Chapter 4 - Judicial Case Management, Especially at the Pre-trial Stage
A. The History of Judicial Case Management in Ontario
The subject of judicial case management has been extensively studied, especially in the United States. It is widely accepted as a key factor in successful delay reduction initiatives and increased justice system efficiency. Although there is no monolithic definition or form for what we mean by the term "judicial case management", successful regimes generally exhibit four main features: early and continuous judicial control over the case; time limits for each step in the process; constant monitoring to ensure compliance; and firm dates for judicial proceedings with strict controls on adjournments. 1
The advent of judicial case management in Ontario and, indeed, in this country is a relatively recent phenomenon. Thirty years ago there was very little judicial control over a case at its early stages. The parties would generally appear in an assignment court and set a date, either for a plea, trial or preliminary inquiry. The court would then hear little or nothing from the parties until they appeared on the eventual date that had been set. The adversary system, in this unmanaged form, trusted the parties to either resolve the case or prepare the case for trial, and to make all necessary decisions related to its planning without any judicial assistance or oversight. It was only when the case came to court for a plea or for trial that the judiciary became involved. A few members of the bar and the judiciary still believe in this laissez-faire approach and resist attempts to introduce any judicial case management role.
However, these are the views of a minority and they have not prevailed. Both of Ontario's trial courts gradually adopted forms of case management, beginning in the late 1980's, as a result of delays and backlogs that had built up in the courts throughout that decade. The Attorney General of the day, Ian Scott, Q.C., argued with some success that the justice system was under-managed and that a concerted effort to adopt case management practices, rather than merely adding more resources, would reduce the delays and backlogs. Statistical data tended to support his argument to some extent, as far too many cases were being set for trial and contributing to the backlogs. Amongst the cases that were routinely set for trial were a large number that could easily have been resolved in advance of the trial date if there had been more aggressive judicial involvement in resolution discussions. This gradual process of reform introduced in the 1980's was greatly accelerated by the Askov decision in 1990. 2 That case established strict delay guidelines and both trial courts responded by introducing new Rules of Court in the 1990's that provided for much greater case management. 3
Parliament also encouraged the development of case management practices by enacting s. 625.1 of the Criminal Code in 1985 and then enacting s. 482.1 in 2002. The former provision permitted pre-trial conferences and the latter provision allowed the courts to make rules "that would assist the Court in effective and efficient case management." The Superior Court recently issued a new set of rules, pursuant to this provision, that provide for a significantly enhanced form of judicial case management. 4
B. The Need for Greater Case Management Powers
All major studies of the so-called "mega-trial" phenomenon have recommended much stronger judicial case management. 5 There is a broad consensus amongst public policy makers that more vigorous judicial control of the early stages of these long complex cases is one of the most important ways to improve their efficiency and reduce delays. As noted in Chapter 2 above, there is no doubt that the early pre-trial stages of criminal proceedings have become much more important than they ever were in the past. Accordingly, they merit greater judicial attention and control.
The essence of the problem with judicial case management in its present form is that it is designed to perform a limited role. The main rationale for its introduction 15 to 20 years ago was to solve the problem of backlogs in the trial courts. This was a serious problem in Ontario, given that 50,000 charges were withdrawn or stayed pursuant to s. 11 (b) of the Charter in the year following the Askov decision. 6 The main focus of judicial case management, when it was first introduced in this earlier era, was to resolve cases and thereby reduce the backlog of pending trials. The idea was simply that the judiciary should abandon their traditional passivity and become more actively involved in pre-trial conferences with the parties where attempts would be made to settle the case, either with guilty pleas or withdrawals. Plea negotiations, sentence negotiations and diversion were key aspects of these private sessions, held either in the judge's chambers or in a conference room. The judge would play the role of a mediator, trying to persuade the parties to adopt sensible positions about settlement of the case. Some judges were very effective in this role and Ontario's "early resolution" rate, that is, the percentage of cases in the justice system that are resolved by plea, withdrawal or diversion, without ever setting a date for trial, increased dramatically in the decade following Askov. 7
These achievements are important and we do not wish to diminish the significance of early judicial assistance in settlement discussions. The more cases that can be removed from the trial courts through early resolution, the smaller the number of cases that will remain in the system seeking trial dates. This reduction in demand on the trial lists will obviously produce earlier trial dates and smaller backlogs of cases awaiting trial. This, in turn, will mean fewer s. 11(b) applications under the Charter due to unreasonable delay. Ontario has never had a repetition of the mass stays and withdrawals that occurred in 1991-2, immediately after Askov, and this is a significant achievement.
If the objective of judicial case management was simply to encourage early settlement of as many cases as possible, and thereby reduce demand on the trial courts, all that was needed was a power to summons the parties to pre-trial conferences. Parliament enacted this power in 1985, when s. 625.1 was added to the Criminal Code. It allowed the courts to "order" that the parties attend for "a conference between the prosecutor and the accused or counsel for the accused, to be presided over by the court." The rule-making power in s. 482 was amended at the same time to allow for rules governing these new "pre-hearing conferences held pursuant to s. 625.1." The court now had the power to hold a mandatory "conference", where settlement could be discussed and any other "matters as will promote a fair and expeditious hearing."
What is singular about these new powers is they did nothing more than get the parties together in a room with a judge, well in advance of setting a date for trial. The judge was given no power to decide anything. The success or failure of the "conference" depended entirely on how effective the judge was at cajoling and persuading the parties to be reasonable.
As already noted above, the "pre-hearing conference" pursuant to s. 625.1 has achieved its objective of settling many cases and reducing backlogged trial lists. Even if a case could not be settled, this mediating judge could often persuade the parties to narrow the issues for trial, thus reducing the amount of court time needed to try the case. Once again, the success or failure of this modest case management function depended on the persuasiveness of the judge-mediator and on the reasonableness of the parties. There was no power to actually make rulings on issues in dispute which would have the effect of narrowing the issues at trial. It all depended on the consent and goodwill of the parties.
This is why modern law reformers have consistently argued for pre-trial case management in a much more robust form, with real judicial powers to make rulings. 8 In Chapter 2, we discussed at some length how modern criminal proceedings have been transformed by three major events - the Charter of Rights, the evidence law "revolution" and the enactment of numerous complex statutory offences and procedures. The common feature of all three of these initiatives has been an explosion of pre-trial proceedings, most of which involve subtle nuanced legal tests and highly flexible remedies. It is the expansion of these pre-trial proceedings, more than anything else, that has lengthened and delayed the modern criminal trial. These preliminary motions require early resolution because they will often determine the whole complexion of the case: if the wiretaps are excluded, the Crown will usually reassess its case and if admitted, many of the accused will often negotiate guilty pleas; if disclosure and production issues remain outstanding, the parties will be unable to complete their preparation; if the case is subject to a s. 11(b) delay motion or a s. 7 abuse of process motion, it may never proceed to trial or counsel may at least hope it will not proceed to trial.
For all these reasons, early rulings on many of the pre-trial motions are essential to what we mean by "judicial case management", in its full sense. These early rulings will facilitate resolution discussions, will determine whether the case proceeds at all and will determine how long it is likely to take at trial. In short, the modern criminal case is not really being managed at its early stages unless there is a judge available with power to rule on the pre-trial motions.
C. Suggested Models for Reform
Almost 15 years ago, the Law Reform Commission of Canada (LRCC) published a working paper titled Trial Within a Reasonable Time. It contains an excellent review of the large body of American research and writing on the subject of judicial case management. The working paper concluded that "early filing and resolutions of motions (including motions regarding admissibility of evidence)...would result in reducing the time necessary for the trial itself. Indeed, in particular cases, it would eliminate the need for trial entirely." American research was cited to the effect that "early resolution of motions is an important aspect of effective case flow management" as it may "cause either the defence or the prosecution to reconsider whether to contest the trial." The working paper recommended a legislative amendment to the Criminal Code expressly allowing a pre-trial case management judge to rule on certain motions. 9
The 1994 LRCC working paper did not stand alone on this issue of early case management powers. The previous year, a sweeping report had been issued in the United Kingdom by the Royal Commission on Criminal Justice (The Runciman Report). Like the LRCC working paper, the Runciman Report recommended that pre-trial judges should have the power to manage the case at its early stages by making binding rulings 10:
At the preparatory hearing, the defendant should be arraigned and thereafter all matters will be part of the trial.
We recommend that a judge at a preparatory hearing should be empowered to make a ruling on any question as to the admissibility of evidence and any other question of law relating to the case. This may entail a change in legislation, since it is by no means clear that a judge at a pre-trial review has such powers at present.
We recommend that the trial judge should be bound by any orders or rulings made by the judge who presides over the preparatory hearing and that counsel for the defence and the prosecution should similarly be prohibited from seeking to reopen any matter that has been decided at that hearing.
The Runciman Report made these recommendations after concluding that the early form of judicial case management in the United Kingdom, known as "plea and directions hearings," had proved to be ineffective. Like their Canadian counterparts, the s. 625.1 "conference", the judge at these hearings had no real powers and depended on counsel's goodwill and cooperation.
