Court File and Parties

Court File No.: CR-20-40000138-0000 Date: 2021-02-18 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Abdulqadir Mohammed Aden

Counsel: Rick Nathanson, for the Crown Annamaria Enenajor, for Abdulqadir Mohammed Aden

Heard: February 12, 2021

R.F. Goldstein J.

Reasons for Appointment of Case Management Judge

[1] Mr. Aden is charged with one count of sexual assault and one count of uttering threats. He is scheduled to proceed to trial on April 19, 2021. He has elected his mode of trial by judge alone in the Superior Court of Justice.

[2] Mr. Aden has brought an application pursuant to s. 278.2 of the Criminal Code for the production of records from a third party. The return of the subpoena is set for March 10, 2021. The initial hearing is set for March 25, 2021.

[3] Ms. Enenajor, on behalf of Mr. Aden, has asked that the Court appoint the same judge to hear both the trial and the third-party records application. She points out that s. 278.3 of the Criminal Code provides that an application under s. 278.2 must be heard by the trial judge and by no other judge:

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

[4] The Superior Court of Justice in Toronto is one of the largest, if not the largest, judicial regions in Canada measured by population. It is one of the busiest superior courts in the country. Over 80 Superior Court justices are assigned to the Toronto Region of the Superior Court of Justice. A substantial number of these judges are assigned to work full time on criminal matters at any given time. The volume of work in a large jurisdiction makes scheduling a challenge. As a practical matter, applications under the Criminal Code must be scheduled in advance of trial dates. The practice of setting application dates well in advance of trial dates is to assist in the smooth adjudication of matters and a more efficient allocation of court and judicial resources. For example, the resolution of a pre-trial application can result in charges being dismissed, or a resolution, or a substantial reduction in trial time. That means that trial time is not simply lost, but that other matters can be scheduled and judges assigned to those matters.

[5] The result of scheduling applications well in advance of trial means that it is often very challenging to assign the same judge to a pre-trial application as well as the trial weeks or months down the road. As a result, it is common for counsel to undertake to be bound by the ruling of a pre-trial application judge in the event a different jurist is the trial judge.

[6] Alternatively, the Chief Justice (or a judge to whom the power has been delegated) may designate a case management judge:

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.

[7] A case management judge has all the powers of a trial judge to hear and decide matters at the pre-trial stage:

551.3 (1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by

(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…

[8] In my respectful view, when s. 278.3 is read with s. 551.3, Parliament’s intent is that a case management judge is empowered to hear applications under s. 278.2. Parliament did not limit the scope of a case management judge’s authority. The exception – s. 551.7 – deals with separate trials of accused persons with related pre-trial issues.

[9] Ms. Enenajor does not contest the jurisdictional point. Rather, her argument is more focused: she is concerned that new facts or fresh evidence may require a re-evaluation of a previous ruling. She articulates the point this way:

It is not unreasonable to anticipate that in a sexual assault trial where the accused had not been entitled to a preliminary hearing, new facts may come out during the complainant’s examination or cross-examination that might give rise to the need to revisit a previous s. 278 ruling. Aspects of records that were not previously relevant may become relevant during trial. This may require the previous s. 278 ruling to be revisited and the records re-opened for examination by the trial judge. The ability to revisit these records would be necessary to make full answer and defence.

[10] Ms. Enenajor points out that the Crown or trial judge could take the position that an issue is res judicata, thus depriving the defence the opportunity to re-open an issue if new facts arise. She indicates that this has been the experience of some defence counsel in this province. Thus, she has raised these concerns.

[11] Mr. Nathanson, for the Crown, takes the position that he would not object to re-opening on the basis that the trial judge did not have jurisdiction to do so.

[12] In my view, a trial judge can re-visit a ruling made in a pre-trial application by a different judge. The language of s. 551.1(4) makes this power explicit:

551.1(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.

[13] In my view, the Criminal Code does not require a formal application to re-visit a ruling. My reading of s. 551.4 is that the formal application of the Palmer criteria is not required: R. v. Palmer, [1980] 1 S.C.R. 759.

[14] Moreover, it is clear that a judge has the power at common law to re-visit a previous ruling where there has been a material change of circumstances: R. v. La, [1997] 2 S.C.R. 680 at para. 28. A criminal trial is a dynamic process. It would be impossible for a trial judge to do justice and ensure a fair trial if he or she could not revisit a ruling in response to a change circumstances.

[15] The general rule was set out by Sopinka J. in R. v. Adams, [1995] 4 S.C.R. 707 at paras. 30-31:

A court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. See Oley v. Fredericton (City) (1983), 50 N.B.R. (2d) 196 (C.A.). With respect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible. These orders generally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside or also less rigid. The ease with which such an order may be varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be varied or revoked. This will apply with greater force when the initial making of the order is mandatory.

As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place…

[16] Indeed, in R. v. R.V., 2019 SCC 41 at para. 74, the Supreme Court explicitly held that a trial judge may revisit a s. 276 ruling in the course of a trial where there has been a material change of circumstances.

[17] The request to ensure that the same judge hear both the pre-trial application and the trial is therefore denied. As I indicated to counsel, the court would make its best efforts to do so but cannot guarantee it.

Released: February 18, 2021 R.F. Goldstein J.