Role of the Trial Judge

This page was last substantively updated or reviewed November 2022. (Rev. # 96617)

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General Principles

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."

Adversarial System

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.

The role of the judge in an adversarial process is to "listen to the testimony, assess all the evidence, make assessments of credibility and findings of fact, apply the law to the facts and make an ultimate determination on the merits, keeping in mind throughout the applicable burdens of proof." The judge is also expected to "ensure the proceedings are conducted fairly, properly and according to law, which include the rules governing procedure."

Presumed to Know the Law

Trial judges are presumed to know the elementary principles of law. It is not necessary that a judge cite the leading authorities, it is only necessary that the legal principles be applied properly.

Inherent Jurisdiction

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.

Duty of Restraint

A judge has a duty of restraint during their court work as well as in their personal life. It is a guarantee of judicial independence or impartiality.

Judges are required to be "shielded from tumult and controversy that may taint the perception of impartiality."

Duty of Technological Competency

It has been suggested that courts and counsel have a duty of "technological competency."

ex mero motu

The doctrine of "ex mero motu" ("of one's own accord") has traditionally permitted a judge to intervene on its own motion in proceedings by making rules or issuing orders so as to prevent an injustice. This authority has been used to amend charges to conform with the evidence.

History

Currently, Justices of superior courts are required to retire at the age of 75. Prior to a 1960 amendment to the British North America Act, superior court justices had lifetime tenure.

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.

This right is protected by s. 7 and 11(d) of the Charter as well as s. 802(1) of the Code.

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.

The right is not an unlimited right to oral or in-person hearings before the decision-maker.

Often the right can be satisfied by providing parties to make written submissions only.

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 to make rules with respect to case management.

Hearing Evidence at Trial

Must Consider All Admissible Evidence

A trial judge must consider all evidence relating to the issue of innocence or guilt. Failure to do so is an error of law.

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.

When considering evidence on a multi-count indictment, the judge just give separate consideration to a verdict on each count.

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. However, where a judge relies on a theory that has not been argued, fairness requires that the defence be given an opportunity to respond to the avenue of conviction.

Limiting Evidence

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.

Weighing Evidence

No judge is expected to be a "tabula rasa."

A judge should only be deciding cases on the evidence adduced in the courtroom.

A judge cannot act based only on personal knowledge and familiarity of a matter without more.

A judge may not "detach" a part of the evidence.

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."

The jurisdiction over process includes the power to "penalize counsel for ignoring rules or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire." Penalties can include directions to "comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings."

Inappropriate behaviour is not accorded deference.

However, legitimate tactical decisions should be looked at with deference.

Superior Court

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.

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"

Reconsidering Judgements

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.

Judicial Intervention

• Judicial Intervention During Trial

Reserving Questions for Decision

Trial continuous

645
[omitted (1), (2) and (3)]

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) [manner of drawing cards] or (3.1) [power to order calling out names on cards] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Exclusion Public from Hearing

• Excluding People From Court

Self-Represented Accused

see Right to Self-Representation

Sitting Position of Accused

• Accused in Court

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.

It is not inappropriate to use academic articles merely to outline the generally understood features of evidence already reflected in the commentary and practice, adnd are not outside the general knowledge of judges.

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.

– CCC (CanLII), (DOJ)

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Loss of Judge During Proceedings

• Loss of Judge During Proceedings

Doctrine of Functus Officio

• 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."

"Off the Record" communciations

So called "off the record" conversations between the judge and counsel concerning a criminal proceedings are only permitted insofar as they are efforts to reach an informal resolution on the merits of the case. They should not happen mid-trial in front of the trial judge.

Maintaining Order

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.

– CCC (CanLII), (DOJ)

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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.

Ordering Sheriff to Detain Accused

Flowing from the trial management powers, the trial judge as a right and responsibility to control proceedings and control the conduct of those before them. This includes directing the sheriffs to detain, handcuff or otherwise interfere with the accused's liberty where necessary.

Misc Powers

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 (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.

Clerk of the court

(2) Unless otherwise provided or ordered, if anything is done from the bench by a court, justice or judge and it is reduced to writing, the clerk of the court may sign the writing.

2002, c. 13, s. 2; 2019, c. 25, s. 3

– CCC (CanLII), (DOJ)

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View

• Demonstrative Evidence#View

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 of an "amorphous nature." And can be used in "an apparently inexhaustible variety of circumstances and may be exercised in different ways."

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."

This jurisdiction may allow for the superior court to order the funding of costs associated with a matter before the provincial court where the following criteria are met:

1. the litigation would be unable to proceed if the order were not made;
2. the claim to be adjudicated is prima facie meritorious;
3. the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.

