Role of the Trial Judge

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2022. (Rev. # 96012)

General Principles

See also: Role of the Defence Counsel

An accused person is entitled to a Constitutional right to an impartial trier-of-fact.[1]

A trial judge has a duty to ensure that the trial is fair and there are no miscarriage of justice.[2]

The trial judge is more than just an umpire but "is not to enter the arena and appear to take on the role of an advocate."[3]

Adversarial System

Our criminal justice system is on that is "essentially adversarial" where the Crown presents evidence of guilt and the accused points out weaknesses in the evidence and presents contrary evidence. The trier of fact is a neutral arbiter of the dispute.[4] For this reason, it is improper for the judge to usurp the role of counsel in an inquisitorial manner.[5]

The role of the judge in an adversarial process is to "listen to the testimony, assess all the evidence, make assessments of credibility and findings of fact, apply the law to the facts and make an ultimate determination on the merits, keeping in mind throughout the applicable burdens of proof."[6] The judge is also expected to "ensure the proceedings are conducted fairly, properly and according to law, which include the rules governing procedure."[7]

Presumed to Know the Law

Trial judges are presumed to know the elementary principles of law.[8] It is not necessary that a judge cite the leading authorities, it is only necessary that the legal principles be applied properly.[9]

Inherent Jurisdiction

The court's inherent jurisdiction is limited by its role within the system of separate branches of government.[10]

Duty to Raise Issues

A trial judge has a duty to "conduct [a] trial judicially quite apart from the lapses of counsel."[11] This may include a duty to conduct a voir dire on issues such as voluntariness absent the request of counsel.[12]

Duty of Restraint

A judge has a duty of restraint during their court work as well as in their personal life.[13] It is a guarantee of judicial independence or impartiality.[14]

Judges are required to be "shielded from tumult and controversy that may taint the perception of impartiality."[15]

Duty of Technological Competency

It has been suggested that courts and counsel have a duty of "technological competency."[16]

ex mero motu

The doctrine of "ex mero motu" ("of one's own accord") has traditionally permitted a judge to intervene on its own motion in proceedings by making rules or issuing orders so as to prevent an injustice.[17] This authority has been used to amend charges to conform with the evidence.[18]

History

Currently, Justices of superior courts are required to retire at the age of 75. Prior to a 1960 amendment to the British North America Act, superior court justices had lifetime tenure.

  1. ↑ See s. 11(d) of the Charter which is the right "...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"
    See also R v Valente, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, (1985), 23 CCC (3d) 193, per Le Dain J
    Judicial Immunity
  2. ↑ see R v Harris, 2009 SKCA 96 (CanLII), 331 Sask R 283, per Richards JA, at para 28
    R v Amell, 2013 SKCA 48 (CanLII), 414 Sask R 152, per Lane JA, at para 25
  3. ↑ R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 69 to 72
    R v Griffith, 2013 ONCA 510 (CanLII), 309 OAC 159, per Rosenberg JA, at para 25
  4. ↑ R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per McLachlin J (in dissent), at para ?
  5. ↑ R v Corbett, 2009 ABQB 619 (CanLII), 485 AR 349, per Ross J, at para 46
  6. ↑ Despres v MacDonald Crane Service Ltd. et al, 2018 NBCA 13 (CanLII), per Richard JA, at para 67
  7. ↑ Despres, ibid., at para 67
  8. ↑ R v Burns, 1994 CanLII 127 (SCC), [1994] 1 SCR 656, per McLachlin J
  9. ↑ R v Al-Rawi, 2021 NSCA 86 (CanLII), per Bourgeois JA, at para 92
  10. ↑ Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J, at paras 28, 30, 38
  11. ↑ R v Piamonte, 2017 ONSC 2666 (CanLII), per Johnston J, at para 9
    R v Sweezey, 1974 CanLII 1427 (ON CA), 20 CCC (2d) 400 (OCA), per Martin JA
  12. ↑ Piamonte, ibid., at para 9
    See also Voluntariness
  13. ↑ Ruffo v Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 SCR 267, per Gonthier J
  14. ↑ Ruffo, ibid.
  15. ↑ Ruffo, ibid.
  16. ↑ WORSOFF v MTCC 1168, 2021 ONSC 6493 (CanLII), per Myers J, at para 32
  17. ↑ R v Powell, 1965 CanLII 671 (BC CA), 4 CCC 349, per Bull JA (2:1)
    R v Spilchen, 2021 NSSC 131 (CanLII), per Coady J
  18. ↑ Spilchen, ibid. Powell, ibid.
    R v Clark, 1974 ALTASCAD 59 (CanLII), 19 CCC 445, per Clehent JA

