
Most pre-trial Judges arrive at a pre-trial conference with specific expectations of counsel attending on behalf of the prosecution and the accused. They view a pre-trial as an important mechanism to provide the public with a speedy trial that focuses on the matters in issue. These expectations are:
Counsel for the prosecution and the defence have met, in advance of the pre-trial, and where possible, have attempted to resolve issues that may be anticipated at trial;
Counsel have reviewed the Crown brief, and are familiar with the issues and the anticipated evidence;
Counsel is able to articulate any issues or complaints concerning disclosure.
Counsel is able to anticipate intended or potential applications, including Charter applications that may be advanced at trial.
Counsel can advise as to the number of witnesses each are likely to present at trial.
Counsel can provide a reasonable estimate of the length of trial.
Counsel for the defence may have instructions to make certain admissions related to evidence that is not contested. Counsel for the defence should be aware that “admissions” are admissions pursuant to section 655 of the Criminal Code and therefore by making admission(s) the fact(s) admitted eliminates the necessity of proof by the prosecutor of any fact contained in the admission that the prosecutor may wish to prove or present at trial. “Admissions” relate to facts that are alleged against the accused by the prosecutor.
Counsel for the defence may have instructions for resolutions, if agreed upon by the prosecutor.
Pre-trial Judges expect counsel to be prepared to discuss any issue that may arise at trial. Pre-trials are expected to be meaningful and designed to advance the interests of a fair trial, or, alternatively, any proposed resolution. Counsel attending the pre-trial should have the authority to make decisions concerning the issues referred to above.
Most pre-trial Judges will not conduct a pre-trial with an accused who is not represented by a licensed counsel. The few Judges who may consider conducting a pre-trial with an unrepresented accused will generally insist that the pre-trial is held in open court, with an official court reporter, recording the discussions that take place during the conference.
The unrepresented accused will not provide sworn testimony, but the pre-trial Judge will likely warn the accused that he is entitled to listen, while not making any admissions or comments on the evidence. The accused is not expected to make any admissions before consulting counsel or retaining counsel. A pre-trial Judge may also suggest that the accused avail himself of legal advice from duty counsel prior to engaging in pre-trial discussions.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel