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| 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.
Only naïve counsel will accept this premise as true. Forms are filled out by counsel as required by the court, and, notes are taken by Judges at pre-trial discussions and the notes and forms are available to the trial Judge at trial. Neither the forms or the notes of the pre-trial Judge are filed as exhibits or become any formal part of the trial process. But what is said or done by counsel, as required by the court in the pre- trial process, does not exactly coincide with what most lawyers consider as “off the record.”
The Judge that conducts the pre-trial will not be the trial Judge. The reason for this is that pre-trials are to consider matters that promote a fair and expeditious hearing, that would be better decided before the start of the proceedings, and, to arrange for decisions by another Judge, usually the assigned trial Judge, or, a case management Judge1 to resolve those matters.2
Counsel should not divulge much information at pre-trial. There may be circumstances when counsel wishes to resolve the case and therefore must present some information to move the prosecutor in that direction. A pre-trial Judge will often encourage a resolution of the case without trial and therefore may help counsel to find a suitable resolution. Otherwise, there is seldom value in sharing aspects of the defence before trial. The opposite is generally true, there are disadvantages in sharing defence evidence and/or strategies for trial in advance of the trial. Why provide information to the prosecutor, without any legal obligation to do so, providing the prosecutor more time to prepare for the defence and/or strategies intended for trial?
Trial Judges will occasionally question trial lawyers about positions taken at trial that are, perceived at least, to be inconsistent with a position or point of view allegedly taken by counsel according to the pre-trial notes of the pre-trial Judge or found on the obligatory form counsel must submit before the pre-trial.
Perceived inconsistencies may be considered by the trial Judge as trial counsel acting in a manner that is inconsistent with an earlier position, or worse, as trial counsel acting in a way that is not sincere or even disingenuous. The prepared forms for counsel to complete before pre-trials in the Superior Court invite counsel to disclose information and issues that might arise at trial. They are now common and mandatory by order of the trial court concerning:
possible defences.
evidence in support of defences.
number of witnesses.
anticipated legal or factual issues.
admissions by the accused.
identification of witnesses.
identification of expert witnesses.
identification of likely challenges to the evidence presented by opposing counsel.
Although this system of pre-trial disclosure by both sides is said to be necessary to make the trial process more focused and efficient, it is far more dangerous and intrusive for the accused than it is for the prosecution. The prosecution must, as a matter of law, produce all its evidence by way of disclosure at the very beginning of the process and certainly by the time the accused is called upon to enter his plea.3
The accused, in contrast, does not have a similar responsibility of disclosure to the prosecution. Except for the presenting of expert evidence4, the accused is not required to disclose any information concerning any possible defence.
These requirements of disclosure by the Defence, now ordered by the court as part of the pre-trial process are understandably viewed by the Defence as unnecessary and overly intrusive to the accused’s planning and preparation for trial. Some questions posed on the pre-trial questionnaires request answers to questions covered by solicitor-client privilege. The answers to these questions cannot be disclosed by counsel without the expressed, preferably written, instructions of the client.
There is no legal requirement of “reverse disclosure” by the Defence in Canada. Not in the name of trial efficiency or for any other reason. The position of the accused as presented to his counsel is privileged and cannot be disclosed without an explicit waiver. And counsel in his role as protector of the accused and recipient of solicitor-client privileged information, must resist revealing information that has been supplied to him by the client because it is the client and not the lawyer who holds and enjoys the privilege.
Pre-trials focus on narrowing trial issues, eliminating unnecessary evidence, and reducing the length of trials. The goals of a pre-trial conference are often inconsistent with, or, in conflict with, counsel’s duty to withhold information in order to protect solicitor-client privilege and to preserve the advantage of not having to disclose intended evidence or strategies until called upon to present evidence at trial.
In Canada there is a constitutional obligation upon the prosecution to provide all relevant, non-privileged disclosure.5 There is, however, no corresponding duty upon the Defence. By contrast, trials in the USA require the Defence to provide “reverse disclosure” including the names of potential defence witnesses and the evidence the defence witnesses are expected to present at trial.
The Defence in Canada is entitled to wait for the entire case of the prosecution to be presented before it responds or presents any evidence. The Defence may not wish to disclose evidence that may be more effective and/or less contested if it is only disclosed at trial.
