Role of Trial Judge
- 1 General Principles
- 2 Rules of Court
- 3 Hearing Evidence at Trial
- 4 Control over Trial Process
- 5 Judicial Intervention
- 6 Limiting Evidence
- 7 Reserving Questions for Decision
- 8 Exclusion Public from Hearing
- 9 Fact Finding
- 10 Sitting Position of Accused
- 11 Independent Research of the Judge
- 12 Judge Bound to Proceedings
- 13 Doctrine of Functus Officio
- 14 Communications with Counsel Out of Court
- 15 Duty to Make a Record
- 16 Maintaining Order
- 17 Misc Powers
- 18 Civility and Professionalism
- 19 Validity of Orders
- 20 Judicial Neutrality and Bias
- 21 Sufficiency of Reasons for Judgement
- 22 Misc Other Authorities
- 23 See Also
An accused person is entitled to a Constitutional right to an impartial trier-of-fact.
A trial judge has a duty to ensure that the trial is fair and there are no miscarriage of justice.
The trial judge is more than just an umpire but "is not to enter the arena and appear to take on the role of an advocate".
Our criminal justice system is on that is "essentially adversarial" where the Crown presents evidence of guilt and the accused points out weaknesses in the evidence and presents contrary evidence. The trier of fact is a neutral arbiter of the dispute. For this reason it is improper for the judge to usurp the role of counsel in an inquisitorial manner.
Trial judges are presumed to know the elementary principles of law.
The court's inherent jurisdiction is limited by its role within the system of separate branches of government.
Duty to Raise Issues
A trial judge has a duty to "conduct [a] trial judicially quite apart from the lapses of counsel". This may include a duty to conduct a voir dire on issues such as voluntariness absent the request of counsel.
Judges are required to be "shielded from tumult and controversy that may taint the perception of impartiality".
See s. 11(d) of the Charter which is the right "...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"
See also R. v. Valente, 1985 CanLII 25 (SCC),  2 SCR 673, (1985), 23 CCC (3d) 193 (S.C.C.)
see R v Harris, 2009 SKCA 96 (CanLII), 331 Sask. R. 283 at para 28
R v Amell, 2013 SKCA 48 (CanLII) at para 25
R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141 at paras 69-72
R v Griffith, 2013 ONCA 510 (CanLII) at para 25
- R v Osolin, 1993 CanLII 54 (SCC),  4 SCR 595 at para 102 per McLachlin J. (in dissent)
R v Corbett, 2009 ABQB 619 (CanLII), at para 46
R v Burns, 1994 CanLII 127 (SCC),  1 SCR 656, 89 CCC (3d) 193
Ontario v. Criminal Lawyers’ Association of Ontario,  3 SCR 3, 2013 SCC 43 (CanLII), paras 28, 30, 38
R v Piamonte, 2017 ONSC 2666 (CanLII), at para 9
R v Sweezey (1974) 20 CCC (2d) 400 (OCA)
Piamonte, ibid. at para 9
See also Voluntariness
- Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC),  4 S.C.R. 267
- Ruffo, ibid.
- Ruffo, ibid.
Right of Parties to be Heard
There is a fundamental tenant that all parties affected by a decision shall be given an opportunity to be heard by the court before the court makes a ruling. This is the principle of audi alteram partem . The right to be heard also provides a person "the right to know the case to be met".
The judge has an obligation to allow each party who may be affected by a ruling to be permitted to respond to the case against them.
A failure to afford each side to present argument before a judgment is a denial of that right will violate procedural fairness and is fatal.
The right is not unqualified. A declaration of a party as a "vexatious litigant" has the effect of removing this right. Accordingly, it is only used sparingly.
Related to this principle is the common law rule that "a person cannot be deprived of his liberty or property without notice."
Refusal to consider an evidentiary objection is an improper refusal to assume jurisdiction that affects trial fairness.
