Patrick J Ducharme

Patrick Ducharme

Examples of Common Pre-Trial Applications

The following are examples of common pre-trial applications.

Production and Disclosure of Therapeutic Records in the Possession of Third Parties

A “record” that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic counseling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information must be applied for pursuant to the regime set out in sections 278.1 to 278.91 of the Code.
Generally, a Judge asked to consider such an application, holds a hearing privately to determine whether to order the person who has possession or control of the record to produce it to the court for review. The person who has possession or control of the record, the complainant or witness, and any other person to whom the record relates may appear and make submissions, but they are not compellable. For counsel to come within the parameters of this statutory regime will often be as difficult as the proverbial biblical reference of fitting into the “eye of the needle.”
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Patrick J Ducharme

A trial Judge, sitting alone, may hear pre-trial applications and reserve judgment on the applications until the completion of trial. When the reasons are delivered, they are deemed to have been given at trial.
Continue reading “Decisions on Pre-Trial Applications”

Patrick Ducharme

The party requesting the adjournment must show:

1. The absent witness is material; and,
2. No neglect in procuring (or attempting to procure) the attendance of the absent witness, and,
3. There is a reasonable expectation the absent witness can be located and presented as a witness in relatively near future.
These three requirements for adjourning a trial based on an absent witness whose evidence is material were first required by the Supreme Court of Canada over sixty years ago, and these three requirements have been used assiduously by courts across Canada since this venerable decision in 1956.

Continue reading “Adjournments Based on Absent Witnesses”

Patrick Ducharme

Applications for adjournments are to be made by either party at least fifteen days before the date fixed for the hearing of the application, and not less than ten days prior to the date fixed for trial.1 The application is to be accompanied by an affidavit by or on behalf of the applicant containing the information that is set out in Rule 26.04(2). Practically, some adjournment requests are made at the proverbial “last minute” prior to trial. The trial Judge has jurisdiction to grant a request with merit at any time.
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Patrick J Ducharme

The defence is permitted to admit facts on any trial of an indictable matter (section 655) and on summary conviction trials (section 795) and the admission dispenses with the need for proof of those facts at trial.
Continue reading “Admissions of Fact”

Patrick Ducharme

The trial Judge, even before a jury is selected, is able to hear pre-trial applications concerning any matter that would ordinarily or necessarily be dealt with in the absence of the jury.1 Subsection 645(5) provides the authority:
Continue reading “Pre-Trial Applications before Jury Selected”

Patrick Ducharme

For non-jury trials, section 625.1 provides that either party or the trial court on its own motion may apply to hold a pre-trial conference. A pre-trial conference is required prior to a jury trial. It is not statutorily mandated for non-jury trials. Some courts have used section 482, which empowers the Superior Courts and the Courts of Appeal to make rules that apply to any prosecution or proceeding, to regulate pre-trial conferences.
Continue reading “Non-Jury Pre-Trial Conferences”

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.
Continue reading “Applications and Charter Challenges”

Patrick Ducharme

Pre-trials (referred to as “pre-hearings” in Section 625.1) are increasingly used by our courts to produce fair and expeditious trials or resolutions. Pre-trials, however, impose some added hazards for counsel.

Pre-trial discussions are “off the record” in the sense that what is discussed during a pre-trial is not to be used for or against a party during the trial.
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Patrick Ducharme

This defence effectively places the prosecution on its requirement to prove each element of every criminal offence charged beyond a reasonable doubt. The accused is saying to the prosecutor “prove it.” All issues are in dispute. Without any admissions by the accused, the prosecution must proceed on the basis that it is required to prove all elements of the mens rea and the actus reus of each crime alleged. Continue reading “Denial of Conduct Claimed by the Prosecution”