The U.K. Parliament swiftly responded to the Runciman recommendations, enacting the Criminal Procedure and Investigations Act 1996. In particular, s. 40 empowers "a judge at a pre-trial hearing" to make "a ruling as to any question as to the admissibility of evidence" and "any other question of law relating to the case." Section 40 allows the ruling to be re-visited at trial but only if there is "a material change of circumstances" or "in the interests of justice." 11
No such legislation has ever been enacted in Canada. In spite of repeated amendments to the Criminal Code over the past 15 years that have made the criminal trial longer and more complex, this simple amendment to facilitate speedier and more efficient criminal trials has never captured the imagination of successive federal Ministers of Justice. We hope that this unfortunate imbalance in criminal justice law reform is about to change, given the commitment made in the Communiqué from last year's meeting of Federal Provincial and Territorial Ministers Responsible for Justice and Public Safety. 12
Without such an amendment to the Criminal Code, the current state of the law is to the effect that almost all important pre-trial rulings are within the sole jurisdiction of the "trial judge". 13 As a result, early and effective judicial management of the case, in its full sense, can only be achieved if the "trial judge" is appointed at the early stages and remains seized with the case. Most criminal courts in Ontario do not operate in this fashion. In the Ontario Court, where most criminal cases are tried, the "trial judge" is generally not assigned until very late in the proceedings. In the Superior Court, practices vary between the regions. Some regions are able to assign the "trial judge" early but in many regions, including Toronto, the "trial judge" cannot be assigned until much later. We have been told, and we accept, that assigning all major cases to particular trial judges at an early stage in the proceedings would cause enormous scheduling difficulties. 14
Given the predominant practice in Ontario criminal trial courts, namely, assigning the "trial judge" late in the proceedings, a very important function of pre-trial case management simply does not exist because of the limited powers of the pre-trial case management judge. The rule-making power in s. 482.1 of the Criminal Code and the "pre-hearing conference" power in s. 625.1 have been used to empower pre-trial judges to meet with counsel, attempt to resolve the case, determine what issues are in dispute and establish a schedule for the pre-trial motions and for the trial. These are all useful functions but this pre-trial judge has no power to decide or rule on the contentious issues between the parties and relies solely on persuasion, as explained above.
In the course of our Review, a broad consensus emerged amongst all the participants in favour of reforming the current system to ensure that a judge is available to take charge of the case at its early stages, with real powers to rule on pre-trial issues. The impotence of the current system is illustrated perfectly by a case like R. v. S. (S.). 15 The accused was a young offender charged with a criminal offence that was proceeding through pre-trial conferences in the Ontario Court, which was the trial court. The judge and counsel were trying to narrow the issues for trial before setting a date. Defence counsel sought an admission from the Crown on a certain factual point. If the admission was not forthcoming, counsel would have to call lengthy evidence at trial and would require substantial disclosure from the Crown in relation to the factual point. When the Crown was unable to make the requested admission in a timely way, the pre-trial conference judge ordered disclosure of the relevant material so that the defence could then prepare for trial. The Crown brought certiorari in the Superior Court to quash the pre-trial conference judge's disclosure order on the basis that she had no jurisdiction to rule on a pre-trial disclosure motion. The Superior Court Judge, Watt J., as he then was, granted the Crown's motion to quash. He held that the Stinchcombe power to order disclosure had been given to "the trial judge" and that the statutory power of the "pre-hearing conference" judge under s. 625.1 was merely "to make arrangements for decisions," that is, to schedule the motion before some future "trial judge" who had not yet been assigned.
The decision of Watt J. in S.(S.) is undoubtedly correct, given the current state of the law, and it illustrates how there is really no case management power, in its full sense, in Ontario. In that case, a judge of the trial court was trying to manage the case by settling admissions and disclosure at the early stages so that the issues would be narrowed and the case would be ready for trial. These are elementary aspects of judicial case management and yet she had no authority to make these rulings without first appointing a "trial judge" and bringing on "the trial".
Although there was broad consensus in our Review that the system must be reformed, to permit early rulings on motions well in advance of the trial, there was no clear consensus on how best to achieve this result. Some favoured a system requiring early appointment of the trial judge, who would remain seized of the case both at its early pre-trial stages and at a subsequent trial. Others favoured a system that separates the pre-trial case management functions, assigning them to one judge, and then allowing the subsequent trial to be assigned to another judge. As noted above, the latter system permits much greater scheduling flexibility as the trial can be assigned to any judge who is available to start it in a timely way, once the pre-trial phase is complete. The former system is more rigid and runs some risk of trial delays being caused by the judge's calendar. On the other hand, certain judicial economies favour the former system as only one judge will ever have to learn the intricacies of a case and that judge will know with certainty whether any subsequent changes in the evidence require that an earlier ruling be re-visited. This is not an insignificant advantage when dealing with particularly large complex cases, for example, a terrorism or criminal organization case, that will require significant time and commitment before a judge can master its facts and make rulings. Some members of the judiciary favour the economies of a one judge system and others favour the flexibility of a multiple judge system.
D. The Proposals Emerging from this Review
Our conclusion on this point is that there are good arguments in favour of both models and that there is no need to adopt a monolithic solution. The justice system is characterized by a great deal of local legal culture. The Criminal Code is a national statute but the administration of justice is a provincial head of power. There is a great deal of inter-provincial and intra-provincial diversity in the justice system. Some jurisdictions and some cases will work best with a one judge model and other jurisdictions and other cases will work more efficiently with a multiple judge model. It will depend to some extent on the number of long complex cases in the particular jurisdiction and on the available pool of judges with expertise in difficult criminal matters. We believe that the Criminal Code can and should be amended in a way that flexibly permits both models. What is important is that one model or the other must be adopted for each long complex case in each jurisdiction. The current system, where the "trial judge" is rarely appointed at the early stages and where the "pre-trial judge" has no real powers, is the worst of all possible worlds. It simply leaves the case in an unmanaged state until the trial approaches.
Our conclusions on this broad issue of empowering a judge to rule at the early pre-trial stages are summarized in three recommendations. We believe that there is a general consensus amongst the participants in support of these three recommendations because they incorporate both of the favoured models and because they allow flexibility.
Administrative judges should appoint "the trial judge" at the very early stages of a long complex case, whenever this is advisable and feasible in a particular case in a particular jurisdiction. This judge will be seized with all aspects of the case, from beginning to end, including pre-trial motions and the trial itself. The judge's calendar will have to be protected, to some extent, from the assignment of any other major cases so that he/she is available to start the trial and sit continuously, once the case is trial ready. The scheduling of the trial and the continuity of the trial must not be disrupted by the judge being drawn away to deal with other work on other cases. This Recommendation does not require any amendment to the Criminal Code.
Where early assignment of "the trial judge" is not feasible or advisable in a particular long complex case in a particular jurisdiction, a "pre-trial case management judge" must be given the power to make rulings on pre-trial issues. This Recommendation requires a Criminal Code amendment. In particular, s. 645 must be amended to provide that a judge, other than the judge who eventually hears the evidence at trial, has the authority to rule on pre-trial motions. The amendment to s. 645 must make it clear that "the trial" commences once any judge of the trial court begins hearing and ruling on pre-trial motions and that "the trial" is continuous, even if the judge changes. In this way, rights of appeal from "the trial court" found in ss. 675 and 676 will extend to all rulings made by the pre-trial judge and the trial judge. Prerogative relief will also be prohibited by the existing case law restricting the availability of these writs whenever an appeal is provided for at the end of "the trial".
The kinds of motions that would benefit from early rulings, well in advance of the trial, should be in the discretion of the court. Whether the case is proceeding under a one judge model (Recommendation 9) or a multiple judge model (Recommendation 10), no closed list is needed to define or limit the motions that may be ruled on at the early stages. The Criminal Code should not attempt to define such a list. The court's discretion in this regard should be guided by considerations such as whether an early ruling on the motion would allow the parties to prepare properly for trial, prevent adjournments of the trial, encourage resolution of the case prior to trial or completely eliminate the need for a trial. The kinds of motions that appear most likely to benefit from early rulings include the following: disclosure motions; third party records motions; s. 11(b) Charter delay motions; wiretap admissibility motions; change of venue motions; in some cases, confessions motions, search and seizure motions, similar fact motions and other evidentiary rulings; and, finally, severance motions. Severance is placed at the end of this list because most pre-trial motions will be common to all co-accused and should be determined at one hearing by one judge, prior to any severance applications. Evidentiary motions will not always be appropriate for early pre-trial rulings because, in some cases, the evidence will evolve at trial and require re-consideration of a pre-trial ruling. Nevertheless, there may still be benefit in providing an early pre-trial ruling on, for example, a confession, a search or seizure or arrest, or a similar fact motion, subject as always to the discretion of the trial judge to revisit the ruling if there is a material change. The pre-trial judge should clearly state the factual bases for any ruling. Absent a material change, for example, where different evidence emerges at trial, the rulings of the pre-trial judge are binding and must be respected by the trial judge. The Criminal Code should also be amended to make it clear that any rulings at a first trial, that ends in severance or in a mistrial, remain binding at a subsequent trial absent some material change.