- R v Gustavson, 2005 BCCA 32 (CanLII) at 64
See also Moreau‑Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), at para 75, Canadian Union of Public Employees, Local 301 v Montreal (City), 1997 CanLII 386 (SCC),  1 SCR 793 at para 73 - refereed to as the rule that “no man be condemned unheard"
Devon Canada Corp. v Alberta (Energy and Utilities Board), 2003 ABCA 167 (CanLII) at para 19
- Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII) at para 53 ("a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case")
R v Berry, 2014 ABQB 379 (CanLII), at para 7
R v Graham, 2007 ABCA 153 (CanLII), at paras 11-12
Fraser v Fraser, 1994 ABCA 275 (CanLII), (1994) 157 AR 98 (C.A.), at para 10
- Kallaba v Bylykbashi 2006 CanLII 3953 (ON CA), (2006), 207 O.A.C. 60 at para 31
R v Marton, 2016 ONSC 2269 (CanLII), at para 25
R v Buchholz,  M.J. No.7; 121 CCC 293 (Man. C.A.)(*no CanLII links) at para 8
R. v. Garofoli, 1990 CanLII 52 (SCC),  2 S.C.R. 1421 at 1449 citing Dersch 1987 CanLII 155 (BCCA)
Timing of Interrim Rulings
Where a party seeks exclusion of evidence it is for the trial judge to "decide what procedure should be followed".
The judge has discretion to defer rulings on the basis that:
- "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own"and
- it "discourages adjudication of constitutional issues without a factual foundation."
An exception for deferment of rulings are where the "interests of justice necessitate an immediate decision". This will include where "the trial court itself is implicated in a constitutional violation" or where "substantial on-going constitutional violations require immediate attention". As well, situations where an"apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial" should be exceptions. This is especially true where the trial is expected to be of considerable duration.
R v Hamill,  6 WWR 530
R v DeSousa,  2 SCR 944, 1992 CanLII 80 (SCC)
DeSousa, ibid. ("He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard.")
- DeSousa, ibid.
- DeSousa, ibid.
- DeSousa, ibid.
- DeSousa, ibid.
- DeSousa, ibid.
Rules of Court
Under s. 482(1) and (2), a superior court and provincial have the power to make rules governing criminal proceedings.
Under s. 482.1, the courts also have the power the makes rules with respect to case management.
- See also Case Management
Hearing Evidence at Trial
However, there is no requirement that the judge "record all or any specific part of the process of deliberation on the facts". A failure to record facts does not give rise to an error unless the judge's reasons demonstrate that not all the facts were considered.
Exposure to Inadmissible Evidence
Judges are regularly required to decide on whether it is properly admissible or not and disregard inadmissible evidence they are exposed to. It will not generally create an apprehension of bias. 
Considering Theories of Counsel
Subject to "due process concerns", there is no prohibition on the trial judge making findings of guilt on a theory that has not been advanced by the Crown.
R v Morin, 1992 CanLII 40 (SCC),  3 SCR 286 at 296 (SCR)
R v DLW, 2013 BCSC 1327 (CanLII) at para 3
- Morin, supra at 296 (SCR)
Morin, supra at p.296
R v Walle, 2012 SCC 41 (CanLII),  2 SCR 438 at para 46
Morin, supra at p.296
Walle, supra at para 46
R v SS, 2005 CanLII 791 (ON CA) at para 3
R v Novak, 1995 CanLII 2024 (BCCA) at para 8
See Reasonable Apprehension of Bias
R v Dagenais, 2018 ONCA 63 (CanLII), per McCombs JA (ad hoc), at para 55 ("It is well-established that, subject to due process concerns, a conviction may be founded on a theory of liability that has not been advanced by the Crown, provided that theory is available on the evidence")
R v Pickton, 2010 SCC 32 (CanLII),  2 SCR 198, per Charron J, at para. 19
R v Khawaja, 2010 ONCA 862 (CanLII), by the Court, at paras. 143-45
R v Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1, per Charron JA, at paras. 34-35
R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA
Control over Trial Process
A criminal trial court to "control its process" is a fundamental value of the criminal justice system". A judge has "considerable" powers to intervene in a criminal trial to manage the proceedings.
A judge is authorized to make orders "necessary to ensure an orderly trial, without which the administration of justice risks being ...thrown into disrepute".
A Superior Court Justice has the inherent jurisdiction to eliminate any procedural unfairness that arises during a trial.
The Superior court has inherent jurisdiction to control the disclosure process of a matter before the provincial court.
