Criminal Proceedings Rules for the Superior Court of Justice (Ontario)

• 28.05 (1) Unless otherwise ordered by the pre-trial conference judge under rule 2.01, a pre-trial conference in a case where all parties are represented by counsel, shall be conducted in a pre-trial conference room, judges’ chambers or other suitable room in the courthouse where a full and frank discussion of the issues raised in the proceedings may take place.

• (2) Where any party is not represented by counsel, the pre-trial conference shall be held in a courtroom closed to the public.

• (3) A pre-trial conference held under subrule (2) shall be recorded and the proceedings not published, broadcast or transmitted in any other way, except by order of the pre-trial conference judge.

• (4) No transcript of any pre-trial conference held under subrule (2) shall be ordered by anyone without notice to all parties and the written approval of the pre-trial conference judge or another judge of the court.

• (5) Where a transcript has been ordered under subrule (4), no information contained in it shall be published in any document or broadcast or transmitted in any way without the approval of the pre-trial conference judge, on notice to all parties.

Attendance at Pre-Trial Conference

• (6) Unless otherwise ordered by the pre-trial conference judge or a judge of the court, counsel of record for each accused, or if the accused is self-represented, the accused, and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall attend the pre-trial conference and be in a position to make commitments on behalf of the party whom each represents on issues reasonably anticipated to arise from the contents of the pre-trial conference reports.

• (7) Unless otherwise ordered by the pre-trial conference judge or a judge of the court an accused who is represented by counsel who has completed a Designation of Counsel in Form 18 is not required to attend the pre-trial conference.

• (8) The pre-trial conference judge or another judge of the court may require that an accused represented by counsel and an investigating officer attend or be available for consultation at the pre-trial conference.

Specific Inquiries to be Made

• (9) The pre-trial conference judge shall inquire about and discuss any matter that may promote a fair and expeditious hearing of the charges contained in the indictment.

• (10) Without restricting the generality of subrule (9) or any other rule, the pre-trial conference judge may inquire about and discuss:

  • (a) the contents of the pre-trial conference reports submitted by counsel or self-represented accused;

  • (b) any issues that arise from the contents of the pre-trial conference reports;

  • (c) the issues in dispute between the parties;

  • (d) the possibility of making admissions of fact or other agreements about uncontested issues or the evidence of witnesses;

  • (e) the simplification of any issues that remain in controversy at trial;

  • (f) the resolution of any outstanding disclosure issues;

  • (g) the nature and particulars of any pre-trial application under these rules including but not only:

    • (i) the necessity to make orders about the notices of application to be filed;

    • (ii) the setting of schedules for serving and filing notices of application, application records and other materials in support of pre-trial applications;

    • (iii) whether factums, other memoranda or written submissions should be required for pre-trial applications and the schedule set for their filing and service;

    • (iv) whether time limits should be imposed for oral arguments of pre-trial applications; and,

    • (v) whether evidence on pre-trial applications may be provided by Agreed Statements of Facts, excerpts of transcripts of the preliminary inquiry, affidavits, “will states” or otherwise than by the testimony of witnesses.

  • (h) the possibility that the parties will consent to a judge other than the trial judge hearing and deciding the pre-trial applications and incorporating any rulings made into the trial record to permit appellate review;

  • (i) the possibility that the prosecutor may reduce the number of counts in the indictment to facilitate jury comprehension and promote a fair, just and expeditious trial;

  • (j) the manner in which evidence may be presented at trial to facilitate jury comprehension;

  • (k) the necessity of the assistance of interpreters for any accused or witness in the proceedings;

  • (l) the necessity of any technological equipment to facilitate the introduction of evidence at trial or jury comprehension of the evidence;

  • (m) the estimated length of pre-trial applications and trial proceedings; and the advisability of fixing a date for commencement of pre-trial applications and trial proceedings.

Resolution Issues

• (11) The pre-trial conference judge shall inquire about and discuss:

  • (a) the prosecutor’s position on sentence before trial and after trial in the event of conviction, including the counts upon which pleas of guilty would be sought, the credit to be given for pre-sentence custody or release on stringent terms, any corollary orders sought upon conviction, and whether further proceedings would be taken upon conviction of any serious personal injury offence as defined in s. 752 of the Criminal Code; and

  • (b) the position of counsel for each accused on sentence, both before and after trial, on the basis that the accused were to instruct counsel that she or he wished to plead guilty, and where guilt was proven after trial.

• (12) The pre-trial conference judge may express his or her opinion about the appropriateness of any proposed sentencing disposition based upon the circumstances disclosed at the pre-trial conference.

Recommendations of Pre-Trial Conference Judge

• (13) The pre-trial conference judge may make recommendations about:

  • (a) admissions of fact or other agreements about uncontested issues or the evidence of witnesses;

  • (b) the resolution of outstanding disclosure issues;

  • (c) the manner in which evidence should be introduced on pre-trial applications and the order in which the applications should be heard;

  • (d) requiring the prosecutor to provide a list of names who will or may be called as witnesses for the prosecution;

  • (e) the filing of notices of applications, application records, factums, other memoranda or written materials for pre-trial applications;

  • (f) the time limits to be imposed on oral argument of pre-trial applications;

  • (g) the appointment of a judge other than the trial judge to hear and determine pre-trial applications;

  • (h) arrangements for persons requiring the assistance of interpreters to meet with proposed interpreters in advance of the commencement of pre-trial applications or trial proceedings to ensure that the interpretation will be satisfactory;

  • (i) any arrangements required to ensure that any technological equipment necessary is available for use as required;

  • (j) the appointment of a case supervision judge under rule 29.02;

  • (k) a trial management conference before the trial judge prior to the date scheduled for pre-trial applications or trial, as the case may be; and,

  • (l) the appointment of a case management judge under rules 29A or 29B.