Chapter 8 Trial Procedures

Typical Canadian Courtroom

Trial Procedures

Trial procedures in Canada are based on an adversarial system, which involves two opposing sides – the Crown (representing society) and the defence (representing the accused). The onus is on the Crown to prove beyond a reasonable doubt that the accused committed the offence. For a conviction, both the actus reus and the mens rea elements of the offence must be proven.

The type of offence committed determines the kind of trial available to the accused. If the accused is tried in a provincial court for a summary conviction of indictable offence, trial procedures are similar to trial by judge and jury. No jury is chosen, however, and the proceedings are less formal. The judge acts as both judge and jury.

Courtroom organization

Canadian trial procedures are adapted from British law and are basically the same in each province and territory. The roles of various people involved in these procedures are:

The Judge

Judges are often referred to as “the Bench” or “the Court”. The federal government appoints all judges except for provincial and territorial court judges, who are appointed by each province and territory. The judges of the Supreme Court of Canada are formally titled “Justices.” They are paid by the federal government and are generally chosen from among the highest courts of the provinces and territories or from among lawyers who have had at least 10 years experience.

Judges have full control of the courtroom during preliminary hearings and trials. They can exclude the public – and even the accused – if they think it is necessary to administer justice and maintain order. Cameras of any sort are generally not permitted in Canadian courtrooms. Broadcasts of Supreme Court of Canada hearings, however, have become quite common. The decisions judges make on whether evidence and questioning are admissible can greatly influence the outcome of trials. They can form the basis of appeals. In non-jury trials, the judge decides the questions of guilt and sets the sentence.

Some jurisdictions appoint justices of the peace, who have less power than judges. Justices of the peace may preside over court of first appearance, where the charge against the accused is first read. They may also issue documents for the police, such as search and arrest warrants and certain documents for judicial matters. In some jurisdictions, justices of the peace may conduct trials for offences against municipal bylaws and provincial laws, such as the Highway Traffic Act.

The Crown Prosecutor

Prosecutors are hired by the government to represent society and are responsible to see that justice is done. The burden of proof is on the Crown in criminal cases. Crown prosecutors must present all evidence, even if it may weaken their case. If necessary, the judge can direct a prosecutor to call witnesses whose testimony (declarations sworn under oath) may damage the Crown’s case. Prosecutors have great influence. For example, they consult with police of cases and decide whether to lay criminal charges. They can also withdrawn charges that have been laid.

Defence Counsel

The defence counsel represents the accused to ensure that their legal rights are protected. The accused can represent themselves in lower courts, but is wiser to have professional counsel. Lawyers are trained in procedural and substantive law so they can guide a case through the courts. They will also advise clients on the law involved in the case and how best to proceed. Defence lawyers must represent their clients to the best of their ability, even in cases where the crime is very offensive to the public.

The Court Clerk and Court Recorder

The court clerk reads out the charge against the accused, swears in witnesses, tags evidence, and handles much of the paperwork and routine tasks required by the court.

The court recorder sits near the witness box to record, word for word, all evidence given and all questions and comments made during a trial. Because the court relies on an accurate record and may request that evidence be read back, this is a very exacting job. These records are kept and transcripts are made available later, if necessary, for appeals.

The Sheriff

The sheriff and his or her deputies carry out much of the courts administration and trial preparation. It is their job to make sure the accused appears in court, to find prospective jurors, and to assist the judge. The sheriff also serves summonses and carries out court orders, such as seizing and selling property to settle claims for damages.

Other Court Officials

Probation officers may be present in provincial or territorial courts, and judges may ask them to conduct interviews with convicted offenders. Such information may help judges in setting sentences.

Non-profit organizations such as the John Howard Society, Elizabeth Fry Society, and the Salvation Army may have representatives in court to help defendants. Services to help victims are also more easily available than they were in the past.

Motions at the Beginning of Trial

At the beginning of trial, the Crown Prosecutor and the defence may present motions to the judge. These can relate to any procedure that will be used at trial. One such motion, a stay of proceedings, can stop trial under further action is taken or, in some cases, from happening at all.

