Case Management

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• < Pre-Trial and Trial Matters

General Principles

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

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

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".

A Court should encourage "efforts to frame reasonable admissions".

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".

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

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), 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 and 482.1 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.

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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".

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.

Timing of application or appointment
(3) In the case of a trial for an indictable offence, other than a trial before a provincial court judge, the application or appointment may only be made after the prosecution prefers the indictment.
Same judge
(4)
2011, c. 16, s. 4.

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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.

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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.

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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 his or her duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, may exercise the powers that a trial judge has before that stage, including

(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; and

(g) subject to section 551.7, 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.

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 exercised at trial
(3) When the case management judge exercises the power referred to in paragraph (1)(g), 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) 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.

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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.

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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.

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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) 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) or (3) 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.

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Making Case Management Rules

Power to make rules respecting case management
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;

(b) permitting personnel of the court to deal with administrative matters relating to proceedings out of court if the accused is represented by counsel; 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).

Summons or warrant

(3) If rules are made under subsection (1), 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) Section 512 and subsection 524(1) apply, with any modifications that the circumstances require, to the issuance of a summons or a warrant under subsection (3).
Approval of lieutenant governor in council
(5) Rules made under this section by a court referred to in subsection 482(2) must be approved by the lieutenant governor in council of the relevant province in order to come into force.
Subsections 482(4) and (5) to apply
(6) Subsections 482(4) and (5) apply, with any modifications that the circumstances require, to rules made under subsection (1).
2002, c. 13, s. 18.

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