Loss of Judge During Proceedings

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95263)

General Principles

See also: Role of Trial Judge and Jurisdiction of the Courts

At common law, once a judge receives an information he remains seized with the charge until its conclusion unless it is waived by the judge to another judge.[1]

Section 667.1 was enacted to override the common law and permit other judge's from hearing matters up until the point where they have commenced to hear any evidence.[2]

Section 667.1 states:

Jurisdiction

669.1 (1) Where any judge, court or provincial court judge by whom or which the plea of the accused or defendant to an offence was taken has not commenced to hear evidence, any judge, court or provincial court judge having jurisdiction to try the accused or defendant has jurisdiction for the purpose of the hearing and adjudication.

Adjournment

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer of the court, or in the case of an offence punishable on summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings.
R.S., 1985, c. 27 (1st Supp.), s. 137.

– CCC (CanLII), (DOJ)

Note up: 669.1(1) and (2)

Once a judge begins hearing evidence and makes a ruling on it, the judge becomes seized with the matter and no other judge can take over.[3]

Guilty Plea

Once the facts of the case are read to the judge to determine whether to accept the plea, the judge becomes seized with the case.[4]

Absent an exception under s. 667.2, once the judge adjudicates the acceptance of a guilty plea, then the judge is seized with the matter.[5]

  1. ↑ R v Cataract, 1994 CanLII 4616 (SK CA), 93 CCC (3d) 483, per Bayda CJ ("At common law, a justice or magistrate who received an information or complaint was possessed (seized) with jurisdiction over the charge unless he expressly waived his jurisdiction to another judicial official.")
  2. ↑ See Cataract
    By virtue of s. 795 the provision applies to summary offences
  3. ↑ R v Curtis, 1991 CanLII 11732 (ONSC), 66 CCC (3d) 156, per Ewanshuk J
  4. ↑ Cataract, supra
  5. ↑ Cataract, supra

Loss of Trial Judge While Seized

Where a judge falls ill, they remain seized with the matter unless there is unreasonable delay that results.[1]

Where judge illness is the cause for delay, the Crown has a responsibility to consider whether to apply to have the seized judge replaced.[2]

When a preliminary inquiry judge becomes unable to continue, s. 547.1 directs the following options:

Inability of justice to continue

547.1 Where a justice acting under this Part has commenced to take evidence and dies or is unable to continue for any reason, another justice may

(a) continue taking the evidence at the point at which the interruption in the taking of the evidence occurred, where the evidence was recorded pursuant to section 540 [taking evidence by preliminary inquiry judge] and is available; or
(b) commence taking the evidence as if no evidence had been taken, where no evidence was recorded pursuant to section 540 [taking evidence by preliminary inquiry judge] or where the evidence is not available.

R.S., 1985, c. 27 (1st Supp.), s. 100.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 547.1

Continuation of proceedings

669.2 (1) Subject to this section, where an accused or a defendant is being tried by

(a) a judge or provincial court judge,
(b) a justice or other person who is, or is a member of, a summary conviction court, or
(c) a court composed of a judge and jury,

as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant.

Where adjudication is made

(2) Where a verdict was rendered by a jury or an adjudication was made by a judge, provincial court judge, justice or other person before whom the trial was commenced, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that is authorized by law in the circumstances.

Where no adjudication is made

(3) Subject to subsections (4) [continuation if judge or justice dies – If no adjudication made (jury trials)] and (5) [continuation if judge or justice dies – continuing with jury trial], if the trial was commenced but no adjudication was made or verdict rendered, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, commence the trial again as if no evidence on the merits had been taken.

If no adjudication made — jury trials

(4) If a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdict rendered, the judge before whom the proceedings are continued may, without further election by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.

