Full Text:Volume 4D

Preliminary Inquiry

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• < Preliminary Inquiry

General Principles

The preliminary inquiry justice derives all of its authority from Part XVIII of the Code.

Preliminary Inquiry Flowchart

Inquiry by justice

535 If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) [request for preliminary inquiry] or 536.1(3) [request for preliminary inquiry – Nunavut], the justice shall, in accordance with this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)], inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)].
R.S., 1985, c. C-46, s. 535; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 24; 2019, c. 25, s. 238.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The powers of a preliminary inquiry judge exist only in statute and within Part XVIII of the Code.

Availability

Where an election for trial by superior court judge (alone or with jury) and the maximum penalty is 14 year or more, the provincial court judge receiving the election must inquire whether the accused wishes to have a preliminary inquiry. Where a preliminary inquiry is requested, the provincial court judge has jurisdiction to take evidence as a preliminary inquiry judge.

Dangerous Offender Application

Where the Crown provides proper notice of an intention to seek a Dangerous Offender Order prior to election and plea on an offence with a penalty under 14 years. The prospects of a Dangerous Offender Order does not create .

Retrospectivity of Bill C-75 Changes

On September 19, 2019, Bill C-75 removed the availability of preliminary inquiries to offences with maximum penalty of 10 years or less.

There is a division in the case law of whether the amendments in Bill C-75 removing the preliminary inquiry for certain offences will affect those matters with inquiries already scheduled.

Offences that had a maximum penalty of 10 years at the time they were permitted but have since been increased to 14 years or more are not entitled to a preliminary inquiry under the current law.

Purpose

The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court. In practice the Inquiry is used to test the strength of the Crown’s case.

Its purpose is also "to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process."

It is an "expeditious charge-screening mechanism"

The inquiry judge has a general power to regulate the inquiry process under s. 537. The judge may require counsel to define the issues for which evidence will be called (see s.536.3), and may further limit the scope of the inquiry under section 536.5 and 549.

There is no constitutional right to a preliminary inquiry. Thus, any deprivation of a preliminary inquiry does not violate any principles of fundamental justice.

Discovery Function

Prior to the amendments in 2005, it has also been used as a venue for discovery.

Since the passing of the Criminal Law Amendment Act, 2002, c. 13 (Bill C-15A), discovery has lost some relevancy as a purpose of the preliminary inquiry. The discovery purpose is "ancillary" to the main purpose of the hearing.

The discovery function of the preliminary inquiry "does not encompass the right of the accused to call evidence ... which is solely relevant to a proposed application to exclude evidence at trial".

Where the accused is in possession of all disclosure covering the investigation and offence there is some suggestion that the discovery purpose of the preliminary inquiry becomes largely irrelevant.

Discovery function does not impose any obligations upon Crown to call all relevant evidence for trial.

Cross-examining Warrant Affiant (Dawson Applicantion)

There is some support to allow the accused to cross-examine the affiant during the preliminary inquiry. In Ontario, this requires an application before the preliminary inquiry judge to determine if it is available.

Topics

• Electing a Preliminary Inquiry
  • Statement of Issues and Witnesses Under Section 536.3
• Order of Committal to Stand Trial
• Procedural Powers of a Preliminary Inquiry Judge
• Preliminary Inquiry Evidence
• Miscellaneous Issues for Preliminary Inquiry

Electing a Preliminary Inquiry

This page was last substantively updated or reviewed January 2020. (Rev. # 79483)

• < Procedure and Practice
• < Preliminary Inquiry

General Principles

Crown and defence have the right to elect to hold a preliminary inquiry for indictable and hybrid offences prosecuted by indictment that have a maximum penalty of 14 years or more.

A preliminary inquiry judge who sits at the provincial court level presides over the hearing and determines whether to make an order of committal directing that the accused stand trial before a superior court judge or jury.

Offences Eligible for a Preliminary Inquiry

A Preliminary Inquiry can only be available for indictable offences with a maximum penalty of 14 years or more (s.535). A hearing will be scheduled in any one of the following situations:

• the accused elects trial by judge alone or judge and jury (s. 536(2), (4))
• the accused is charged with an offence under s. 469 (e.g. murder, treason, etc)
• the accused refuses to make an election (s. 565)
• the judge exercises discretion in ordering the matter be prosecuted by indictment (s 555(1))
• the attorney general orders a trial by judge and jury (s. 568)

On the election the judge must endorse the information to show the election and who made the election. (s. 536(4.1))

Where there are more than one accused, if one person elects to have a preliminary inquiry the remainder are deemed to have made the same election. (s. 536(4.2), 567)

The time limit is set by the rules of the Court pursuant to s. 482 and 482.1

Parties Able to Request a Preliminary Inquiry

Under 536(4) either the Defence or the Crown may request that a preliminary inquiry so long it is within the time-limit as set by the rules of court or the justice.

536
[omitted (1), (2), (2.1) and (3)]

Request for preliminary inquiry

(4) If an accused referred to in subsection (2) [election before justice – 14 years or more of imprisonment] elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 [exclusive jurisdiction offences] that is punishable by 14 years or more of imprisonment, the justice shall, subject to section 577 [direct indictments], on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.
[omitted (4.1), (4.11), (4.12), (4.2) and (4.3)]

Jurisdiction

(5) Where a justice before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice having jurisdiction in the province where the offence with which the accused is charged is alleged to have been committed has jurisdiction for the purposes of subsection (4) [request for preliminary inquiry].
R.S., 1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The obligation upon the accused under s. 536(4) to request a hearing does not violate their freedom of expression or right against self-crimination.

There is no requirement of when the request for a preliminary inquiry must be made. It is preferred practice that the counsel requesting the preliminary inquiry identify the issues to addressed and witnesses required at the time of the request.

Setting of Preliminary Inquiry Hearing

Under s. 536, at sometime before the setting of a preliminary inquiry date, the judge must read the accused his election address:

“

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury, or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

”

Statement of Issues and Witnesses

• Statement of Issues and Witnesses Under Section 536.3

Preliminary Inquiry Evidence

This page was last substantively updated or reviewed January 2020. (Rev. # 79483)

• < Procedure and Practice
• < Preliminary Inquiry

General Principles

During a preliminary inquiry, the justice presiding the inquiry will accept evidence from witnesses and will permit cross-examination.

Taking evidence

540 (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall

(a) take the evidence under oath of the witnesses called on the part of the prosecution, subject to subsection 537(1.01) [power limit issues and witnesses], and allow the accused or counsel for the accused to cross-examine them; and

(b) cause a record of the evidence of each witness to be taken

(i) in legible writing in the form of a deposition, in Form 31 [forms], or by a stenographer appointed by him or pursuant to law, or

(ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation.

