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| Norman Douglas |
Then turning to the defence and asking them what specific issues the court should be alerted to.
This approach helps focus everybody, which is always a good thing!
1) If the accused is facing several counts (charges) — ask: “Counsel, does your client waive the reading of the charges and wish me to enter pleas of ‘not guilty’ to them all?” By this final bus stop, since the accused was charged, they had already been told by the police, had them read in court by the justice of the peace, seen the disclosure and discussed each with their lawyer. So the lawyer says “Yes, Your Honour,” and you have just saved 10 minutes — let’s keep count as we continue.
2) The first witness takes the stand. Turn to them: “Good morning — would you prefer to take an oath or to promise to tell the truth?” They will sometimes say “oath” but more often: “Uh, promise, I guess ...” You then ask the clerk to affirm the witness, and away you go … (two minutes saved).
3) To the Crown: “You may lead the witness in the non-essentials.” Depending on the skills of the prosecutor, you may have just saved an hour. The efficient Crowns will let the witness tell their story. The Crowns you would like to bonk on the head with your gavel continually interrupt the witness for minor details, repeat what the witness says, or just do not understand the art of examination in chief.
Good: “Now Ms. Brown, I understand that you are 45 years old, live in the same condo building at 12 Safe Haven Cres. as the accused, and that at about 11 pm on the night of April 1st last year, something happened that brings you to court this morning, is that right?” The witness says, “Yes.” The Crown says, “Please tell the court what happened.”
Bad: “Please state your name in full for the record [since everything is on the record that useless phrase is used ad nauseum by some lawyers]. Where do you reside? [they mean “live”] How long have you resided at that abode? How many units are there? Do you know the accused? Can you point him out for the record?” ... and on and on — the weather, the distances — the witness then clams up and waits for the next question.
Bad: “Please state your name in full for the record [since everything is on the record that useless phrase is used ad nauseum by some lawyers]. Where do you reside? [they mean “live”] How long have you resided at that abode? How many units are there? Do you know the accused? Can you point him out for the record?” ... and on and on — the weather, the distances — the witness then clams up and waits for the next question.
They will continue until a gentle judge politely interrupts them and says: “You know, Mr. Mason, it would be more helpful to the court, and much easier for the witness, if you just asked them to tell their story, and if there are details you think you need when they are done, maybe you could clear those up at that time?”
4) Cross-examination (another hour): You must be more careful here in exercising control, lest you interfere with the strategy of the cross-examiner.
But the defence lawyers soon learn that they are much more successful with a judge who appreciates them cutting to the chase (a judicial way of referring to cutting the bull-poop).
The best lawyers zoom in on the few key areas where a witness may be vulnerable. The worst have the witnesses repeat everything they said to the Crown.
5) Objections (another hour): Some trials get off the rails because time is wasted refereeing fights that aren’t worth fighting over.
A short and effective response from the judge: “There is no jury here. I am aware of your issue. Your objection is noted, but overruled — please carry on.”
There are so many ways to keep the train on the rails and get to the destination that the lawyers told you would take “a full day” in a “full two hours.”
6) Police witnesses (two minutes for each): As soon as they take the stand, skip what’s coming in the three or four laborious questions from the Crown concerning their notes. Ask the defence one question: “I assume you have copies of this witness’s notes. Any objection to her referring to them?”
7) Once the Crown closes its case (many hours): Sometimes you will be faced with this dilemma. You know they have missed something crucial, or that the case is just too weak to even put the accused person to answer it. In legal terms — there should be a “non-suit motion” by the defence to end the matter right there. You also know the inexperienced defence lawyer is champing at the bit to put their client on the stand to tell their story, and that they have five character witnesses to call after that.
Some judges believe there is nothing they can do but let the case continue. There are others of us who will let it be known that the Crown evidence would not survive a non-suit motion and invite the defence to bring one.
8) Final submissions (30 minutes): After all the evidence is in, both lawyers get their chance to sum up and make their arguments. The general practice is that if the defence chooses not to have called any evidence, the Crown goes first. If any evidence is called by the defence, then the defence goes first.
Since there is no jury, that is not iron-clad — therefore, if at this stage you are entertaining some doubts about the strength of the Crown’s case, ask them to make their submissions first, even if the defence has called evidence. They may convince you that their case is stronger than your first impressions, at which point you ask the defence to make their submissions. If the Crown has not cleared up your initial reasonable doubt — you tell the defence you will not need their assistance and make your finding of not guilty.
Similarly, if the defence, going first, has not raised any reasonable doubt in your mind, you tell the Crown you will not need their assistance and make a finding of guilty.
Also, help the lawyers by alerting them, before they begin, to the issues that they need to address.
9) Your decision: You will have taken careful notes during the trial and in most cases you should be able to deliver your decision and reasons right away.
Keep in mind that your decisions are not binding on any other court.
You may adjourn, reserve your decision to another busy day, spend your weekend crafting a beautifully scripted judgment that no one will read and have everyone come back so you can read it to them.
Or: Do it right then, put an end to the case for everyone involved and go home to your family.
Now these are just a few tips for the newbie judges. We retirees have a hundred more, but we need to get back to our pastures.
Call us if you need us.
This is the third part of a three-part series. Part one: 25 new judges; Part two: 25 new judges, part two.
Norman Douglas is a retired criminal court judge with 27.5 years of experience on the bench. His book, You Be the Judge, was published in December.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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