Role of the Trial Judge

• < Procedure and Practice
• < Trials

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".

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.

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".

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.

Timing of Interrim 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 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.

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.

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.

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.

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".

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

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.

Reserving Questions for Decision

Trial continuous
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.

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Exclusion Public from Hearing

• Excluding People From Court

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.

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.

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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".

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

How recorded
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.

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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.

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.

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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.

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 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.

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

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.

Validity of Orders

Validity of Forms (Part XXVIII)

Forms
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.
Official languages
(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.

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Judicial Neutrality and Bias

• Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

• Sufficiency of Reasons

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.

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Maintaining Records

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.
[annotations added]

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Under Part XX relating to jury trials:

Taking evidence
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.
[annotations added]

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See Also

• Trial Verdicts
• Juries
• Criminal Code and Related Definitions#Judges

Other Parties

• Role of the Crown
• Role of the Accused
• Role of the Defence Counsel
• Role of the Victim and Third Parties