[omitted (2), (3), (4), (5), (6), (7), (8) and (9)]
R.S., 1985, c. C-46, s. 540; R.S., 1985, c. 27 (1st Supp.), s. 98; 1997, c. 18, s. 65; 2002, c. 13, s. 29; 2019, c. 25, s. 243.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The taking of evidence will include evidence "that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded." (s.540 (7)) Anytime evidence is put forward under s.540(7) there must be reasonable notice to the other parties of "the intention to tender it, together with a copy of the statement". (s. 540(8))

The crown may adduce evidence of an admission or confession by the accused “that by law is admissible” against him. (s. 542(1))

Under s. 548(1), the Court must decide whether any admissible evidence upon which a reasonable jury, properly instructed, could return a guilty verdict.

Where direct evidence on each element of an offence is presented, the court must order the accused to stand trial on the charge. Exculpatory evidence will not result in a discharge of the charges.

The judge may not exclude evidence at the inquiry due to any constitutional violations.

The judge does not have the authority to compel the Crown to provide particulars or disclosure to the defence or compel the production of Third Party Records. Further, the judge cannot order a stay proceedings for abuse of process.

The judge however may exclude a statement of the accused as involuntary.

Expert Evidence

It is an error of jurisdiction by the preliminary inquiry judge to refuse to consider the "sufficiency of the foundation" of the expert evidence.

Crown Evidence

The Crown has unfettered discretion on whom they wish to call as witnesses. A judge has no authority to direct the Crown to call witnesses.

Relevancy

Given the discovery function of the preliminary inquiry, the defence should be entitled to cross-examine on issues unrelated to committal but related to ultimate issues at trial.

Depositions

540
[omitted (1)]

Reading and signing depositions

(2) Where a deposition is taken down in writing, the justice shall, in the presence of the accused, before asking the accused if he wishes to call witnesses,

(a) cause the deposition to be read to the witness;

(b) cause the deposition to be signed by the witness; and

(c) sign the deposition himself.

Authentication by justice

(3) Where depositions are taken down in writing, the justice may sign

(a) at the end of each deposition; or

(b) at the end of several or of all the depositions in a manner that will indicate that his signature is intended to authenticate each deposition.

[omitted (4), (5), (6), (7), (8) and (9)]
R.S., 1985, c. C-46, s. 540; R.S., 1985, c. 27 (1st Supp.), s. 98; 1997, c. 18, s. 65; 2002, c. 13, s. 29; 2019, c. 25, s. 243.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Defence Concessions at Preliminary Inquiry

Any concessions or waiver of voir dires made at the preliminary inquiry stage are irrelevant and have no binding effect upon counsel at trial.

Circumstantial Evidence, Inferences and Weighing Evidence

Where circumstantial evidence is presented, the court engages in "limited weighing" of all the evidence, to determine whether a reasonable jury, properly instructed, could return a guilty verdict. This involves considering the reasonableness of the inferences drawn from the evidence.

A preliminary inquiry judge may not rely entirely on a circumstantial case by making inferences.

A "reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution." If the justice "does not consider the competing inferences in a manner that gives the maximum reasonable benefit to the Crown, the case law characterizes this as the justice exceeding his or her jurisdiction."

Admissions or Confessions

Confessions, admissions or statements of the accused are admissible under the same test to be applied at trial. Thus the crown must advance some evidence that the statement was made and to establish beyond a reasonable doubt that it was voluntary.

Defence Evidence

Under s. 541(2), once the Crown has closed its case at the preliminary inquiry, the presiding judge must ask the accused whether he wishes to testify on his own behalf. The address to the accused is as follows:

“

Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.

”

Anything the accused says can be taken down and used as evidence.(s. 541(2))

The accused is entitled to call any witnesses he wishes (s. 541(4)). The judge should be sure to inquire whether the accused is calling any other witnesses.(s.541(3))

The judge must inquire into whether a self-represented accused has any witnesses to call as evidence.

Section 657 permits any statement made under s. 541(3) to be admitted into evidence against the accused without proof of a judge's signature upon the statement.

Hearing of witnesses

541 (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, if required by this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)], has been read, the justice shall, subject to this section and subsection 537(1.01) [power limit issues and witnesses], hear the witnesses called by the accused.

Contents of address to accused

(2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall address the accused as follows or to the like effect:

“Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.”

Statement of accused

(3) Where the accused who is not represented by counsel says anything in answer to the address made by the justice pursuant to subsection (2) [contents of address to accused], the answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)].

Witnesses for accused

(4) Where an accused is not represented by counsel, the justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) [contents of address to accused] and (3) [statements of accused] have been complied with.

Depositions of witnesses

(5) Subject to subsection 537(1.01) [power limit issues and witnesses], the justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 [taking evidence by preliminary inquiry judge] applies with any modifications that the circumstances require.

R.S., 1985, c. C-46, s. 541; R.S., 1985, c. 27 (1st Supp.), s. 99; 1994, c. 44, s. 54; 2019, c. 25, s. 244.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Confession or admission of accused

542 (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.

Restriction of publication of reports of preliminary inquiry

(2) Every one who publishes in any document, or broadcasts or transmits in any way, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless

(a) the accused has been discharged, or

(b) if the accused has been ordered to stand trial, the trial has ended,

is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 19]
R.S., 1985, c. C-46, s. 542; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 19.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

No Right to Prevent Defence from Calling Witnesses

The inquiry judge has no ability to stop defence from calling relevant evidence even where they are satisfied that there is sufficient evidence for committal.

Defence Evidence Useable at Trial

Any statement by an accused made under s. 541(3) can be admitted at trial:

Evidence on Trial

Use in evidence of statement by accused

657 A statement made by an accused under subsection 541(3) [statements of accused] and purporting to be signed by the justice before whom it was made may be given in evidence against the accused at his or her trial without proof of the signature of the justice, unless it is proved that the justice by whom the statement purports to be signed did not sign it.
R.S., 1985, c. C-46, s. 657; 1994, c. 44, s. 62.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Hearsay Evidence

• Admission of Hearsay Evidence at Preliminary Inquiry

Recording of Evidence and Transcription

Taking evidence

540
[omitted (1), (2) and (3)]

Stenographer to be sworn

(4) Where the stenographer appointed to take down the evidence is not a duly sworn court stenographer, he shall make oath that he will truly and faithfully report the evidence.