Right of Parties to be Heard

There is a fundamental tenant that all parties affected by a decision shall be given an opportunity to be heard by the court before the court makes a ruling. This is the principle of audi alteram partem .[1] The right to be heard also provides a person "the right to know the case to be met."[2]

The judge has an obligation to allow each party who may be affected by a ruling to be permitted to respond to the case against them.[3]

A failure to afford each side to present argument before a judgment is a denial of that right will violate procedural fairness and is fatal.[4]

This right is protected by s. 7 and 11(d) of the Charter as well as s. 802(1) of the Code.[5]

The right is not unqualified. A declaration of a party as a "vexatious litigant" has the effect of removing this right. Accordingly, it is only used sparingly.[6]

Related to this principle is the common law rule that "a person cannot be deprived of his liberty or property without notice."[7]

Refusal to consider an evidentiary objection is an improper refusal to assume jurisdiction that affects trial fairness.[8]

The right is not an unlimited right to oral or in-person hearings before the decision-maker.[9]

Often the right can be satisfied by providing parties to make written submissions only.[10]

  1. ↑ R v Gustavson, 2005 BCCA 32 (CanLII), 193 CCC (3d) 545, per Prowse JA at 64
    See also Moreau‑Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] 1 SCR 249, per Arbour J, at para 75
    Canadian Union of Public Employees, Local 301 v Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 SCR 793, per L’Heureux-Dubé J, at para 73 - refereed to as the rule that “no man be condemned unheard"
    A(LL) v B(A), 1995 CanLII 52 (SCC), [1995] 4 SCR 536, per L'Heureux‑Dubé J, at para. 27
  2. ↑ Devon Canada Corp. v Alberta (Energy and Utilities Board), 2003 ABCA 167 (CanLII), AJ No 622, per McFadyen JA, at para 19
  3. ↑ Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, per McLachlin CJ, at para 53 ("a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case")
  4. ↑ R v Berry, 2014 ABQB 379 (CanLII), per Ross J, at para 7
    R v Graham, 2007 ABCA 153 (CanLII), 404 AR 300, per Ritter JA, at paras 11 to 12
    Fraser v Fraser, 1994 ABCA 275 (CanLII), (1994) 157 AR 98 (CA), per curiam, at para 10
    R v MacLean, 1991 CanLII 2526 (NS CA), (1991), 106 N.S.R. (2d) 213, per Chipman JA, at para 5 ("In our opinion, it is incumbent upon a trial judge to give a party appearing before him an opportunity to present argument before making a decision on any issue. In particular, a party must be allowed to make submissions at the close of the evidence. ...")
    R v Aucoin, 1979 CanLII 29 (SCC), [1979] 1 SCR 554, per Laskin CJ
  5. ↑ MacLean, supra at para 5 "(In the context of a criminal case, these rights are among those guaranteed to an accused as a component of fundamental justice under s. 7 of the Charter, and more particularly by s. 11(d) thereof, and by s. 802(1) of the Criminal Code.")
  6. ↑ Kallaba v Bylykbashi, 2006 CanLII 3953 (ON CA), 207 OAC 60, per Cronk and Juriansz JA, at para 31
  7. ↑ R v Marton, 2016 ONSC 2269 (CanLII), per Cronk and Juriansz JJA, at para 25
    R v Buchholz, 1958 CanLII 435 (MB CA), 121 CCC 293, per Adamson CJ, at para 8
  8. ↑ R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J at 1449 citing R v Dersch, 1987 CanLII 155 (BC CA), 36 CCC (3d) 435, per Esson JA
  9. ↑ R v Agengo, 2011 ABQB 430 (CanLII), at para 15 ("...the principle of natural justice and specifically the audi alteram partem rule has no absolute requirement of according persons entitled to its benefit an oral or in‑person hearing before the ultimate decision‑maker...")
    Hoffman‑La Roche Ltd v Delmar Chemicals Ltd, 1965 CanLII 57 (SCC), [1965] SCR 575, per Martland J, at para 23, 50 DLR (2d) 607(complete citation pending)
  10. ↑ Agengo, supra at para 15 ("...it is recognized by the courts that frequently, the requirement to give a hearing is satisfied by providing an opportunity to make written submissions..")
    National Aviation Consultants Ltd v Starline Aviation Ltd, 1973 CanLII 2294 (FCA), [1973] FC 571 per Thrulow J at para 13

Rules of Court

See also: Case Management and Rules of Court

Under s. 482(1) and (2), a superior court and provincial have the power to make rules governing criminal proceedings.

