Judicial Pre-Trials

One of the important things when a client retains us, is that they understand all of the steps in a criminal proceeding., and in many of my videos, I have broken down these steps from start to finish. What happens step by step, and one of the important steps is what’s called a judicial pre-trial.  And I am going to explain exactly what that means. Because it’s one of the most important steps to take on a file, you don’t need a judicial pretrial in every file, but I would say in most files, you do.  What a judicial pre-trial is, it is simply a meeting with a judge. Now the defence counsel meets with a Judge, and the Crown Attorney and the judge in their office, or in chambers.  And there’s different types of judicial pre-trials , and sometimes they are combined within the same judicial pre-trial , but one type, is when you are there to get a deal approved that you worked out with the Crown or get the judge’s input about what they would give on a particular sentence. So let’s say you are pleading guilty to a domestic assault, and there’s some injuries and the crown is seeking ninety days in jail, and you think the sentenced shouldn’t be more than thirty days, so you can go in front of the judge in chambers, the judge could review the file completely, the synopsis, review all your facts with you and you would review your client’s background, and the Crown would make their argument for ninety days and you would make your argument for thirty, and the judge might say, listen, I will keep an open mind at the guilty plea, I haven’t decided, or you know what, Mr. Kruse, I like your thirty days better,  that’s reasonable, Crown you are being too harsh, this is a lower level assault, that requires jail, or they pick the Crown’s lane, or they go in between, or they encourage the parties to reach a join submission in between somehow.  So that’s one of the purposes, to try and resolve cases with a fair sentence, so your client has certainty, so they know what they are going to be facing, and you are not happy with the Crown’s position.  For example, you think the Crown’s position is too harsh. Or another purpose of a judicial pretrial is that the Crown and you have agreed on a sentence, you can go meet with the judge in chambers to see if they agree.  Normally judges go along with joint submissions, and sometimes you don’t even need that judicial pre-trial, so you know they are going to prove it, but there are very delicate cases, where perhaps the Crown had a weak case, and they decided to go way down in their position because of that, that needs to be explained to the judge ahead of time in my mind, and if we get approval, then the client is very happy, we have certainty, we are not going into this guilty plea with all of this risk.  So that’s one purpose to try and resolve cases and get the judge’s view point.  The other very key purpose, again, which sometime, happens within the same meeting, in case you are going to go to trial, is to manage trial time, we have a limited amount of judicial resources and courtrooms in Ontario,  so we would have to be very careful about, not over booking trial time, and utilizing resources properly, so whether it’s in the Ontario Court of Justice or the Superior Court of Justice, Crown and defence counsel will go into chambers, and completely review all aspects of the trial, and figure out how many witnesses are being called, what the basic legal issues are, trying to figure out how much court time to take up frankly, and we come up with a proper trial estimate. In the Superior Court, we will have to fill out extensive forms, which are very involved like twenty page forms, which the judge reviews, we don’t’ have to do that in this stage at the Ontario Court of Justice, although we may be heading there at some point in the future, but it’s a real important thing and you know, we need to get this right, the judge with their experience, defence counsel, Crown, we put our heads together, figure out trial time, it’s a bit of art form, it’s not a science, but we are pretty good at estimating trial time, whether it’s a one, two, three, four, week, day trial or month long trial. But, the science is not perfect,  the judge has great input in their experience, and we try to narrow trial issues too, we might get some admissions there, and figure out, and sometimes the judge encourages people to resolve the case, they might say to the Crown, look your case is real weak. You’ve got it all wrong, or they might say to the defence counsel, you’re all wet, your Charter application is not good, I don’t think the judge is going to acquit here. Now that judge at the judicial pre-trial, is never the trial judge, because that’s an open/closed discussion, there has to be an unbiased mind from the new trial judge. But that judge at the pre-trial, can do the guilty plea. So they’ll let you know, yeah, your thirty days are fine or go with the Crown, we’ll go with the ninety days. So that in a nutshell a judicial pre-trial is. It’s in closed doors, in chambers, the client is not present. But you are fully instructed by the client and you pick a lane, you are headed to trial or you are trying to resolve your case.