Case Management

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 86647)

General Principles

Trial judges have an obligation to "make reasonable efforts to control and manage the conduct of trials."[1]

Appellate courts must defer to the case management choices of the trial judge in order to ensure that the trial proceeds efficiently.[2]

Duties to Streamline Cases

Both Crown and defence are "under an ethical duty to make reasonable admissions of facts that are not legitimately in dispute."[3]

A Court should encourage "efforts to frame reasonable admissions."[4]

Where a reasonable admission has been made by defence, the judge has the authority to "require the Crown to accept a properly framed admission and to exclude evidence on that issue."[5]

Where the accused is self-represented and the case is considered complex, the judge has the common law power to appoint an amicus curae.[6]

Standard of Review

a reviewing court must give deference to a judges case management decisions unless there is a "extricable legal error" or the decision is manifestly unjust.[7]

  1. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJA, at para 139
    R v Polanco, 2018 ONCA 444 (CanLII), per Nordheimer JA
  2. Jordan, ibid., at para 139
  3. LeSage, Patrick J., and Michael Code. Report of the Review of Large and Complex Criminal Case Procedures. Toronto: Ontario Ministry of the Attorney General, 2008.
  4. LeSage and Code, ibid.
  5. LeSage and Code, ibid.
  6. LeSage and Code, ibid. ("Trial Judges should exercise their common law power to appoint amicus curiae in any long complex trial where the accused in unrepresented or chooses to be self-represented and where such appointment is likely to assist in ensuring the fairness of the trial.")
  7. R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 91 ("Absent an extricable legal error or manifest injustice, we afford deference to trial judges’ case management decisions")

Organizational Pre-Trials

Under s. 625.1(1) the Court has the power to order that a conference be held between the parties to speed up the trial processs. The section states that:

Pre-hearing conference

625.1 Subject to subsection (2) [mandatory pre-trial hearing for jury trials], on application by the prosecutor or the accused or on its own motion, the court, or a judge of the court, before which, or the judge, provincial court judge or justice before whom, any proceedings are to be held may order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by the court, judge, provincial court judge or justice, be held prior to the proceedings to consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matters, and to make arrangements for decisions on those matters.

Mandatory pre-trial hearing for jury trials

(2) In any case to be tried with a jury, a judge of the court before which the accused is to be tried shall, before the trial, order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance with the rules of court made under sections 482 [powers of the superior and appellate court to make rules] and 482.1 [powers of the superior and appellate court to make case management rules] to consider any matters that would promote a fair and expeditious trial.
R.S., 1985, c. 27 (1st Supp.), s. 127, c. 1 (4th Supp.), s. 45(F); 1997, c. 18, s. 73; 2002, c. 13, s. 50.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 625.1(1) and (2)


Defined terms: "justice" (s. 2) and "provincial court judge" (s. 2)

This is also addressed through section 482.1:

(1) A court referred to in subsection 482(1) or (2) may make rules for case management, including rules
(a) for the determination of any matter that would assist the court in effective and efficient case management;

Pre-Trial conferences can be helpful for a number of reasons:

  1. Narrow issues for trial -- parties may be able to agree on certain facts not in dispute at trial
  2. Learn the opponent's theory and strategy
  3. Gauge potential sentences -- in certain circumstances possible sentencing proposals can be bounced off the judge to get a sense of the likely outcome in a disputed sentencing hearing.
  4. Settle the case

The purpose of enacting these sections "is to promote a fair and expeditious hearing or trial of the merits of a case."[1]

  1. R v SSS, 1999 CanLII 15049 (ON SC), 136 CCC (3d) 477, per Watt J, at para 44

Case Management Judge

PART XVIII.1
Case Management Judge
Appointment

551.1 (1) On application by the prosecutor or the accused or on his or her own motion, the Chief Justice or the Chief Judge of the court before which a trial is to be or is being held or the judge that the Chief Justice or the Chief Judge designates may, if he or she is of the opinion that it is necessary for the proper administration of justice, appoint a judge as the case management judge for that trial at any time before the jury selection, if the trial is before a judge and jury, or before the stage at which the evidence on the merits is presented, if the trial is being heard by a judge without a jury or a provincial court judge.

Conference or hearing

(2) The Chief Justice or the Chief Judge or his or her designate may order that a conference between the prosecutor and the accused or counsel for the accused or a hearing be held for the purpose of deciding if it is necessary for the proper administration of justice to proceed with the appointment.

(3) [Repealed, 2019, c. 25, s. 250]

Same judge

(4) The appointment of a judge as the case management judge does not prevent him or her from becoming the judge who hears the evidence on the merits.

2011, c. 16, s. 4; 2019, c. 25, s. 250.

CCC (CanLII), (DOJ)


Note up: 551.1(1), (2) and (4)


Role

551.2 The case management judge shall assist in promoting a fair and efficient trial, including by ensuring that the evidence on the merits is presented, to the extent possible, without interruption.
2011, c. 16, s. 4.