Under s. 482.1, the courts also have the power to make rules with respect to case management.[1]

  1. ↑ See also Case Management

Hearing Evidence at Trial

Must Consider All Admissible Evidence

A trial judge must consider all evidence relating to the issue of innocence or guilt.[1] Failure to do so is an error of law.[2]

However, there is no requirement that the judge "record all or any specific part of the process of deliberation on the facts."[3] A failure to record facts does not give rise to an error unless the judge's reasons demonstrate that not all the facts were considered.[4]

When considering evidence on a multi-count indictment, the judge just give separate consideration to a verdict on each count.[5]

Exposure to Inadmissible Evidence

Judges are regularly required to decide on whether it is properly admissible or not and disregard inadmissible evidence they are exposed to. It will not generally create an apprehension of bias. [6]

Considering Theories of Counsel

Subject to "due process concerns", there is no prohibition on the trial judge making findings of guilt on a theory that has not been advanced by the Crown.[7] However, where a judge relies on a theory that has not been argued, fairness requires that the defence be given an opportunity to respond to the avenue of conviction.[8]

  1. ↑ R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286, per Sopinka J at 296 (SCR)
    R v DLW, 2013 BCSC 1327 (CanLII), BCJ No 1620, per Romilly J, at para 3
  2. ↑ Morin, supra, at p. 296 (SCR)
  3. ↑ Morin, supra, at p. 296
    R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438, per Moldaver J, at para 46
  4. ↑ Morin, supra, at p. 296
    Walle, supra, at para 46
  5. ↑ R v Howe, 2005 CanLII 253 (ON CA), 192 CCC (3d) 480, per Doherty JA, at para 44
  6. ↑ R v SS, 2005 CanLII 791 (ON CA), per curiam, at para 3
    R v Novak, 1995 CanLII 2024 (BC CA), 27 WCB (2d) 295, per Prowse JA, at para 8
    See Reasonable Apprehension of Bias
  7. ↑ R v Dagenais, 2018 ONCA 63 (CanLII), per McCombs JA (ad hoc), at para 55 ("It is well-established that, subject to due process concerns, a conviction may be founded on a theory of liability that has not been advanced by the Crown, provided that theory is available on the evidence")
    R v Pickton, 2010 SCC 32 (CanLII), [2010] 2 SCR 198, per Charron J, at paras 19 to 21
    R v Khawaja, 2010 ONCA 862 (CanLII), 273 CCC (3d) 415, per curiam, at paras 143 to 145
    R v Ranger, 2003 CanLII 32900 (ON CA), 178 CCC (3d) 375, per Charron JA, at paras 34 to 35
    R v Groot, 1998 CanLII 2151 (ON CA), 129 CCC (3d) 293, 41 O.R. (3d) 280 (C.A.), per McMurtry CJ, at para 25
    R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA
  8. ↑ R v RH, 2022 ONCA 69 (CanLII), per Nordheimer JA, at para 20

Limiting Evidence

The judge is required to listen to evidence that "advances the work of the court". He or she cannot be required to listen to irrelevant or pointless evidence.[1] The judge may even disallow the submission of non-relevant evidence.[2]

The judge has an obligation to track the admission of evidence to ensure that the record is restricted to what is admissible, and also that it is only used for the purpose for which it was admitted.[3]

The judge has the jurisdiction to edit the evidence, including written statements and oral testimony, as it is given. The judge may edit out portions of the evidence that is prejudicial or otherwise irrelevant or immaterial only so long as it does not distort the probative evidence.[4]

  1. ↑ R v Malmo-Levin, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ
  2. ↑ R v Schneider, 2004 NSCA 99 (CanLII), 188 CCC (3d) 137, per curiam
  3. ↑ R v Morrisey, 1995 CanLII 3498 (ON CA), 22 OR (3d) 514, per Doherty JA
    R v Smith, 2011 ONCA 564 (CanLII), 274 CCC (3d) 34, per Epstein JA, at para 59
  4. ↑ R v Dubois, 1986 CanLII 4683 (ON CA), 27 CCC (3d) 325, per Morden JA
    R v Toten, 1993 CanLII 3427 (ON CA), 14 OR (3d) 225, per Doherty JA

Weighing Evidence

See also: Analyzing Testimony

No judge is expected to be a "tabula rasa."[1]

A judge should only be deciding cases on the evidence adduced in the courtroom.[2]

A judge cannot act based only on personal knowledge and familiarity of a matter without more.[3]

A judge may not "detach" a part of the evidence.[4]

  1. ↑ R v JM, 2021 ONCA 150 (CanLII), 154 OR (3d) 401, per Brown JA, at para 48
  2. ↑ , supra, at para 51
  3. ↑ R v Potts, 1982 CanLII 1751 (ON CA), 66 CCC (2d) 219, per Thorton JA at p. 204
    JM, supra, at para 51
  4. ↑ R v Johnson, 2023 ONCA 120 (CanLII), per curiam

Control over Trial Process

A criminal trial court to "control its process" is a fundamental value of the criminal justice system."[1] A judge has "considerable" powers to intervene in a criminal trial to manage the proceedings.[2]