E. The Federal Provincial Territorial Working Group Proposals
We do not wish to leave this topic without commenting briefly on the paper "Proposals for Reform: Mega-Trials" that was prepared by the Federal, Provincial and Territorial Working Group on Criminal Procedure. The paper was presented to Ministers at their Winnipeg meeting last year and led to the Communiqué that has already been referred to above. 16
Because this policy paper went to Ministers it would normally be confidential. We are grateful to the Deputy Attorney General for arranging a briefing on the paper and for obtaining consents from his colleagues allowing us to refer to the paper in our Report. The paper deals with a number of proposed reforms that we need not comment on but it contains significant proposals relating to judicial case management in long complex trials. This is a subject that we have analyzed and consulted on at considerable length over the past five months. The Working Group's proposals on this topic largely follow the recommendations made in 2004 by the Steering Committee on Justice Efficiencies and Access to the Criminal Justice System in its "Final Report on Mega-Trials". 17
We generally support the Working Group's proposals on case management because they provide for a Criminal Code amendment that would allow the early appointment of a "management judge" in large complex cases. This judge, who would not be the "trial judge", would have power to rule on pre-trial motions. Accordingly, the proposals are largely harmonious with our Recommendations 10 and 11. Nor would these proposals necessarily preclude our Recommendation 9 in those jurisdictions and those cases where it is both feasible and appropriate to appoint a single "trial judge" at the early stages.
Where the Working Group's and the Justice Efficiencies Committee's proposal differs from ours is that it requires a formal application to the Chief Justice or Chief Judge, or his/her designate, based on certain statutory criteria, asking the court to find that the case is a "mega- trial." Only after this judicial determination has been made at a formal court proceeding would the case then be subject to "exceptional trial procedure." This "exceptional" procedure includes the appointment of a "management judge" who is empowered to rule on pre-trial motions without becoming seized with the trial.
We believe there are two shortcomings to this requirement of a special motion to declare a "mega-trial" before the case becomes eligible for "exceptional trial procedure." First, like too many other law reform initiatives over the past 20 years, it involves unnecessarily complex court procedures that simply slow cases down. We see no need for a formal judicialized motion and much prefer the English approach which simply legislates a broad power to rule on legal and evidentiary motions at pre-trial hearings. 18 Whether the power is exercised in a given case is left to the discretion of the judge, depending on the needs of the individual case. Any large case in the system will benefit from having a judge assigned at the early stages with the discretionary power to hear the pre-trial motions and issue rulings. Whether we call the case a "mega-trial," based on some complex statutory definition, matters not. This is simply basic judicial case management that could apply in any case. It should be a routine best practice and it need not become the subject of a special "mega-trial" motion leading to "exceptional" procedure. Under our proposal, as under the U.K. statute, assigning a judge to begin ruling on pre-trial motions whenever necessary and appropriate would simply be part of the ordinary administrative powers of the Court. All that is needed is an amendment to s. 645 to make it clear that a judge hearing pre-trial motions need not go on to hear the trial.
The second reason why we disagree with the Working Group's proposal, related to the first, is that it is under-inclusive. It requires the ability to predict a "mega-trial" in advance and then bring on a motion seeking a declaration to that effect, based on the apparent characteristics of the case. The experience of the justice system does not accord with this limited view of the "mega-trial." In fact, many cases become "mega-trials" solely because of the way they are conducted by the parties. 19 A relatively straightforward homicide case can turn into a four or six year long nightmare because of the way the parties chose to litigate. 20 This is why all major cases need to be subjected to early judicial control and management, so as to prevent them from becoming "mega-trials".
In short, the problem with the Working Group's proposal is that it adds new complex procedures to the Criminal Code when what is needed is a simple amendment to undo the current rigidities. The problem lies fundamentally within s. 645, and the related Supreme Court of Canada case law, all of which require that pre-trial motions be heard by the "trial judge". If this restriction was removed and, in its place, the court had a simple discretion to assign a "trial judge" or a "pre-trial judge" with real powers, the system would have the flexibility it needs to manage all of its major cases efficiently. Our proposal, like the English legislation, is both simpler and more inclusive.
In conclusion on this point, we should reiterate that we support the substantive objective of the Working Group's proposals, namely, to empower the early case management judge and to remove the rigid requirement that he/she also be the trial judge. We simply disagree with the procedure that is being recommended in order to get to this result.
Federal Provincial Territorial Justice Ministers ought to adopt the "mega-trial" proposal of the Working Group on Criminal Procedure, to legislate real pre-trial case management powers, but ought to simply amend s. 645 in order to achieve this end. Section 40 of the Criminal Procedure and Investigations Act 1996 (UK) is a useful model.
F. The Common Law Case Management Powers of the Trial Judge and the Need for Expertise
If the above recommendations are accepted, the case will be in the hands of a judge with power to make rulings at its early stages. In addition, "the trial" will have commenced in a formal sense, once any judge of the trial court starts hearing motions and issuing decisions.
This development has important consequences because at common law "the trial judge" has significant case management powers, both when hearing motions at the pre-trial stage and when hearing evidence at trial. All trial courts, whether statutory courts or superior courts, have the implied power to control their own process and ensure a fair trial. It is from this broad power that the common law developed an expansive list of remedial tools designed to ensure the fairness and effectiveness of trial processes. 21
We wish to emphasize these common law powers because they are often forgotten. Furthermore, some judges seem reluctant to exercise them perhaps due to concern about appellate review. They include the following: requiring proper written notice of a motion to allow the court and opposing counsel time to prepare; requiring supporting materials for a motion including written legal argument and an offer of proof, so that its potential merits can be properly considered; summarily dismissing those motions that obviously lack merit so as not to waste court time; placing time limits on oral argument in order to encourage disciplined and focused advocacy; insisting that motions be argued on a written record, such as a preliminary inquiry transcript or witness statements, and without viva voce evidence, in those cases where credibility is not a proper issue on the motion; and directing the order of motions, deferring rulings on motions and even directing the order of evidence, in exceptional cases, all for the purpose of ensuring the efficient conduct of the trial. 22
These common law powers are very effective tools of judicial case management because they encourage efficient, focused and well-prepared lawyering. The trial courts must utilize them where appropriate. For example, insisting on proper notices of motion, with supporting materials, forces counsel to prepare properly and ensure that an argument is tenable. It also allows the opposing party and the court to prepare for the motion. When the motion comes on for hearing, if it appears weak or fanciful, the court should ask counsel to state what legal and factual propositions would emerge at the end of a completely successful hearing. If those factual and legal propositions will not support the remedy sought, such as a stay or exclusion of evidence, then the motion should be summarily dismissed.
We appreciate that it requires real knowledge, skill and judgment in relation to complex areas of law, in order to properly exercise these case management powers. There is broad agreement amongst the participants in our Review that judges assigned to long complex criminal trials, especially at the pre-trial motions stage, need to possess expertise in criminal law, evidence law and criminal procedure. They must also be willing to become fully engaged in actively and proactively managing the case. This is the inevitable result of the dramatic changes to criminal procedure and evidence law noted in Chapter 2. The Ontario Chief Justice's Advisory Committee Report recognized this modern reality, stating: 23
In some cases, assigned judges have little experience in criminal law, particularly in complex prosecutions, invariably resulting in longer trials...Given the enhanced significance of judicial pre-trial conferences, it is essential that, where feasible, the judges assigned to conduct pre-trial conferences should be experienced, knowledgeable and interested in criminal law.
One judicial case management power that requires special mention is the power to control unduly prolix examinations and cross-examinations. The common law powers described above are rooted in the jurisdiction of trial courts to ensure a fair, efficient and effective process. Unduly long examinations and cross-examinations undermine all of these values, as well as being poor advocacy that does little to advance one's cause. The trial judge has clear authority at common law to control and prevent "repetitiousness". 24 The more difficult issue is whether a trial judge can impose time limits. It is clear that time limits can be imposed on legal argument. 25 The experience of the courts and the bar has generally been that time limits encourage better advocacy as long as they are reasonable. Every argument has its weak points and its strong points. Time limits force counsel to focus on the strong points. They also provide a built-in deterrent against repetition.
We believe that the same general principles apply to examinations and cross-examinations of witnesses. Every examination and cross-examination will have strong points and weak points and most counsel engage in some degree of repetition. As with time limits on legal argument, time limits on examinations and cross-examinations would encourage counsel to focus on the strong points and to avoid repetition. We note that a phenomenon has developed in some long complex trials in Ontario where counsel, either for the Crown or for the defence, examine and cross-examine witnesses for 10, 15 and 20 day periods. Aside from being appallingly bad advocacy, this can never be justified.