There are tactical advantages to not disclosing evidence too early. Defence witnesses who will provide evidence at trial may become reluctant witnesses if their anticipated evidence is disclosed to others prior to the trial. It may lead to interviews by police officers who intentionally or unintentionally intimidate the witness or try to alter the witness’s recollection or description of events. This may exacerbate circumstances if the information is disclosed to persons who are adverse in interest to the witness. Witnesses may be reluctant to testify based on pre-trial disclosure of their identity and/or the nature of their evidence.
Consider this example: Counsel for the accused discloses during a pre-trial conference that there is an additional defence witness able to testify to relevant events, and, that the witness’s testimony at trial will support the description of events provided by the accused to the police in a videotaped statement.
The prosecutor may ask the police to obtain a statement from the witness. If that witness had requested counsel for the accused not to reveal his identity until he provided evidence at trial, the witness may lose confidence in the accused’s counsel. The witness may be concerned or angry that the police are now insisting that he provide a videotaped statement under oath prior to his testimony. The element of surprise that the accused has corroborating testimony of his version of events may be lost or compromised.
Corroborating witnesses for the accused often view the attendance of the police at their residence as intimidating. They fear that their intended evidence is viewed as challenging the position of the police and the prosecutor. They fear reprisal from the police for providing information supportive of the accused, who was charged by the same police service that is now questioning their integrity.
The witness whose identity has now been disclosed via the pre-trial disclosure by the defence may view this disclosure as a breach of trust. The witness may re-consider his earlier promise to testify for the Defence. By responding to questions by a pre-trial Judge, counsel for the accused may have compromised his client’s defence. And, if counsel did not have explicit instructions permitting him to reveal the existence or identity of potential witnesses, counsel may have breached his duty of loyalty and confidentiality to his client.
Section 625.1 of the Code may facilitate the expeditious hearing of trials by mandating that pre- trials will take place before jury trials; however, this section of the Code does not relieve or remove counsel’s duty to protect privileged communications. The same is true for pre-trials mandated by various courts pursuant to sections 482 and 482.1 of the Criminal Code.
Recently the Ontario Court of Appeal commented on the informal nature of judicial pre-trials. The court in R. v. A.W.D. described the judicial pre-trial as:
… the full and free discussions that take place at a judicial pre-trial, off the record and in the privacy of judicial chambers, are simply intended, in the interests of a fair and expeditious hearing, to provide a forum for the consideration of matters that would be better decided before the start of the proceedings and for the making of arrangements for those decisions to be so made.6
The Criminal Code provides the statutory authority for the pre-hearing or pre-trial conference. Subsection 625.1(2) provides that a pre-hearing conference is to consider “any matters that would promote a fair and expeditious trial” and “shall be held for all jury trials.” Subsection 625.1(1) allows a court, on its own motion, to direct that a pre-hearing conference be held prior to the proceeding “to consider the matters that, promote a fair and expeditious hearing, and, would be better decided before the start of the proceedings, and, other similar matters, and, to make arrangements for decisions on those matters.”
Section 625.1 of the Code, however, does not bind either the Crown or the defence to a particular position, nor does it provide any basis for the trial court to interfere later with a proper exercise of discretion by either side. The accused in Derksen were originally charged jointly on the same indictment. But after a pre-trial conference the Crown decided to stay the joint indictment pursuant to section 579 of the Code and then prefer two new indictments charging each accused separately. This process obviated the necessity of applying to the trial Judge for an order severing the accused pursuant to section 590. The trial Judge stayed the proceedings on the two new indictments. On appeal to the Saskatchewan Court of Appeal the court found that the holding of the pre-trial conference did not affect the Crown’s exercise of prosecutorial discretion in preferring two new indictments. There was no basis for the trial Judge to find that the defence had established that an abuse of process had occurred.7
Also, the Criminal Code allows all superior and provincial courts and courts of appeal to make rules in relation to any matter of a criminal nature or arising from or incidental to the prosecution, proceeding, action or appeal.8 In 2002 Canada gave all courts the specific authority to make rules respecting case management pursuant to section 482.1:
482.1 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) COMPLIANCE WITH DIRECTIONS — The parties to a case shall comply with any direction made in accordance with a rule made under subsection (1).
(3) SUMMONS OR WARRANT — 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.
Where the rules are made by the Provincial Court, they must first be reviewed and found to be appropriate by the Lieutenant Governor in Council. The rules must also be published in the Canada Gazette and the Governor in Council must ensure that any new rules of the court are necessary to ensure uniformity of the rules of that court in criminal matters.
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.
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