PRE-TRIAL CONFERENCES.. Panel presentation by. The Honourable Chief Justice Mary Batten, G. Patrick Sommervill and Wilfred Tucker

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1 PRE-TRIAL CONFERENCES. Panel presentation by The Honourable Chief Justice Mary Batten, G. Patrick Sommervill and Wilfred Tucker Chairman: Dean Dan Ish

2 PRE-TRIAL CONFERENCES TABLE OF CONTENTS Page No. I. PROVISIONS OF CRIMINAL CODE 1 II. PURPOSES OF PRE-TRIAL CONFERENCES 1 III. EXPERIMENTAL METHODS OF SETTING DOWN MATTERS FOR PRE-TRIAL IV. BASIC REQUIREMENTS FOR A SUCCESSFUL PRE-TRIAL V. ITEMS FOR COMMENT RE PROPOSED RULES GOVERNING CONDUCT OF PRE-TRIALS OF CRIMINAL CASES VI. CONCLUSION 7 VII. APPENDIX - FORM A - CRIMINAL JURY AND NON-JURY PR~-TRIAL CONFERENCE REPORT 8

3 PRE-TRIALS IN CRIMINAL CASES amended provide: Section 553.1(1) and (2) of the Criminal Code" as Pre-hearing conference 553.1(1) Subject to subsection (2), on appl ication by the prosecutor, or the accused or o,n its own motion, the court before which, or the judge, provincial court judge proceedings or are justice before whom, any to be held may, wi th the consent of the prosecutor and the accused, order that a conference between the prosecutor and the accused or counsel f or the the accused, to be pres i ded over by court, judge, provincial court judge or justic~, be held prior to the proceedings to consider will promote a. fair such and ma t tersas expeditious hearing. Mandatory pre-trial hearing for jury trials ( 2 ) I n any case to be t r i ed wit h a jury, a judge of the court before which the accused is to be tried shall, prior to_ the trial,. order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance wi th the rules of _ court made under section 438 to cons ider such matters as will promote a fair and expeditious trial. These sections have been enacted to give legislative sanction to the procedures adopted by District and Superior Courts in most of the Provinces of CAnada. Pre-trials of first civil, and later criminal cases were a - 1 -

4 - 2 - means of first; expediting the setting of trial dates and bringing to earlier abandonment or settlement, cases that were not going to go to trial. It is obvious to Chief Justices and Registrars that the main reason for trial delay is the "down' time" resulting from cases being stayed, adjo,urned or re-elections and g~ilty pleas occurring after two or more days and sometimes weeks have been set aside for a trial. In both Saskatoon and Regina this year we have "double booked" trials in the expectation that at least one case in each centre that has been set for trial will not be going on - in order to do this we have had to make sure that somewhere in the system there was a judge who would be able to pick up the extra case if no case fell through. Thi s does cause considerable inconvenience to judges because of the distances between the iudicial' centres. Because of this, in the smaller centres where only one or two judges are assigned to trials at one time, double booking is not possible and considerable "judge and staff time" is lost when cases fall through without advance warnjng. Secondly, in addi tion to the saving of "down time" and hence the opening up of dates for trials, a pre-trial should promote more efficient conduct of a trial itself at a saving of time and cost and inconvenience to witnesses, jurors and parties. The issues to be tried can be defined and non-issues disposed of by agreement. For example, only infrequently is continuity of possession an issue, therefore agreement to admit continuity will eliminate the calling of police from great distances and allow for more flexibility in setting a trial date. Similarly, medical and expert evidence adduced at the preliminary is frequently not requi red by ei ther Crown or defence as a par~ of the i r - 2 -

5 - 3 - case and the wi tnesses are unnecessary a t trial. This can be arranged by agreement at the pre-trial. Exhibits proved and held admissible at the preliminary can frequently be admitted at trial without calling witnesses, again by admission. This type of streamlining, if it does not prejudice the accused, is particularly valuable in jury trials in that the jury is not then distracted by minor non-issues and can concentrate on the evidence that is vital to the issues they must decide. Thirdly, where proper disclosure is made at the pre-trial, the trial itself "is not 'delayed by pre-trial motions or adjournments for adjudication of motions made in the course of trial. If the trial judge is advised that a motion will be made and, where expedient, briefs are filed prior to that motion being made, there is no delay in the conduct of the trial. Counsel are not taken by surprise and are prepared to argue the motion wi thout the need for an adjournment and the resultant loss of trial time and inconvenience to the witnesses, juries and counsel. Basic to the concept of pre-trials is the assurance that the pre-trial judge will not preside at the trial and will not discuss the file with the trial judge. We are experimenting wi th a number of methods of setting down matters for pre-trial. In most cases counsel will have been given a tentative trial date prior to the pre-trial. Except under exceptional circumstances, a pre-trial will not be held until the transcript and the - 3 -

6 - 4 - indictment have been filed. Prior to a pre-trial conference the judge will peruse the transcript and the indictment, make notes as to the main points of evidence adduced at the preliminary and the strength and weakness of the case. fille9 out: At the pre-trial conference itself, two forms are A. a form to assist the judge who will take the pre-trial which embodies the admissions and agreements reached by counsel, and B. a form for the clerk or court co-ordinator. Only the second form, which will be removed from the file prior to delivery to the trial judge, will indicate that: i) a stay will or may be entered; ii) an essential Crown witness has not yet been located; iii) the accused may plead gui 1ty to the charge in the indictment or an included offence; iv) the accused may re-elect to judge alone or Provincial Court Judge. Although each of the above possibilities are canvassed and the court co-ordinator diarizes whatever "follow up" may be r e qui red, this form also serves as a bas is for stat i s tica 1-4 -