A judge is authorized to make orders "necessary to ensure an orderly trial, without which the administration of justice risks being ...thrown into disrepute."[3]

The jurisdiction over process includes the power to "penalize counsel for ignoring rules or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire."[4] Penalties can include directions to "comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings."[5]

Inappropriate behaviour is not accorded deference.[6]

However, legitimate tactical decisions should be looked at with deference.[7]

Superior Court

A Superior Court Justice has the inherent jurisdiction to eliminate any procedural unfairness that arises during a trial.[8]

The Superior court has inherent jurisdiction to control the disclosure process of a matter before the provincial court.[9]

Provincial Court

The "procedural directions contained in the Code are of necessity exhaustive". The powers of a provincial court judge are "entirely statutory."[10] However, "the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a ‘doctrine of jurisdiction by necessary implication’ when determining the powers of a statutory tribunal.” [11]

The inherent powers of a superior court judge to control the court process is said to be equally available to provincial court judges either expressly by statute or by necessary implication.[12]

Consequently, a provincial court judge has implied jurisdiction to "vary one of its own orders in order to correct clerical mistakes or errors arising from an accidental slip or omission or in order to properly reflect the intention of the court"[13]

Reconsidering Judgements

Generally, a "court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus."[14]

Exclusion of Evidence

There is a limited power of a trial judge to exclude evidence in order to ensure trial fairness where other remedies are not sufficient. However, it is considered an "unusual exercise" of the trial management power. [15]

Prohibition Orders on Defence Conducting their Defence

A judge may limit the examination or cross-examination of witnesses or the right to call defence witness only where it is justified in "clear and compelling circumstances."[16]

Directing Crown Counsel

A trial judge should never direct Crown as to whom they must call to give evidence.[17]

  1. ↑ R v Romanowicz, 1999 CanLII 1315 (ON CA), 138 CCC (3d) 225, per curiam, at para 56
  2. ↑ R v Auclair, 2013 QCCA 671 (CanLII), 302 CCC (3d) 365, per curiam, at para 55
  3. ↑ Auclair, ibid., at para 55
  4. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, at para 58
  5. ↑ Anderson, ibid. at para 58
  6. ↑ Anderson, ibid. at para 59
  7. ↑ Anderson, ibid. at paras 58 and 59
  8. ↑ R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262, per Cory, Iacobucci and Bastarache JJ
  9. ↑ DP v Wagg, 2004 CanLII 39048 (ON CA), 71 OR (3d) 229, per Rosenberg JA
    see Disclosure
  10. ↑ R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597, per Ritchie J
  11. ↑ R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 19
  12. ↑ Doyle, supra ("Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.")
  13. ↑ see R v Rhingo, 1997 CanLII 418 (ON CA), [1997] OJ No 1110, per Charron JA
    R v Robichaud, 2012 NBCA 87 (CanLII), [2012] NBJ No 175 (CA), per Bell JA
  14. ↑ R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J, at para 29
  15. ↑ R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177, per Watt JA
  16. ↑ R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J, at para 18
    R v Schneider, 2004 NSCA 99 (CanLII), 188 CCC (3d) 137, per Cromwell JA
  17. ↑ R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 56 ("...nor do I think that a trial judge should ever order the Crown to produce a witness. If the Crown wished to adopt such a procedure in a given case, however, this would, of course, be within the legitimate exercise of its discretionary authority.")

Judicial Intervention

Reserving Questions for Decision

Trial continuous

645
[omitted (1), (2) and (3)]

Questions reserved for decision

(4) A judge, in any case tried without a jury, may reserve final decision on any question raised at the trial, or any matter raised further to a pre-hearing conference, and the decision, when given, shall be deemed to have been given at the trial.

Questions reserved for decision in a trial with a jury

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) [manner of drawing cards] or (3.1) [power to order calling out names on cards] and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 645(4) and (5)

Exclusion Public from Hearing

Fact Finding

See also: Analyzing Testimony#Findings of Fact

Self-Represented Accused

see Right to Self-Representation

Sitting Position of Accused

Independent Research of the Judge

A judge should not enter "into the fray" by doing self-directed research that puts them in a role of being "advocate, witness and judge."[1]

A judge can only rely on social studies, literature or scientific reports after they have been tested by the parties.[2]

It is not inappropriate to use academic articles merely to outline the generally understood features of evidence already reflected in the commentary and practice, adnd are not outside the general knowledge of judges.[3]

