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| Norman Douglas |
There are things you cannot control, but once you take the dais to begin court, you have the remote, and you never let anyone get their hands on it, especially the lawyers.
You decide whether to take a recess, whether to grant an adjournment, how long the lunch break will be and (with the trial co-ordinator's co-operation) when to start and end court (easier when you are the only judge sitting in the smaller jurisdictions).
Adjournments: Be a judge with a reputation that makes them difficult to get.
There are lawyers who are pretty adept at delaying matters:
“Your Honour, it looks like a long list and my matter will not be called first by the Crown, so we may not even reach it — can we adjourn to another date?”
“Your Honour, I have just been informed by the Crown there is some new disclosure — I cannot proceed today”
“Your Honour, regrettably I must be in another court this afternoon ...”
Some Crowns will try:
“A key witness has not arrived, he was my first — we cannot start without him.”
“There are several Charter motions — can we send the civilian witnesses home?”
You will get hundreds of these and other excuses over the course of your career — if someone’s grandmother just died last night, it may be her fourth death.
Here are some suggestions we might offer:
“Let’s cross that bridge when we come to it — call your first case, madam Crown.”
“No, we are going to start, you may renew your application later, if necessary; we will at least hear the civilian witnesses, so they don’t have to come back another day.”
“I have read your Charter applications this morning before the court — you do not need to repeat what is there, but here are my two concerns ...”
If you dismiss the motions — give your reasons why, after all the witnesses have been heard. Getting the evidence in should be your priority.
Starting on time
Obviously, you must get to work early to avoid being late yourself.
On the rare occasions we judges were late, we always apologized to everyone in the courtroom and explained the reason.
Expect the same courtesy from the lawyers.
For the few who are chronically late, ask them to address the body of the courtroom, by politely reminding them:
“These good people behind you were all here on time. Some have travelled — on that same busy 401 that you were on — some had to take time off work, arrange child care and make other sacrifices we don’t even know about. Some have agonized about being here today. Please tell them why you couldn’t be here on time.”
Or, a little less politely: “Counsel, is your time more important than everyone else’s in the room?”
Courts in our province usually begin at 10 a.m.
Let it be known that you are available in your chambers at 9 for any cases where the Crown and defence counsel wish to talk about resolving or shortening their cases. They must be advised, however, that if these talks fail to accomplish either, you will “disabuse your mind” (that may sound goofy to the layperson, but is a legal exercise judges often must perform) of all that was said, and you will not be disqualified from hearing the matter.
Let the recesses be 15 minutes each morning and afternoon — not 16.
Let the lunch “hour” be 75 minutes — not 76.
Your concern must be with the witnesses, not your or the lawyers’ convenience.
This is the second part of a three-part series. Part one: 25 new judges.
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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