Authentication of transcript

(5) Where the evidence is taken down by a stenographer appointed by the justice or pursuant to law, it need not be read to or signed by the witnesses, but, on request of the justice or of one of the parties, shall be transcribed, in whole or in part, by the stenographer and the transcript shall be accompanied by

(a) an affidavit of the stenographer that it is a true report of the evidence; or

(b) a certificate that it is a true report of the evidence if the stenographer is a duly sworn court stenographer.

Transcription of record taken by sound recording apparatus

(6) Where, in accordance with this Act, a record is taken in any proceedings under this Act by a sound recording apparatus, the record so taken shall, on request of the justice or of one of the parties, be dealt with and transcribed, in whole or in part, and the transcription certified and used in accordance with the provincial legislation, with such modifications as the circumstances require mentioned in subsection (1) [obligation to take and record evidence of inquiry witnesses].
[omitted (7), (8) and (9)]
R.S., 1985, c. C-46, s. 540; R.S., 1985, c. 27 (1st Supp.), s. 98; 1997, c. 18, s. 65; 2002, c. 13, s. 29; 2019, c. 25, s. 243.

– CCC (CanLII), (DOJ)

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See Also

• Public and Media Restrictions#Preliminary Inquiry Evidence

Air of Reality Test

This page was last substantively updated or reviewed May 2020. (Rev. # 79483)

• < Criminal Law
• < Defences

General Principles

Before the trier-of-fact can consider a justification or excuse defence there must be an "air of reality" to the defence. Should there be an air of reality to the advanced defence, the burden is then upon the Crown to disprove at least one of the elements of the defence beyond a reasonable doubt.

The air of reality test asks "whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.

Purpose

The purpose of the air of reality test is to prevent "outlandish defences" being put to the jury that would be "confusing and would invite unreasonable verdicts."

As part of the trial judge's gatekeeper function, the judge must ensure that the trier-of-fact "does not become sidetracked from the real issues in a case by considering defences that the evidence cannot reasonably support."

The purpose of the test is not intended "to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed". It only asks "whether the record contains a sufficient factual foundation for a properly instructed jury to give effect to the defence."

Nature of Burden Upon Accused

The air of reality test creates an evidential burden, not a persuasive burden.

Jury Trials

In the context of a jury trial, the test determines whether the judge will give instructions to the jury that they should consider the particular defences. The jury should be instructed only of the defences that have evidence supporting it. By inference, a "judge has a positive duty to keep from the jury defences lacking an evidential foundation." There must be evidence support each element of the defence.

Where it Applies

The test applies to all defences as well as all elements of each defence.

Applicable Test

The test requires that there must be "some evidence" upon which "a properly instructed jury acting reasonably could base an acquittal."

Evaluation of Evidence

The judge must consider the "totality of the evidence" and assume that the defence evidence is all true. The judge should not consider credibility, make findings of fact, draw inferences, or "weigh" the evidence. He should not consider the likelihood of success of the defence.

The judge may perform a limited, common sense weighing of the evidence.

The judge must consider whether inferences would be necessary for the defence to succeed and whether those inferences from the evidence are reasonable.

Where the stories of witnesses differ, the trier-of-fact may "cobble together some of the complainant’s evidence and some of the accused’s evidence" to determine if there is an air of reality.

Incompatible Theories

There is no rule against putting an alternative defence theory to the jury that is factually incompatible with the defence's principal theory. The only applicable test is whether there is an air of reality based on the evidence.

Appellate Review

Whether there is an air of reality to a defence is a question of law and is reviewable on a standard of correctness.

However, the decision on whether to leave a defence to the jury is entitled to "some deference." This apparent conflict between standards can prove difficult. The distinction can be reconciled whereby direct evidence cases do not afford deference while those involving limited inferences should be accorded "some deference".

See Also

• Self-Defence and Defence of Another

Procedural Powers of a Preliminary Inquiry Judge

• < Procedure and Practice
• < Preliminary Inquiry

This page was last substantively updated or reviewed December 2022. (Rev. # 79483)

General Principles

Powers of justice

537 (1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] may

(a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason;

(b) remand the accused to custody for the purposes of the Identification of Criminals Act;

(c) except where the accused is authorized pursuant to Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] to be at large, remand the accused to custody in a prison by warrant in Form 19 [forms];

(d) resume an inquiry before the expiration of a period for which it has been adjourned with the consent of the prosecutor and the accused or his counsel;

(e) order in writing, in Form 30, that the accused be brought before him, or any other justice for the same territorial division, at any time before the expiration of the time for which the accused has been remanded;

(f) grant or refuse permission to the prosecutor or his counsel to address him in support of the charge, by way of opening or summing up or by way of reply on any evidence that is given on behalf of the accused;

(g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;

(h) order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing;

(i) regulate the course of the inquiry in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry, that is consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) [agreement to be recorded] or agreement made under section 536.5 [agreement to limit scope of preliminary inquiry];

[omitted (j)]

(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate.

(k) [Repealed, 2022, c. 17, s. 35]

Power provided under paragraph (1)(i)

(1.01) For the purpose of paragraph (1)(i) [power to regulating inquiry], the justice may, among other things, limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.

Section 715 or 715.01

(1.02) If a justice grants a request under paragraph (1)(j.1) [power to permit accused to be absent during inquiry], the Court must inform the accused that the evidence taken during their absence could still be admissible under section 715 [evidence at preliminary inquiry may be read at trial in certain cases] or 715.01 [transcript of evidence of peace officer admissible at trial].

Inappropriate questioning

(1.1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] shall order the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate.

Change of venue

(2) Where a justice changes the place of hearing under paragraph (1)(a) to a place in the same province, other than a place in a territorial division in which the justice has jurisdiction, any justice who has jurisdiction in the place to which the hearing is changed may continue the hearing.

(3) and (4) [Repealed, 1991, c. 43, s. 9]

R.S., 1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22; 2019, c. 25, s. 242; 2022, c. 17, s. 35.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Organization

538 Where an accused is an organization, subsections 556(1) [organization to appear by agent or counsel] and (2) [consequence of non-appearance by organization] apply with such modifications as the circumstances require.

R.S., 1985, c. C-46, s. 538; 2003, c. 21, s. 8.
[annotation(s) added]

– CCC (CanLII), (DOJ) CCC]

---

Powers described in s. 537 should be "interpreted broadly so that the judge can carry out his mandate effectively."

Disclosure

The accused right to disclosure has no connection with the course of the preliminary inquiry. The power of the court to ensure that disclosure is met is not affected by the inquiry process. Unavailable evidence that would assist in full answer and defence has no bearing on the preliminary inquiry process.

Focus Hearings

Order for hearing

536.4 (1) The justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the justice’s own motion, that a hearing be held, within the period fixed by rules of court made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] or, if there are no such rules, by the justice, to

(a) assist the parties to identify the issues on which evidence will be given at the inquiry;

(b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses’ needs and circumstances; and

(c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.

