citation: "Judicial Pre-Trial Conferences (Re), 2016 ONSC 6398" parties: "Judicial Pre-Trial Conferences (Re)" party_moving: "" party_responding: "" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2016-10-17" date_heard: "2016-10-11" applicant: [] applicant_counsel: [] respondent: [] respondent_counsel: [] judge:
- "Hill" summary: > This endorsement addresses systemic problems observed during criminal judicial pre-trial conferences (JPTs) in the Central West Region, where half of the scheduled JPTs could not proceed due to non-compliance with procedural rules and inadequate preparation by counsel. The court reinforces expectations for counsel regarding timely filing of Form 17, the content of prosecutor's synopses, the avoidance of "repeater" or over-charging indictments, the importance of admissions, and the proper identification of interpreter needs, all in the context of the constitutional right to trial within a reasonable time as articulated in R. v. Jordan. interesting_citations_summary: > The endorsement extensively cites R. v. Jordan (2016 SCC 27) to underscore the constitutional imperative for timely justice and the collective responsibility of all justice system participants to prevent undue delay. It highlights the role of JPTs as essential case management tools, drawing on R. v. Konstantakos (2014 ONCA 21) and R. v. C.G.R. (). The decision emphasizes the importance of compliance with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), referencing English authorities like R. v. Boardman ([2015] EWCA Crim 175) and R. v. Quinlan and Others ([2015] EWCA Crim 538) on professional duties and efficient case processing. It also discusses prosecutorial discretion and the Kienapple principle (R. v. Kienapple) in the context of multi-count and over-charging indictments, citing R. v. Rowe (2011 ONCA 753) and R. v. Rodgerson (2015 SCC 38) to advocate for streamlined charges. final_judgement: > This is an endorsement reinforcing judicial expectations for counsel regarding preparation, compliance with rules (especially Form 17), and responsible charging practices in criminal judicial pre-trial conferences to address systemic delays and ensure efficient administration of justice. It does not issue a specific order in a particular case but sets out directives for future conduct. winning_degree_applicant: 3 winning_degree_respondent: 3 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 6398 file_number: "" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc6398/2016onsc6398.html" keywords:
- Judicial pre-trial conferences
- Criminal procedure
- Case management
- R. v. Jordan
- Delay
- Over-charging
- Form 17
- Prosecutorial discretion
- Kienapple principle
- Interpreter assistance
- Rules of Court areas_of_law:
- Criminal Law
- Criminal Procedure
- Constitutional Law
cited_cases:
legislation:
- title: "Criminal Code, R.S.C. 1985, c. C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/"
- title: "Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11" url: "https://laws-lois.justice.gc.ca/eng/const/page-15.html"
- title: "Criminal Proceedings Rules for the Superior Court of Justice (Ontario), O. Reg. 450/97" url: "https://www.ontario.ca/laws/regulation/970450" case_law:
- title: "R. v. Jordan, 2016 SCC 27" url: "https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html"
- title: "R. v. Konstantakos, 2014 ONCA 21" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca21/2014onca21.html"
- title: "R. v. C.G.R." url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii32192/2005canlii32192.html"
- title: "R. v. Boardman, [2015] EWCA Crim 175" url: ""
- title: "R. v. Quinlan and Others, [2015] EWCA Crim 538" url: ""
- title: "R. v. Lacasse, 2015 SCC 64" url: "https://www.canlii.org/en/ca/scc/doc/2015/2015scc64/2015scc64.html"
- title: "R. v. Spencer (2004)" url: "https://www.canlii.org/en/on/onca/doc/2004/2004canlii5550/2004canlii5550.html"
- title: "R. v. Robinson (2001)" url: "https://www.canlii.org/en/on/onca/doc/2001/2001canlii24059/2001canlii24059.html"
- title: "R. v. Beauchamp (2005), 2005 QCCA 580" url: "https://www.canlii.org/en/qc/qcca/doc/2005/2005qcca580/2005qcca580.html"
- title: "R. v. Curnew, 2010 ONCA 764" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca764/2010onca764.html"