Juries and Jury Selection

Although the jury system is not perfect, it usually satisfies the public more than trial by judge. A jury lets the public see conflicts resolved by peers, rather than by a judge alone. A jury also reflects the conscience of the community. Juries are expensive, however, and they are used only for more serious indictable offences. For certain less severe indictable offences, the accused can choose between trial by judge or trial by judge and jury. A judge alone will try the accused for summary offences.

Advantages of Trial by Jury

Trial by jury involves the public in the administration of justice, which also helps educate the public. The use of juries means that judges do not have to make all court decisions. Juries are composed of people from many different backgrounds, who bring a fresh perspective to the courtroom and who can reject oppressive laws. As well, a jury may base its decision on current social values, rather than strict legal precedent.

Trial by jury also has advantages for the accused. The defence needs to convince only one juror to favour the accused or have reasonable doubt; a jury’s decision must be unanimous. Dramatic rhetoric may be more likely to move a juror than a judge, who hears lawyer’s arguments routinely. Moreover, a jury may feel empathy for the accused, especially if the charge is one with which they identify.

Advantages of Trial by Judge

Trial by judge also has advantages. Judges may be less prejudiced than some jurors, who may look down on an accused who is poorly dressed, for example. Some jurors may also allow disgust for an offence – such as child abuse or impaired driving – to cloud their judgement. Legal technicalities may also confuse jurors. A jury may be convinced by the eloquence of a good Crown prosecutor or defence counsel as by actual evidence. A judge is trained to make a decision based on the facts and the law. Finally, a judge presents reasons for the decision – a jury does not. These reasons may help either side to determine grounds for an appeal.

Jury Empanelling – the process of selecting the 12 jurors – can take many days. First, a list of jurors is created from a list of all people living in the area where the court is located. The list is usually computer generated according to scientific criteria. A selection committee headed by the sheriff then randomly picks 75 to 100 names from the list. The people selected are summoned to appear at the court by notice from the sheriff. The more controversial the case, the more people are called. A prospective juror who des not appear can be issued a warrant and can even be criminally charged.

At the start of a trial, prospective jurors assemble in the courtroom. Cards bearing each name are placed in a barrel, and each person steps forward after his or her name is drawn. The judge may exempt anyone with a personal interest in the case, a relationship with a trial participant, or a personal hardship. The judge can also direct a juror to stand aside for any reasonable cause. If a full jury cannot be selected from the remaining prospective jurors, those asked to stand aside with be called again. The defence and the Crown prosecutor can then accept or reject them as jurors.

The judge decides what questions prospective jurors can be asked. In selecting a jury, the Crown and the defence must consider the value systems of prospective jurors. For example, how might an older male, a feminist, an older female, or a young bachelor view the accused in a case involving obscenity? Ethnicity, religion, age, financial status, occupation, sexual orientation, intelligence, and gender are only a few characteristics that are considered.

Each province or territory determines who can serve on a jury. Generally, prospective jurors must be Canadian citizens between the ages of 18 and 69, and speak either English or French.

The following are usually exempt from jury duty:

• MP’s, senators, members of provincial legislatures and municipal governments
• judges, justices of the peace, lawyers and law students
• doctors, coroners, veterinarians
• law enforcement officers, special constables, sheriffs, prison wardens and guards and their spouses
• people who are visually impaired
• people with a mental or physical disability that seriously impairs their ability to complete jury duty
• anyone who has served on a jury within the preceding two or three years
• anyone convicted of an indictable offence that has not pardoned

Challenges

The Crown prosecutor and the defence counsel each want a jury responsive to their position. So, they can challenge, eliminate, or accept various prospective jurors. The defence has the first right to challenge a prospective juror. After that, the prosecutor and the defence alternate the first right of challenge. Three types of challenges can be used to eliminate prospective jurors

1) Challenge of Jury List

Either side can challenge the jury list. Usually, this will only succeed if it can be shown that the sheriff or selection committee was fraudulent or partial, or showed wilful misconduct in selecting prospective jurors. For example, the selection committee may have excluded any citizens from a particular ethnic group. However, there is no requirement that there must be a person on the jury that has the same ethnic origin as the accused.

2) Challenge for Cause

A challenge for cause is made on the basis that prospective jurors do not meet the provincial or territorial requirements governing juries. For instance, perhaps they are not on the jury list or are in an exempted category. They may have formed an opinion, or they may not speak or understand French or English.