Agreement to be recorded

(2) When the hearing is completed, the justice shall record any admissions of fact agreed to by the parties and any agreement reached by the parties.
2002, c. 13, s. 27.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Agreement to limit scope of preliminary inquiry

536.5 Whether or not a hearing is held under section 536.4 [order for preliminary inquiry hearing], the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. An agreement shall be filed with the court or recorded under subsection 536.4(2) [agreement to be recorded], as the case may be.

2002, c. 13, s. 27; 2019, c. 25, s. 241(E)
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Publication Bans

There are several publication bans available for preliminary inquires:

• complainant's identity (s. 486.4(1) and (2), 486.4(3) [mandatory]; s. 486.4(1), 486.5(1))
• accused's confessions (s. 542) [mandatory]
• evidence of preliminary inquiry (s. 539)
• witnesse's identity (s. 486.5(1))
• justice system participant's identity (s. 486.2(5))

Order of Committal to Stand Trial

This page was last substantively updated or reviewed January 2020. (Rev. # 79483)

• < Procedure and Practice
• < Preliminary Inquiry

General Principles

The test for a preliminary inquiry is the same as a motion for non-suit or directed verdict. The test is: "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty".

The analysis requires the judge to determine whether "there is admissible evidence which could, if it were believed, result in a conviction".

The evidentiary standard is "very low". There must simply be "some or a scintilla of evidence on each essential element of the offence".

If the "evidence is capable of belief, it is to be believed".

The evidence cannot be considered "piecemeal" but rather the judge must examine the evidence as a whole.

After hearing evidence and argument the court must make a ruling on whether to commit the accused to stand trial for the charges alleged.

Where the evidence "consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict".

Inferences and Circumstantial Evidence

The test remains the same whether the evidence is circumstantial or direct.

Where inferences may be drawn, it is not important if "more than one inference can be drawn...only the inferences that favour the Crown are to be considered".

Insufficient Evidence

Where the evidence is not sufficient to commit the matter to trial the Judge may discharge the accused of the charges alleged:

Order to stand trial or discharge

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[omitted (2), (2.1) and (3)]
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

– CCC (CanLII), (DOJ)

---

Standard of Review

Errors of jurisdiction

Where a judge incorrectly decides on the issue of committal there may be a loss of jurisdiction reviewable on a writ of certiorari.

A committal where there is an absence of evidence on an essential element of the charge is a jurisdictional error.

An error in an evidentiary ruling on an element of the offence is not a jurisdictional error that is reviewable.

Consent to Committal

At any time before the conclusion of the preliminary inquiry the accused may consent to committal.

Order to stand trial at any stage of inquiry with consent

549 (1) Notwithstanding any other provision of this Act, the justice may, at any stage of a preliminary inquiry, with the consent of the accused and the prosecutor, order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or further evidence.

Limited preliminary inquiry

(1.1) If the prosecutor and the accused agree under section 536.5 [agreement to limit scope of preliminary inquiry] to limit the scope of a preliminary inquiry to specific issues, the justice, without taking or recording evidence on any other issues, may order the accused to stand trial in the court having criminal jurisdiction.

Procedure

(2) If an accused is ordered to stand trial under this section, the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall after that be dealt with in all respects as if ordered to stand trial under section 548.

R.S., 1985, c. C-46, s. 549; R.S., 1985, c. 27 (1st Supp.), s. 101; 2002, c. 13, s. 30; 2019, c. 25, s. 247.

– CCC (CanLII), (DOJ)

---

Ordering Committal

When the preliminary inquiry judge makes an order of committal he must transfer the record of the matter (the information, evidence, exhibits and statements made under s. 541, release documents, etc) to the superior court. That is stated in s. 551:

Transmission of record by justice

551 If a justice orders an accused to stand trial, the justice shall immediately send to the clerk or other proper officer of the court by which the accused is to be tried, any information, evidence, exhibits, or statement of the accused taken down in writing in accordance with section 541 [hearing witnesses and accused], any appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice.
R.S., 1985, c. C-46, s. 551; R.S., 1985, c. 27 (1st Supp.), s. 102; 2019, c. 25, s. 249.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

This provision came into force on December 18, 2019.

Fixing Dates

548
[omitted (1) and (2)]

Where accused ordered to stand trial

(2.1) A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed.
[omitted (3)]
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

– CCC (CanLII), (DOJ)

---

New Charges

548
[omitted (1)]

Endorsing charge

(2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.
[omitted (2.1) and (3)]
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

– CCC (CanLII), (DOJ)

---

Defects to Order

548
[omitted (1), (2) and (2.1)]

Defect not to affect validity

(3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect.
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

– CCC (CanLII), (DOJ)

---

Order Transferring Detained Property

490
[omitted (1), (2), (3) and (3.1)]

When accused ordered to stand trial

(4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) [detention of things seized without consent (various means)] to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs.
[omitted (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14; 2017, c. 7, s. 63(F).
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Trial Process

This page was last substantively updated or reviewed January 2020. (Rev. # 79483)

• < Procedure and Practice
• < Trials

Introduction

Purpose of a trial

A trial is a process by which a judge attempts to ascertain the truth in order to convict the guilty and acquit the innocent. The process does not go so far as to determine "actual innocence" as the standard of proof a trial is proof beyond reasonable doubt and does not evaluate degrees of acquittal and is not the ultimate purpose of criminal law.

The trial fundamentally is "about the search for the truth as well as fairness to the accused". This is guided by these principles:

1. the presumption of innocence
2. the right against self-incrimination
3. the ultimate burden on the crown to prove guilt beyond a reasonable doubt.

The trial process is the primary means of resolving disputes in a "just, peaceful, and orderly way".

Trial is Not Scientific

The trier-of-fact is not engaging "in a scientific investigation". It is irrelevant to the trial process that there may exist relevant evidence that has not been put before the court. Judges are not to go looking for evidence "like detectives".

A trial is Not to Vindicate the Complainant

The purpose of a trial is not to vindicate the complainant. It is to determine whether a criminal offence has been committed.

A failure to convict does not mean that the complainant is not believed or believable. It is also not equivalent to a finding that the allegations did not happen.

Ordering of Trial

Fair Trial

"Trial fairness" does not equate the right to a "perfect" trial.

Trial fairness is not exclusively a consideration for the benefit of the accused. A "fair trial" is not one that appears fair solely from the perspective of the accused. It should be considered "from the perspective of the community". It must satisfy the "public interest in getting at the truth" while preserving the "basic procedural fairness for the accused".