Any discussion of the topic of placing time limits on examination-in-chief or cross-examination must begin with the Ontario Court of Appeal's 1973 decision in R. v. Bradbury. The Court stated the following: 26
One complaint arose from the fact that after a protracted cross-examination of one of the investigating officers, which cross-examination was both exhaustive and exhausting, the trial Judge warned defence counsel that he would be allowed only a specified number of minutes to complete his cross-examination, and made it clear to him that he did not have unrestricted right to continue indefinitely.
The right and indeed the responsibility of the trial Judge to control the proceedings before him to prevent conduct which may well be or become an abuse of the process of the Court is unquestioned. It must, however, be exercised with caution so as to leave unfettered the right of the defendant, through his counsel, to subject any witness's testimony to the test of cross-examination. The disallowance of questions ruled improper, as inviting the introduction of hearsay evidence, or as being irrelevant or for the protection of a witness from unwarranted harassment falls within the scope of the trial Judge's authority.
We do not consider that it is allowable, in advance, to place any restriction on the length of time to be consumed by cross-examination. The rulings of the trial Judge should be made when questions are put or about to be put and should be confined to the propriety of the question or questions in issue. However, the transcript indicates that, despite the threats to terminate it, the cross-examination, in most instances, extended well past the announced limits and it is not apparent that any pertinent area was left unexplored by reason of any improper ruling on the part of the trial Judge. [Emphasis added]
One wonders whether the Court of Appeal would make the same categorical pronouncement today as set out in the underlined portion of the judgment above. In 1973, when Bradbury was decided, the common law trial management power was not as well-developed as it is today. As Rosenberg J.A. put it in Felderhof, some 30 years after Bradbury was decided, much more forceful trial management is a modern necessity because the criminal trial has changed so much: 27
Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not for years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process. [Emphasis added]
At the time of Bradbury no member of the Court of Appeal would ever have imagined that lawyers would be allowed to examine or cross-examine a single witness for 10, 15 or 20 days. We think it likely, in today's changed legal context, that Bradbury should and will be revisited at some point.
In any event, what Bradbury specifically prohibits is placing an advance time limit on counsel's examination or cross-examination of a witness. It does not prohibit a trial judge from engaging counsel in a discussion as to how long they anticipate their examination lasting and then setting a reasonable but flexible target for counsel. If the witness proves difficult or evasive or long-winded, or if some new issue arises unexpectedly during the witness' evidence, the target can be adjusted. 28 We believe that most lawyers work well under this discipline. In the rare case, where counsel is unwilling or unable to comply with a flexible target, the Court of Appeal will have to determine whether this is a reasonable application of the modern trial management power. We note that present members of the Court of Appeal, when conducting public inquiries, have imposed these kinds of flexible targets on the length of counsel's examinations and they have worked well. We believe this to be the best tool available to control the extraordinary prolixity that has developed in some long complex trials.
In the next two chapters we will discuss administrative means to regulate and prevent inefficient and ineffective practices by counsel, for example, through Legal Aid processes, but this is a separate issue from the trial judge's powers.
Expertise should be recognized as a necessity in the long complex criminal case. In particular, judges in these cases should be skilled and knowledgeable in the exercise of their diverse common law trial management powers and in the application of those powers to pre-trial motions. These powers are effective tools that encourage counsel to be well-prepared, focused and efficient and they should be utilized by the judiciary where appropriate. These powers are listed in the text above but there is no closed list. The powers all derive from the trial judge's broad jurisdiction to ensure that the trial is conducted fairly, efficiently and effectively. New exercises of this jurisdiction will be developed over time, in the traditional common law way, on the basis of changing times and new circumstances. Developing reasonable and flexible targets that counsel must aim at, for the completion of examination and cross-examination of witnesses, is one such exercise of this broad jurisdiction. The National Judicial Institute should continue and enhance its programs for training judges in these skills.
G. Judicial Case Management in the Ontario Court when the Case is Proceeding to Preliminary Inquiry
The above recommendations apply equally to the Ontario Court and the Superior Court. Regardless of which court the accused is being tried in, that trial court must have power to make early rulings on pre-trial motions and must exercise common law trial management powers throughout.
Most long complex cases in Ontario will not proceed immediately to a trial court but will proceed initially to a preliminary inquiry in the Ontario Court. Some separate discussion is required as to the role of the Ontario Court in the management of long complex cases that proceed to a preliminary inquiry prior to trial in the Superior Court.
We do not believe there is strong support for increasing the powers of Ontario Court judges to make rulings on pre-trial motions in these cases. For example, at present a preliminary inquiry judge has no jurisdiction to rule on disclosure disputes that may be delaying a case. 29 The present law to this effect may, at first blush, seem to be rigid and inefficient and in need of reform. However, a number of Ontario Court judges argued persuasively that it would be counter-productive to increase the amount of contentious litigation in their court, for example, by amending the law to allow disclosure rulings at a preliminary inquiry. They also submitted that there is value in encouraging the parties to resolve their disclosure disputes, after receiving some mediated advice at an Ontario Court judicial pre-trial. We agree with these submissions and do not recommend any expansion of the Court's jurisdiction in this area. Of course, we commend efforts by the Ontario Court judges to give guidance and direction in relation to disclosure issues. If the parties are unable to resolve a serious disclosure dispute while a case is proceeding to a preliminary inquiry in the Ontario Court, there is constant access to the Superior Court which can provide a Charter remedy.30
The legal framework for judicial case management in the Ontario Court, in a case proceeding to preliminary inquiry, currently has two distinct tracks. Assuming the statutory law remains unchanged in this area, as we recommend, we wish to comment briefly on how best to utilize that legal framework.
The first track is the traditional "pre-hearing conference", provided for since 1985 in s. 625.1. The Ontario Court exercises its power under this provision, prior to setting a date for a preliminary inquiry in any long complex case, by ordering the parties to a "conference" to discuss resolution of the case and any other matter that would "promote a fair and expeditious hearing". We were repeatedly advised by the participants that the Ontario Court judges have used these "pre-hearing conferences" with great success to either completely resolve long complex cases or to substantially narrow the issues. One judge, in a very large gang-related case that originally charged 71 accused with 275 criminal offences, used his mediation skills to resolve most of the charges against most accused with either guilty pleas, criminal organization peace bonds or withdrawals. The justice system was saved months, if not years, of court time as a result of these efforts, providing swift justice for the accused and the community and focusing the case narrowly and efficiently on the few remaining accused who wished to proceed to preliminary inquiry and trial. Another judge negotiated a complete waiver of the preliminary inquiry and eventual guilty pleas from all accused in a very serious organized crime case involving the shooting of an innocent bystander. He persuaded the parties that Crown counsel should present her case at the "conference" by way of PowerPoint, with video and audio exhibits accompanying the PowerPoint presentation. He then had the Crown repeat the performance in front of the accused. Once the accused appreciated the strength of the Crown's case, pleas quickly ensued, once again saving the justice system a very lengthy preliminary inquiry and trial and providing the victim with closure.
We cannot commend these kinds of efforts strongly enough. They represent the very best use of the 1985 amendment to the Criminal Code and they need to continue. We particularly wish to encourage the kind of creativity exhibited by the PowerPoint presentation. One unintended adverse consequence of the broad sweep of Stinchcombe disclosure is that the defence now receives so much material that they cannot always appreciate the core of the Crown's case. The old style of Crown brief, while much more limited than what Stinchcombe requires, at least had the advantage of clearly setting out the Crown's case. By using the s. 625.1 "conference" as a vehicle for the Crown to explain and outline their case, in this forceful and dramatic way, the Judge helped the parties to better understand the Crown's case.
It can be seen that we are of the view that the Ontario Court is using its s. 625.1 powers in a very skilful and effective manner in long complex cases that are scheduled to proceed to a preliminary inquiry. Those who advocate greater use of direct indictments in long complex cases ought to think carefully about the advantages gained from a period of time in the Ontario Court where the case is essentially whittled down and organized so that a much more focused trial ensues.
The second track of judicial case management in the Ontario Court, when a case is proceeding to preliminary inquiry, is the new powers found in ss. 536.4, 540(7) and 540(9). These are recent additions to the Criminal Code, enacted in 2002. They can only be exercised by the judge "before whom a preliminary inquiry is to be held" whereas the s. 625.1 "conference" is generally held before a judge who does not conduct the preliminary inquiry. These new amendments provide for a hearing "to identify the issues... to identify the witnesses to be heard at the inquiry... [and] any other matters that would promote a fair and expeditious hearing." This so-called "focus hearing" power in s. 536.4, if interpreted as advisory and not directive, would be entirely duplicative of the traditional s. 625.1 "conference". What potentially distinguishes the "focus hearing" from the "conference" is that the preliminary inquiry judge also possesses the powers found in s. 540(7) to dispense with certain viva voce witnesses and admit their evidence in hearsay form at the preliminary inquiry. Presumably, Parliament intended some relationship between the two provisions such that the judge would identify "the witnesses to be heard," when conducting the s. 536.4 "focus hearing", and would then be able to rule at the preliminary inquiry that the evidence of any other witnesses could potentially be admitted in hearsay form pursuant to s. 540(7), provided their evidence was "credible or trustworthy."