- title: "R. v. Singh, 2016 ONSC 3688" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3688/2016onsc3688.html"
- title: "R. v. Lyons" url: "https://www.canlii.org/en/ca/scc/doc/1987/1987canlii25/1987canlii25.html"
- title: "R. v. Nixon, 2011 SCC 34" url: "https://www.canlii.org/en/ca/scc/doc/2011/2011scc34/2011scc34.html"
- title: "Nelles v. Ontario" url: "https://www.canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html"
- title: "R. v. Simon (1979)" url: "https://www.canlii.org/en/on/onca/doc/1979/1979canlii2997/1979canlii2997.html"
- title: "R. v. Rowe, 2011 ONCA 753" url: "https://www.canlii.org/en/on/onca/doc/2011/2011onca753/2011onca753.html"
- title: "R. v. Kienapple" url: "https://www.canlii.org/en/ca/scc/doc/1974/1974canlii14/1974canlii14.html"
- title: "R. v. Rocheleau, 2013 ONCA 679" url: "https://www.canlii.org/en/on/onca/doc/2013/2013onca679/2013onca679.html"
- title: "R. v. R.K. (2005)" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii21092/2005canlii21092.html"
- title: "R. v. O’Leary, [2015] EWCA Crim 1306" url: ""
- title: "R. v. Kellard et al, [1995] 2 Cr. App. R. 134 (C.A.)" url: ""
- title: "Simmonds (1967) 51 Cr. App.R. 316, [1969] 1 Q.B. 685" url: ""
- title: "R. v. Dempsey" url: "https://www.canlii.org/en/on/onsc/doc/1997/1997canlii12209/1997canlii12209.html"
- title: "Regina v. MacNamara et al. (No. 1) (1981)" url: "https://www.canlii.org/en/on/onca/doc/1981/1981canlii3120/1981canlii3120.html"
- title: "Regina v. C.(D.A.) (1996)" url: "https://www.canlii.org/en/bc/bcca/doc/1996/1996canlii8341/1996canlii8341.html"
- title: "R. v. C.(D.A.)" url: "https://www.canlii.org/en/ca/scc/doc/1997/1997canlii397/1997canlii397.html"
- title: "R. v. Rodgerson, 2015 SCC 38" url: "https://www.canlii.org/en/ca/scc/doc/2015/2015scc38/2015scc38.html"
CITATION: Judicial Pre-Trial Conferences Scheduled for Tuesday October 11, 2016, 2016 ONSC 6398
DATE: 2016 10 17 SUPERIOR COURT OF JUSTICE (ONTARIO)
IN THE MATTER OF JUDICIAL
PRE-TRIAL CONFERENCES SCHEDULED FOR
TUESDAY OCTOBER 11, 2016
HILL J.
Introduction
[1] Tuesday, October 11 was scheduled for the court to conduct criminal judicial pre-trial conferences (JPTs) every 45 minutes throughout the day. These conferences were earlier scheduled at Superior Court of Justice (SCJ) Criminal Assignment Courts held twice a month in Brampton which is the occasion of an accused person’s first appearance to a preferred indictment.
[2] On October 11th, the court files, and in particular the forms required of counsel in advance of a pre-trial conference being held, as well as the form of some indictments, highlighted systemic problems impacting upon the JPT process and in turn on the trial process itself. Half of the JPTs were unable to proceed and had to be rescheduled.
[3] This endorsement, without fault-finding or the need to particularize case names or the identity of counsel, is designed to reinforce the expectations which I, and I expect at least some other members of the court, will have of counsel practicing criminal law in the Central West Region.
The Constitutional Context
[4] In R. v. Jordan, 2016 SCC 27, at paras. 29 and 40, a majority of the court concluded on July 8, 2016 that “the system has lost its way” in terms of accommodating the constitutional right to a trial within a reasonable time with “a culture of complacency towards delay … in the criminal justice system” – a reality “caus[ing] great harm to public confidence in the justice system”.
[5] Weeks later, in September, 2016, the MacDonald Laurier Institute Report Card on the Criminal Justice System: Evaluating Canada’s Justice Deficit, concluded at pp. 5 and 19, that “[t]here are serious issues with efficiency in Ontario’s justice system” including the province having the highest number of criminal charges stayed or withdrawn of any province or territory (43.1%).
[6] All participants, the court, prosecution, defence and police must be part of the solution against undue delay in processing criminal trials: Jordan, at paras. 112-117, 137-140. In particular, the Jordan framework “makes courts more accountable” (Jordan, at para. 114) in undertaking all reasonable steps to control/and manage the criminal process.