Right to a Fair Trial

Section 11(d) of the Charter guarantees:

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right ...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

– CCRF

The right to a fair trial and the principles of fundamental justice "do not guarantee defence counsel the right to precisely the same privileges and procedures as the Crown and the police".

Venue of Trial

As a general rule, an accused "should be tried in the community of territory where the alleged offence was committed." And should only change where an application for a change of venue under s. 599 has been made.

There is no unfettered discretion to try a matter anywhere within the province. Otherwise, the law could become an "engine of oppression and injustice".

Crown's Case

The Crown will always be the first party to call evidence. It is expected that the crown will call all available witnesses that it intends to rely upon to establish the elements of the offences charged beyond a reasonable doubt.

The crown is expected to go first in order to prevent "unfair surprise, prejudice, and confusion but could result if the crown were allowed to split its case".

The Crown is expected to call, as part of its case, evidence that may rebut any alibi evidence and evidence of similar facts.

The accused is entitled to know to full case against the accused once the Crown closes its case.

Defence's Case

At the end of the Crown's case the defence will be permitted to either make a motion for directed verdict, elect to call evidence, or elect not to call evidence.

If the accused elects to call evidence, an opening statement may be given to introduce the trier-of-fact to the defence's case.

The defence has discretion on the order of the calling of witnesses.

If the accused does not call evidence, there will be no need for an opening statement. The case will proceed to closing statements beginning with the Crown's submissions.

Multiple Co-Accused

The order in which the accused are to be asked for their election on whether to call evidence after the closing of the Crown's case will depend on the tradition for the particular jurisdiction. However, most frequently the accused will be addressed in the order in which they appear in the information.

An accused can apply to the trial judge to have the convention changed. The Judge’s trial management powers entitle the judge to change the ordering subject to consideration of the risks inherent with the proposed changes.

Adjournment of Trial

Under s. 645 a trial must be continuous unless the court adjourns the matter. There is no requirement of a formal adjournment process to create breaks in the proceeding.

Court Calling Witnesses

The Court has a residual discretionary power to call witnesses to testify where it is necessary for the discovery of truth or in the interests of justice. This power should only be exercised "rarely" and "with caution" in order to avoid interference in the adversarial process or prejudice the accused. It should not be used after the close of the defence's case unless due to an unforeseen matter.

Rebuttal, Reply and Re-Opening a Case

• Rebuttal, Reply and Re-Opening a Case

Variation on Rules Depending on Venue

The Code is divided into Parts that outline different rules and procedures depending on the level of court and the type of criminal charge.

This can be divided into the following Parts:

• Part XVIII (18): Procedure on Preliminary Inquiry, s. 535 to 551
• Part XIX (19): Indictable Offences-Trial Without a Jury, s. 552 to 572
• Part XX (20) Procedure in Jury Trials and General Provisions, s. 574 to 672
• Part XXVII (27): Summary Convictions, s. 785 to 840

Summary Conviction Trials

Part states under s. 786 that the provisions applies to all proceedings captured in Part XXVII:

Application of Part

786 (1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.
[omitted (2)]
R.S., 1985, c. C-46, s. 786; 1997, c. 18, s. 110.

– CCC (CanLII), (DOJ)

---

Definitions

785 In this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)],
...
"proceedings" means

(a) proceedings in respect of offences that are declared by an Act of Parliament or an enactment made thereunder to be punishable on summary conviction, and

(b) proceedings where a justice is authorized by an Act of Parliament or an enactment made thereunder to make an order; (procédures)

...
R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4; 2018, c. 16, s. 223, c. 21, s. 26; 2019, c. 25, s. 314
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Section 800 requires that when both the accused and prosecutor appear for a summary conviction trial the judge must hold the trial.

Finding of Guilt

801
[omitted (1)]

Finding of guilt, conviction or order if charge admitted

(2) Where the defendant pleads guilty or does not show sufficient cause why an order should not be made against him, as the case may be, the summary conviction court shall convict the defendant, discharge the defendant under section 730 or make an order against the defendant accordingly.
[omitted (3)]
(4) and (5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 177] R.S., 1985, c. C-46, s. 801; R.S., 1985, c. 27 (1st Supp.), s. 177, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.

– CCC (CanLII), (DOJ)

---

Proceeding with Summary Trial

801
[omitted (1) and (2)]

Procedure if charge not admitted

(3) Where the defendant pleads not guilty or states that he has cause to show why an order should not be made against him, as the case may be, the summary conviction court shall proceed with the trial, and shall take the evidence of witnesses for the prosecutor and the defendant in accordance with the provisions of Part XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] relating to preliminary inquiries.
(4) and (5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 177]
R.S., 1985, c. C-46, s. 801; R.S., 1985, c. 27 (1st Supp.), s. 177, c. 1 (4th Supp.), s. 18(F); {1995, c. 22, s. 10.

– CCC (CanLII), (DOJ)

---

785 In this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)]
...
"trial" includes the hearing of a complaint. (procès ou instruction)
R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4; 2018, c. 16, s. 223, c. 21, s. 26; 2019, c. 25, s. 314.

– CCC (CanLII), (DOJ)

---

Compelling Appearances of Accused

On summary conviction offences, the procedure for compelling attendance is the same as found in Parts XVI and XVIII:

Application of Parts XVI, XVIII, XVIII.1, XX, XX.1 and XXII.01

795 The provisions of Parts XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] and XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] with respect to compelling the appearance of an accused before a justice, the provisions of Parts XVIII.1 [Pt. XVIII.1 – Case Management Judge (ss. 551.1 to 551.7)], XX [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)] and XX.1 [Pt. XX.1 – Mental Disorder (ss. 672.1 to 672.95)], insofar as they are not inconsistent with this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)], and the provisions of Part XXII.01 [Pt. XXII.01 – Remote Attendance by Certain Persons (ss. 715.21 to 715.26)], apply, with any necessary modifications, to proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)].

R.S., 1985, c. C-46, s. 795; R.S., 1985, c. 27 (1st Supp.), s. 176; 1991, c. 43, s. 7; 2011, c. 16, s. 16; 2022, c. 17, s. 52.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Misc Definitions

Definitions

785 In this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)],
"clerk of the appeal court" includes a local clerk of the appeal court; (greffier de la cour d’appel)
"informant" means a person who lays an information; (dénonciateur)
...
"order" means any order, including an order for the payment of money; (ordonnance)
...
R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4; 2018, c. 16, s. 223, c. 21, s. 26; 2019, c. 25, s. 314.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Proceeding to Trial Ex Parte

• Ex Parte Trial Proceedings

Court Record

The provincial court, superior court and court of appeal are all "courts of record". The records of a "court of record" is presumed to be accurate without the need for an inquiry. Consequently, recordings of the clerk of the court are presumed accurate.

