The Docket – Disclosure and Judicial Pre-Trial by Jeff D. Bogaerts, Paralegal

Published October 1, 2017

So far you have had your first not-guilty court appearance, requested Disclosure in court, put the request for Disclosure on the record, requested Disclosure from the prosecution and have either filled out a form requesting Disclosure or sent a letter to the prosecutor requesting Disclosure. Requesting disclosure is now done. Not that Disclosure is complete, but you have started the process of asking for Disclosure. As you can see Disclosure is a very big deal. It is the evidence against you. After receiving Disclosure, you called the prosecution and arranged to have either a Counsel Pre-trial (“CPT”) over the phone or a face to face. Refer to the previous article in this series for more details on CPT.

Now we move on to the Judicial Pre-Trial (“JPT”). There are specific rules for the JPT and I will provide a link for further readings from the web site of the Attorney General that will guide you. Be prepared for lots of reading.

JPT’s are not recorded in the same sense as that of a trial or an appearance in court. There is no transcript. The justice that presides over the JPT will not be the justice that hears the trial. This would be considered a bias. Topics and evidence are discussed in the JPT that would not necessarily be allowed during trial. The JPT can become quite feisty at times between prosecution and defence causing the justice to act as a referee. The justice can also make recommendations to both sides or to either side as to the strength and weakness of the case presented. The justice can assist in brokering “a deal” to the benefit of both sides. Cost reductions to the accused and the public, guilty pleas with reasonable fines or time in the hoosegow or both, throwing the case out altogether based on poor evidence by the prosecution.

To conduct a JPT there are rules to follow. Although the JPT is an informal event, it does have a structure that must be followed. The more serious the crime the more involved and formal the JPT will become. There may be more than one JPT meeting, again depending on how serious the crime, the issues, evidence, attempts to narrow the focus of the offence and the evidence to be presented.

Since we are not dealing with serious offences I will keep to a JPT that may involve simple offences related to by-laws, building permits, conservation authority, MNRF, MOE, Labour, HTA and so on. Offences that are not criminal and known as a quasi-criminal matter under the POA (provincial offences act).

Know the rules of procedure in all things, which is easier said than done. Remember this after you have worn out several pairs of glasses in your readings. When it gets too much at times, just stop, have a nice hot cup of tea and a slice of pie. After tea and pie, the world is a much better place and you can return to grinding through the process with vigour and resolve.

Not every case requires a JPT. JPT’s are typically held where the trial will be at least 4 hours or more in time, where the local Regional Justice has decided that cases that fall into specific categories, where a person is self-represented or represented by a non-licenced agent and is requesting a trial date or any other case directed by a Regional Senior Judge.

This all falls under the Ontario Courts of Justice Act, Rule 4.2, judicial pre-trial conference.

Some judicial regions of the province hold weekly JPT’s where one day is scheduled to do nothing but JPT’s. I have had JPT’s where they are scheduled every 2 months because the volume of cases going to trial is low.

Be prepared for your JPT. Typically, JPT’s are less than an hour. The longest I have been in is 5 hours. However, very good work was done by all parties in a complicated case and the Justice was working hard for a resolution that would remove a 3 to 5-day trial. There were issues on both sides where there was no clear winner.

What are some of the issues that need to be discussed in the JPT?

1. Are there any Disclosures issues?
2. Motions for more Disclosure?
3. Charter Rights issues and applications to be argued.
4. How many expected days for trial?
5. How many witnesses for both sides?
6. Are there any expert witnesses?
7. If expert witnesses, are there expert reports to be filed.

The crown and the defence attend the JPT. However, others may appear with the approval of the justice presiding. All parties attending must have the authority and be able to make binding decisions.

Materials should be filed at the court where the JPT will be held so that the Justice presiding can read ahead of time what the case is and the overall issues. Some courts have JPT forms to fill out. Contact the local court of further guidance.

For example, the prosecution should give the pre-trial judge a synopsis of the case, a copy of the information, copies of warrants that may have need executed past record for the accused and so on.

The JPT is a closed-door meeting. No recording, no public or reporters, no witnesses and may not be held in a courtroom but in a conference room.

The Justice takes a neutral position and attempts to guide the parties through the JPT process and find a resolution in the case if possible. The Justice can also make recommendations and usually does in the case.

Additional JPT’s may be required to continue the process towards resolution.

If a trial is still going to be scheduled then a trial confirmation date is set. Usually 4 to 6 weeks before trials to determine if there have been any changes. After this court appearance, you are now into trial.

Next, we will look at motions and charter issues before trial.

http://www.ontariocourts.ca/ocj/legal-professionals/practice-directions/criminal-pre-trial/

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