7 - 5 - information on which we can assess the efficiency and desirability of the pre-trial conferences. If it becomes obvious that the trial will be going on, Form A will be filled out. That form is appended to this paper. It i~ essential that at the time of the pre-trial conference counsel for both sides have the authority to make decisions as to stay, plea, amendment, admissions, motions and even acceptable sentence. Perhaps the most fruitful aspect of the conference is a frank discussion between counsel, after a review of the facts and relevant law, as to possible alternatives to a full trial of the action. For example, wi tho.ut involving the judge in plea bargaining, counsel may well agree, between themselves, that a guilty plea to a lesser charge wi thout representations in support of a long prison sentence on the part of the Crown, is a fair disposition of the charges. A useful pre-trial can only take place where all participants have knowledge of the evidence which will be adduced by the Crown, are aware of the relevant law and the basis for any proposed motions. In order to save time and costs we have been holding telephone conferences these have not been very satisfactory. are therefore: The basic requirements for a successful pre-trial - 5 -

8 - 6 - a) an open and positive attitude a desire to make the trial process as efficient a solution as possible; b) the authority to make decisions concerning the various steps that will be canvassed; c) a thorough knowledge of the facts and law relating to the case; d) preparedness to discuss aspects of the trial or its alternatives frankly, without prejudice to the rights of the accused. The Queen's Bench judges are now in the process of drawing rules governing the conduct of pre-trials of criminal cases. You will assist us by giving us your comments - on the following items and of course on any other relevant matters: 1) Should pre-trials be held in non-jury criminal cases; (a) where there is a transcript; (b) where the transcript has been waived. 2) Should the admissions agreed to be incorporated into a signed memorandum or judge's order? At present we rely on the undertaking of counsel this could resul t in misunderstandings. 3) Should pre-trial briefs be required - 6 -

9 - 7 - setting out admissions, question, leading cases the situation which will on by counsel at trial. motions? issues in governing be relied and/or on 4) Should the attendanceof counsel who will take the trial be mandatory? Adjo~rnments will not be granted lightly once a trial date is confirmed by the pre-trial judge. 0026C - 7 -

10 FORM A CRIMINAL JURY AND NON-JURY PRE-TRIAL CONFERENCE REPORT JUDICIAL CENTRE OF STYLE OF CAUSE: CHARGE(S): COURT FILE NO. Included offences: Accused Elected: Date: Jury: _ Non-Jury: _ 2. COUNSEL: Crown (name of accuse4) (name of accused) P.T.C. Trial Yes Date No If 'no', explain 3. Indictment filed Transcript filed Crown Subpoenas served Availability of witnesses checked

11 WHAT ADMISSIONS ARE COUNSEL PREPARED TO MAKE? Crown Admitted Disputed Accused Admitted Disputed Allegations' of Fact (pursuant to sec. 582) - Continuity re exhibits - Laboratory evidence - Financial records - Medical Evidence - Others Submissions of Law

12 IS VOIR DIRE REQUIRED? Yes No RE: f 6. WILL THERE BE ANY MOTIONS PRIOR TO TRIAL? Charter: Other: WITNESSES: a) Lay Witnesses b) Police Witnesses c) Experts Crown Name of Accused Name 'of Accused 8. LENGTH OF TRIAL: Estimate by record: Estimated by P.T.C. Judge days days 9. IF THERE ARE A LARGE NUMBER OF EXHIBITS IN THE FORM OF DOCUMENTS, HAS CROWN PREPARED THESE BY NUMBERING, ASSEMBLING IN FOLDERS, AND WILL THESE BE FILED AS EXHIBITS? BY CONSENT?

13 IF OBJECTION TO ADMISSIBILITY OF ANY PROPOSED EXHIBITS, IS COUNSEL PREPARED TO GIVE GROUNDS FOR OBJECTION? 11. IF THERE ARE COMPLEX POINTS OF LAW INVOLVED DO COUNSEL WISH TO SUBMIT PHOTOCOPIES OF RELEVANT AUTHORITIES IN BOOK FORM PROPERLY INDEXED AND TABBED? Yes No If not _please explain On motions On specific issues 12. OTHER COMMENTS:

14 UNLESS OTHERWISE REQUESTED BY WRITTEN CONSENT OF ALL PARTIES WITHIN 3 DAYS, THE TRIAL WILL BE CONDUCTED BY A JUDGE OTHER THAN THE PRE-TRIAL"JUDGE'- ) 14. IS LOCAL REGISTRAR DIRECTED TO FIX A SPECIAL DATE?. Yes --- No --- Date fixed by pre-trial Judge PRE-TRIAL JUDGE ALL ADMISSIONS, CONCESSIONS AND AGREEMENTS ARE MADE WITHOUT PREJUDICE TO THE PARTIES' RIGHT TO RAISE OTHER AND ADDITIONAL ISSUES AND LEGAL ARGUMENTS AT TRIAL, NOR ARE THE PARTIES BOUND AT TRIAL TO ANY ADMISSIONS, CONCESSIONS OR AGREEMENTS MADE AT THE PRE-TRIAL CONFERENCE. COUNSEL ARE ENCOURAGED TO FILE CITATIONS OF CASES IN WHICH THEY INTEND TO RELY

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