  1. ↑ R v Bornyk, 2015 BCCA 28 (CanLII), 320 CCC (3d) 393, per Saunders JA (3:0) - judge did separate research on finger print evidence and performed own analysis
    R v BMS, 2016 NSCA 35 (CanLII), per curiam (3:0)
  2. ↑ BMS, ibid., at para 17
    R v SDP, 1995 CanLII 8923 (ON CA), 98 CCC (3d) 83, at paras 33, 36
    Cronk v Canadian General Insurance Co, 1995 CanLII 814 (ON CA), , 85 OAC 54, per Lacourciere JA, at paras 47, 49 to 51
    R v Désaulniers, 1994 CanLII 5909 (QC CA), 93 CCC (3d) 371, per Tourigny JA, at paras 21, 23-24, 26-27
  3. ↑ R v Hernandez-Lopez, 2020 BCCA 12 (CanLII), 384 CCC (3d) 119, per Groberman JA
    R v JM, 2021 ONCA 150 (CanLII), 154 OR (3d) 401, per Brown JA, at paras 75 to 76

Judge Bound to Proceedings

Any justice may act before and after trial

790 (1) Nothing in this Act or any other law shall be deemed to require a justice before whom proceedings are commenced or who issues process before or after the trial to be the justice or one of the justices before whom the trial is held.

Two or more justices

(2) Where two or more justices have jurisdiction with respect to proceedings, they shall be present and act together at the trial, but one justice may thereafter do anything that is required or is authorized to be done in connection with the proceedings.
(3) and (4) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 172]
R.S., 1985, c. C-46, s. 790; R.S., 1985, c. 27 (1st Supp.), s. 172.

– CCC (CanLII), (DOJ)

Note up: 790(1) and (2)


Defined terms: "Act" (s. 2) and "justice" (s. 2)

Loss of Judge During Proceedings

Doctrine of Functus Officio

Communications with Counsel Out of Court

Ex parte communications (i.e. communications in absence of one of the parties) concerning an ongoing proceedings should be avoided. It is a rule that relates to the "public perception of fairness within the administration of justice."[1] It also preserves "confidence of the public in the impartiality of the judiciary and thereby in the administration of justice."[2]

Ex parte communications between judge and counsel concerning a case will "almost invariably raise a reasonable apprehension of bias."[3]

"Off the Record" communciations

So called "off the record" conversations between the judge and counsel concerning a criminal proceedings are only permitted insofar as they are efforts to reach an informal resolution on the merits of the case.[4] They should not happen mid-trial in front of the trial judge.[5]

  1. ↑ R v Deleary, 2007 CanLII 71720 (ON SC), 246 CCC (3d) 382, per Templeton J, at para 22
  2. ↑ R v Jones, 1996 CanLII 8006 (ON SC), 107 CCC (3d) 517, per Then J
  3. ↑ Jones and Deleary, ibid.
  4. ↑ R v KJMJ, 2023 NSCA 84 (CanLII), per Bryson JA, at para 47
  5. ↑ KJMJ, ibid.

Maintaining Order

Preserving order in court

484 Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.

R.S., 1985, c. C-46, s. 484; R.S., 1985, c. 27 (1st Supp.), s. 203.

– CCC (CanLII), (DOJ)

Note up: 484


Defined terms: "provincial court judge" (s. 2) and "superior court of criminal jurisdiction" (s. 2)

This section permits a judge to make an order of contempt for:

  • persistent refusal of accused to stand on entry of the presiding judge.[1]
  • the use of recording devices in the court against the order of the judge.[2]
  • the high degree of intoxication of the accused appearing at trial[3]

This section cannot be used to order the mode of dress of counsel.[4]

Ordering Sheriff to Detain Accused

Flowing from the trial management powers, the trial judge as a right and responsibility to control proceedings and control the conduct of those before them. This includes directing the sheriffs to detain, handcuff or otherwise interfere with the accused's liberty where necessary.[5]

  1. ↑ R v Heer, 1982 CanLII 786 (BC SC), 68 CCC (2d) 333, per Andrews J, at para 17
    Re Hawkins, 53 WWR 406, 53 DLR (2d) 453, [1966] 3 CCC 43 (sub nom. R v Hume; Ex parte Hawkins, 1965 CanLII 655 (BC SC), 3 CCC 43, per Branca J
  2. ↑ R v Barker (Burke), 1980 ABCA 75 (CanLII), 53 CCC (2d) 322, per Morrow JA (3:0)
  3. ↑ Heer, supra
  4. ↑ Heer, supra, at para 17
    Samson; Bardon v Carver Prov. J., 1974 CanLII 1292 (NS SC), (1974), 14 NSR (2d) 592, 29 CRNS 129, (sub nom. Re Samson and R.) 18 CCC (2d) 552, 50 DLR (3d) 365, per Hart J
  5. ↑ R v Millar, 2019 BCCA 298 (CanLII), [2020] 1 CTC 182, per Fitch JA, at paras 68 to 70

Misc Powers

The judge does not have the power to order that counsel not communicate with a witness who is not in the middle of testimony. The rules of contempt of court and Professional Conduct are the only limitations on counsel's right to speak with witnesses and clients in court.[1]

Execution of Orders

Under s. 3.1 of the Code, any order made by any type of judge will be effective immediately unless otherwise stated:

Effect of judicial acts

3.1 (1) Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

Clerk of the court

(2) Unless otherwise provided or ordered, if anything is done from the bench by a court, justice or judge and it is reduced to writing, the clerk of the court may sign the writing.

