Trial Judges: Managing trials and the Right to Cross-examine

A trial judge’s role is multi-faceted. They must not only bring their procedural and substantive knowledge of the law to the case and analytical skills, but also be in a position to act as a Manager: Manager of a trial, for example. This is an art, as this management role may come into play in obvious situations and less obvious ones. An experienced justice will apply the management duties with the right touch using fairness/justice as key guiding markers. Recently, in a Criminal case, the Ontario Court of Appeal commented on managing trials and cross-examination:

“A trial judge has a duty to manage a trial and is responsible for ensuring that it is conducted in an orderly manner according to the rules of procedure governing the conduct of criminal trials..The legitimate scope of cross-examination is not without its limits. A trial judge has the right and the duty to prevent a trial from being unnecessarily protracted by questions directed to irrelevant matters..A trial judge is entitled to curtail questions by defence counsel that are irrelevant, prolix, and repetitive..The right to cross-examine a witness is not absolute or limitless..An accused person is entitled to a fair trial , not an endless one…” ( R. v. Ivall 2018 ONCA 1026, at paras. 166-168).

A trial judge’s management powers must always be on guard to ensure process and the final adjudication has been arrived at in an efficient, fair manner. Just as a business manager is very interested in preserving resources and ensuring the business of the corporation does not stray into unproductive, cost consuming areas, a trial judge has an important duty as the manager of his or her court to curtail unproductive, resource consuming behaviour.However in the courts there is no final balance sheet or income statement. The key measure is justice being done and seen to be done. Trial Management goes a long way to serving the latter goal and is an actual expected duty.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

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