Wednesday, March 20, 2013

Pre-hearing conferences in criminal cases

R. v. Nguyen, 2013 ONCA 169 discusses pre-hearing conferences in criminal matters :


Pre-Hearing Conferences and their Use

[53] Section 625.1(1) of the Criminal Code authorizes pre-hearing conferences to be held before trial or other proceedings (for example, a preliminary inquiry) “to consider the matters that, to provide a fair and expeditious hearing, would be better decided before the start of the proceedings and other similar matters”. Where a case is set to be tried by a court composed of a judge and jury, a pre-hearing conference “to consider any matters that would promote a fair and expeditious trial” is mandatory under s. 625.1(2).

[54] Pre-hearing conferences are an essential feature of our criminal procedure. Whether required by s. 625.1(2) or permitted by s. 625.1(1), pre-hearing conferences are and have proven to be an invaluable ally in the struggle to promote a fair and efficient criminal trial process. The conferences are of particular assistance in complex cases involving multiple accused and counts arising out of lengthy investigations where investigative procedures are likely to be tested for Charter compliance. Pre-hearing conferences, particularly where proceedings follow a lengthy investigation, sometimes add several weeks to the intake period in a case, but may well result in an earlier trial date, a shorter and more focused trial, or a reduction in the number of counts and accused going to trial. The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s.11(b) analysis: Khan, at para. 53; Tran, at paras. 36-37; and Cranston, at para. 46.

[55] As mentioned earlier, s. 625.1 of the Criminal Code permits and, in some cases, stipulates pre-hearing conferences between the prosecutor and the accused or counsel for the accused. In cases to be tried by a judge sitting alone, pre-hearing conferences are discretionary and may be requested by the prosecutor, the accused, or on the motion of a judge of the court. The conferences are held prior to the proceedings (whether a trial or a preliminary inquiry) and are presided over by a judge of the court. At the conference, the participants are required to consider anything that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings.

[56] The case management judge may help the parties to identify the issues to be resolved at the various stages of our criminal procedure and the nature and extent of the evidence required for the resolution of those issues.

[57] The case management judge may help the parties to make admissions and reach agreements about uncontroversial issues, thereby reducing the length and complexity of contested proceedings.

[58] The case management judge may hear guilty pleas and impose sentences on various participants, thus reducing the number of accused and counts that must proceed to trial. For those remaining, the case management judge may assist in making arrangements for tiered prosecutions, hearings to determine issues common to several accused, and, in general, setting a schedule for filing materials and argument on issues that remain outstanding.[1]

[59] Pre-hearing and case management conferences are justified and necessary tools in busy judicial centres designed to ensure effective and efficient use of available court resources and to protect not only the Charter rights of the persons charged, but also society’s interest in determining allegations of serious criminality and their merits: Tran, at para. 34; and Khan, at para. 82.

[60] To conclude this discussion of pre-hearing conferences, I emphasize that barring cause to do so, courts tasked with deciding whether an accused’s rights under s. 11(b) have been infringed should be slow to second-guess the need for or number of such conferences.

[61] Large, complex prosecutions involving multiple accused and counts require concerted efforts on the part of investigators and prosecutors to ensure timely disclosure and trial. Amongst those charged, the involvement of some will be less than others: peripheral not central, discrete, perhaps disconnected from the principals and the core of the case. In some instances, the minor players can be tried separately, efficiently, and more expeditiously. But these decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or to withdraw charges, are contingent upon interdependent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown’s decisions absent clear reason to do so: Khan, at para. 30.

[62] Finally, an accused, by agreement or other conduct, may waive his or her rights to complain about delay in whole or in part. Waiver can be explicit or implicit, but must be clear and unequivocal, made with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights: Morin, at p. 790. To be implicit, there must be something in the conduct of the accused sufficient to support an inference that the accused has understood that she or he has the right to be tried within a reasonable time, understood the nature of that right, and has waived it: Morin, at p. 790. Conduct falling short of waiver may nonetheless be relevant to the s. 11(b) analysis as “actions of the accused”: Morin, at p. 790.



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