[7] The state has a constitutional obligation to bring an accused person to trial within a reasonable time: Jordan, at paras. 50, 56, 74, 90, 112. Implicit in this obligation is a requirement that the Crown take proactive measures to remedy any delay.
The Objective(s) of the JPT
[8] An overarching purpose of a pre-hearing conference is “to promote a fair and expeditious” trial: Criminal Code, s. 625.1; Rule 28.05(9) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). “Pretrial conferences are necessary case management tools, conducive to the effective use of resources” (R. v. Konstantakos, 2014 ONCA 21, at para. 8) with at least one purpose of the JPT being “to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of time required to hear a case”: R. v. C.G.R., [2005] O.J. No. 3764 (C.A.), at para. 30.
[9] Rules of Court do not exist simply to have rules. The Criminal Proceedings Rules for the Superior Court of Justice (Ontario), enacted pursuant to s. 482(1) of the Criminal Code, after consultation with the criminal Bar, have as an objective the fair and efficient dispensation of the criminal process.
[10] Compliance with the Rules, including ‘Rule 28 Pre-Hearing Conferences’, is essential to avoid unnecessary delay and disruption of case and judicial scheduling. Knowledge of, and compliance with, the Rules are not optional. As observed in R. v. Boardman, [2015] EWCA Crim 175, at paras. 1-2:
It is beyond argument that there is considerable pressure on all involved in the criminal justice system to maximise the use of limited resources and to ensure that cases are processed as efficiently as possible. The recent Review of Efficiency in Criminal Proceedings makes it clear (at para. 22);
“It is … necessary to ensure that the scarce resources are not wasted or used inefficiently. Demands on public funds must be kept to a minimum while, at the same time, ensuring that the delivery of justice is effective and meets the highest standards that any democratic society is entitled to expect.”
The Review goes on to deal with the critical importance of the Criminal Procedure Rules (CPR) and the role of the judges in effectively managing the work of the court. It emphasises (at para. 199):
“Whatever we do, we must encourage a reduced tolerance for failure to comply with court directions along with a recognition of the role and responsibilities of the Judge in matters of case management. It cannot be right that a ‘culture of failure’ has developed in the courts, fed by an expectation that deadlines will not be met. If a deadline (e.g. for service of a document(s) or an application) is not met, there must be good reason for it and there must be an expectation that the party which failed to comply can provide that reason. A failure to tackle this culture leads to a general indifference to rule compliance.
Whichever party has failed to comply or failed to meet the deadline, the opponent perceives objection as a waste of time because it will be largely pointless: there is no sanction that can be applied. Perhaps most significantly, it allows cases to ‘drift’; and for further hearings to take place unnecessarily.
(emphasis added)
[11] In language equally relevant to Ontario, in R. v. Quinlan and Others, [2015] EWCA Crim 538, at para. 12, the court stated:
…It is important to stress that those representing defendants in criminal proceedings owe a duty to the court which has always existed as a matter of law, and which is now to be found in Crim PR 1 and the corresponding provisions of the Consolidated Criminal Practice Direction. It is unnecessary for us to set those provisions out as:
i) The proper performance of the duties under Crim PR 1 is a matter of professional conduct.
ii) No advocate should be regarded as competent to conduct a criminal trial unless he is aware of those duties and of the other main provisions of the Rules and Consolidated Criminal Practice Direction.
(emphasis added)
[12] A JPT is an important procedural step – it cannot be perfunctory – all participants must be prepared, organized and committed to the objectives of such a hearing.
Filing the JPT Form 17
[13] At the outset of a Brampton Criminal Assignment Court, my colleague, Justice Bruce Durno, a highly respected criminal jurist, routinely provides counsel and self-represented accused information generally in these terms:
With respect to the counsel pre-trial forms, there’s a designated fax number and machine in the trial office. The Federal and Provincial Crowns here do not do deliveries. So, if you only send it to the Crown’s office, the judge isn’t going to have it, and in all likelihood you are not going to have a pretrial conference.
With respect to pretrials and pretrial forms … a lax attitude towards filing and filing times [cannot] continue… There’s no rule that says the defence has to wait for the Crown to file. If the Crown didn’t file within time, defence file to the best of your ability …
[14] Rule 28.04(7)(8)(10) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) provide that:
(7) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, the prosecutor must serve counsel of record for each accused, or where the accused is self-represented, the accused, not later than ten (10) days before the date scheduled for the pre-trial conference.