2002, c. 13, s. 2; 2019, c. 25, s. 3

– CCC (CanLII), (DOJ)

Note up: 3.1(1) and (2)

  1. ↑ R v Arsenault, 115 CCC 400 (NBCA)(*no CanLII links)

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Superior Court Inherent Jurisdiction

All Courts that are created by s. 96 of the Constitution Act, 1867 are vested with "inherent jurisdiction" to make orders on matters that are not necessarily authorized by statute.[1]

The doctrine is of an "amorphous nature."[2] And can be used in "an apparently inexhaustible variety of circumstances and may be exercised in different ways."[3]

The doctrine is available as a "residual source of powers" that is available to a judge "whenever it is just or equitable to do so", which includes:[4]

  • ensuring "the observance of due process of law";
  • preventing "improper vexation or oppression";
  • "do justice between the parties" and
  • securing "a fair trial" between the parties.

It can be used to "supplement under-inclusive legislation or to otherwise fill gaps in appropriate circumstances."[5]

This jurisdiction may allow for the superior court to order the funding of costs associated with a matter before the provincial court where the following criteria are met:[6]

  1. the litigation would be unable to proceed if the order were not made;
  2. the claim to be adjudicated is prima facie meritorious;
  3. the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.

In considering these criteria, the justice must be satisifed that the matter is "sufficiently special that it would be contrary to the interests of justice to deny the advance costs application."[7]

Limitations

The doctrine may be limited by statute. It cannot be used in such a way that it contravenes any statutory provision.[8]

It is also limited by "institutional roles and capacities that emerge out of our constitutional framework and values."[9]

It generally should be exercised "sparingly and with caution", such as where "inferior tribunals are powerless to act act and it is essential to avoid an injustice that action be taken."[10]

Examples of Application

A publication ban was ordered by inherent jurisdiction.[11] A publication ban can also be removed by inherent jurisdiction.[12]

A superior court has limited inherent powers to reconsider its own orders, except where the legislation otherwise prohibits reconsideration.[13]

  1. ↑ R v Caron, 2011 SCC 5 (CanLII), [2011] 1 SCR 78, per Binnie J (8:1), at para 21 (These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner".)
    Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J (5:4), at para 18
  2. ↑ Ontario v CLAO, supra, at para 22
  3. ↑ Caron, supra, at para 29
  4. ↑ Ontario v CLAO, supra, at para 20
    Parsons v Ontario, 2015 ONCA 158 (CanLII), 64 CPC (7th) 227, 381 DLR (4th) 667, per Lauwers JA
  5. ↑ CR v Children's Aid Society of Hamilton, 2004 CanLII 34407 (ONSC), 70 OR (3d) 618, per Czutrin J, at para 29
  6. ↑ Caron, supra, at para 39
  7. ↑ Caron, supra, at para 39
  8. ↑ Parsons, supra, at para 71
    Ontario v CLAO, supra, at para 23
  9. ↑ Parsons, supra, at paras 72 to 73
    Ontario v CLAO, supra, at para 24
  10. ↑ Caron, supra, at para 30
  11. ↑ R v Church of Scientology of Toronto, 1986 CarswellOnt 925 (S.C.)(*no CanLII links)
  12. ↑ R v Ireland, 2005 CanLII 45583 (ON SC), 203 CCC (3d) 443, per Del Frate J
  13. ↑ R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J, at para 28 - in context of reconsidering a publication ban under s. 486

Doctrine of Mootness

Under the doctrine of "mootness" suggests that a court may decline to decide a case that "raises merely a hypothetical or abstract question" that "will not have the effect of resolving some controversy which affects or may affect the rights of the parties."[1]

  1. ↑ Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342, per Sopinka J, at para 15
    R v Smith, 2004 SCC 14 (CanLII), [2004] 1 SCR 385, per Binnie J

Civility and Professionalism

Tone of Reasons

The reasons for judgement should be "restrained and appropriate, clinical in tone and minimalist in approach."[1]

Sleeping

A judge found to be sleeping during trial will affect trial fairness and warrant a retrial.[2]

Criticizing Judges

It is the public's right to criticize judges as long as it does not cast aspersions on their motives.[3]