The "procedural directions contained in the Code are of necessity exhaustive". The powers of a provincial court judge are "entirely statutory." However, "the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a ‘doctrine of jurisdiction by necessary implication’ when determining the powers of a statutory tribunal.” 
The inherent powers of a superior court judge to control the court process is said to be equally available to provincial court judges either expressly by statute or by necessary implication.
Consequently, a provincial court judge has implied jurisdiction to "vary one of its own orders in order to correct clerical mistakes or errors arising from an accidental slip or omission or in order to properly reflect the intention of the court"
Generally, a "court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus.”
Exclusion of Evidence
There is a limited power of a trial judge to exclude evidence in order to ensure trial fairness where other remedies are not sufficient. However, it is considered an "unusual exercise" of the trial management power. 
Prohibition Orders on Defence Conducting their Defence
A judge may limit the examination or cross-examination of witnesses or the right to call defence witness only where it is justified in "clear and compelling circumstances".
Directing Crown Counsel
A trial judge should never direct Crown as to whom they must call to give evidence.
R v Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506 at para 56
R v Auclair, 2013 QCCA 671 (CanLII) at para 55
Auclair, ibid. at para 55
- R v Rose,  3 SCR 262, 1998 CanLII 768
D.P. v Wagg 2004 CanLII 39048 (ON CA), (2004), 71 O.R. (3d) 229 (C.A.)
- R v Doyle 1976 CanLII 11 (SCC),  1 SCR 597
- R v Cunningham, 2010 SCC 10 (CanLII),  1 SCR 331 at para 19
- R v Doyle, 1976 CanLII 11 (SCC),  1 SCR 597, per Ritchie, J. ("Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.")
- see R v Rhingo,  O.J. No. 1110 (Ont. C.A.) and R v Robichaud, 2012 NBCA 87 (CanLII),  NBJ No. 175 (C.A.)
- R v Adams, 1995 CanLII 56 (SCC),  4 SCR 707, at para 29
R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA
R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J, at para 18
R v Schneider, 2004 NSCA 99 (CanLII), per Cromwell JA
- R v Cook,  1 SCR 1113, 1997 CanLII 392 (SCC), per L’Heureux-Dubé J, para 56 ("...nor do I think that a trial judge should ever order the Crown to produce a witness. If the Crown wished to adopt such a procedure in a given case, however, this would, of course, be within the legitimate exercise of its discretionary authority.")
The judge is required to listen to evidence that "advances the work of the court". He or she cannot be required to listen to irrelevant or pointless evidence. The judge may even disallow the submission of non-relevant evidence.
The judge has an obligation to track the admission of evidence to ensure that the record is restricted to what is admissible, and also that it is only used for the purpose for which it was admitted.
The judge has the jurisdiction to edit the evidence, including written statements and oral testimony, as it is given. The judge may edit out portions of the evidence that is prejudicial or otherwise irrelevant or immaterial only so long as it does not distort the probative evidence.
- R v Malmo-Levin 2003 SCC 74 (CanLII),  3 SCR 571
- R v Schneider, 2004 NSCA 99 (CanLII)
R v Morrisey 1995 CanLII 3498 (ON CA), (1995), 22 O.R. (3d) 514
R v Smith, 2011 ONCA 564 (CanLII) at para 59
- R v Dubois (1986), 27 CCC (3d) 325 (Ont.C.A.)(*no CanLII links)
R v Toten, 1993 CanLII 3427 (ON CA), (1993), 14 O.R. (3d) 225 (Ont.C.A.)
Reserving Questions for Decision
645 (1) ...
Questions reserved for decision
(4) A judge, in any case tried without a jury, may reserve final decision on any question raised at the trial, or any matter raised further to a pre-hearing conference, and the decision, when given, shall be deemed to have been given at the trial.
Questions reserved for decision in a trial with a jury
(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
Exclusion Public from Hearing
Sitting Position of Accused
Independent Research of the Judge
A judge should not enter "into the fray" by doing self-directed research that puts them in a role of being "advocate, witness and judge".
A judge can only rely on social studies, literature or scientific reports after they have been tested by the parties.
