B. Pre-trial Motions and Conferences

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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1) Timing and Means

Authority over pre-trial motions and conferences is not set out as clearly in Canadian law as one might wish. Potential ambiguity arises even

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with the concept of what counts as "pre-trial." The Supreme Court has held on a number of occasions that the phrases "charged with an of-fence" and "commencement of trial" do not have fixed meanings, and will be adjusted to suit particular contexts.

In R. v. Chabot, for example, the Court found the key transition point to be when an indictment was "lodged with the trial court at the opening of the accused’s trial, with a court ready to proceed with the trial."19In R. v. Kalanj, in contrast, the Court notes that the word "charged" has no precise meaning in law, and could reasonably range from being told that one will be charged with an offence to being called upon to plead in court.20In the context of the section 11(b) right to trial within a reasonable time the Court rejected the Chabot position, holding instead that a person is "charged" for section 11 purposes when an information is sworn or a direct indictment is laid.21Similarly, in Basarabas and Spek v. the Queen the Court noted that the time of commencement of a jury trial will vary depending on which Code section is being considered and what interests are at stake.22For example, in dealing with an accused’s right to be present for trial, the Court has considered jury selection to be part of the trial,23but in dealing with the power to replace a juror, the Court has held that the trial does not commence until the accused is placed in the charge of the jury.24In the context of pre-trial motions, the Court has held that only the trial judge should hear applications to sever counts. In reference to the Chabot case in R. v. Litchfield,25the Court held that only the trial judge has jurisdiction to issue severance orders. However, the Court noted that as long as a trial judge has been assigned, there is no need to wait until the actual trial date to bring the application. Section 645(5) of the Code specifically authorizes a trial judge in a jury trial, before the jury has been selected, to deal with any matter that would be dealt with in the absence of the jury. The Court notes that a similar power "was always open to a trial judge in a case of trial by judge alone to hear pre-

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trial motions before preparing to hear evidence."26It is likely that the Litchfield ruling, regarding the inability of anyone but the trial judge to hear motions concerning severance, applies to pre-trial motions generally. In this context, it is noteworthy that, for Charter motions, a preliminary inquiry judge is not a "court of competent jurisdiction" for the purposes of granting the remedy of excluding evidence under section 24(2).27However, given the Court’s acknowledgment that different considerations apply in different contexts, it is possible that some motions could be permitted at an earlier time or in front of someone other than the trial judge,28or, alternatively, that some motions may not be permitted until the trial proper is about to commence.

This is a particular area of the law that would benefit from rationalization. Some pre-trial motions are specifically permitted in the Code, for example: applications for change of venue,29for particulars,30for exclusion of the public from trial or a publication ban,31or to sever counts.32Other pre-trial motions are not specifically provided for in the Code. For examples, see the general power to hear such motions in non-jury trials referred to above in Litchfield, or pre-trial motions for relief under the Charter. The latter, among the most significant pre-trial motions made in courts, are subject to rules of court in some jurisdictions, but not to a statutory scheme.33Some applications can be made to preliminary inquiry judges,34and some cannot.35The timing for various applications differs and is sometimes based on wording that does not

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clearly indicate Parliament’s intent (as noted above).36Calls for reform of this area have been made.37A further forum in which matters can be discussed pre-trial is through a pre-hearing conference. Section 625.1 of the Code permits such hearings: "to consider matters that to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matters, and to make arrangements for decisions on those matters."38Such conferences are mandatory in the case of jury trials.39Pre-hearing conferences provide an opportunity for the parties and the court to see whether an agreement can be reached on issues that will expedite the trial. The conference gives the judge a chance to determine, for example, whether the voluntariness of statements will be admitted, whether identity will be an issue, or whether continuity of exhibits will be challenged.40

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However, in contrast to pre-trial motions, pre-hearing conferences are not intended to determine matters: "s. 625.1 does not bind either the Crown or defence to a particular position."41Thus, for example, a Crown prosecutor might indicate at a pre-hearing conference a lack of intention to use a statement given by the accused, but then at trial seek to introduce the statement. Provided that on the particular facts there is no threat to the accused’s fair trial right (for example, that the accused has not chosen a jury trial relying on the fact that the statement would not be tendered), the prosecutor is entitled to change strategy despite representations made at the pre-hearing conference.42Similarly, a Crown prosecutor can decide after a pre-hearing conference on a joint indictment to file separate indictments against each accused.43The defence is also not bound by representations made at a pre-hearing conference, and can, for example, indicate at a conference that the issue in a sexual assault trial will be consent, but then argue at trial that no sexual relations occurred.44Similarly, because the pre-hearing conference is held on a without prejudice basis, indicating an intent to request a transfer hearing to youth court during the conference does not constitute an application.45

2) Particular Pre-trial Motions

Pre-trial motions can cover a wide variety of topics, and so the details of each will not be dealt with here. The substantive issues relevant to an application challenging the form of an indictment, or seeking a publication ban, can be found in Chapter 11. Similarly, pre-trial applications dealing with Charter issues, such as search and seizure issues or motions regarding disclosure, are dealt with in the chapters that correspond to those topics. However, some pre-trial motions will be discussed at greater length here, in particular applications for change of venue, applications regarding fitness to stand trial, and Charter applications regarding the right to a trial within a reasonable time.

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a) Change of Venue

At common law, trials are to be held in the area in which the offence occurred. Trial judges typically have jurisdiction throughout the province in which they are appointed, and the only real territorial limitation is that courts should not hear trials of offences committed entirely in another province.46Nonetheless, the practice continues to be that trials are held in the area where they occurred, on the basis that this approach serves the interests of both the accused and the community.47In some circumstances, however, it is possible to apply to change the venue in which the trial will be held, in accordance with section 599 of the Code. That section allows either the defence or the Crown to apply for a change of venue on the grounds that "(a) it appears expedient to the ends of justice; or (b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held."48As a practical matter, change of venue applications in fact turn on whether pre-trial publicity has made it too difficult for an accused to obtain a fair trial without one.49The essential issue is whether there is strong evidence of a general prejudicial attitude in the community as a whole.50In addition, that prejudice must not be capable of being cured by safeguards in jury selection, by instructions from the trial judge to the jury panel, or by the rules of evidence.51Because the remedy is discretionary, the judge hearing the application must consider all relevant factors.

The existence of the challenge for cause process, for example, and the ability in some circumstances to question jurors to determine whether pre-trial publicity has affected their ability to be impartial, has

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been relied on to dismiss change of venue applications.52Indeed, in cases where pre-trial publicity has been province-wide, it has been held that leaving the trial in a larger centre and using the challenge for cause process is more likely to protect the accused’s rights than changing the venue to a smaller centre.53The date of the media coverage will also be relevant (prejudicial publicity from a year prior might not justify a change in venue).54In R. v. Eng the British Columbia Court of Appeal upheld a decision not to change venues on a re-trial, even though a change of venue had been allowed on the original trial, on the basis that the passage of time had mended any prejudice caused by the media coverage.55Further, a change of venue will not be granted if the source of prejudice is the information to come out at trial, rather than the fact of pre-trial publicity: "where the real potential for prejudice lies in the evidence which the jury eventually selected to try the case will hear, a change of venue does not assist in protecting an accused’s right to a fair...

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