CCC (CanLII), (DOJ)


Note up: 551.2

Trial continuous

551.5 Even if the judge who hears the evidence on the merits is not the same as the case management judge, the trial of an accused shall proceed continuously, subject to adjournment by the court.
2011, c. 16, s. 4.

CCC (CanLII), (DOJ)


Note up: 551.5

Case Management Powers

Part XVIII.1 was added in 2011 to provide courts with powers over case management.

Powers before evidence on merits presented

551.3 (1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by

(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances;
(b) encouraging the parties to make admissions and reach agreements;
(c) encouraging the parties to consider any other matters that would promote a fair and efficient trial;
(d) establishing schedules and imposing deadlines on the parties;
(e) hearing guilty pleas and imposing sentences;
(f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented;
(g) subject to section 551.7 [decision whether to hold joint hearing], adjudicating any issues that can be decided before that stage, including those related to
(i) the disclosure of evidence,
(ii) the admissibility of evidence,
(iii) the Canadian Charter of Rights and Freedoms,
(iv) expert witnesses,
(v) the severance of counts, and
(vi) the separation of trials on one or more counts when there is more than one accused; and
(h) ordering, in each case set out in subsection 599(1) [reasons for change of venue], that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried.
Hearing

(2) The case management judge shall order that a hearing be held for the purpose of exercising the power referred to in paragraph (1)(g) [power of case management judge to adjudicate issues].

Power exercised at trial

(3) When the case management judge exercises the power referred to in paragraph (1)(g) [power of case management judge to adjudicate issues], he or she is doing so at trial.

Decision binding

(4) A decision that results from the exercise of the power referred to in paragraph (1)(g) [power of case management judge to adjudicate issues] is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.

2011, c. 16, s. 4; 2019, c. 25, s. 251.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 551.3(1), (2), (3), and (4)

Requiring Issues Be Placed on Record

Information relevant to presentation of evidence on merits to be part of court record

551.4 (1) When the case management judge is of the opinion that the measures to promote a fair and efficient trial that can be taken before the stage of the presentation of the evidence on the merits have been taken — including adjudicating the issues that can be decided — he or she shall ensure that the court record includes information that, in his or her opinion, may be relevant at the stage of the presentation of the evidence on the merits, including

(a) the names of the witnesses to be heard that have been identified by the parties;
(b) any admissions made and agreements reached by the parties;
(c) the estimated time required to conclude the trial;
(d) any orders and decisions; and
(e) any issues identified by the parties that are to be dealt with at the stage of the presentation of the evidence on the merits.
Exception

(2) This section does not apply to a case management judge who also hears the evidence on the merits.
2011, c. 16, s. 4.

CCC (CanLII), (DOJ)


Note up: 551.4(1) and (2)

Form of Evidence at a Voir Dire

The case management powers include the power to determine the nature of the evidence that will be considered on a constitutional voir dire.[1]

Adjudicating Issues

Issues referred to case management judge

551.6 (1) During the presentation of the evidence on the merits, the case management judge shall adjudicate any issue referred to him or her by the judge hearing the evidence on the merits.

Powers at stage of presentation of evidence on merits

(2) For the purposes of adjudicating an issue, the case management judge may exercise the powers of a trial judge.
2011, c. 16, s. 4.

CCC (CanLII), (DOJ)


Note up: 551.6(1) and (2)

Joint Hearing

Decision whether to hold joint hearing

551.7 (1) If an issue referred to in any of subparagraphs 551.3(1)(g)(i) to (iii) [power of case management judge to adjudicate issues – partial list] is to be adjudicated in related trials that are to be or are being held in the same province before a court of the same jurisdiction, the Chief Justice or the Chief Judge of that court or his or her designate may, on application by the prosecutor or the accused or on his or her own motion, determine if it is in the interests of justice, including ensuring consistent decisions, to adjudicate that issue at a joint hearing for some or all of those trials.

Considerations

(2) To make the determination, the Chief Justice or the Chief Judge or his or her designate

(a) shall take into account, among other considerations, the degree to which the evidence relating to the issue is similar in the related trials; and
(b) may order that a conference between the prosecutor and the accused or counsel for the accused or a hearing be held.
Order for joint hearing

(3) If the Chief Justice or the Chief Judge or his or her designate determines that it is in the interests of justice to adjudicate the issue at a joint hearing for some or all of the related trials, he or she shall issue an order

(a) declaring that a joint hearing be held to adjudicate the issue in the related trials that he or she specifies;
(b) naming the parties who are to appear at the hearing;
(c) appointing a judge to adjudicate the issue; and
(d) designating the territorial division in which the hearing is to be held, if the trials are being held in different territorial divisions.
Limitation — indictable offence

(4) However, the order may only be made in respect of a trial for an indictable offence, other than a trial before a provincial court judge, if the indictment has been preferred.