R v Bornyk, 2015 BCCA 28 (CanLII) - judge did separate research on finger print evidence and performed own analysis
R v B.M.S., 2016 NSCA 35 (CanLII)
BMS at para 17
R v P(SD) (1995), 1995 CanLII 8923 (ON CA), 98 C.C.C. (3d) 83 (Ont.C.A.) at paras 33, 36
Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 85 O.A.C. 54 at paras 47, 49-51
R v Désaulniers (1994), 1994 CanLII 5909 (QC CA), 93 C.C.C. (3d) 371, (Que.C.A.) at paras 21, 23-24, 26-27
Judge Bound to Proceedings
Any justice may act before and after trial
790 (1) Nothing in this Act or any other law shall be deemed to require a justice before whom proceedings are commenced or who issues process before or after the trial to be the justice or one of the justices before whom the trial is held.
Two or more justices
(2) Where two or more justices have jurisdiction with respect to proceedings, they shall be present and act together at the trial, but one justice may thereafter do anything that is required or is authorized to be done in connection with the proceedings.
(3) and (4) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 172]
R.S., 1985, c. C-46, s. 790; R.S., 1985, c. 27 (1st Supp.), s. 172.
Loss of Judge During Proceedings
Doctrine of Functus Officio
Communications with Counsel Out of Court
Ex parte communications (i.e. communications in absence of one of the parties) concerning an ongoing proceedings should be avoided. It is a rule that relates to the "public perception of fairness within the administration of justice".  It also preserves "confidence of the public in the impartiality of the judiciary and thereby in the administration of justice".
Ex parte communications between judge and counsel concerning a case will "almost invariably raise a reasonable apprehension of bias".
Duty to Make a Record
Under Part XX of the Code, there is a duty upon the court to keep a record of every arraignment and all proceedings after the arraignment.
Record of Proceedings
624. (1) It is sufficient, in making up the record of a conviction or acquittal on an indictment, to copy the indictment and the plea that was pleaded, without a formal caption or heading.
Record of proceedings
(2) The court shall keep a record of every arraignment and of proceedings subsequent to arraignment.
R.S., c. C-34, s. 552.
Endorsements on the Information
Where an election is made to supreme court, either judge alone or judge and jury, the court must endorse the information showing the "nature of the election" and whether anyone requested a preliminary inquiry.
Where an election is made to provincial court before a provincial court judge, the court must endorse the information with that election.
Preserving order in court
484. Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.
R.S., 1985, c. C-46, s. 484; R.S., 1985, c. 27 (1st Supp.), s. 203.
This section permits a judge to make an order of contempt for:
- persistent refusal of accused to stand on entry of the presiding judge.
- the use of recording devices in the court against the order of the judge.
- the high degree of intoxication of the accused appearing at trial
This section cannot be used to order the mode of dress of counsel.
R v Heer, 1982 CanLII 786 (BC SC), at para 17
Re Hawkins, 53 W.W.R. 406, 53 D.L.R. (2d) 453,  3 CCC 43 (sub nom. R v Hume; Ex parte Hawkins) (B.C.)(*no CanLII links)
- R v Barker (Burke), 1980 ABCA 75 (CanLII),  4 W.W.R. 202, 53 CCC (2d) 322, 20 A.R. 611 (C.A.)
Heer at para 17
R v Samson; Bardon v Carver Prov. J. (1974), 14 N.S.R. (2d) 592, 29 C.R.N.S. 129, (sub nom. Re Samson and R.) 18 CCC (2d) 552, 50 D.L.R. (3d) 365 (T.D.)(*no CanLII links)
The judge does not have the power to order that counsel not communicate with a witness who is not in the middle of testimony. The rules of contempt of court and Professional Conduct are the only limitations on counsel's right to speak with witnesses and clients in court.
Execution of Orders
Under s. 3.1 of the Code, any order made by any type of judge will be effective immediately unless otherwise stated:
Effect of judicial acts
3.1 Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.
2002, c. 13, s. 2.
- R v Arsenault, (1956) 115 CCC 400 (NBCA)(*no CanLII links)
Superior Court Inherent Jurisdiction
All Courts that are created by s. 96 of the Constitution Act, 1867 are vested with "inherent jurisdiction" to make orders on matters that are not necessarily authorized by statute.
The doctrine is available as a "residual source of powers" that is available to a judge "whenever it is just or equitable to do so", which includes:
- ensuring "the observance of due process of law";
- preventing "improper vexation or oppression";
- "do justice between the parties" and
- securing "a fair trial" between the parties.