(8) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, counsel of record for each accused, or the accused if self-represented shall serve the prosecutor, counsel for each co-accused and any other self-represented accused not later than five (5) days before the date scheduled for the pre-trial conference, even if the prosecutor has failed to serve and file Form 17, or otherwise failed to comply with this rule.
(10) Where all counsel will be filing a joint pre-trial conference report, it shall be filed five (5) days before the date scheduled for the pre-trial conference.
[15] The required pre-trial conference report “shall be in Form 17”: Rule 28.04(1). Turning to the October 11 JPTs, in the majority of cases the Crown forms were filed late and in three instances no defence JPT Form 17s had been filed even by the end of the court day preceding the scheduled JPT date. Meaningful JPTs require timely-filed Form 17s. Judges conducting these conferences read the Forms, the indictment and other court file material, and not infrequently may do some research and have questions formulated for counsel all before the conference. Not filing a Form 17, or filling a Form 17 out in court on the scheduled JPT date, or faxing it to the court office on the weekend before a JPT scheduled on the first court day of the next week, defeats preparation and fulsome inquiry into the issues described in Rule 28.05(9)(10)(11).
[16] The preamble in Form 17 seeks to determine whether counsel have “discussed the issues raised in this form after the committal for trial”. Unfortunately this question is routinely answered “No”. The objectives of a focused pre-trial conference and meaningful resolution discussions are enhanced by such pre-hearing discussions between counsel.
[17] While the conduct of successive pre-trial conferences are authorized (Rule 28.03(2)(3)), multiple such appearances should not become the norm because a Form 17 has not been filed at all, is served and filed late, or is incomplete, or counsel are unprepared or assigned/retained counsel are not present or a designate with authority to bind and commit to positions (Rule 28.05(6)). As mandated by Rule 28.04(5), it is unacceptable for counsel to have indicated on some aspect(s) of a Form 17, “will advise”, “not as yet”, or words of similar effect.
The Prosecutor’s Form 17
[18] Rule 28.04(6)(a) requires that the prosecutor’s Form 17 include “a brief synopsis of the allegations, including how the prosecutor intends to prove them”. All too frequently, including in the sampling of the October 11, 2016 JPTs, discharge of this obligation is achieved by the attachment of computer-generated police occurrence reports prepared long before the JPT for preliminary disclosure or an initial bail hearing when only relatively rudimentary information is available. This approach is non-compliant as the information is stale, fails to integrate facts learned from subsequent investigation or preliminary inquiry/discovery facts, and ignores prosecutor analysis of by what evidence and witnesses the charge(s) will be proved. This point was well defined at paras. 186-187 of the New Approaches to Criminal Trials: The Report of The Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice [Ontario], May 2006:
[186] A synopsis provided by a Crown to the pre-trial judge may resemble the following:
On Tuesday, October 12, 2004 the accused went to the dwelling house located at 435 Jones Street, broke a rear window, entered the house and stole jewelry and other valuable items valued at $10 000.
[187] That type of summary does not indicate whether the Crown relies on fingerprint or DNA evidence, a confession, and/or accomplice evidence in order to prove the allegations. The evidence upon which the Crown relies to prove the allegations is an essential component of an informative synopsis. No doubt a synopsis prepared after the preliminary inquiry would be most informative.
(emphasis added)
[19] Because JPT conferences generally include resolution discussions respecting a case proceeding on a guilty plea short of conducting a trial (Rule 28.05(11)(12)), and the Form 17 specifically seeks the prosecutor’s position in a guilty plea scenario as well as after a trial were one to be held, it is anticipated that the positions provided will clearly reflect the mitigatory effect attributable to a plea or pleas of guilt. This information is at times altogether absent or there is no precise acknowledgement of the discounting value of an early guilty plea (R. v. Lacasse, 2015 SCC 64, at para. 81) or that even a guilty plea before the Superior Court of Justice may appropriately attract “substantial mitigation” of sentence: R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.), at para. 48 (leave to appeal refused [2005] S.C.C.A. No. 4).
