I want to talk to you today about the term “judicial pre-trials” in Ontario. Now what is judicial pre-trial (“JPT”)? When does it happen? Why does it happen? Well first of all, a judicial pre-trial simply means that the defence counsel and the crown counsel have a meeting with a judge. The meeting is for the purpose of discussing your client’s criminal charge, with a view to, a) trying to reach a resolution based on a guilty plea for a lenient sentence, and/or b) advising the judge your client intends to proceed to trial, where the goal of the JPT is to try to manage court time and discuss the trial issues. In many instances, judicial pre-trials are mandatory. For example, if defence counsel knows his or her client intends to proceed to trial, you have to have a judicial pre-trial in the province now. So the purpose of a JPT where the parties know the matter is heading to trial, is to manage court time. You would be discussing with a judge at a JPT the number and type of witnesses that are going to be called, the factual and legal issues, determine if any admissions or agreements can be made to save court time, review any anticipated Charter applications or other pre-trial applications and how much court time they will require. During the JPT, we will discus how long each witness is going to testify for approximately and the judge will provide his or her opinion about these issue and control the discussions during the JPT. The judge, crown and defence counsel will try and come to a consensus as best they can, regarding narrowing any legal and factual issues and estimating the number of days that will be require for trial. The estimate of court time may be for 1, 2 3 or more days of trial. The estimate of trial time could be weeks for a complex matter or for a jury trial. In Superior court for example, we have to fill out a very complex form setting out all of these issues. Now one of the things defence counsel does not normally discuss at a judicial pre-trial, if there’s a substantive or technical defence you feel that is hidden within the file, you often do not want to disclose this to the judge or crown. Some defences are obvious, I mean for assault, we all know it’s self defence, but I’m talking more about more obscure or technical defences. Of course, at the judicial pre-trial we are also having resolution discussions to explore whether the accused should consider pleading guilty if a good deal is offered on sentencing or if the crown offers to withdraw some of the charges based on subtle pressure, urging or recommendation by the judge. For example, let’s say the crown and I have agreed to a joint submission for no jail. We will often want to have the joint submission approved by a judge during a JPT. Defence counsel and the crown will explain to the judge why we reached a joint submission regarding sentencing. This may involve providing the judge with sentencing case law, all the facts of the case, the complete background of our client, and then the judge hopefully says, “Okay, I can agree with the joint submission now.”. At first blush, it might be too light of a sentence in the judge’s mind, but now that the prior plea bargaining discussions between defence counsel and the crown have been fully explained, the judge understands and agrees. For example, the crown may have weak case and that is why we are agreeing to a joint submission for no jail. Because it is a weak case, we are getting a great deal. The defence does not want to go to trial as there is still a risk of losing at trial, but we are very pleased with this avoiding jail and want to take the deal. During the JPT, the judge will hopefully approve the joint submission. Judges usually approve joint submissions in Ontario and throughout Canada. It is very rare that a judge will sentence the accused to a more severe sentence than a joint submission, but in rare cases they do. Then once the joint submission has been approved behind the closed doors at a JPT, we can go in front of that same judge in court on the same day or another day. If we have decided to proceed to trial, we have completely managed the trial issues and come up with an estimate for the number of trial days that are required. We then reach out to the trial coordinator to obtain a mutually agreeable trial date(s). The judge does his or her notes and sends them to the trial coordinator. We know for example, it’s going to be a 3-day trial. We know the basic issues. We know that defence counsel has to file a Charter application at least thirty days in advance of the trial or sooner if the judge orders. JPT’s involve very fulsome discussions between the crown, judge and defence counsel usually in the judge’s office. The accused generally does not attend a JPT. If it’s a matter heading to trial by the way, you do not have the judicial pre-trial with the trial judge. You do not want to bias the trial judge based on the fulsome and frank discussions. So that’s a mandatory court rule that the trial judge cannot also conduct the JPT. So it’s a totally separate judge that conducts a JPT. In many cases JPT’s are required to take place, especially with complicated cases. In some cases, we need to have several judicial pre-trials. In complicated cases it often takes a long time to resolve the issues. It takes time; there’s a lot of effort and a lot of thought goes into this process. So that is essentially what a judicial pre-trial for a criminal matter in Ontario.
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