Order in court record and transmission to parties

(5) The Chief Justice or the Chief Judge or his or her designate shall cause a copy of the order to be included in the court record of each of the trials specified in the order and to be provided to each of the parties named in it.

Transmission of court record

(6) If one of the specified trials is being held in a territorial division other than the one in which the joint hearing will be held, the officer in that territorial division who has custody of the indictment or information and the writings relating to the trial shall, when he or she receives the order, transmit the indictment or information and the writings without delay to the clerk of the court before which the joint hearing is to be held.

Order to appear at joint hearing

(7) The judge appointed under the order shall require the parties who are named in it to appear at the joint hearing.

Removal of prisoner

(8) The order made under subsection (2) [decision whether to hold joint hearing – considerations] or (3) [decision whether to hold joint hearing – order for joint hearing] is sufficient warrant, justification and authority to all sheriffs, keepers of prisons and peace officers for an accused’s removal, disposal and reception in accordance with the terms of the order, and the sheriff may appoint and authorize any peace officer to convey the accused to a prison for the territorial division in which the hearing, as the case may be, is to be held.

Powers of judge

(9) The judge appointed under the order may, as a trial judge and for the purpose of adjudicating the issue at the joint hearing, exercise the powers of a trial judge.

Adjudication at trial

(10) When the judge adjudicates the issue, he or she is doing so at trial.

Decision in court records and return of documents

(11) Once the judge has adjudicated the issue, he or she shall cause his or her decision, with reasons, to be included in the court record of each of the related trials in respect of which the joint hearing was held and, in the case of a trial for which an indictment, information or writings were transmitted by an officer under subsection (6), the judge shall have the documents returned to the officer.
2011, c. 16, s. 4.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 551.7(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), and (11)

Making Case Management Rules

Power to make rules respecting case management

482.1 (1) A court referred to in subsection 482(1) [powers of the superior and appellate court to make rules] or (2) [powers of provincial and territorial coruts to make rules] may make rules for case management, including rules

(a) for the determination of any matter that would assist the court in effective and efficient case management;
(b) permitting personnel of the court to deal with administrative matters relating to proceedings out of court; and
(c) establishing case management schedules.
Compliance with directions

(2) The parties to a case shall comply with any direction made in accordance with a rule made under subsection (1) [powers of the superior and appellate court to make case management rules – types of rules].

Summons or warrant

(3) If rules are made under subsection (1) [powers of the superior and appellate court to make case management rules – types of rules], a court, justice or judge may issue a summons or warrant to compel the presence of the accused at case management proceedings.

Provisions to apply

(4) Sections 512 [certain actions not to preclude issue of warrant] and 512.3 [warrant to appear under section 524] apply, with any modifications that the circumstances require, to the issuance of a summons or a warrant under subsection (3) [power to issue summons or warrant to atnted case management proceedings].

Subsections 482(4) and (5) to apply

(5) Subsections 482(4) [rules must be published] and (5) [governor-in-council regulations to secure uniformity] apply, with any modifications that the circumstances require, to rules made under subsection (1) [powers of the superior and appellate court to make rules].

[(6) repealed, 2019, c. 25, s. 188] c
2002, c. 13, s. 18; 2019, c. 25, s. 187; 2022, c. 17, s. 13.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 482.1(1), (2), (3), (4), and (5)

Youth Justice

See also: Procedure for Young Accused
Conferences may be convened

19 (1) A youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker may convene or cause to be convened a conference for the purpose of making a decision required to be made under this Act.

Mandate of a conference

(2) The mandate of a conference may be, among other things, to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, including the review of sentences, and reintegration plans.

Rules for conferences

(3) The Attorney General or any other minister designated by the lieutenant governor in council of a province may establish rules for the convening and conducting of conferences other than conferences convened or caused to be convened by a youth justice court judge or a justice of the peace.

Rules to apply

(4) In provinces where rules are established under subsection (3), the conferences to which those rules apply must be convened and conducted in accordance with those rules.

YCJA


Note up: 19(1), (2), (3), and (4)

  1. R v Lecompte, 2019 QCCS 5099 (CanLII), per Cournoyer J, at para 361
    R v Felderhof, 2003 CanLII 37346 (ON CA), 180 CCC (3d) 498, per Rosenberg JA, at para 57 R v Snow, 2004 CanLII 34547 (ON CA), 190 CCC (3d) 317, per curiam, at para 24
    R v Zalat, 2019 QCCA 1829 (CanLII), per curiam, at para 27
    R v Auclair, 2013 QCCA 671 (CanLII), at paras 173 to 174, appeal dismissed 2014 SCC 6, [2014] 1 SCR 83
    R v Rice, 2018 QCCA 198 (CanLII), 145 WCB (2d) 29, at para 62
    R v Leventis, 2018 QCCS 1283 (CanLII)
    R v Dancause, 2018 QCCS 1565 (CanLII), per Boucher J, at para 34