Courtroom conduct

The judges are expected to display an attitude that reflects their authority. They must not use it to intimidate or belittle others.[4]

  1. ↑ Canada v Olumide, 2017 FCA 42 (CanLII), [2018] 2 FCR 328, per Stratas JA, at para 39
  2. ↑ Cesan v The Queen, (2008) 83 ALJR 43 (Australia High Court)
  3. ↑ R v Dalke, 1981 CanLII 366 (BC SC), 59 CCC (2d) 477, per Munroe J at pp. 479-80, 21 C. R. (3d) 380 at pp. 383-4(complete citation pending)
  4. ↑ Luc Huppé, La déontologie de la magistrature : droit canadien : perspective internationale (Montréal: Wilson & Lafleur, 2018) at No. 173 [1]

Judicial Decisions

See also: Sufficiency of Reasons and Trial Verdicts

When drafting a decision, judges are expected to articulate the contested elements of the offence and give each element "dedicated attention" in their analysis.[1]

Rulings and Orders

The decision to exercise discretion and require the reading of charges despite waiver, is not an order but is a ruling that can be reviewed on certiorari.[2]

No Personal Preferences, Ideologies or Political Beliefs

A judge should not "wander into the public square" by using their decisions to signal their personal preferences, ideologies or political beliefs.[3]

Reading Decisions

Where the decision is lengthy there is no prohibition against reading a summary in the presence of the accused then giving a written version at a later point.[4] It is possible to give reasons part orally and part written. However, it is only the oral reasons that are operative.[5]

The principle of openness and accountability requires that the essential reasoning be given orally.[6]

The essential reasoning should include a "summary [to] clearly set out the offence, the essential reasoning of the trial judge, and the conclusion on the charge."[7]

  1. ↑ R v Bradley, 2020 ONCA 206 (CanLII), per curiam, at para 9 ("It is always appreciated when trial judges articulate the contested elements of the offence and give each dedicated attention, but it is not an error to fail to do so where it is apparent that the required conclusions were made. That is the case here.")
  2. ↑ R v AA, 2000 CanLII 22813 (ON SC), 150 CCC (3d) 564, per Hill J, at para 9 aff'd 170 CCC (3d) 449
  3. ↑ Canada (Attorney General) v Kattenburg, 2020 FCA 164 (CanLII) per Stratas JA
  4. ↑ R v Lawrence, 2020 ABCA 268 (CanLII), at para 21
  5. ↑ Lawrence, ibid., at para 21
  6. ↑ Lawrence, ibid., at para 23
  7. ↑ Lawrence, ibid., at para 23

Timing of Interim Rulings

Where a party seeks exclusion of evidence it is for the trial judge to "decide what procedure should be followed."[1]

With "rare exceptions," a judge is "empowered to reserve on any application until the end of the case."[2] This would include an application to quash an indictment.[3]

The judge has discretion to defer rulings on the basis that:[4]

  1. "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own" and
  2. it "discourages adjudication of constitutional issues without a factual foundation."

An exception for deferment of rulings are where the "interests of justice necessitate an immediate decision."[5] This will include where "the trial court itself is implicated in a constitutional violation" or where "substantial on-going constitutional violations require immediate attention."[6] As well, situations where an "apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial" should be exceptions.[7] This is especially true where the trial is expected to be of considerable duration.[8]

  1. ↑ R v Hamill, 1984 CanLII 39 (BCCA), [1984] 6 WWR 530, per Esson JA
  2. ↑ R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, per Sopinka J
  3. ↑ DeSousa, ibid. ("He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard.")
  4. ↑ DeSousa, ibid.
  5. ↑ DeSousa, ibid.
  6. ↑ DeSousa, ibid.
  7. ↑ DeSousa, ibid.
  8. ↑ DeSousa, ibid.

Delivery of Decisions

When a decision is lengthy, the trial judge may read a summary in court before the accused and then provide a more comprehensive and detailed copy in the written version that is filed on the record.[1] However, it is the reasons given to the accused orally that are the "operative reasons" or "essential reasons."[2] A failure to include sufficient reasons in the oral decision could run afoul of s. 650 and s. 7 and 11(d) of the Charter of Rights and Freedoms. [3] The essential or operative parts of the reasons must include (a) the charges, (b) the verdict on each charge (c) some explanation for the result.[4]

Sufficiency of reasons could be in the range of 9 paragraphs summarizing a 33 page decision.[5]

  1. ↑ R v Lawrence, 2020 ABCA 268 (CanLII), per curiam, at paras 21 to 24
  2. ↑ Lawrence, ibid., at paras 21 and 23
  3. ↑ Lawrence, supra, at para 23
  4. ↑ Lawrence, supra, at para 24
  5. ↑ e.g. see Lawrence, supra

