WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 03 04 COURT FILE No.: Halton Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Pietro Antonio Manchisi
Before Acting Regional Justice Justice Anthony F. Leitch
Heard on February 29, 2024
Reasons for Judgment released on March 4, 2024
Application for the Appointment of a Case Management Judge
Counsel: Megan Chant....................................................................................... counsel for the Crown Carlo A. Pasqualino......................... counsel for the accused Pietro Antonio Manchisi
INTRODUCTION
1This is an application for the appointment of the case management judge. The defendant faces a charge of sexual assault. After two Judicial pre-trials Justice Calsavara authorized a trial schedule for a two-day trial followed by an O’Connor application (two ½ days for argument) and a motion for charter relief under sections 7 and 24(1) (1 day). These alleged violations arise from the defendant’s inability to obtain judicial interim release in a timely manner. It is alleged that the conduct of the Children’s Aid Society discouraged the defendant’s girlfriend from acting as his surety thereby extending his time in custody awaiting bail. For this alleged Charter violation the defendant seeks a stay of proceedings, a remedy of last resort, for state conduct that is unrelated to the alleged offence of sexual assault, for conduct after arrest and before trial.
THE LAW
2The jurisprudence on applications for a stay of proceedings and timing within the trial process is well settled. Although the application can be heard before trial, it is crucial that the trial judge be able to measure the effect of the alleged state misconduct on the trial process. For this reason, courts have routinely held that any decision on a stay of proceedings must be deferred until at least the end of the crown’s case or until the trial evidence has been completed. It is only at this time that the degree of prejudice to the trial process can be measured. Once a trial judge is assigned, that judge has the jurisdiction to hear motions in the order they think fit to ensure a fair trial. The parties’ views are considered but the case management powers of a trial judge trump those views to ensure an economical and fair proceeding.
3In this case the JPT directed that the trial be set with the evidence about the alleged offence proceeding before the evidence about the discrete Charter breach at the bail stage. The defence did not agree and argued the motions should proceed before the trial evidence. The crown agreed with the JPT judge. The defence argue the JPT judge does not have jurisdiction to set the schedule of the trial and motions over the objection of the parties, in this case the defendant. They move for a case management judge appointment because that judge, by the statutory powers set out in section 551.3, has the power of a trial judge to decide any matters a trial judge can, binding decisions which can only be reversed by the trial judge if there has been a material change in circumstances.
4The case management judge powers derive from sections 551.1 - 551.7 of the Criminal Code of Canada enacted in 2011. The purpose of the legislation is to vest a judge, often but not always in complicated matters, to have the same powers as a trial judge. The provisions are designed to allow scheduling flexibility and to promote efficient trials. It permits motions on different trials to be combined (551.7) or heard together. Its main aim is efficiency. Although section 551.3 (1) (d) enumerates a power of, “establishing schedules and imposing deadlines on the parties” it does not follow that an appointed case management judge is the exclusive repository of this power.
5I adopt the analysis of Wendl J. in R. v. Eliany, 2024 ONCJ 32 which provides a full canvass of the powers a judge of the Ontario Court of Justice conducting a judicial pre-trial. In that case he cites R. v. Jurkus (2018) ONCA 489 where the ACJ states the importance and purpose of a Judicial pre-trial:
32I would add that nothing in these reasons should be construed as suggesting that counsel making themselves available for a judicial pre-trial by teleconference will avoid a finding of defence delay. Personal appearance accords with the purpose pre-trials are designed to achieve. They are not simply part of a check-list on the road to trial. They are designed to promote general efficiency in the criminal justice system by, among other things, facilitating resolutions, resolving issues, simplifying motions, arriving upon agreed facts, identifying triable issues and setting meaningful schedules: R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 8; Judicial Pre-Trial Conferences Scheduled for Tuesday October 11 Re, 2016 ONSC 6398, at para. 8. Criminal Code, s. 625.1; Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Rule 28.05(9). In this age of concern about delay in our criminal justice system, there is an added premium on ensuring the success of judicial pre-trials. Undoubtedly, personal attendance enhances the opportunity for meaningful discussions and successful outcomes. (my emphasis)
6The Ontario Court of Justice rules clearly provide for the JPT judge to set times for the hearing of applications (rule 4.2 (7)(c)). Those rules are derived from a statutory power under section 482 of the Criminal Code. Section 625.1 of the Criminal Code provide a specific statutory power to conduct a judicial pre-trial. These two sections of the Criminal Code and the direction of the Court of Appeal in Jurkus, supra provide ample authority for the directions Justice Calsavara made to set the motion and trial schedule in this case. She had the jurisdiction, authority and power to ensure this case was scheduled in an efficient manner based on her view of the law with the input of the parties at two judicial pre-trials. It is not appropriate for counsel to refuse to follow that direction.
DECISION
7The application for the appointment of a case management judge in this case is denied. Section 551.1(1) sets out a permissive power in the Chief Justice, a power which has been delegated to me as Acting Regional Senior Judge of Central West Region. I am not of the opinion that the appointment is necessary for the proper administration of justice. Justice Calsavara gave a valid direction to set the trial in the manner she did. The schedule she set is reviewable by the trial judge. If the defendant does not agree with the manner in which she directed this case to be set, with the motions following the trial evidence, he may seek the direction of the trial judge assigned to hear his argument that the trial motions proceed before trial. The JPT judge directs how the matter will be set and the trial judge ultimately may change that order if that court thinks a different order is more efficient or better achieves the ends of justice.
8This matter returns March 5, 2024 before Justice Calsavara awaiting the outcome of this application. The matter will be scheduled as she has directed. The defendant may seek further direction from the assigned trial judge should he wish but he may not refuse to follow the schedule she has prescribed.
Released: March 4, 2024 Justice Anthony F. Leitch