These are important case management powers that supplement the s. 625.1 "conference" because the preliminary inquiry judge has the power to make rulings that shorten and focus the preliminary inquiry, provided the new s. 536.4 and s. 540(7) powers are used in a complimentary way or s. 536.4 is interpreted as enacting a power to direct "the witnesses to be heard at the inquiry." The judge at the s. 625.1 "conference" has no such powers and can only try to persuade the parties to be reasonable.
The submissions that we received from all participants were generally to the effect that the new "focus hearing" powers are not being used effectively. Indeed, in some cases and some jurisdictions it appears that these powers are not being used at all. The directions given at the "focus hearing", if there are any directions given, are treated as little more than advice offered to the parties. They are not regarded as enforceable orders of the court. In other words, the new "focus hearing" adds little to what the "conference" already does. In those cases where it is being used, it simply becomes a duplicative burden on counsel and does not appear to advance the case.
We believe that "focus hearings" can be made to work effectively in one of two ways. First, the Ontario Court could develop a set of rules to govern the "focus hearing", pursuant to s. 482.1(1), and then "any direction made in accordance with a rule" would have the same force as a court order. The parties would be bound to "comply" with it as a result of s. 482.1(2). It is clear that s. 536.4 permits rules of court to be made under s. 482.1 but no rules have yet been developed.
The other way to give the "focus hearing" real teeth is to combine its powers with the s. 540(7) hearsay admissibility powers. Any ruling at the "focus hearing", to limit the number of viva voce witnesses, could also permit hearsay statements from others or could direct that certain witnesses should be examined before a special examiner with the judge available to make any necessary legal rulings. Any such ruling could be re-visited later at the preliminary inquiry if circumstances were to change in a material way. In order to actually exercise s. 540(7) powers at the s. 536.4 "focus hearing," the judge would have to arraign the accused and formally commence the preliminary inquiry, so as to trigger s. 540 which only applies when a judge is "holding a preliminary inquiry." Alternatively, the judge could simply indicate at the "focus hearing" what ruling he/she will likely be making pursuant to s. 540(7) at the future date when the preliminary inquiry commences, subject to any material change in circumstances.
We note that if the "focus hearing" were to become more effective as a case management tool, in one of the above two ways, then the Court could make a more accurate assessment of how many court days will be required to complete the preliminary inquiry. This would be a significant development because the Ontario Court presently has difficulty in allowing judges and courts to sit continuously, once a long complex case commences. We have discussed this problem previously, in Recommendation 9, and emphasize how important it is that these cases not be delayed because the judge has to be assigned to another court or another case.
We therefore recommend that the "focus hearing" judge should issue an enforceable order as to how many witnesses will testify at the preliminary inquiry. In addition, if Recommendation 13 is followed and flexible targets for the completion of each witness are set, the Court will be able to estimate the time required for the preliminary inquiry in a much more accurate manner. If this initial time estimate is reasonably accurate, there are less likely to be adjournments to complete the preliminary inquiry at some future date. We strongly encourage the Ontario Court to use its powers to manage the preliminary inquiry. The Court has difficulty sitting continuously on long complex cases and adjournments result when insufficient time is scheduled. The Court must, therefore, use all of its case management tools effectively to schedule an accurate amount of time for completion of the inquiry without adjournment.
It can be seen that our recommendation is that the "focus hearing" power be used in a manner similar to what we have recommended for pre-trial motions in the trial court. Pre-trial judges need to be empowered to make binding rulings that go beyond s. 625.1 "conferences" with their mere powers of persuasion. Similarly, "focus hearing" judges need to be empowered to make binding orders. In this way, the pre-trial judge will actually manage and shape the trial and the focus hearing judge will actually manage and shape the preliminary inquiry. Neither proceeding should have to rely on individual counsel's good will and reasonableness.
We should note that the preliminary inquiry judge will have to be assigned to any long complex case at a relatively early stage, after the s. 625.1 "conference" is completed but before setting a date for the preliminary inquiry. It is important that the "focus hearing" become an effective and enforceable tool for determining the estimated length of the preliminary inquiry in the various ways set out above. If the "focus hearing" becomes an effective case management mechanism, then the date for the preliminary inquiry ought not to be set until after the assigned preliminary inquiry judge has conducted the "focus hearing". It is our understanding that the Ontario Court is able to appoint a judge to conduct a long complex preliminary inquiry at the early stages of the case and before setting a date for the preliminary inquiry.
Finally, we strongly commend the practice of "exit pre-trials" at the end of a preliminary inquiry. A judge of the Ontario Court who has heard much of the evidence is in a very good position to assist with resolution discussions. It should be the norm in long complex cases, after deciding to commit the accused for trial but before signing the committal order, that the judge offers to help the parties in trying to resolve the case. The Ontario Court should also alert the Superior Court administrative judge at this stage of the imminent arrival of a long complex case.
We commend the practice of "pre-hearing conferences" in the Ontario Court, prior to setting a date for preliminary inquiry in long complex cases, in order to discuss resolution of the case and to identify and narrow the issues. We particularly commend new and creative uses of these traditional s. 625.1 powers such as asking the Crown to present its case in summary form so that counsel and the accused are better informed as to the way in which the Crown will prove its case and the strength of the case, assuming it is a strong case. We similarly commend the practice of "exit pre-trials" at the conclusion of the preliminary inquiry, together with notice to the Superior Court of the imminent arrival of a long complex case.
The s. 536.4 "focus hearing" needs to be made effective so that enforceable orders issue at the end of the hearing rather than mere advice and persuasion that duplicates the s. 625.1 "conference". This can be achieved in one of two ways:
- Rules of court, pursuant to s. 482.1, should be developed so that any "direction made in accordance with a rule" as to the "witnesses to be heard at the inquiry" will have the same force as a court order. The order could, of course, be re-visited if material circumstances change; or
- Rulings pursuant to s. 540 (7) should be made in conjunction with the "focus hearing" so that any evidence from a witness other than the "witnesses to be heard at the inquiry" will be admitted in hearsay form, provided it is "credible or trustworthy."
We believe the former of these two solutions is more direct and it is simpler procedurally.
Once the "focus hearing" has determined the number of witnesses to be called at the preliminary inquiry, in one of the two ways set out above, reasonable targets for the completion of each witness' evidence should be set, allowing the court to make a reasonably accurate estimate of the time required to complete the preliminary inquiry at one continuous sitting without adjournments.
H. Managing the Bail Hearing
It must always be remembered that judicial management of a case begins with the bail hearing. The importance of this step in the proceedings cannot be stressed enough. The police and Crown must advise the Ontario Court administrative judge, in advance, of any large complex bail hearing or hearings about to arrive in his/her court. The administrative judge must have sufficient notice to arrange appropriate court space, staff and time for the timely adjudication of a large number of new and difficult bail hearings, without disrupting the ordinary bail court. We are pleased to note that steps have been taken in some judicial centres to formalize these kinds of arrangements and we commend them for province-wide adoption.
The development of these notice protocols came about because of unhappy experiences in a number of large cases, where the court system could not accommodate a sudden influx of large numbers of long complex bail hearings. The result was badly delayed bail hearings for many accused. Proper notice not only allows the administrative judge time to arrange an appropriate court to accommodate the large case or cases for timely bail hearings, it also allows a Judge to be assigned to particularly difficult bail hearings, rather than a Justice of the Peace. Finally, we note that arranging a large additional court to hear one or more complex bail hearings, in a timely way and without disrupting the ordinary bail court, may well require some assistance from the Superior Court to make one of its courts available on short notice.
The Supreme Court of Canada recently held in Charkaoui that s. 9 of the Charter guarantees a right to speedy review of any detention, even in the non-criminal law context of the national security certificates used in that case to detain foreign nationals. The Court unanimously struck down these provisions because, inter alia, they did not provide for prompt bail hearings: 31
The lack of review for foreign nationals until 120 days after the reasonableness of the certificate has been judicially determined violates the guarantees against arbitrary detention in s. 9 of the Charter, a guarantee which encompasses the right to prompt review of detention under s. 10(c) of the Charter. Permanent residents named in certificates are entitled to an automatic review within 48 hours And under the Criminal Code, a person who is arrested with or without a warrant is to be brought before a judge within 24 hours, or as soon as possible: s. 503(1). These provisions indicate the seriousness with which the deprivation of liberty is viewed, and offer guidance as to acceptable delays before this deprivation is reviewed. [Emphasis added]
In conclusion on this point, the police, the Crown, defence counsel and both levels of the trial courts must cooperate and coordinate in order to ensure that all accused in large complex cases have access to prompt bail hearings, as guaranteed by the Charter.