Superior Courts

Superior Court Judge-Alone Proceedings Are a Court of Record

Court of record

559 (1) A judge who holds a trial under this Part [Part XIX Indictable Offences — Trial Without Jury] shall, for all purposes thereof and proceedings connected therewith or relating thereto, be a court of record.

Custody of records

(2) The record of a trial that a judge holds under this Part shall be kept in the court over which the judge presides.
R.S., c. C-34, s. 489.

[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Provincial Court

A provincial court must receive evidence in the same manner described in for a preliminary inquiry judge:

Taking evidence

557 If an accused is tried by a provincial court judge or a judge of the Nunavut Court of Justice in accordance with this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)], the evidence of witnesses for the prosecutor and the accused must be taken in accordance with the provisions of Part XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)], other than subsections 540(7) to (9) [adducing hearsay and other credible and trustworthy evidence], relating to preliminary inquiries.
R.S., 1985, c. C-46, s. 557; R.S., 1985, c. 27 (1st Supp.), s. 203; 1999, c. 3, s. 41; 2002, c. 13, s. 35.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Case Digests

• Trial Process (Cases)

This page was last substantively updated or reviewed January 2019. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

Organizations as Accused

800
[omitted (1), (2) and (2.1)]

Appearance by organization

(3) Where the defendant is an organization, it shall appear by counsel or agent and, if it does not appear, the summary conviction court may, on proof of service of the summons, proceed ex parte to hold the trial.
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317; 2022, c. 17, s. 53.

– CCC (CanLII), (DOJ)

---

Summary Conviction Accused

803 [omitted (1)]

Non-appearance of defendant

(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1) [summary offences – right to adjourn matters], the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

(b) may, if it thinks fit, issue a warrant in Form 7 [forms] for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

[omitted (3) and (4)]
(5) to (8) [Repealed, 1991, c. 43, s. 9]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Extra-Jurisdictional Offences

607
[omitted (1), (2), (3), (4) and (5)]

Exception — foreign trials in absentia

(6) A person who is alleged to have committed an act or omission outside Canada that is an offence in Canada by virtue of any of subsections 7(2) to (3.1) [select extra-territorial offences] or (3.7) [extraterritorial offences re torture], or an offence under the Crimes Against Humanity and War Crimes Act, and in respect of which the person has been tried and convicted outside Canada, may not plead autrefois convict with respect to a count that charges that offence if

(a) at the trial outside Canada the person was not present and was not represented by counsel acting under the person’s instructions, and

(b) the person was not punished in accordance with the sentence imposed on conviction in respect of the act or omission,

notwithstanding that the person is deemed by virtue of subsection 7(6) , or subsection 12(1) of the Crimes Against Humanity and War Crimes Act, as the case may be, to have been tried and convicted in Canada in respect of the act or omission.
R.S., 1985, c. C-46, s. 607; R.S., 1985, c. 27 (1st Supp.), s. 126, c. 30 (3rd Supp.), s. 2, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 2000, c. 24, s. 45; 2013, c. 13, s. 9; 2018, c. 11, s. 29.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Representation at Trial

This page was last substantively updated or reviewed January 2020. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

An accused person has the right to represent him or herself. They may also be entitled to representation by an agent or counsel, depending on the circumstances.

Representation by Agent

With some limitations the accused on a summary conviction matter may be represented by a non-lawyer referred to as an "agent".

An agent may appear on certain provincial offence matters. However, inadequacies of the agent's abilities will not necessarily be grounds of an appeal.

An agent may not appear on hybrid criminal matters.

An agent generally may not represent an accused on a summary conviction appeal.

These prohibitions exist under common law and under the provincial law society act. The primary reason is to protect the administration of justice and the right to a fair trial by ensuring competent representation. Certain provinces, such as British Columbia and Alberta, allow limited exception to this rule on the discretion of the judge.

Criminal Code Limits on Agents

Section 802.1 limits to use of agents in summary trials for penalties greater than 6 months.

Limitation on the use of agents

802.1 Despite subsections 800(2) [organization appearance and ex parte trial option] and 802(2) [summary offences – right to examine witnesses], a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless

(a) the defendant is an organization;

(b) the defendant is appearing to request an adjournment of the proceedings; or

(c) the agent is authorized to do so under a program approved — or criteria established — by the lieutenant governor in council of the province.

2002, c. 13, s. 79; 2019, c. 25, s. 317.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The purpose of s. 802.1 is to provide limited protections to an accused by balancing their need for assistance with the need for an acceptable level of competence.

Section 800(2) permits a defendant to "appear personally or by counsel or agent" with some limitations. Section 802(2) permits a defendant to "examine and cross-examine witnesses personally or by counsel or agent.".

The penalty limitation in s. 802.1 applies to the maximum penalty and not the particular penalty for the case.

An accused may use an agent to represent them under s. 802.1 on multiple charges where each offence has a maximum penalty of no more than 6 months. This rule applies per charge and not in sum total.

A licensed and insured Ontario paralegal with instructions from legal counsel may appear as "counsel" within the meaning of a s. 650.01 designation for the purpose of a routine remand of an indictable offence. The same authority exists for articling students who may appear in provincial court on routine bail matters.

Discretion to Refuse an Agent

The trial judge retains discretion to refuse an agent from representing an accused person in a summary conviction matter on the basis that it would "damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process". It may also be refused any time that it is "necessary ... to protect the proper administration of justice". This will include instances where the agent is facing criminal charges involving interference with the administration of justice or where their background "demonstrates pervasive dishonesty or blatant disrespect for the law".

Representation by Counsel

An accused need not necessarily be present at court and can sometimes have their counsel appear on their behalf. Where the offence is a summary offence (or a hybrid offence proceeded by summary conviction) the counsel can act as agent on the accused's behalf. Where the offence an indictable offence, the counsel may appear on the accused's behalf where the counsel has filed a "designation of counsel" pursuant to s. 650.01.

A designation of counsel cannot permit the accused to be absent from the trial proper where oval evidence is being heard, where a jury is being selected, or where an application for habeas corpus is being made.

Representation by Articling Clerk

Articling clerks can only conduct trials "in association with a lawyer".

Under the rules of the legal profession, am articling clerk is generally not treated as an agent of the lawyer. They are permitted to do certain limited lawyer duties while under the direct supervision of the supervising lawyer.

Withdraw by Counsel

An accused has a right to defend himself (s. 651(2)) and so cannot be forced to retain or maintain counsel. The accused has a right to terminate representation by a lawyer at any time, including during trial.