The “Repeater” – Count Indictment
[20] Despite repeated admonitions to prosecutors by pre-trial conference judges in the Central West Region, multi-count indictments continue to appear, including on October 11th, containing two or more identically-worded charges. Such indictments are “improperly drafted” and exhibit “a defect apparent on the face” of the charging document running afoul of the mandatory requirement of s. 581(3) of the Criminal Code requiring that each count in an indictment “contain sufficient detail of the circumstances” of an alleged offence as to give an accused reasonable information of the transactional allegation(s) he or she faces: R. v. Robinson (2001), 53 O.R. (3d) 448 (C.A.), at pp. 457-8.
Form 17 and Admissions
[21] A pre-trial conference justice, pursuant to Rule 28.05(10)(d) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) shall inquire into, and discuss, “the possibility of making admissions of fact or other agreements about uncontested issues or the evidence of witnesses”, and shall make recommendations about such matters (Rule 28.05(13)(a)).
[22] Lesage and Code in the Report of the Review of Large and Complex Criminal Case Procedures (Nov. 2008), at p. 89 stated:
Counsel for the Crown and for the defence are both under ethical duties to make reasonable admissions of facts that are not legitimately in dispute. The court should encourage and mediate efforts to frame reasonable admissions. When the defence fully admits facts alleged by the Crown, the court has the power to require the Crown to accept a properly framed admission and to exclude evidence on that issue.
(Recommendation 18)
[23] Other authorities are consistent with this approach: Jordan, at para. 138 – “Both parties should focus on making reasonable admissions”; Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (Toronto: Carswell, 1982), at p. 46 – resort to the use of admissions by the defence and the Crown “should be encouraged”; R. v. Beauchamp (2005), 2005 QCCA 580, 203 C.C.C. (3d) 551 (Que. C.A.), at para. 89 (leave to appeal refused [2005] C.S.C.R. no 355) – “good lawyers, who have a proper sense of ethics, who understand their role as officers of the court, who use their own time wisely, and who are respectful of the time of their adversary and of the court, will recommend that their clients not contest certain non-prejudicial pieces of evidence that the prosecution can easily produce… [g]ood lawyers will even corroborate with the court during a pre-trial conference in order to accelerate proceedings”; R. v. Curnew, 2010 ONCA 764, at para. 25, and, New Approaches to Criminal Trials: The Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice [Ontario], May 2006, at p. 34 - defence counsel not required to get instructions from their client on admissions.
[24] At least nine times out of ten, the Crown JPT Form 17, includes no information below the titlage, “Other factual, evidentiary or legal admissions sought by the Crown, or conceded by the defence”. The Crown, the party with the burden of proof and production in commencing a criminal trial should, in its Form 17 regularly advance matters for the defence to consider admitting – matters for further discussion in the JPT.
The Need for Interpreter Assistance
[25] Witnesses and accused persons in criminal proceedings have a constitutional right to the assistance of an interpreter: Charter, s. 14.
[26] The JPT Form 17 specifically solicits information from the parties regarding the need for court interpreter assistance and a justice presiding at a JPT will canvass the necessity of interpreters for any accused or witness in the pending proceedings: Rule 28.05(10)(k) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
[27] During the JPT itself, the necessity for an interpreter, as noted in R. v. Singh, 2016 ONSC 3688 will be discussed:
By the point of the judicial pretrial in the Superior Court of Justice, counsel should be in a position, before court interpreters are administratively committed to the case, to explain why court interpretation is required on a fulltime or stand-by basis.
Multiple-Count Indictments/Overcharging
[28] The backdrop for this subject includes the following principles:
(1) undoubtedly, the prosecution “always has a discretion in prosecuting criminals to the full extent of the law”: R. v. Lyons, [1987] 2 S.C.R. 309, at para. 64
(2) as a general rule, the doctrine of prosecutorial discretion, including the charging function as a core element of such discretion, is not subject to judicial supervision, subject only to proof of abuse of process: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 20, 63-4
(3) among the powers of a prosecutor is “the power to charge multiple offences”: Nelles v. Ontario, [1989] 2 S.C.R. 170, at para. 40
(4) “[t]he law is well established … that, in general, where conduct constitutes an offence under more than one section of the [Criminal] Code, the Crown has a discretion with respect to the offence for which the accused is to be prosecuted”: R. v. Simon (1979), 45 C.C.C. (2d) 510 (Ont. C.A.), at p. 514.
[29] As observed at para. 43 of the Jordan decision, “each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts”.
