The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

D. Early Resolution Mechanisms

Recommendation Seventeen: Case Management Teams

Where appropriate to the local jurisdiction, the Steering Committee recommends that dedicated case management teams be established within each Crown Attorney's office. Where dedicated teams are not feasible, it is recommended that vertical file management procedures be developed to promote Crown ownership and accountability over files.

  • Early assignment of cases helps ensure both consistency and accountability in the handling of individual files.

  • Not having each Crown counsel be held accountable for the individual criminal files that he or she handles often results in an inefficient use of Crown counsel's time when another Crown counsel has to repeat the identical exercise of becoming familiar with the file before being able to take the necessary action.

  • Each case management team should be designed to ensure that a minimum number of Crown counsel review and make decisions on a particular file.

  • Each case management team will perform the following functions:

    • Bail court (some jurisdictions may not include bail court in the case management team's duties);

    • Screening (including making decisions regarding elections, the appropriateness of the charges for diversion or withdrawal);

    • First appearance court;

    • Crown and judicial pre-trials (including early case resolution);

    • Further disclosure requests;

    • Set date court;

    • Respond to applications returnable in set date court (e.g. disclosure and adjournment applications);

    • Plea court;

    • Confirmation hearings (where counsel and accused appear four or six weeks before the trial and confirm that they are ready to proceed);

    • Ensure that effective communications are maintained with the investigating police officer; and

    • Police and case management coordinator training. 

  • Where case management teams are not appropriate or necessary for a particular jurisdiction, the Steering Committee recommends adopting alternative procedures or best practices that will realize the goal of ensuring consistency and accountability in the handling of cases.

  • The Steering Committee recognizes that consistency and accountability with respect to the management of each file is a joint responsibility of defence counsel, Crown counsel and the judiciary.

Some of the prosecutors consulted on this recommendation found it to be too general, imprecise and unworkable in large intake courts at current resource levels. On the other hand, Quebec prosecutors noted most of their offices (but not Montreal) use the “ poursuite verticale [vertical prosecution] system ” which, in principle, assigns the same prosecutor to every stage in the life of a charge, from authorizing the charge to the appeal. This approach has yielded significant efficiency improvements. Those jurisdictions that have implemented vertical prosecution systems noted that judicial and court services collaboration is critical for the successful continuity of files.

Recommendation Eighteen: Early And Meaningful Charge Screening

The Steering Committee recommends that dedicated Crown case management teams, or their alternatives, screen files in a meaningful way and in accordance with any relevant Ministry policies. It is also recommended that the Crown case management teams, or their alternatives, should ensure the following tasks are completed prior to first appearance court:

  • Bail court (some jurisdictions may not include bail court in the case management team's duties);

  • Ensure vetted defence copy of disclosure is available;

  • Note a specific sentence recommendation for an early guilty plea to be conveyed to the accused at first appearance (subject to change based upon information conveyed by defence, police or victims, or in the event that a plea is not entered at an early stage);

  • Determine necessary witnesses to prove the case for the Crown;

  • Determine files that should be pre-assigned;

  • Determine the proper charges on which to proceed;

  • Determine eligibility for diversion programmes; and

  • Determine the Crown's election.

It is acknowledged that in complex cases more time will be required in order to complete each of these responsibilities. The recommendation enjoyed broad based support during the consultation process. A number of commentators were of the view that cases are frequently “ dragged out ” by disclosure issues and the failure of Crown counsel to advance a clear position on sentence in the event of a guilty plea. A member of the defence bar suggested that over-charging by the police also slows the progress of a case with time and effort being required to negotiate a reduced charge with the Crown.

Recommendation Nineteen: Case Conferences between Crown and Defence Counsel

The Steering Committee recommends that case conferences between counsel for the Crown and defence take place to see if the case can be resolved, the issues narrowed or defined or the need for a judicial pre-trial hearing eliminated.

  • A thorough and meaningful Crown-defence case conference should be held before any judicial pre-trials are scheduled. The Crown and defence counsel involved in these meetings should be well aware of the contents of the file and be in a position to make decisions on the file.

  • At these case conferences, counsel should strive to resolve the case, narrow or define the issues for trial and determine whether a judicial pre-trial would be of benefit.

  • If both Crown and defence counsel are satisfied that a judicial pre-trial will not assist in moving the case forward, the judicial officer may waive the requirement of a judicial pre-trial[34].

Early and meaningful consultation between Crown and defence counsel prior to setting a matter down for trial or preliminary hearing can play an important role in ensuring that the parties determine what can be agreed upon and what can be settled as early in the process as possible.

Recommendation Twenty: Judicial Pre-trials

Judicial pre-trials will be appropriate in the following circumstances:

  • Where mandated by the Criminal Code;

  • Where a judicial officer is of the view that a judicial pre-trial would be of assistance in resolving the case, shortening the length of time required for trial, or otherwise moving the case forward[35];

  • Regardless of the length of time required for trial, judicial pre-trials are recommended after a meaningful Crown-defence case conference where both parties agree that a judicial pre-trial would assist in moving the case forward; and

  • When necessary in the context of preliminary hearings to assist the parties in determining the witnesses required and issues to be dealt at the preliminary inquiry.

Judicial pre-trials take different forms across the country. In some jurisdictions, they only address procedural matters while in other jurisdictions both procedural and substantive issues are addressed at the judicial pre-trial. They should be scheduled at a time convenient to both the defence and to the case management Crown with carriage of the case where feasible. To obtain maximum benefit from a judicial pre-trial, the judge who conducts the pre-trial should not be the trial judge. In order for judicial pre-trials to be meaningful, sufficient time should be allocated for each individual pre-trial to canvass relevant issues and accommodate guilty pleas in special circumstances. It is also important that the pre-trial be confidential. Pre-trial meetings, with or without a judge present, are only effective if both counsel attend with specific goals and objectives. Meeting for the sake of meeting is counter productive. Counsel must attend with a view to resolve the case, narrow and define the issues, or otherwise move the case forward. The meeting must have a concrete purpose.

A number of commentators expressed concern about the lack of any mention of judicial responsibility for case management in the recommendation and, in particular, the need for judges to hold counsel to existing rules of court or practice directions imposing deadlines. The absence of any reference to the obligation on counsel to give timely notice of Charter and other motions was seen as particularly problematic. However, one commentator objected to being “ forced ” to meet with a judge and found the tenor of the recommendation incompatible with the adversarial nature of our criminal justice system. There was general agreement that a judicial pre-trial system will only be effective if the parties voluntarily enter into resolutions and agreements. The pre-trial judge has an obligation to see if he or she can “ get the parties together ” but not to impose a resolution or agreement by coercion.

Recommendation Twenty-One: Judicial Pre-trial Assignments

The skills that make an effective trial judge are not necessarily the same skills that make an effective pre-trial resolution judge. Judges interested in broadening their early resolution skills should be encouraged to do so.

  • While the Steering Committee recognizes that the judiciary in Canada is highly qualified and able, not every judge may be suited to or interested in conducting pre-trial conferences.

  • The National Judicial Institute offers excellent courses for judges interested in broadening their skills in this area.

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