It can be used to "supplement under-inclusive legislation or to otherwise fill gaps in appropriate circumstances".
The doctrine may be limited by statute. It cannot be used in such a way that it contravenes any statutory provision.
It is also limited by "institutional roles and capacities that emerge out of our constitutional framework and values".
It generally should be exercised "sparingly and with caution", such as where "inferior tribunals are powerless to act act and it is essential to avoid an injustice that action be taken."
A superior court has limited inherent powers to reconsider its own orders, except where the legislation otherwise prohibits reconsideration.
R v Caron, 2011 SCC 5,  1 SCR 78 at para 21 (These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner".)
Ontario v Criminal Lawyers’ Association of Ontario,  3 SCR 3, 2013 SCC 43 (CanLII) at para 18
Ontario v CLAO, supra at para 20
Parsons v Ontario, 2015 ONCA 158 (CanLII)
CR v Children's Aid Society of Hamilton, 2004 CanLII 34407 (ON SC) at para 29
Ontario v CLAO, supra at para 22
Caron, supra at para 29
Parsons, supra at para 71
Ontario v CLAO, supra. at para 23
Parsons at para 72 to 73
Ontario v CLAO, supra at para 24
Caron, supra at para 30
- R v Church of Scientology of Toronto, 1986 CarswellOnt 925 (S.C.)(*no CanLII links)
R v Ireland, 2005 CanLII 45583 (ON SC), per Del Frate SCJ
R v Adams,  4 SCR 707, 1995 CanLII 56 (SCC), at para 28 - in context of reconsidering a publication ban under s. 486
Doctrine of Mootness
Under the doctrine of "mootness" suggests that a court may decline to decide a case that "raises merely a hypothetical or abstract question" that "will not have the effect of resolving some controversy which affects or may affect the rights of the parties".
Civility and Professionalism
Tone of Reasons
The reasons for judgement should be "restrained and appropriate, clinical in tone and minimalist in approach".
A judge found to be sleeping during trial will affect trial fairness and warrant a retrial.
Validity of Orders
Validity of Forms (Part XXVIII)
849. (1) The forms set out in this Part, varied to suit the case, or forms to the like effect are deemed to be good, valid and sufficient in the circumstances for which they are provided.
Seal not required
(2) No justice is required to attach or affix a seal to any writing or process that he or she is authorized to issue and in respect of which a form is provided by this Part.
(3) Any pre-printed portions of a form set out in this Part, varied to suit the case, or of a form to the like effect shall be printed in both official languages.
2002, c. 13, s. 84.
Judicial Neutrality and Bias
Sufficiency of Reasons for Judgement
Misc Other Authorities
Provincial Court Judges
Officials with powers of two justices
483 Every judge or provincial court judge authorized by the law of the province in which he is appointed to do anything that is required to be done by two or more justices may do alone anything that this Act or any other Act of Parliament authorizes two or more justices to do.
R.S., 1985, c. C-46, s. 483; R.S., 1985, c. 27 (1st Supp.), s. 203.
Application of Parts XVI, XVIII, XX and XXIII
572 The provisions of Part XVI [Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5], the provisions of Part XVIII [Procedure on Preliminary Inquiry, s. 535 to 551] relating to transmission of the record by a provincial court judge where he holds a preliminary inquiry, and the provisions of Parts XX [Procedure in Jury Trials and General Provisions, s. 574 to 672] and XXIII [Sentencing, s. 716 to 751.1], in so far as they are not inconsistent with this Part, apply, with such modifications as the circumstances require, to proceedings under this Part.
R.S., 1985, c. C-46, s. 572; R.S., 1985, c. 27 (1st Supp.), s. 203.
Under Part XX relating to jury trials:
646 On the trial of an accused for an indictable offence, the evidence of the witnesses for the prosecutor and the accused and the addresses of the prosecutor and the accused or counsel for the accused by way of summing up shall be taken in accordance with the provisions of Part XVIII [Procedure on Preliminary Inquiry, s. 535 to 551], other than subsections 540(7) to (9), relating to the taking of evidence at preliminary inquiries.
R.S., 1985, c. C-46, s. 646; 2002, c. 13, s. 59.