In considering these criteria, the justice must be satisifed that the matter is "sufficiently special that it would be contrary to the interests of justice to deny the advance costs application."

Limitations

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."

Examples of Application

A publication ban was ordered by inherent jurisdiction. A publication ban can also be removed by inherent jurisdiction.

A superior court has limited inherent powers to reconsider its own orders, except where the legislation otherwise prohibits reconsideration.

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."

Sleeping

A judge found to be sleeping during trial will affect trial fairness and warrant a retrial.

Criticizing Judges

It is the public's right to criticize judges as long as it does not cast aspersions on their motives.

Courtroom conduct

The judges are expected to display an attitude that reflects their authority. They must not use it to intimidate or belittle others.

Judicial Decisions

When drafting a decision, judges are expected to articulate the contested elements of the offence and give each element "dedicated attention" in their analysis.

Rulings and Orders

The decision to exercise discretion and require the reading of charges despite waiver, is not an order but is a ruling that can be reviewed on certiorari.

No Personal Preferences, Ideologies or Political Beliefs

A judge should not "wander into the public square" by using their decisions to signal their personal preferences, ideologies or political beliefs.

Reading Decisions

Where the decision is lengthy there is no prohibition against reading a summary in the presence of the accused then giving a written version at a later point. It is possible to give reasons part orally and part written. However, it is only the oral reasons that are operative.

The principle of openness and accountability requires that the essential reasoning be given orally.

The essential reasoning should include a "summary [to] clearly set out the offence, the essential reasoning of the trial judge, and the conclusion on the charge."

Timing of Interim Rulings

Where a party seeks exclusion of evidence it is for the trial judge to "decide what procedure should be followed."

With "rare exceptions," a judge is "empowered to reserve on any application until the end of the case." This would include an application to quash an indictment.

The judge has discretion to defer rulings on the basis that:

1. "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own" and
2. 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.

Delivery of Decisions

When a decision is lengthy, the trial judge may read a summary in court before the accused and then provide a more comprehensive and detailed copy in the written version that is filed on the record. However, it is the reasons given to the accused orally that are the "operative reasons" or "essential reasons." A failure to include sufficient reasons in the oral decision could run afoul of s. 650 and s. 7 and 11(d) of the Charter of Rights and Freedoms. The essential or operative parts of the reasons must include (a) the charges, (b) the verdict on each charge (c) some explanation for the result.

Sufficiency of reasons could be in the range of 9 paragraphs summarizing a 33 page decision.

Supplementary Reasons

The judge may lawfully provide supplementary reasons in the following circumstances:

1. "A trial judge may declare an outcome with "reasons to follow""
2. "The trial judge may have lengthy reasons prepared, and essentially finalized, but due to the length read only a summary, followed by immediate release of the longer version."
3. "The trial judge may announce his or her decision, but then correct that decision when an obvious error or illegality is identified."
4. "The trial judge gives reasons that appear to deal with all the issues, and outline all of his or her reasons, but then releases truly “supplemental” reasons that add arguments or issues."

How much an initial decision and supplementary reasons can change depends on the circumstances.

Generally, editing for punctuation, grammar, citations are permitted. But changes that revise, correct, or reconsider the words spoken or the substance of the reasoning are not permitted.

Appellate Review of Supplementary Decisions

Parties are permitted to argue the discrepancies between the decisions.

It is open to the appellate court to ignore the supplementary reasons. And may simply review the decision on the initial reasoning.

The appeal courts can examine both sets of reasons when assessing the issue of appeal.

Relationship with the Legislatures

A judge must act as a "constitutionally mandated referee."

It is not courts that limit legislatures, rather it is the constitution that limits them by means of judicial interpretation.

It is the role of the legislature to assume the "responsibility of law reform."

Judicial Neutrality and Bias

• Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

• Sufficiency of Reasons

Misc Authority of Youth Court Justice

• Miscellaneous Authority of a Youth Court Justice

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.

– CCC (CanLII), (DOJ)

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Federal Judges Code of Ethics

The Canadian Judicial Council publishes Ethical Principles that outline rules concerning a superior and appellate judge's conduct. The principles cover:

• Judicial Independence (1 A to D)
• Integrity and Respect (2 A to G)
• Diligence and Competence (3 A to D)
• Equality (4 A to D)
• Impartiality (A to E)

See Also

• Judicial Immunity/Judicial Independence
• Judicial Notice
• Trial Verdicts
• Juries
• Criminal Code and Related Definitions#Judges

Other Parties

• Role of the Accused
• Role of the Defence Counsel
• Role of the Victim and Third Parties
• Role of Law Enforcement
• Role of the Crown
• Role of Court Administration