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PD28

This practice directive outlines the procedures and expectations for jury trials in Nunavut, emphasizing the importance of timely preparation and attendance by counsel. It mandates that no trial date will be set without assigned counsel and requires mandatory attendance at a Pre-Hearing Conference, where counsel must be well-prepared and aware of all necessary disclosures and witness arrangements. The directive aims to reduce the number of collapsed trials due to unpreparedness or scheduling issues, effective February 1, 2010.

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9 views

PD28

This practice directive outlines the procedures and expectations for jury trials in Nunavut, emphasizing the importance of timely preparation and attendance by counsel. It mandates that no trial date will be set without assigned counsel and requires mandatory attendance at a Pre-Hearing Conference, where counsel must be well-prepared and aware of all necessary disclosures and witness arrangements. The directive aims to reduce the number of collapsed trials due to unpreparedness or scheduling issues, effective February 1, 2010.

Uploaded by

Igal Pmicezjk
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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THE NUNAVUT COURT OF JUSTICE

PRACTICE DIRECTIVE #28

JURY PRACTICE IN NUNAVUT

Explanatory Note:

Much time and money is expended by Court Services in preparing for a jury trial. Jury
summonses must be served well in advance of the scheduled trial date. Community
halls must be booked. Community life is disrupted. This is all thrown away in the event
counsel for the Crown or Defence cannot be ready in time for a scheduled jury trial. Too
many scheduled jury trials are collapsing on the date set for trial for this reason.

1. SECURING A TRIAL DATE

Unless an accused is self-represented, no date for a jury trial will be set unless or until
counsel of record have been assigned for the trial and have committed to make
themselves available for the proposed trial date. Absent extraordinary circumstances, a
failure to assign counsel by either the Legal Services Board or the Director of Public
Prosecutions will result in an adjournment to the next assignment court date. This delay
will be attributable to the party who has failed to file a Confirmation of Assigned Counsel
in Form 28A.

Once a Form 28A has been filed with the Court, assigned Counsel are bound to
continue with the assignment unless or until they receive leave from the Court to
withdraw. Should counsel withdraw from the record within 90 days of the scheduled trial
date, the trial date will be cancelled and the resulting delay will be attributable to the
side requiring a new assignment of counsel unless otherwise ordered by the Court.
2. THE PRE-HEARING CONFERENCE

Attendance at a Pre-Hearing Conference by assigned counsel is mandatory under


section 625.1(2) of the Criminal Code. Assigned counsel will confirm their availability for
the assigned Pre-Hearing Conference date in writing (or by email) to the trial
coordinator. Counsel must do so within 14 days of receiving a Notice of Pre-Hearing
Conference in Form 28B from the trial coordinator. The Pre-Hearing Conference will
then be set no later than 30 days preceding the scheduled trial date by an order in Form
28C. Every effort will be made to schedule the Pre-Hearing Conference around
counsel’s pre existing court commitments. Counsel are expected to make the time and
effort to properly prepare for, and to attend the Pre-Hearing Conference as scheduled
by the Court through the trial coordinator.

Counsel of Record who fail without reasonable excuse to attend a Pre-Hearing


Conference when ordered to do so or who fail unreasonably to confirm their availability
for a Pre-Hearing Conference, risk losing the trial date at the discretion of the assigned
Conference Judge. The resulting delay will be attributed to the side that failed to attend
the Pre-Hearing Conference or failed to confirm their availability for the Pre-Hearing
Conference. It is not an acceptable practice to send a proxy or agent who is not
prepared to commit the client or Crown to positions in relation to anticipated legal or
evidential issues to be discussed at the Pre-Hearing Conference.

3. THE JUDICIARY’S EXPECTATIONS OF COUNSEL ATTENDING A PRE-


HEARING CONFERENCE

a. Counsel who attend a Pre-Hearing Conference have an obligation to be


thoroughly conversant with the file and the evidential or legal issues in dispute. It
is not acceptable for counsel to attend a Pre-Hearing Conference unprepared. It
is expected that managers will provide counsel with sufficient time to properly
prepare for a Pre-Hearing Conference;

b. Counsel should know whether all necessary disclosure obligations have been
met. If disclosure has been requested and not received by the date set for the
Pre-Hearing Conference, the scheduled trial date may be cancelled at the
discretion of the Conference Judge;

c. Counsel should know whether all material witnesses have been served with
subpoenas and whether necessary travel arrangements for their respective
witnesses have been made. This should all be done before the Pre-Hearing
Conference, not after. If subpoenas and or travel arrangements have not been
made, the Conference Judge may, in his or her discretion cancel the scheduled
trial date. The resulting delay will be attributable to the party who has failed to
comply with this obligation;

d. Counsel should know what if any pre-trial motions will be necessary before the
trial can proceed. Any intended Charter motion must be filed in advance of the
Pre-Hearing Conference, and counsel must be in a position to discuss when and
how this motion can be heard in advance of jury selection pursuant to section
645(5) of the Criminal Code. Close attention must be given by counsel to the
time estimates for the hearing of any pre-trial motions including any necessary
voir dires. The Conference Judge may in his or her discretion impose deadlines
for the filing of written argument or case authorities with respect to any intended
pre-trial motions;

e. Counsel should make every effort to complete any resolution discussions in


advance of the Pre-Hearing Conference date. The Court expects assigned
Crown counsel to be proactive and ensure that Defence Counsel is given a
timely “best offer” so that Defence Counsel can canvass the offer with the client
in anticipation of the Pre-Hearing Conference. Defence counsel is expected to
canvas the possibility of re-election to a judge alone trial before the Pre-Hearing
Conference. If counsel need to know who the assigned judge is in order to make
an informed decision on the matter of re-election, this will be provided by the Trial
Coordinator upon request.

f. Counsel should meet with their respective client or complainant before the Pre-
Hearing Conference. If necessary, this shall be done by telephone. Crown
counsel in particular must be in a position to confirm the availability and or
willingness of all critical witnesses to testify, or at least be in a position to discuss
any reasonable evidential alternatives open to the Crown in the event the witness
cannot be made available for trial. This cannot be done by simply reading the file.
It is not an acceptable practice for Crown or Defence Counsel to wait until the
weekend before the trial to have personal contact with critical witnesses or an
accused. A “wait and see” attitude invites a last minute collapse of a trial.

This practice directive comes into force on February 1st, 2010.

Issued this 21st day of December 2009 at the direction of the Judges of the Nunavut
Court of Justice.

Mr. Justice R. Kilpatrick


Mr. Justice E. Johnson

Mr. Justice N. Sharkey

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