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Long trials prompt new case management rules

|Written By Helen Burnett

New case management rules are on the way for both Crowns and defence lawyers for criminal cases in the Ontario Superior Court of Justice because of concerns over lengthy trials.

The changes are based on the recommendations of the report of the chief justice's advisory committee on criminal trials in the Superior Court.

The committee was formed in early 2005 by Chief Justice Heather Forster Smith and was co-chaired by justices David Watt and Bruce Durno. Initially aimed at examining long criminal trials, the committee noted that there were just as many short criminal trials taking longer than estimated, so it focused on all criminal trials.

Durno says members of the judiciary have been concerned about the length of criminal trials for the last 15 years.

Set to take effect for all committals for trial across Ontario after Oct. 15, the new rules are aimed at resolving cases that should be easily resolved and also at having shorter trials, focused on the triable issues.

One of the changes to be implemented concerns pre-trial conferences, where there is currently a lack of consistency, with some taking 10 minutes in parts of the province and 45 minutes in others.

According to the committee's report, pre-trial conferences today are "too often meaningless and non-constructive steps in the litigation process, a token appearance to indicate the plea, coupled with an uninformed guess as to how long the trial will take."

The report found that "the failure to have constructive pre-trial conferences" was the shared responsibility of the Crown, defence, and judiciary.

According to the new standards, pre-trial conferences are to be held within 60 days of committal for trial and are to be scheduled for 30 to 45 minutes.

Counsel will also have to fill out a new mandatory pre-trial conference form, to replace the current two forms. The new forms are aimed at focusing counsel's attention on any issues that could arise at trial, as well as assisting pre-trial judges in focusing on the

contested issues and helping the trial judge prepare for the trial.

The new mandatory form will have to be filed 10 days in advance by the Crown and five days in advance by the defence. No forms are required if the accused is definitely going to be pleading guilty, as long as the defence notifies the Crown 10 days in advance.

The Crown's position must also be set out on the new pre-trial form, whether or not the defence has indicated there will be a plea. The committee estimates that the new forms will take 10 to 15 minutes to prepare for routine cases.

Durno says the pre-trial conference will set out an expanded scope for the pre-trial judge, dealing with both case management and resolution issues.

"One of the root causes of longer trials is ineffective pre-trial conferences," notes the report. "We are also confident that these changes can be made without sacrificing the accused's right to make full answer and defence or the Crown's right to a fair trial."

The committee also noted problems with pre-trial applications, which it said often take longer than the trial itself. Under the new rules, parties seeking to have evidence admitted that is presumptively inadmissible or to have evidence excluded that is presumptively admissible, are required to file 30 days in advance, with respondents filing 10 days before the trial.

"The applicant must serve and file the notice and application and supporting material 30 days in advance of the start of the trial, not 15," says Durno.

Notices of application also have to be case-specific and not in generic language, according to the report, and "must set out with reasonable particularity the grounds upon which the application for admission or exclusion is made, and must provide a detailed summary of the evidence upon which the applicant relies," says the report.

Trial readiness courts are also going to be introduced as a part of the new standards, requiring counsel to complete a form five to 15 days before the scheduled trial date, indicating that they are ready to proceed and that nothing has changed from the pre-trial conference. If either party fails to file or anything has changed, counsel are required to attend trial readiness court, although Durno adds that trial readiness courts won't be implemented right away.

According to the committee, the new approach is not designed as a pilot project and applies to all jurisdictions in the province. The group is set to meet again next September to go over input received throughout the year and to recommend any modifications to the rules.

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