Where trial continued

(5) Where a trial is continued under subsection (4) [continuation if judge or justice dies – If no adjudication made (jury trials)], any evidence that was adduced before a judge referred to in paragraph (1)(c) [continuation if judge or justice dies – jury trial] is deemed to have been adduced before the judge before whom the trial is continued but, if the prosecutor and the accused consent, any part of that evidence may be adduced again before the judge before whom the trial is continued.
R.S., 1985, c. 27 (1st Supp.), s. 137; 1994, c. 44, s. 65; 2011, c. 16, s. 15; 2022, c. 17, s. 40(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 669.2(1), (2), (3), (4), and (5)

"Unable to Continue"

It is an open list of circumstances that are captured within the meaning of reasons for being "unable to continue" within the meaning of s. 669.2.[3] It can include "illness", "absence" or "appointment."[4] An "appointment" can include appointment to the court of appeal.[5]

The reasons are broad can include a judge’s inherent authority to disqualify themselves for “good and sufficient” reason.[6]

Transcript Evidence or Agreed Statement of Fact

Depending on the circumstances, it is permissible to continue a trial with a new judge under s. 669.2 by admitting a transcript of the previous trial by consent.[7] However, there will be circumstances where it is necessary for the judge to hear and see the evidence such as where there is contradictory evidence between the complainant and accused. In such cases, the court should not rely on transcripts even with the consent of parties.[8]

"as if no evidence... has been taken"

The requirement to recommence as if no evidence has been taken only applies to a trial without a jury.[9] Only a judge acting with a jury has the ability to "complete the trial" within the meaning of s. 669.2(3).[10]

Procedure

A party may apply to have a different judge to take over the matter and conduct the sentencing.[11]

  1. ↑ R v Brown, 2012 ONSC 822 (CanLII), per Hockin J
  2. ↑ R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 SCR 45, per McLachlin J
  3. ↑ R v Le(TD), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at para 25
    R v Leduc, 2003 CanLII 52161 (ON CA), 176 CCC (3d) 321, per Laskin JA, at para 66
  4. ↑ Le(TD), ibid., at para 25
    Leduc, ibid., at para 66
  5. ↑ Le(TD), ibid., at para 29
  6. ↑ R. v. Hiscock, 1999 NSCA 126, 179 N.S.R. (2d) 350,
    R. v. Buchholz (1976), 1976 CanLII 1324 (ON CA), 32 C.C.C. (2d) 331 (Ont. C.A.)(complete citation pending)
  7. ↑ R v AA, 2012 ONSC 3270 (CanLII), per Kane J, at para 78 ("A trial judge may, depending on the circumstances, proceed with a criminal trial on evidence introduced on consent, including transcripts from a previous trial or an agreed statement of evidence. Section 669.2(3) does not prohibit that.")
  8. ↑ AA, ibid., at para 83 ("The trial judge commented that he would not be able to see and hear the testimony in determining the credibility issue. He asked and obtained consent of counsel to this limitation. That consent, which should not have been given by either counsel on these facts, does not resolve the issue whether the court should have conducted this trial without testimony.")
    Gauthier c. R., 2020 QCCA 751 (CanLII), per Pelletier JA, at paras 58 to 59
  9. ↑ Gauthier, ibid., at paras 55 to 56
  10. ↑ Gauthier, supra, at para 64
  11. ↑ R. v Gionet, 2016 ONSC 6894 (CanLII), at para 12, <https://canlii.ca/t/gvhhn#par12>(complete citation pending)

Appointment to Different Court

Jurisdiction when appointment to another court

669.3 Where a court composed of a judge and a jury, a judge or a provincial court judge is conducting a trial and the judge or provincial court judge is appointed to another court, he or she continues to have jurisdiction in respect of the trial until its completion.
1994, c. 44, s. 66.

– CCC (CanLII), (DOJ)

Note up: 669.3

Appointment to the Court of Appeal

There appears to be no established protocol to deal with matters before a trial judge who is appointed to the Court Appeal.[1]

  1. ↑ R v Le(TD), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at para 26 ("A review of cases where judges have been appointed to higher courts indicates that there is no established procedure in such circumstances")
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