Counsel may not withdraw without leave of the court. Permission to withdraw will be granted where the interests of the lawyer and client are irreconcilable. Once the lawyer has withdrawn they are under no obligation to provide assistance to the accused by way of legal advice or counselling.

Where counsel is seeking to withdraw as counsel due to non-payment of the retainer. The court has discretion to refuse the request are require counsel to complete the matter.

Discharging Counsel

The accused has an unfettered right to discharge his counsel at any time for any reason. The Court has not authority to interfere with this decision or force an unwilling accused to continue to be represented by the discharged counsel.

Removal of Counsel

The trial judge has inherent jurisdiction to remove counsel from a proceedings due to misconduct.

The test to remove counsel is determined on an objective standard, asking whether "a fair-minded reasonably informed member of the public would conclude that the proper administration of justice require[s] the removal of the solicitor."

Court Appointed Counsel

• Court Appointed Counsel

Amicus Curae

• Amicus Curae

Competency of Counsel

See: Ineffective Counsel

See Also

• Right to Counsel
• Representation and Attendance on Appeal

Orders to Exclude Witnesses from Court

This page was last substantively updated or reviewed January 2016. (Rev. # 79483)

• < Evidence
• < Testimonial Evidence

General Principles

A judge has the discretion to order the exclusion any witness from being present in court when other evidence is called.

The power to exclude witnesses (sometimes called "sequestration of witnesses") is for the purpose of "detect[ing] falsehood by exposing inconsistencies", and prevents one witness from being "taught" by another witness. And it prevents the risk of a witness to "alter, modify or change" their evidence due to hearing another witness testify and is particularly important where credibility is in issue.

It has also been said that the purpose is for the purpose of:

1. preventing the prospective witnesses from consulting each other;
2. preventing them from hearing a testifying witness; and
3. preventing them from consulting a witness who has left the stand.

A violation of an exclusion of witnesses order will permit a judge to consider how that may affect the Weight of the evidence and may instruct the jury on the wait.

Where exclusion of witnesses order is violated, the judge cannot prohibit that witness from testifying, but may render the witness liable for contempt.

Procedure

The exclusion of witnesses order will usually be read out in court by the judge or clerk in a form such as the following:

EXCLUSION OF WITNESSES
BY DIRECTION OF HIS LORDSHIP (or HIS HONOUR) ALL WITNESSES IN THIS CASE WITH THE EXCEPTION OF ..... (as directed by the presiding judge) ..... ARE TO BE EXCLUDED FROM THE COURTROOM UNTIL CALLED. IF YOU ARE BEING CALLED AS A WITNESS YOU WILL LEAVE THE COURTROOM AT THIS TIME AND TAKE YOUR PLACE IN THE WITNESS ROOM (or the usual place depending upon the accommodation available) AND BE AVAILABLE TO COME TO THE COURTROOM WHEN REQUIRED. WHILE WAITING TO BE CALLED YOU WILL NOT ATTEMPT TO COMMUNICATE IN ANY WAY WITH ANY WITNESS WHO HAS PREVIOUSLY TESTIFIED IN THIS CASE.

– {{{2}}}

Effect of Breach of Exclusion Order

Where a witness hears evidence of a previous witness in violation of an exclusion order, it is presumed there is prejudice for the purpose of a mistrial application.

Testimonial Evidence

This page was last substantively updated or reviewed January 2018. (Rev. # 79483)

• < Evidence
• < Testimonial Evidence

Introduction

The "truth-seeking process of a trial is predicated on the presentation of evidence in court" be it real evidence or testimony.

The trier-of-fact directly hears testimony "so there is no concern that the evidence was recorded inaccurately". Direct evidence also allows for the trier of fact to have "robust tools for testing the truthfulness of evidence and assessing its value". Assessment of truthfulness can be assessed by demeanour. And through cross examination.

Testimonial evidence, also known as viva voce evidence or oral evidence, is evidence given by a witness in the form answers to posed questions.

When a competent witness has taken the stand, he "is required to answer all relevant questions put to him". There exist exceptions for questions invoking privileged information and certain self-incriminatory information. However, as a general rule, even incriminating questions must be answered.

The "involuntary participation of non-involved persons in litigation is a longstanding tradition of the legal system".

Every person "has a duty to testify to that which they have witnessed".

Purpose of Testimonial Evidence

Testimonial evidence is the best way to ensure the most reliable and credible evidence is available for the trier of fact to consider.

Witnesses are encouraged to be honest, accurate, and complete by requiring them to give evidence under the requirements that:

1. the witness give an oath or affirmation to their evidence;
2. their personal presence is necessary;
3. they will be subject to cross-examination

Calling Witnesses

The usual manner that a witness testify is by oral testimony in court (viva voce evidence) while the accused is present. (CCC s.650(1))

The witnesses' testimony must be relevant, material, and admissible. To see details on the scope of these requirements see Evidence.

Identifying witnesses and Using Pseudonyms

The Court has discretion to allow a witness to testify under a pseudonym only where a failure to do so would interfere with the administration of justice. This includes where the witness has reason to fear for their life.

Preparing Witnesses

The presence of a police officer who is taking notes during an interview, can be enough to insulate Crown counsel from being compelled to testify to the meeting.

New Disclosures

Failure to disclose new information learned during witness preparation that may have affected trial preparations may be fatal to a prosecution.

Showing Documents to Witnesses

While not strictly prohibited, it is preferable that witnesses be not shown documents written by counsel. Depending on the circumstances, merely reviewing the subject matters flagged as important in a notice of application can be acceptable preparation of a witness.

By permitting one witness to see the written statement of another witness may sufficiently taint their evidence so as to be prohibited from testifying.

Impermissible Reasons for Calling Witnesses

The Crown may not call a witness whose evidence does not advance their case, but it merely for the purpose of cross-examining to show them not to be credible. Where such a witness is called, the judge should have provided limiting instructions explaining that absence collusion, a jury cannot draw any adverse inferences against the accused due to the negative finding of credibility against the witness.

Communicating with Witnesses During Testimony

Communication with Witness After Cross-examination But Before Re-Direct

There is variable positions on whether counsel can talk to a witness between cross-examination and re-examination. Generally leave of the court may be required first.

Exclusion of Witnesses

• Orders to Exclude Witnesses from Court

Recalling Witnesses

The judge has discretion to permit that a witness be recalled to be cross-examined further. This can include re-calling the accused to be cross-examined further. However, this discretion should be "exercised very cautiously".

The judge may also permit the Crown to re-open its case and call witnesses they initially chose not to call where that decision was influenced by the conduct of defence counsel.

