The Common Law Authority of Judges (Part 2): Trial Management Power

Trial Management Power  

Trial judges have a firmly rooted authority to control proceedings over which they preside. In the exercise of that authority, they may intervene when counsel or witnesses fail to follow the rules or rulings made during the course of the trial. Judges are entitled to control the procedure of trial to ensure, as best they can, that the proceedings are effective, efficient and fair to all parties, including those required to give evidence:

R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.), at para. 24; R. v. Felderhof (2003), 180 CCC (3d) 498 (Ont. C.A.), at paras. 36-40; R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at pp. 230-32, leave to appeal refused, [1986] 1 S.C.R. xiii (note).

The position of established neutrality occupied by trial judges requires them to confine themselves as much as possible to their own responsibilities, and to leave to counsel and to the jury their respective functions.

R. v. Torbiak and Campbell (1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31.

However, there are many proper reasons for a judge to intervene.

The intervention of a judge will constitute an appealable error where the trial judge’s interventions create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings.

Valley, at p. 235.


The authority to control the manner in which witnesses are questioned by counsel

The right of an accused to cross-examine witnesses for the prosecution is protected by ss. 7 and 11(d) of the Charter.

Where credibility is the central issue at trial, the importance of cross-examination becomes even more critical:

Lyttle, at paras. 69-70.

However, the authority to control the manner in which witnesses are questioned by counsel is a core component of the trial management power.

R. v. John, 2017 ONCA 622.

Improperly limiting cross-examination of a witness is an error. The ultimate question an appellate court must determine is whether there is a reasonable possibility that the verdict would have been different had the error not been made.

Lyttle, at para. 68.

 Stuart O'Connell, O'Connell Law Group, www.leadersinlaw.ca

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