The police and/or the Crown must notify the administrative judge in the Ontario Court, in advance of any large complex bail hearing or hearings about to arrive in the judge's jurisdiction. The administrative judge must then take steps to ensure that appropriate court space, staff and time are available to accommodate a reasonably prompt bail hearing for the case or cases, including assigning a judge where appropriate and conferring with the Superior Court where necessary concerning court space. These steps should be taken without disrupting the ordinary bail court or placing unreasonable demands on its capacity.
I. The Power to Require Admissions
One discrete aspect of judicial case management that requires some separate discussion is the topic of admissions. In the context of long complex trials, admissions have the important effect of significantly shortening and focusing the trial. Accordingly, they have great benefit to the administration of justice, and to the cause of justice, because they ensure that the trier of fact does not lose sight of the important issues in a case.
A traditional aspect of case management, since the 1985 introduction of s. 625.1 "conferences", is for the judiciary to ask the parties to identify the real issues in the case. This process is necessary in part because the law of criminal pleadings, unlike the law of civil pleadings, does not require that the Crown plead facts in the charging documents. Nor is there any requirement for defence pleadings that set out which of the facts pleaded are in dispute. 32 The new Ontario Superior Court Rules formalize this process of using the "pre-hearing conference" to identify the issues by requiring that the parties file comprehensive pre-trial conference forms. The Crown must set out the "evidentiary basis" for the charges in their form and the defence must then set out what parts of the Crown's case are in dispute. The parties must also address the subject of admissions of those parts of the case that are not in dispute, all with the assistance of a judge-mediator. 33
2. Counsel's Ethical Duties
We believe that there are important ethical duties that are engaged in this process of negotiating admissions. As already noted above in Chapter 3, when discussing the Stinchcombe duty to resolve disclosure disputes, Crown and defence counsel are "officers of the court" and Crown counsel are also "ministers of justice". They both have duties that require allegiance to the search for justice and this includes the efficient administration of justice. If the Crown insists on calling every witness and proving every factual point, even though it is admitted, then the Crown is not acting responsibly. If the defence insists on the Crown proving every factual point, even though there is no reasonable basis to dispute it, then the defence is not acting responsibly. These attitudes unnecessarily lengthen trials, they impair the pursuit of justice and they are contrary to counsel's duties.
In the leading English authority on counsel's role as an "officer of the court", Rondel v. Worsley, Lord Upjohn indirectly addressed the issue of admissions when he said: 34
Counsel is equally under a duty with a view to the proper and speedy administration of justice to refuse to call witnesses, though his client may desire him to do so, if counsel believes that they will do nothing to advance his client's case or retard that of his opponent. So it is clear that counsel is in a very special position and owes a duty not merely to his client but to the true administration of justice. It is because his duty is to the court in the public interest that he must take this attitude.
Justice Rosenberg made the same point in the leading Ontario Court of Appeal case, R. v. Samra, referring to the approach to counsel's duties in Rondel v. Worsley with approval: 35
There is an erroneous premise underlying the appellant's submissions in this case - that defence counsel is but a mouthpiece for his client. His argument must be that counsel is bound to make submissions no matter how foolish or ill-advised or contrary to established legal principle and doctrine, provided that is what the client desires.
In Proulx and Layton's leading text on Ethics and Canadian Criminal Law, the authors refer to the above principle in Samra and in Rondel as "the ethical rule against frivolous arguments." 36
Perhaps the best exposition of counsel's duty to the court, and how it applies to the task of admissions, is Chief Justice Mason's judgment in the leading Australian case, Gianarelli v. Wraith: 37
The peculiar feature of counsel's responsibility is that he owes a duty to the court as well as to his client. His duty to his client is subject to his overriding duty to the court. In the performance of that overriding duty there is a strong element of public interest.
It is not that a barrister's duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instruction to the contrary. Rather it is that a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. [Emphasis added]
Judges presiding at s. 625.1 "pre-hearing conferences" should do their best to enforce these ethical duties by requiring counsel on both sides to agree to reasonable admissions and to limit the witnesses to those that actually advance one party's case or retard the other party's case, as Lord Upjohn put it. As noted above, the s. 625.1 judge can exercise moral suasion with counsel but has no real power to make binding rulings.
Assuming our previous recommendations in this Chapter are accepted and pre-trial judges become empowered to rule, the question that has been raised in our Review is whether the presiding judge (either at trial or at the pre-trial motions) can require admissions. It has been submitted to us that there are failings on both sides of the bar in this area and we have seen evidence of it. There have been recent examples of long complex cases in Ontario where Crown counsel have called far too much evidence, when factual issues were already well established or were not in dispute. There have also been cases where defence counsel refused to make admissions and required the Crown to prove facts that could not reasonably be disputed. We believe this conduct to be irresponsible, and perhaps unprofessional, but the issue here is whether there are judicial remedies to require that an admission be made or that it be accepted.
These are two distinct issues and we approach them separately: first, can Crown counsel be required to accept an admission; second, can defence counsel, be required to make an admission.
3. Requiring the Crown to Accept Admissions Offered by the Defence
In the 19th century, there was doubt at common law as to whether the accused was competent to make an admission of fact at trial. As a result, the Criminal Code enacted a statutory admissions power in the 1892 Code and it has remained in essentially the same form in the modern Criminal Code. The provision is found in s. 655 and it simply states that the accused or counsel "may admit any fact alleged against him for the purpose of dispensing with proof thereof." 38
Modern case law is to the effect that there is also a common law power to receive admissions of fact and that s. 655 is not exhaustive. For example, s. 655 makes no provision for admissions by the Crown of facts alleged by the defence and it is also unclear as to whether s. 655 could apply to a fact that must be proved on a voir dire such as the voluntariness of a statement. The modern common law now fills these gaps and supplements s. 655, for pragmatic trial efficiency reasons. 39
The leading authority on s. 655, R. v. Castellani, states the simple proposition that the accused cannot frame admissions of fact for his own purposes but can only admit facts alleged by the Crown: 40
An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to [s. 655] it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. [Emphasis added]
Read literally, this passage suggests that no admission can be made pursuant to s. 655 unless the Crown formally alleges a fact and then turns to the defence and "seeks" its admission. This would give the Crown complete control over the admissions process.
Subsequent case law has not read Castellani in this literal fashion. Rather, it has been held that the Crown cannot "refuse acceptance [of an admission] where its purpose in doing so is to keep an issue alive artificially." These cases emphasize that the accused must "make all necessary admissions" related to the proposed evidence and must make the admission "fully and without ambiguity." But assuming the proffered admission fully covers the facts which the Crown's evidence seeks to prove, the admission must be accepted. 41
The above line of authority gives the Court power to mediate the process of admissions, both by requiring that the defence frame any proposed admission in a manner that fully covers the facts alleged and by requiring that the Crown accept a properly framed admission. This view of s. 655 is consistent with the modern "trial management" power developed in the Court of Appeal's recent decision in Felderhof. 42 As discussed above in Section F of this Chapter, the judge can use the trial management power to actively manage the conduct of the evidence, especially when counsel are not acting responsibly. This approach is also consistent with Dean Wigmore's robust view of the judge's common law power to seek admissions and to exclude superfluous evidence: 43
The doctrine of Judicial Admissions has long had a large future before it, if judges would but use it adequately the judge could freely call upon counsel to state whether a fact is in good faith disputed, i.e., should urge admissions to be made, where it seems probable that the fact is not actually disputed. By this method, the presentation of evidence will be confined to those matters of fact alone which the parties do dispute.
It is easy to see how large a mass of needless skirmishing can thereby be eliminated, how much time would be saved, and how much confusion of the jury would be avoided. And this would be attained by the mere application of an existing principle.
A fact that is judicially admitted needs no evidence from the party benefiting by the admission. But his evidence, if he chooses to offer it, may even be excluded; first, because it is now as immaterial to the issues as though the pleadings had marked it out of the controversy; next, because it may be superfluous and merely cumber the trial; and furthermore, because the added dramatic force which might sometimes be gained from the examination of a witness to the fact (a force, indeed, which the admission is often designed especially to obviate) is not a thing which the party can be said to be always entitled to.
Nevertheless, a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases), so as to be technically but not practically a waiver of proof. Hence, there should be no absolute rule on the subject; and the trial court's discretion should determine whether a particular admission is so plenary as to render the first party's evidence wholly needless under the circumstances. [Emphasis in the original]
We agree with Dean Wigmore's view of the law of admissions and note that it is consistent with the modern trend towards stronger judicial case management. Trial judges can require the Crown to accept a properly framed admission of any facts which the Crown seeks to prove, simply by excluding the Crown's viva voce evidence on the basis that it is now immaterial or superfluous and will take up unnecessary court time.
We would only add the caution, as does Dean Wigmore, that there may be instances where the "dramatic force" of the viva voce evidence will be lost on the trier of fact, if the evidence goes in in the form of a dry admission. We are not referring to any prejudicial impact of the viva voce evidence, which is obviously not a legitimate reason to hear it, but to the trier's greater ability to remember the evidence and appreciate it, especially in a long trial, after hearing it from a live witness. This assessment should be left to the discretion of the court which will have to consider the importance of the evidence and the sufficiency of the admission.