[30] As a general observation, the inclusion of multiple counts in an indictment, all directed to essentially a single transaction, raises the prospects of:
(1) unnecessarily prolonging a trial thereby creating undue delay
(2) a longer, more complicated, repetitive and potentially confusing jury charge: R. v. Rowe, 2011 ONCA 753, at paras. 54 – 55
(3) inconsistent verdicts
(4) the need for Kienapple submissions.
[31] The Kienapple principle (R. v. Kienapple, [1975] 1 S.C.R. 729), providing “that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence”, is designed “to protect against undue exercise by the Crown of its power to prosecute and punish”: R. v. Rocheleau, 2013 ONCA 679, at para. 24; R. v. R.K. (2005), 198 C.C.C. (3d) 232 (Ont. C.A.), at paras. 27-29.
[32] In the New Approaches to Criminal Trials report, at paras. 238-239, the committee made these observations:
[238] As is the case with defence counsel, the Crown should examine how best to pare down the trial, without really giving up anything, to make proceedings more streamlined and comprehensible. The Crown should also identify before the pre-trial conference the issues upon which agreements or admissions will be sought.
[239] Crowns should also examine the number of counts in the indictment. Why proceed on a 16-count indictment, if a 4-count indictment, covering the most serious allegations, would better focus the trial? If the factual basis of 2 counts are the same and would result in the application of the Kienapple principle, is there a need to proceed on both counts?
(Footnote omitted)
[33] As observed by Doherty J.A. in the Rowe decision, at para. 58:
Crown counsel in the exercise of his or her responsibility to further the due administration of justice should consider whether multiple count indictments can be trimmed before the case goes to the jury without compromising the case the Crown seeks to have determined by the jury. The possibility of not requiring verdicts on all counts in a multiple count indictment should be canvassed with counsel as part of the pre-charge conference. It is self-evident that the fewer the charges a jury must consider, the less likely it is that confusion will intrude upon the jury’s deliberation, or that the trial judge will fall into legal error. Jury confusion can lead to a hung jury and legal error can necessitate a new trial. Neither result serves the Crown’s interest in the due administration of justice. A properly trimmed indictment serves everyone’s interests in the criminal process.
(emphasis added)
[34] In England as well, the prosecution has a “duty to consider the indictment with care” in order to avoid “overloading the indictment and overly complicating the jury’s task”: R. v. O’Leary, [2015] EWCA Crim 1306, at para. 18.
[35] English courts too have highlighted the desirability for the prosecution contributing to a manageable trial in terms of complexity and duration as observed in R. v. Kellard et al, [1995] 2 Cr. App. R. 134 (C.A.), at pp. 142, 145, a case of a multi-count indictment not scoped to manageable limits:.
As a result of what appears to be the ever increasing length of criminal trials, this Court from time to time has exhorted both judges and counsel to present the case to the jury in as clear and simple a manner as possible. Thus in Simmonds (1967) 51 Cr. App.R. 316, [1969] 1 Q.B. 685, Fenton Atkinson L.J. said (at pp. 324, 325 and p. 691):
“Naturally it is the duty of prosecuting counsel in the interests of justice as a whole to see that the case is prepared so that it can be presented to a jury in as simple a way as is practicable … Experience of recent years has demonstrated the need for the trial judge being able to form an independent judgment on the severability of counts.”
Further, on p. 325 and p. 692 the learned Lord Justice said:
“If upon examination of material before him the judge considers that the presentation of the case in the way proposed by the prosecution involves undue burdens on the court in general and jurors in particular, and is for this or other reasons contrary to the interests of justice, he has a right and, indeed, a duty to ask that the prosecution recast their approach in those interests, even if a considerable adjournment is entitled.”
The difficulty over recent years, as appears from the authorities, has been the reluctance of prosecution counsel to cut down the size of the case by failing to agree to the severance of certain counts.
(emphasis added)
[36] The phenomenon of over-charging, clearly evident in two of the indictments before the court on October 11th, arises where an information or indictment has numerous and alternate crimes charged with many of the charges directed to the same transaction, many of which attract the Kienapple principle. “[O]ver charging is an irresponsible exercise of charging discretion by the police” and should be “corrected” by the prosecution in its screening process: Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (1993) (chaired by the Honourable G. A. Martin) (the Martin Report), at p. 137. It is inappropriate to permit excessive charging to continue “in order to accord the Crown bargaining leverage in the conduct of resolution discussions”: Martin Committee, at pp. 137-8. “[T]he over-charging to be eradicated in the charge-screening process is, generally speaking, that which misrepresents the seriousness of the incident at hand”: Martin Committee, at p. 139.