Any number of challenges for cause can be made, as long as the judge rules the causes are valid. If the defence does challenge for cause, the Crown can try to prove the cause is untrue. The judge will appoint the last two of the jurors who have already been selected, or two other persons, to decide if the challenge should be accepted

3) Peremptory Challenge

A peremptory challenge allows both the defence and the Crown to eliminate a prospective juror without giving a reason. Each side is allowed a set number of peremptory challenges, based on the charge:

• high treason or first-degree murder – 20 challenges
• charge where the penalty is five years or over – 12 challenges
• charge where the penalty is under five years – 4 challenges

If the full jury of 12 cannot be selected because of challenges, more prospective jurors can be called from the jury list. In some circumstances, the judge may order the sheriff to take prospective jurors off the street.

Jury Selection

After being selected, each juror is sworn in and then sits in the jury box. Prospective jurors who were not selected can leave, but they may have to return for later trials held during that session of the court. Selected jurors may also be required to return for later trials. The judge may waive this requirement particularly if the trial is lengthy.

At the start of the trial, the judge informs jurors of their duties. They may or may not take notes, depending on the judge or the jurisdiction. In all trials, jurors may NOT

• discuss the case with anyone other than other jurors
• follow media reports about the case
• disclose any information from the jury discussions that is not revealed in open court.

During most trials, jurors go home at the end of the day. The judge may, however, sequester the jury for the entire trial. This means the jury is housed and fed away from home until they reach a formal decision – the verdict. Jurors are isolated from families, friends and work and can communicate only with one another and the court officer appointed to look after their needs. Sequestering is used to prevent jurors from being influenced by outside information or by anyone with an interest in the case. Thus, the verdict should be based solely on evidence presented in court. In all trials, jurors are sequestered when they retire to reach a verdict.

A juror can be discharged during a trial if he or she is unable to continue for a valid reason. If the jury falls below 10 jurors, however, a new trial must be ordered. Jurors may be entitled to a token payment for their services, which increases if the trial is lengthy.

Presentation of Evidence

Arraignment

The first step in a trial is the arraignment, or the reading of the charges against the accused. This must be the charge contained in the indictment or an acquittal may result. The accused then enters a plea of guilty or not guilty. If the accused refuses to plead, a not-guilty plea is entered on his or her behalf. The accused is usually arraigned in his or her first court appearance, and re-arraigned for trials in higher courts.

Crown Evidence

The Charter guarantees that any accused person is presumed innocent until proven guilty. After arraignment the onus is on the Crown to rebut – to counter or disprove – this presumption of innocence.

The Crown first presents an opening statement, which summarizes its case against the accused. It then calls evidence in the form of witness testimony and exhibits. All evidence that is relevant, reliable, and fair is admissible. The Supreme Court of Canada has ruled that it is not necessary for the Crown to call obvious witnesses, even the victim, if the relevant evidence that person might give can be presented in other ways.

Direct evidence is usually obtained in the testimony of witnesses who actually saw the offence being committed. In many instances, however, there may be no such witnesses. Direct evidence is the most common evidence, but it is not the most reliable. Eyewitness accounts may be contradictory, and witnesses may not recall what they saw with complete accuracy. Their memories may change over time.

Circumstantial evidence is indirect evidence. It can indicate that it is highly probable the accused is the only one who could have committed the offence. Generally, circumstantial evidence alone is not enough to convict. The Supreme Court ruled in 1967 that circumstantial evidence can convict if it conclusively proves the accused committed the crime and eliminates any other reasonable explanation of innocence.

Evidence must be proven as it is presented. If a glove was found at the scene of a crime, it must be proven that the glove being entered as an exhibit is the same glove. If counsel is stating that a certain person owned the glove, it must also prove that fact. Some evidence is easily proven. Fingerprints may connect a gun to its owner, or DNA tests may link the accused to the scene of a crime. Once evidence has been presented and proven, the jury, or the judge in a non-jury trial, must decide which facts they believe.

The examination-in-chief is the first questioning of a witness. Because the Crown interviews its witnesses during preparation, it knows what answers to expect. Therefore it can ask no leading questions during an examination-in-chief. Leading questions indicate the answer, generally a ‘yes’ or ‘no’ response.