Counsel for the Crown and for the defence are both under ethical duties to make reasonable admissions of facts that are not legitimately in dispute. The court should encourage and mediate efforts to frame reasonable admissions. When the defence fully admits facts alleged by the Crown, the court has the power to require the Crown to accept a properly framed admission and to exclude evidence on that issue.
4. Requiring the Defence to Make Admissions of Facts not Legitimately in Dispute
A far more difficult question is whether the Court has power to require an admission of a fact that is readily provable. Furthermore, if counsel unreasonably refuses to admit an obviously provable fact, should the law provide a remedy?
We believe that there should be consequences for counsel who conduct trials in a manner that is contrary to the professional duties discussed above. At a minimum, their eligibility to act on Legal Aid certificates in future cases should be affected, assuming the case is publicly funded, because their conduct arguably contravenes the Legal Aid Services Act. This topic will be dealt with in Chapter 5. In addition, if their conduct rises to the level of professional misconduct it should be referred to the Law Society of Upper Canada. This topic will be dealt with in Chapter 6. Finally, in extreme cases of misconduct before the Court, common law sanctions are available such as costs and contempt. This topic will also be dealt with in Chapter 6. However, none of these remedies will secure the desired admission of fact.
We are not aware of any power held by the court to force the defence to admit facts that should be admitted and that would be admitted by responsible counsel. There are a number of provisions in the Canada Evidence Act permitting proof of certain routine facts by way of affidavit (for example, ss. 26, 29, 30 and 31). Similarly, s. 657.1 of the Criminal Code permits proof of certain facts in property crime cases by way of affidavit and s. 657.3 permits proof of expert evidence by way of affidavit, subject to requiring cross-examination of the affiant where some live issue exists. Another expedited form of proof utilized in the Criminal Code is certificate evidence in drinking and driving cases (s. 258) and in counterfeiting cases (s. 461). These provisions are all in the nature of statutory hearsay exceptions that permit proof in written form in the place of proof by viva voce testimony. They are somewhat akin to forced admissions.
We believe that the Federal, Provincial and Territorial Justice Ministers ought to give consideration to expanding the list of facts that can be proved in affidavit form pursuant to s. 657.1. These would obviously not include central disputed aspects of the Crown's case. Our concern is only with the peripheral facts in a case that are generally proved by witnesses who simply rely on routine records when they testify. Continuity of exhibits is a classic example of an issue where viva voce evidence generally adds nothing to what is recorded on an exhibit tag. Proof that a firearms examiner tested a gun and found it to be operable, as set out in his/her report, is a similar issue where live testimony is generally an unnecessary expenditure of time and resources. 44
We have been told that some counsel insist on proof of these kinds of facts, even when they have no legitimate issue to raise in cross-examination. Counsel should be required to demonstrate that some live issue exists to justify calling the witness and challenging his/her routine report or record. This is the way s. 657.1 works and the above kinds of issues could usefully be added to it.
Federal, Provincial and Territorial Justice Ministers ought to instruct their officials to consider expanding s. 657.1 of the Criminal Code to include other routine factual issues that can properly be proved by way of affidavit, subject to a right to cross-examine the affiant where some live issue exists.
J. Long Complex Terrorism Cases
We wish to briefly mention the particular problems associated with judicial case management of large complex terrorism cases. This has become a very important species of modern "mega-trial" in Ontario.
The one significant feature of terrorism prosecutions, that distinguishes them from other long complex criminal trials, is the likelihood that "national security" evidence will become part of the case. This likelihood has been significantly increased by the Supreme Court of Canada's recent decision in Charkaoui (No. 2) which holds that CSIS has a duty to preserve interview notes and recordings in targeted national security investigations. As the Court notes, the investigative work of CSIS and the RCMP is increasingly "converging" in cases of domestic and international terrorism. 45 It is almost inevitable that in any major terrorism prosecution CSIS will be in possession of relevant information that will lead to disclosure requests and attempts to call the evidence at trial. 46
As a result of this intersection between CSIS and RCMP investigations in the context of terrorism offences, national security privilege claims pursuant to s.38 of the Evidence Act are now a common feature of these cases. These privilege claims raise very difficult case management problems. In Chapter 2 we described the two key characteristics of national security privilege claims under the s. 38 legislative scheme: first, s. 38 removes the issue from the trial court and gives the Federal Court exclusive jurisdiction; second, it permits interlocutory appeals. The inevitable effect of these two features of the legislation is to delay the trial. Recent experience with this legislation in the Ribic and Khawaja cases is surely cause for real concern. 47
The issue of whether the current s. 38 procedure is the most appropriate one for resolution of national security privilege claims is squarely before the Air India Inquiry which is currently being conducted by the Honourable John Major, Q.C., formerly of the Supreme Court of Canada. 48 We defer to the greater expertise of that Inquiry in relation to this issue. However, we do wish to note our concern, given our mandate to find solutions to the problems of delay and complexity in long criminal trials.
Bifurcation of criminal trials and interlocutory appeals in criminal proceedings have both been regarded as an anathema for a very long time because they fragment and delay the criminal trial process. The prerogative writs, which have this very same effect on criminal cases, are met with strong judicial resistance whenever some counsel attempts to use them in the middle of criminal proceedings. In R. v. Duvivier, a prerogative writ application brought in the Superior Court to quash a subpoena issued by the Provincial Court, the witness claimed that she was immune from having to testify due to spousal privilege. She wished to raise this issue before the Superior Court rather than in the Provincial Court where the case was proceeding. Doherty J.A., speaking for the Court of Appeal, extensively reviewed the case law condemning the use of prerogative writs because they bifurcate and delay criminal proceedings: 49
Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters.
The same reasoning applies to s. 38 privilege claims in the Federal Court, rather than in the trial court where the case is proceeding. We urge the Federal, Provincial and Territorial Justice Ministers to consider modifications to the s. 38 procedure that would not result in bifurcation, delays and interlocutory appeals in major terrorism prosecutions. For example, assuming that terrorism trials will be conducted in the Superior Court, it should be possible to return the s. 38 jurisdiction to the Superior Court, where it previously resided, but require the Chief Justice to appoint the trial judge in terrorism cases from amongst a small pool of specialized and trained judges who can hear s. 38 claims. This should answer the concerns about lack of specialized knowledge and training that apparently led to the legislative decision to transfer all s. 38 claims into the Federal Court. 50
The Federal, Provincial and Territorial Ministers of Justice should consider modifications to s. 38 Evidence Act procedure in order to eliminate the delays caused in major terrorism prosecutions by the bifurcation of the case and by interlocutory appeals.
- Supra notes 6 and 54 where many of the leading studies are referenced.
- R. v. Askov et al (1990), 59 C.C.C. (3d) 449 (S.C.C.). It was the presumptive guideline of six to eight months for post-committal systemic delay that prompted the Ontario trial courts to become much more concerned about managing their caseload.
- These events are set out in greater detail in Michael Code, Trial Within a Reasonable Time, 1992 Carswell, at pp. 98-106.
- S.1.92-99. Online: http://www.ontariocourts.on.ca. The new Rules were released and implemented on October 16, 2006. They were the result of an excellent report titled, New Approaches to Criminal Trials, written by the Ontario Chief Justice's Advisory Committee on Criminal Trials. The Committee was made up of six senior judges, three senior Crown officials and the past President of the Criminal Lawyers Association. The focus of the Committee's work was "the increasing length of criminal trials" and enhanced judicial case management was seen as one of the solutions. Their report is available Online: http://www. ontariocourts.on.ca
- Supra note 6.
- Supra note 77 at pp. 107-116.
- Our Review received a very helpful briefing on the current "early resolution" rate from Ministry of the Attorney General staff. It indicates that the "early resolution" rate in the Ontario Court of Justice, where all criminal cases enter the system, has increased every year between 1999 and 2007. In 1999 the rate stood at 68.2% and in 2007 it stood at 76.4%. This means that less than 25% of the total case load is being set for trial or preliminary inquiry. In the most efficient jurisdictions in the province, which appear to be Kitchener and Peterborough, the "early resolution" rate is now over 89%. These are dramatic changes from the time of Askov when approximately 50% of the caseload was being resolved prior to setting a date for trial. It is hardly surprising that there were serious backlogs in the trial courts when approximately 50% of the caseload was being set down for trial. It was recently announced, on June 3, 2008, that the Ministry's statistical data from the criminal courts will be available online. We strongly support this initiative. News Release, "Ontario Targets Criminal Justice Court Delays". Online: http://www.attorneygeneral.jus.gov.on.ca.
- Supra note 6.
- Supra note 54 at pp. 81-84.
- Supra note 32 at pp. 101-109.
