How to Prepare for a Judicial Pre-Trial Conference

Updated December 2013

This How–To Brief outlines the steps to take when preparing for a judicial pre–trial conference, from the review of disclosure to the completion of the pre–trial conference.

  • Step 1: Review the disclosure
  • Step 2: Make procedural decisions
  • Step 3: Complete the pre–hearing conference form
  • Step 4: Interview the client
  • Step 5: Attend the pre–hearing conference
  • Step 6: Complete follow–up tasks
  • Statutes and Rules

1Review the disclosure

  • The disclosure should be carefully reviewed (as well as your notes of the preliminary hearing, if applicable) prior to the pre-hearing conference, with consideration given to the following issues:
    • Is disclosure complete?
    • Have all transcripts been received?
    • What are the potential triable issues and what issues may not be disputed?
    • Is the matter likely to proceed by way of a discovery, preliminary hearing or trial?
    • Is it possible that this matter will resolve by way of a withdrawal, peace bond or guilty plea?
    • What witnesses will be necessary?
    • Is expert evidence required?
    • Are there any pre-trial motions?
    • Are there any admissions that can be made?
    • What is a reasonable time estimate for the discovery, preliminary inquiry or trial?
    • Do pre-hearing matters need to be brought in advance of the preliminary inquiry or trial eg. 11(b) application, Garofoli application etc.
     
  • If there are outstanding disclosure items, a request should be made in writing to the Crown immediately, and if the outstanding disclosure has not been provided prior to the pre-hearing conference, you should address this issue at the conference. Full disclosure may be required in advance of conducting the judicial pre-trial conference in order to meaningfully address all relevant issues.

2Make procedural decisions

  • If, at the conclusion of your review of the disclosure, you conclude that the matter could potentially proceed by way of a discovery or preliminary inquiry, you should consider the following:
    • the issues on which you wish evidence to be given at the preliminary inquiry
    • the witnesses that you wish to testify at the preliminary inquiry
    • preparation of a draft statement of issues pursuant to s. 536.3 of the Criminal Code
    • any reasonable potential motions, such as third-party records applications or applications to cross-examine an affiant on a warrant
    • whether committal is in issue
    • if committal is in issue, on which counts
     
  • If the matter is potentially proceeding to trial, you should consider the following:
    • the potential triable issues
    • the issues that may not be disputed
    • any reasonable potential pre-trial motions, such as third-party records applications, particulars motions, motions under the Canadian Charter of Rights and Freedoms, etc.
    • your response to any foreseeable applications by the prosecution (for example an application for the admission of videotaped testimony pursuant to s. 715.1 of the Criminal Code or an application to admit a hearsay statement)
    • the witnesses you wish the prosecution to make available for trial (this is particularly important for police witnesses whom the Crown does not intend to call at trial, but may be useful in your defence)
    • the necessity of any experts for the defence
     
  • If the matter can potentially be resolved by a withdrawal, peace bond or guilty plea, you should consider the following:
    • any facts arising from the disclosure that may favourably affect the assessment of the reasonable prospect of conviction
    • any facts that may mitigate the offence charged
    • photocopying particularly helpful passages in the disclosure to provide to the judge and the Crown
    • conducting research and providing any case law that may assist your client on sentence
    • providing copies of character reference letters, letters confirming employment, letters confirming volunteer work, medical records confirming mental illness, etc.
     

3Complete the pre-hearing conference form

Ontario Court of Justice

  • If the matter is in the Ontario Court of Justice, r. 27.02 of the Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97–133, made under the Criminal Code, requires that the prosecution and defence jointly file a draft pre-hearing conference report, if the pre-hearing judge requires it
  • You should be prepared to address the issues contained in the pre-hearing conference report at the pre-hearing conference, even if you are not required to file a report.

Ontario Superior Court of Justice

  • If the matter is in Superior Court, r. 28.04 of the Criminal Proceedings Rules of the Superior Court of Justice(Ontario), made under the Criminal Code, requires that both the Crown and defence file a pre-trial conference report.
  • The Crown must serve counsel for the accused with a completed pre-conference hearing report at least 10 days prior to the pre-hearing conference, and the defence must serve and file the completed report with the court and the Crown at least five days prior to the pre-hearing conference.
  • Counsel for the accused must file a report, even if the Crown has failed to serve counsel with a completed report.
  • Counsel must complete their positions on each issue and should not indicate "will advise," "not as yet" or words of similar effect.

4Interview the client

  • Prior to the pre-hearing conference, the client should be interviewed and a discussion of the following should occur:
    • matters raised by disclosure or preliminary hearing evidence, including disclosure issues, the potential triable issues and the potential admissions
    • matters raised by the Crown in the pre-hearing conference report
    • your assessment of the strengths and weaknesses of the case
    • the options for your client and the implications of each option
    • obtaining letters of support from employers, counsellors and others that you can have available for the pre-hearing conference if a guilty plea is being considered or a pitch is being made for a withdrawal of the charges
     
  • Obtain written instructions from the client on how the client wishes to proceed.

5Attend the pre-hearing conference

  • Follow up on all outstanding disclosure issues.
  • If the matter will be proceeding to trial, ensure that the Crown will have all the necessary witnesses that appear in the Crown brief attend on the trial date (failing which you will have to subpoena the witness or witnesses yourself). You will be responsible for procuring the attendance of any other necessary defence witnesses.
  • If the matter will be resolved by a guilty plea, or if it is reasonably possible that the matter could be resolved by a peace bond and/or withdrawal, be prepared to highlight, and if necessary, provide, any relevant excerpts from the disclosure or preliminary hearing transcripts that may mitigate the offence to which your client is pleading guilty or impact upon the assessment of reasonable prospect of conviction.
  • Provide any case law and letters of support that may assist your client in discussions regarding the appropriate sentence.

6Complete follow-up tasks

  • As soon as practicable after the pre-hearing conference, draft a memorandum setting out the issues discussed, the position of each of the parties, including the judge, on each of those issues, and any issues that require follow-up.
  • Write a letter to the Crown confirming the positions taken on each of the relevant issues, and particularly on sentence, if there is an offer to resolve.
  • Meet with your client and explain the positions taken by each of the parties, including the judge, and convey any offer of resolution that was made by the prosecution at the pre-hearing conference.
  • Obtain written instructions from the client on how the client wishes to proceed.

Statutes and Rules