F. Powers of the Court

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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A trial judge has a variety of powers to control the process in the courtroom. Many of these arise at statute, though some come from the common law. In addition, section 482 of the Code permits superior courts to make rules of court, which can govern, among other things, matters regarding the pleading, practice, and procedure at trial. Such rules, of course, must not be inconsistent with the Criminal Code.

1) Control over the Court Process

A trial judge has fairly significant discretion over how a trial is run, including the ability to curtail cross-examination, to prevent irrelevant or harassing questions, and to ask questions of witnesses. However, these powers must be exercised with caution and can be taken too far. Ultimately, such interventions can violate an accused’s right to a fair trial. The test is not whether the accused was actually prejudiced, but

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"whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial."259The Code gives judges the power to grant adjournments during trials or other proceedings.260At one time the rules concerning adjournments, and particularly the issue of whether a court lost jurisdiction over the accused or the offence by failing to proceed properly, were quite complex. Further, the Code formerly contained a provision preventing any adjournment of more than eight days without the accused’s consent. Now, however, section 485 specifically preserves the court’s jurisdiction over an accused despite a failure to comply with any of the Code’s provisions concerning adjournments or remands. Indeed, subsequent to a decision that found the predecessor of section 485 to not preserve a court’s jurisdiction where it adjourned a case but failed to proceed on the set date,261the provision now more broadly preserves the court’s jurisdiction despite a failure "to act in the exercise of that jurisdiction." Where a court does lose jurisdiction over an accused, it can regain it by issuing a summons or warrant for the accused within three months. However, if this is not done, the proceedings are considered dismissed for want of prosecution and the Crown cannot lay new charges without the personal consent in writing of the attorney general or deputy attorney general.262Whether to grant an adjournment in any given case is a discretionary decision which depends on the facts. One common situation is an unrepresented accused seeking an adjournment in order to obtain counsel. Relevant facts in that situation are whether there have been previous adjournments for the same reason, whether the accused was warned that trial would proceed with or without counsel, the accused’s degree of familiarity with the legal system, the complexity of the charges and the likelihood that he can receive a fair trial without counsel, the public interest in the orderly and expeditious administration of justice, and whether the accused was refused legal aid. An adjournment should be granted if the accused has been diligent and the lack of counsel is not her fault, but not if the request is an attempt to delay proceedings.263More generally, where a party ought to have been able to avoid the need for an adjournment by acting more expeditiously, it is likely

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not to be granted.264A trial judge also has some discretion around the circumstances in which evidence will be heard. The judge can decide to exclude any or all members of the public from all or part of the trial. This power can be used where it is "in the interest of public morals, the maintenance of order or the proper administration of justice."265The

Code specifically notes that the "proper administration of justice" includes ensuring the interests of witnesses under the age of eighteen in sexual assault trials and of justice system participants.266A trial judge who does not grant a request for exclusion in a sexual offence case must give reasons for not having done so.267This power conflicts with the principle that court proceedings should be open, which is one of the hallmarks of a democratic society, and can also conflict with freedom of the press since it might prevent journalists from being present for and reporting on some portion of a trial. The Court has held that the provision therefore violates section 2(b) of the Charter, but nonetheless is saved as a reasonable limit, provided the discretion to use the section is exercised properly. Accordingly, the Court held:

(a) the judge must consider the available options and consider whether there are any other reasonable and effective alternatives available;

(b) the judge must consider whether the order is limited as much as possible; and

(c) the judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate.268The burden is on the person seeking the exclusion to provide a sufficient factual foundation, and to show that the particular order is neces-

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sary, that it is as limited as possible, and that the salutary effects of the order are proportionate to its deleterious effects.

Some sections of the Code give a judge authority over the manner in which witnesses will testify. Section 486.1 of the Code provides for the possibility of a witness having a support person present while testifying. Section 486.2 allows a witness to testify from outside the courtroom or from behind a screen or other device that prevents the witness from seeing the accused. Each of these methods can be ordered for any witness where the trial judge feels it is necessary in order to obtain a full and candid account from the witness.269However, in the case of a witness under the age of eighteen, or a witness with a mental or physical disability that interferes with their ability to communicate evidence, the order is presumptively available. In those cases, the trial judge "shall" grant the application unless the order would interfere with the proper administration of justice.270

Where a support person is ordered, the judge can order that that person and the witness not communicate during the witness’ testimony.271Another witness cannot be the support person unless that is necessary for the proper administration of justice.272

The use of a screen is only designed to avoid a face-to-face confrontation between the witness and the accused; the screen allows the witness not to see the accused, but the accused is still able to see the witness.273The trial judge has substantial latitude in ordering this procedure, which has been found not to violate the Charter.274

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A judge also has a great deal of general discretion in the course of the trial, from intervening to ask questions personally to expressing opinions on the facts. Further, a judge has a trial management power which includes:

the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called.275An overriding rule, however, is that the trial judge’s behaviour must not create a reasonable apprehension of bias. Rudeness on the part of a judge to either the Crown or the defence may or may not cross the threshold, and the fact that the rudeness was equally distributed may or may not help prevent a reasonable apprehension of bias.276A judge who expresses an opinion on whether the accused has presented any defence while the Crown decides whether to cross-examine, might be seen as making the trial proceed expeditiously.277A judge can ask questions of the accused or other witnesses without creating a reasonable apprehension of bias, but, in some cases, a judge can carry this too far and a new trial will be necessary.278Whether this will be so very much depends on the facts of the individual case.

2) Publication Bans

A trial judge has the ability, in various circumstances, to order a publication ban. Such bans should be seen as exceptional, since they prevent public knowledge of court proceedings, and therefore are in conflict with the open court principle. The Court has described the open court

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principle as a "hallmark of a democratic society" and a "cornerstone of the common law,"279but, nonetheless, in certain circumstances publication bans are permitted. Most of these bans have a statutory base, although there is also a common law ability to issue publication bans.

Most noteworthy is the ban outlined in section 486.4, which allows a judge to ban the publication of any information that would identify the complainant or a witness in a trial for a variety of listed sexual offences. A trial judge is required to inform any witness under eighteen and the complainant of the right to make such an application, and where one of those persons or the prosecutor applies, the judge is required to order the ban. An earlier version of this provision was upheld under the Charter on the basis that, although the provision violated freedom of the press, it was saved under section 1.280It is also of note that at the time, only prosecutors and complainants could make applications under the section. The Court’s reasoning focused on the need to encourage victims of sexual assault to report the crime both in finding that there was a sufficiently important objective and in determining whether the provision was minimally impairing. Indeed, the Court specifically noted that it was not deciding whether the section would survive a Charter...

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