The wizard behind the curtain; the judge beneath the robe: Finale

Law360 Canada (April 2, 2026, 9:18 AM EDT) --

Norman Douglas

This is the third instalment of a three-part series about what makes a good judge. You will need to have part one of this series handy to follow the “correct” answers suggested here. Part two ended by raising the question of how to deal with crying in the courtroom.

A judge will need to know what to do because it happens frequently. If it comes from the gallery, from a child, the solution is easy. You sympathetically tell the parent that you love children, but could they please excuse themselves for a while? If a young (or even if not so young) witness breaks down in the box, this is when you draw on your loving grandparenting persona. Keep in mind that taking a recess is often worse on the witness who wants to get this ordeal over. So you gently encourage them — perhaps telling them they are telling a story and want to get to the end. Or asking a parent or caregiver to come up and stand beside the box.

The answers to the questions about running a courtroom efficiently are thoroughly canvassed in my three-part series published by Law360 Canada June 24, 25 and 26, 2024 — written as advice on the occasion of 25 new judges being appointed in Ontario. But let me insert them in a brief way here, referencing questions 38 to 48 from my last column.

The Crown closes its case, and it is obvious there is some crucial piece missing. An experienced defence counsel would move for a “non-suit,” but sometimes an eager defence counsel is ready to call witnesses. Here, it is appropriate to assist the defence. Ask them if they are moving for a non-suit. Then give the Crown an opportunity to argue that they have met their burden at this stage. They have closed their case and I have stated my position, so they are not allowed to call more evidence. If they have not persuaded me, case dismissed, and valuable court time saved.

The Crown calls an expert witness and is about to laboriously take the witness through a four-page CV. Here it is appropriate to assist the Crown. Ask the defence if they agree to have the CV filed as an exhibit. They still may cross-examine if they are taking issue with the witness’s expertise, but we have just saved more court time. I would also assist the Crown who needs training on examination in chief, who is painstakingly trying to cover every detail of a witness’s evidence, by stopping the Crown and asking politely: “You know, it would be easier for me to follow, and much easier for the witness, if you would simply ask them to tell their story of what happened and then you can clear up anything you think they have missed?”

Once all the evidence for the Crown and the defence has been called, who goes first to sum up their case and make their argument?

There is a rule in jury cases about that. There is no such rule in a judge-alone trial, where 80 to 90 per cent of all criminal trials are heard.

The best judges do the following: if the case seems strong for the Crown, ask the defence to argue first. You may tell them why, but remind them that you are keeping an open mind. If they do not move your thinking, then you turn to the Crown and say, “I will not need your assistance.” Guilty.

If the case seems weak, I ask the Crown to go first. If they move me, I call on the defence; otherwise: case dismissed. Not guilty.

I would also assist the clerk who is about to read (arraign) a multi-count charge document (the “information” or “indictment”).

“Counsel, the accused obviously knows the charges they are facing by now. Can we waive reading them again, I will endorse the plea as ‘not guilty’ to each of the charges, and we can get on with the case?”

A judge must be more careful when dealing with a self-represented accused. Shortcuts to save time are not appropriate unless thoroughly explained. A judge cannot be the accused’s lawyer but does have the duty to alert both the Crown and the accused that there are issues (i.e., Charter rights) that must be canvassed.

And the procedure must be explained step by step as the trial proceeds.

The table reserved for counsel is a privileged place. A victim taking their place in the witness box can be intimidated by the accused sitting with the lawyers. It is not a “given” that accused people sit beside their lawyer. Counsel should ask permission and explain why it is necessary. If the judge is not convinced — allow the accused (unless they are in the prisoner’s box, where this is rarely an issue) to sit in the front row of the gallery directly behind their lawyer.

Interpreters bring an added challenge to a judge’s job. Witnesses must be forewarned to wait and allow the interpreter to finish before the witness (who sometimes understands the question before it is interpreted) begins to answer. Only one person at a time is allowed to speak. Every judge will have to enforce this sacred rule often.

During the sentencing process, when victims or their family members are reading their impact statements, a judge must gently interrupt them whenever they veer off (and they will unless the Crown has already done its job) into other crimes the accused may have committed.

During the trial, if counsel need control in the way they are treating each other, the wise judge will do it carefully — “Counsel I promise to treat you with respect, so I ask you to do the same with your ‘friend.’” Yup, the only room where people you can’t stand are your “friends.”

When should a judge “jump” a joint submission? More than they do.

I believe plea bargains and joint submissions are the main reasons for the diminished respect and loss of credibility the public now holds for our judicial system.

There are certain jurisdictions where they are the norm in every serious criminal sentencing process.

The Crown’s three excuses that the plea of guilt saves court time, saves the victim from having to testify and demonstrates the accused’s remorse are often bogus. The court has the time — many courtrooms are vacant after 2 p.m. The victim would, although painfully, welcome the chance to tell their story.

The “remorse” is for themselves — it was the best deal they could get.

I will tell you what “remorse” is. One of the cases in my book describes an offender who was so overcome with remorse that he confessed to his crime before he was caught. And nobody knew the crime had been committed. And he was distraught, ashamed and sorry for what he had done. No plea deals. No joint submissions. He pleaded guilty and accepted that he ought to be punished.

In conclusion, and number 49 in part one, the most important duty of a judge?

To listen.

Thank you, Toto. Now let’s get in that balloon and fly back to Kansas.

This is part two of a three-part series. Part one: The wizard behind the curtain; the judge beneath the robe. Part two: The wizard behind the curtain; the judge beneath the robe: Act II.
  
Norman Douglas is a retired criminal court judge with 27½ years of experience on the bench. His book, You Be the Judge, was published in December 2023.

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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