Supplementary Reasons

The judge may lawfully provide supplementary reasons in the following circumstances:[1]

  1. "A trial judge may declare an outcome with "reasons to follow""[2]
  2. "The trial judge may have lengthy reasons prepared, and essentially finalized, but due to the length read only a summary, followed by immediate release of the longer version."[3]
  3. "The trial judge may announce his or her decision, but then correct that decision when an obvious error or illegality is identified."

e.g. R v Vader, 2019 ABCA 191 (CanLII), 89 Alta LR (6th) 146, per curiam, at paras 56 to 57 </ref>

  1. "The trial judge gives reasons that appear to deal with all the issues, and outline all of his or her reasons, but then releases truly “supplemental” reasons that add arguments or issues."[4]

How much an initial decision and supplementary reasons can change depends on the circumstances.[5]

Generally, editing for punctuation, grammar, citations are permitted.[6] But changes that revise, correct, or reconsider the words spoken or the substance of the reasoning are not permitted.[7]

Appellate Review of Supplementary Decisions

Parties are permitted to argue the discrepancies between the decisions.[8]

It is open to the appellate court to ignore the supplementary reasons.[9] And may simply review the decision on the initial reasoning.[10]

The appeal courts can examine both sets of reasons when assessing the issue of appeal.[11]

  1. ↑ R v CD, 2021 NUCA 21 (CanLII), NJ No 55, per Slatter JA, at para 14
    R v Mitchell, 2022 NSCA 77 (CanLII), per Beaton JA, at para 27
  2. ↑ e.g. R v Teskey, 2007 SCC 25 (CanLII), [2007] 2 SCR 267, per Charron J - verdict(complete citation pending)
    R v Sundman, 2021 BCCA 53 (CanLII), 402 CCC (3d) 463, per Fitch JA, at paras 55 to 56 - mid-trial rulings(complete citation pending)
  3. ↑ e.g. R v Vander Leeuw, 2021 ABCA 61 (CanLII), per curiam, at para 9
  4. ↑ e.g. PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2021 ABCA 16 (CanLII), 457 DLR (4th) 1, per curiam, at para 61
  5. ↑ CD, supra, at para 14
  6. ↑ CD, supra, at para 14
  7. ↑ CD, supra, at para 14
    R v Wang, 2010 ONCA 435 (CanLII), 256 CCC (3d) 225, per Rouleau JA, at para 9
    R v Desmond, 2020 NSCA 1 (CanLII), 384 CCC (3d) 461, per Scanlan JA, at paras 24 to 25
  8. ↑ CD, supra, at para 15
    Vander Leeuw, supra, at para 9
  9. ↑ Wilde v Archean Energy Ltd, 2007 ABCA 385 (CanLII), 82 Alta LR (4th) 203, 62 CCEL (3d) 1, per Hunt JA, at para 24
  10. ↑ Nova Scotia (Minister of Community Services) v CKZ, 2016 NSCA 61 (CanLII), 376 NSR (2d) 113, per Bourgeois and Van den Eynden JJA, at paras 61 to 63
  11. ↑ Perpetual Energy at para. 66
    R v Ball, 2012 ABCA 184 (CanLII), 557 WAC 102, per curiam, at para 4

Relationship with the Legislatures

A judge must act as a "constitutionally mandated referee."[1]

It is not courts that limit legislatures, rather it is the constitution that limits them by means of judicial interpretation.[2]

It is the role of the legislature to assume the "responsibility of law reform."[3]

  1. ↑ Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (CanLII), [2004] 3 SCR 381, per Binnie J, at para 105
  2. ↑ Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory J, at para 56 ("...it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures.")
  3. ↑ Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 SCR 750, per McLachlin J at 583-4 (DLR) ("Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.")

Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

Misc Authority of Youth Court Justice

Misc Other Authorities

Provincial Court Judges

Officials with powers of two justices

483 Every judge or provincial court judge authorized by the law of the province in which he is appointed to do anything that is required to be done by two or more justices may do alone anything that this Act or any other Act of Parliament authorizes two or more justices to do.
R.S., 1985, c. C-46, s. 483; R.S., 1985, c. 27 (1st Supp.), s. 203.

– CCC (CanLII), (DOJ)

Note up: 483


Defined terms: "Act" (s. 2), "province" (s. 35 IA), "provincial court judge" (s. 2), and "two justices" (s. 35 IA)

Federal Judges Code of Ethics

The Canadian Judicial Council publishes Ethical Principles that outline rules concerning a superior and appellate judge's conduct.[1] The principles cover:

  • Judicial Independence (1 A to D)
  • Integrity and Respect (2 A to G)
  • Diligence and Competence (3 A to D)
  • Equality (4 A to D)
  • Impartiality (A to E)


  1. ↑ [2]

See Also

Other Parties
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