[37] There is nothing per se objectionable about a multi-count indictment or the prosecution proceeding on more than one charge respecting a particular transaction. However, not infrequently, indictments come before a pre-trial conference judge with a cluster of charges relating to a single transaction, for example multiple firearms-related charges. This is not the only example. This state of affairs led a colleague in times past to refer to such a charging document as a “Velcro” indictment – a police officer slapped an information against his or her copy of the Code to see how many charges would stick without any discriminating effort to select the most appropriate charges either initially or subsequently through responsible charge-screening by an experienced prosecutor.
[38] Twenty years ago, in this Region, in R. v. Dempsey, [1997] O.J. No. 477 (Gen. Div.), while the court recognized that prosecutorial authorities enjoy a broad discretion in the decision as to what charges should proceed, the court further observed that “[a]ll participants in the criminal justice system have an obligation to promote the most effective use of resources and to simplify, to the extent possible, trials by jury”. At paras. 9, 26-36, the court stated:
In an era where we are striving to advance the interests of justice through systemic simplicity, all participants in the criminal trial should endeavour to contribute to the clarity of the process for the triers-of-fact.
Streamlining and shortening trials is a worthy objective. Unprincipled over-charging contributes to the unnecessary deflection of the focus of the triers in their deliberations to differences between the offences charged. The very natural bewilderment of the jurors as to why multiple charges are contained within the charging documents detracts from the scrutiny of the evidence upon its merits.
As a general rule, charging every conceivable criminal offence applicable to the accused’s conduct rarely increases the justice done in a particular criminal proceeding and, not infrequently, contributes to an unreasonable strain on resources.
An indictment ought to be drafted with a view to facilitating the task of the jury: Regina v. MacNamara et al. (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.) at 261 per curiam.
Because of the responsible exercise of prosecutorial discretion by the prosecutor in this case, it became unnecessary for the court to consider the question of joinder and severance of counts in an indictment as addressed by s. 591 of the Criminal Code. The trial court’s exercise of discretion to prevent an over-loading of the indictment, if satisfied that the interests of justice require, is based upon a number of relevant factors including the possibility of inconsistent verdicts and the desire to avoid a multiplicity of proceedings: Regina v. C.(D.A.) (1996), 106 C.C.C. (3d) 28 (B.C.C.A.) (affirmed S.C.C., R. v. C.(D.A.), [1997] 1 S.C.R. 8, (No. 25230) January 24, 1997 per Sopinka J.)).
[39] In assessing compliance with an accused’s s. 11(b) Charter right, any portion of the delay that the Crown “could reasonably have mitigated may not be subtracted” from the relevant delay to trial: Jordan, at para. 75. At para. 79 of the Jordan decision, the court stated:
…the Crown may wish to consider whether multiple charges for the same conduct … will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must confirm to the accused’s s. 11(b) right (see, e.g., Vassell). As this Court said in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760:
Certainly, it is within the Crown’s discretion to prosecute charges where the evidence would permit a reasonable jury to convict. However, some semblance of a cost-benefit analysis would serve the justice system well. Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete. [para. 45]
(emphasis added)
[40] Sections 591(2)(3)(a) of the Criminal Code provide as follows:
(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.
(3) The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts;
[41] Rule 28.05(10)(i) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) specifically authorizes a pre-trial conference judge to inquire and discuss “the possibility that the prosecutor may reduce the number of counts in the indictment to facilitate jury comprehension and promote a fair, just and expeditious trial”. While perhaps of greater significance for jury trials, it hardly advances the interests of justice to have a judge-alone trial on an unnecessarily bloated indictment. A pre-trial conference justice may recommend appointment of a case-management judge under Rules 29A or 29B (Rule 28.05(13)(l)) to permit such a judge to deal with the issue of severance of counts at an early stage: Criminal Code, s. 551.3(1)(g)(v). It would also appear that in furtherance of active case management principles, a trial judge in trial sittings may exercise the authority conferred by s. 591(3)(a) of the Criminal Code in “the interests of justice” to sever various counts. Any such severed counts, if not withdrawn by the Crown, would then be assigned the priority they deserve in terms of scheduling any additional trial.
Hill J.
Released: October 17, 2016