- Criminal Procedure and Investigations Act 1996 (UK), 1996, c. 25, s. 40. Also see "Binding Rulings" . Online: http://www.cps.gov.uk/legal/section14/chapter_b.html. The English Court of Appeal (Criminal Division) has strongly supported the changes to case management regimes in that country, stating "Active, hands on case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge's duty." See R. v. Jisl et al.,  EWCA Crim 696. One wonders whether the relative speed of the trial of the U.K. counterparts to Canada's Khawaja case reflects the U.K.'s stronger early case management powers. See note 18, supra.
- Supra note 6.
- Current legal doctrine, assigning sole jurisdiction over pre-trial motions to the "trial judge", derives from an old line of Supreme Court of Canada jurisprudence and from a number of Criminal Code provisions. See: R .v. Chabot (1980), 55. C.C.C. (2d) 385 (S.C.C.); R. v. Mills (1986), 26 C.C.C. (3d) 481 at 493-495, 516-520 and 565-567 (S.C.C.); R. v. Rahey (1987), 33 C.C.C. (3d) 289 at 298-299 and 318 (S.C.C.); R. v. Litchfield (1993), 86 C.C.C. (3d) 97 at 109-113 (S.C.C.). Also see: Criminal Code, ss. 278.3 (1), 645(5), 674, 675 and 676. This particular problem is discussed in greater detail in Michael Code, supra note 6.
- A simple illustration of the problem is that any given jurisdiction will have a limited number of judges assigned to long complex criminal trials. If each of those judges becomes seized with such a case, from its earliest stages, their calendar would have to be kept free of any other potentially lengthy case. If such a judge became seized of two long complex cases, the trial of one of them would likely be delayed due to the judge's calendar. The system needs the flexibility to assign the trial to whichever judge on the long complex trial team is free at the moment when the case becomes trial ready. Pre-assigning all these cases to particular judges is a rigid practice, particularly in large jurisdictions, that will result in delay due to the judge's calendar, illness or some other cause of unavailability.
- (1999), 136 C.C.C. (3d) 477 (Ont. S.C.J.).
- Supra note 6.
- Online: http://www.justice.gc.ca/eng/esc-cde/mega.pdf This report is discussed in greater detail in Michael Code, supra note 6.
- Supra note 85.
- The Honourable Justice Michael Moldaver, "Long Criminal Trials: Masters of a System They are Meant to Serve" (2006), 32 C.R. (6th) 316.
- A number of our four case studies illustrate this point.
- R. v. Romanowicz (1999), 138 C.C.C. (3d) 225 at 244-249 (Ont. C.A.); Canadian Broadcasting Corp. v. A-G New Brunswick (1996), 110 C.C.C. (3d) 193 at 208 (S.C.C.); R. v. Jewitt (1985), 21 C.C.C. (3d) 7 (S.C.C.); U.S.A. v. Shulman (2001), 152 C.C.C. (3d) 294 at 308-309 (S.C.C.); R. v. Felderhof (2003), 180 C.C.C. (3d) 498 at 517-520 (Ont. C.A.); R. v. Church of Scientology of Toronto (1986), 27 C.C.C. (3d) 193 (Ont. H.C.J.).
- R. v. Felderhof, supra note 95 at pp. 526 and 537; R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.); R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.); R. v. Leduc (2003), 176 C.C.C. (3d) 321 at pp. 343-349 (Ont. C.A.); R. v. Pires and Lising, supra note 5; R. v. Grundy (2008), 231 C.C.C. (3d) 26 (Ont. C.A.).
- Supra note 78 at paras. 47 and 176. The recent Lamer Inquiry into three miscarriages of justice in Newfoundland similarly noted the need for "criminal law experience and expertise" and recommended that "chief justices must be cautious in assigning judges to complex criminal trials." The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (Report) at 164. Online: http://www.justice.gov.n/.ca/just/lamer/LamerReport.pdf
- R. v. Lyttle (2004), 180 C.C.C. (3d) 476 at 488 (S.C.C.).
- R. v. Felderhof, supra note 95 at p. 526 C.C.C.
- (1973), 14 C.C.C. (2d) 139 (Ont. C.A.). Also see: R. v. Wallick (1990), 69 Man. R. (2d) 310 (Man. C.A.); R. v. Roulette (1972), 7 C.C.C. (2d) 244 (Man. Q.B.).
- Supra note 95 at p. 518.
We understand that a practice along these lines has developed in long complex cases in the United Kingdom. See: The Runciman Report, supra note 32 at pp. 121-2 and Protocol for Control and Management of Heavy Fraud and Other Complex Cases, supra note 64. The latter Protocol provides that the trial judge should establish "a clear target to aim at for the completion of the evidence of each witness." The Protocol was issued by the Lord Chief Justice in 2005 and it builds on an earlier decision of the Court of Appeal (Criminal Division), R. v. Chaaban,  EWCA Crim 1012, where the Court stated:
"We must also consider whether the case was somehow rushed, a submission which gives this court the opportunity to highlight a significant recent change, perhaps less heralded than it might have been, that nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence.
In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary evenhandedness and flexibility as the interests of justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does." [Emphasis added]
For Canadian cases where limits or targets have been set see: R. v. Smith,  O.J. No. 1980 (O.C.J.); Pereira v. Pereira,  B.C.J. No. 1949 (B.C.C.A.); R. v. Fabrikant (1995), 97 C.C.C. (3d) 544 (Que.C.A.). Similar proposals concerning "time limits for examination and cross-examination of witnesses and for addresses of counsel" have been made in Australia. See Report of the Working Group on Criminal Trial Procedure, supra, note 32 at p. 61.
- R .v. Mills, supra note 87 at pp. 492-493; R. v. S (S), supra note 89 at pp. 487-488 C.C.C.; R. v. Girimonte, supra note 61 at p. 43; R. v. Seaboyer and Gayme (1991), 66 C.C.C. (3d) 321 at 410-413 (S.C.C.).
- R. v. Girimonte, supra note 61; R. v. Blencowe, supra note 41; R. v. Hallstone Products Ltd. et al, supra note 40.
- Charkaoui et al v. Minister of Citizenship and Immigration, supra note 73, para. 91.
- Supra note 6 at pp. 447-448.
- Supra note 78.
-  3 All E.R. 993 (H.L.). The Supreme Court of Canada recently adopted Rondel v. Worsley as an authoritative description of counsel's "professional duties and ethical responsibilities" in R. v. Lyttle, supra note 98 at 493-494.
- (1998), 129 C.C.C. (3d) 144 at 158-159 (Ont. C.A.).
- M. Proulx and D. Layton, Ethics and Canadian Criminal Law, (Toronto: Irwin Law, 2001) at 36-37 and 119-149.
- (1988), 165 C.L.R. 543 at 556 (H.C. Aust).
- The old common law and the legislative history are set out in R. v. Castellani,  4 C.C.C. 287 at 290-291 (S.C.C.).
- R. v. Picariello (1923), 39 C.C.C. 1 (Alta. C.A.), aff'd 39 C.C.C. 229 (S.C.C.); R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.); R. v. Park (1981), 59 C.C.C. (2d) 385 (S.C.C.); R. v. Fatima and Khan (2004), Carswell Ont 8868 (Ont. S.C.J.).
- Op. cit.
- R. v. Proctor (1992), 69 C.C.C. (3d) 436 at 447 (Man. C.A.); R. v. Mohammed,  B.C.J. No. 2133 (B.C.S.C.).
- Supra note 95 at pp. 518 and 526.
- J. H. Wigmore, Evidence in Trials at Common Law, Chad. Rev. (Boston, Little Brown and Co., 1981), Vol. IX, ss. 2591 and 2597 at pp. 824-825 and 851-852.
- Indeed, in most of the examples that we have in mind, the document or record on which the witness relies is probably admissible itself for the truth of its contents, under the "past recollection recorded" hearsay exception. However, this does not help in terms of shortening the trial as the witness still has to testify to establish the criteria for the exception. This should all be done in an affidavit. See: R. v. Fliss (2002), 161 C.C.C. (3d) 225 at 244-245 (S.C.C.); R. v. Meddoui (1990), 61 C.C.C. (3d) 345 (Alta. C.A.).
- Charkaoui v. Minister of Citizenship and Immigration et al 2008 S.C.C. 38 at paras. 26-28 and 39-43.
- See, for example, the June 7, 2002 ruling on disclosure of CSIS materials in the "Air India" case. R. v. Malik, Bagri and Reyat, [ 2002] B.C.S.C. 861 (B.C.S.C.).
- See: R. v. Ribic, supra note 18; R. v. Khawaja, supra note 18.
- Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, online http://www.majorcomm.ca
- R. v. Duvivier (1991), 64 C.C.C. (3d) 20 at 24 (Ont. C.A.).
- See the comments of Rutherford J. in Ribic, supra note 18 at para.49 where he stated that "the scheme is cumbersome, and in this case was destructive of the trial process..." Also see: J. Patrick-Justice, "Section 38 and the 51 C.L.Q. 102; H. Stewart, "Public Interest Immunity After Bill C-36" (2003), 47 C.L.Q. 248.