Choice of Witnesses

Any party is entitled to call a witness who is competent to testify (See Competence and Compellability for details on competency of witnesses).

A party is also permitted call a witness that has already previously been called by the opposing party.

A party cannot call a witness for the sole purpose of discrediting a witness who has made a previous inconsistent statement.

Failure to Call a Witnesss

The failure to call a witness can be used to make an adverse inference where there is no plausible reason not to do so and it is well within the power of the party to do so. However, where the evidence is merely cumulative or inferior en it should not be taken into account.

A failure to call a witness cannot be used to make a negative inference on the credibility of the accused.

Crown Discretion to Call Witnesses

The Crown is under no obligation to subpeona or call witnesses for the benefit of the Defence. The defence are able to subpeona the witnesses themselves.

Failure of Accused to Testify

The failure of an accused to testify cannot be used to infer guilt. A weak prosecution case should not be strengthened in any way through the accuseds' failure to testify.

However, where the Crown sets out a case that "cries out for an explanation", the failure to testify fails to provide any basis to infer anything else but guilt.

Witnesses Refusing to Testify

Procedure where Witness Refuses to Testify

Witness refusing to be examined

545 (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence,

(a) refuses to be sworn,

(b) having been sworn, refuses to answer the questions that are put to him,

(c) fails to produce any writings that he is required to produce, or

(d) refuses to sign his deposition,

without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20 [forms], commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.

Further commitment

(2) Where a person to whom subsection (1) [witness refusing to be examined] applies is brought before the justice on the resumption of the adjourned inquiry and again refuses to do what is required of him, the justice may again adjourn the inquiry for a period not exceeding eight clear days and commit him to prison for the period of adjournment or any part thereof, and may adjourn the inquiry and commit the person to prison from time to time until the person consents to do what is required of him.

Saving

(3) Nothing in this section shall be deemed to prevent the justice from sending the case for trial on any other sufficient evidence taken by him.
R.S., c. C-34, s. 472.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Section 545 does not permit a justice to make an order of contempt against a witness who refuses to testify at a preliminary inquiry.

A witness charged with contempt of court for refusing to testify against gang members due to fear to safety can rely on the defence of duress.

Topics

• Competence and Compellability
• Refreshing Memory
• Testimonial Aids
  • Testimonial Aids for Young, Disabled or Vulnerable Witnesses (Screens and Video-links)
  • Interpreters
• Evidence by Commission
• Analyzing Testimony
• Remote Attendance

See Also

• Trial Process (Cases)
• Hearsay

Opening and Closing Address

This page was last substantively updated or reviewed January 2018. (Rev. # 79483)

• < Procedure and Practice
• < Trials

Opening Submissions

Crown Opening Submissions

The open address is to be used to introduce the parties, explain the process, and provide a general overview of the evidence that the party is calling.

There is no basis in statute to permit the Crown to make an opening statement, however, it is a "long-established custom" that the Crown can set out a brief summary of the facts they intend to establish and the evidence that will be lead.

Purpose of Crown Opening

The purpose of the Crown opening address is to provide an overview of the case so that the jury "may better follow the evidence and understand where the matter is leading".

No Argument or Opinion

The opening is not an opportunity for argument, invectives or opinion.

Opening Must be "Fair"

The primary issue of concern where the Crown has gone outside of his limitations is whether the accused was deprived of a fair trial. This is evaluated in the entirety of the trial's context, including the existence of any judicial remarks.

Explaining the Role of Crown

Before a jury, the Crown should not go into too much detail about the role and duties of the Crown in its opening. Such comments invite "invidious comparison" with the role of defence counsel and may undermine their credibility before a jury.

A Crown remark to a jury stating that the greatest "sin" is for the prosecution to convict an innocent person and how the system is designed not to prosecute the innocent produced a mistrial.

Defence Opening Submissions

The defence is entitled to an opening address under s. 651(2). This takes place after the Crown closes its case.

651
[omitted (1)]

Summing up by accused

(2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.

[omitted (3) and (4)]

R.S., c. C-34, s. 578.

– CCC (CanLII), (DOJ)

---

There is discretion on the part of the Judge to permit the defence to do opening submissions immediately after the Crown's opening and before the calling of evidence, but it should be limited to "special or unusual circumstances".

Available considerations on whether the circumstances amount to "special circumstances" should include:

1. In a retrial, where there was thought to be relative certainty about what the witnesses would say;
2. In a trial where was expected to be a lengthy one or one with complex factual issues;
3. In a trial where the defence was not expected to be apparent to the jury during the Crown's lengthy evidence;
4. In a trial where there existed competing and significant expert evidence; and
5. In a trial where the Crown had one central witness whose testimony was the focus of the case, and from whom: (i) in cross-examination, the defence hoped to raise a defence of self-defence; or (ii) the defence could bring out significant inconsistencies, admitted perjury and a serious potential for self-interest

Closing Submissions

Order of Submissions

Section 651 governs the order of the closing submissions:

Summing up by prosecutor

651 (1) Where an accused, or any one of several accused being tried together, is defended by counsel, the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce evidence on behalf of the accused for whom he appears and if he does not announce his intention to adduce evidence, the prosecutor may address the jury by way of summing up.
[omitted (2)]

Accused’s right of reply

(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last.

Prosecutor’s right of reply where more than one accused

(4) Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor.
R.S., c. C-34, s. 578.

– CCC (CanLII), (DOJ)

---

The accused argues first where defence evidence is called, otherwise the Crown argues first.

Section 651 does not violate the accused's right to full answer and defence.

Should all the evidence called by the accused be ruled inadmissible, then the defence are entitled to address the jury last.

Substance of Submissions

Both counsel have a "fair degree of latitude" on their closings. They are each entitled to "advance his ... position forcefully and effectively", it is expected that there will be "a degree of rhetorical passion in that presentation."

Violations of these requirements may sometimes result in a mistrial. However, the prejudices arising from this conduct can often be remedied by additional jury instructions.

Ability of Judge to Restrict Submissions

A judge must allow counsel an opportunity to make closing submission in full. Nevertheless, the judge can still comment on the evidence during the submissions and may attempt at focusing the argument on particular issues of concern. The judge cannot prevent counsel from making submissions on relevant issues. A trial judge does not have to be silent during submissions and can voice concerns. He is permitted to express a preliminary opinion on the evidence or the law during submissions.

Submissions by counsel on issues before the court cannot be intentionally or inadvertently denied by the court. A failure would result in a new trial.

Erroneous Submissions

Where counsel makes false or erroneous submissions in the address to a jury, the judge must give corrections in the jury instruction.

No Giving Evidence

Counsel cannot give evidence during their closing submissions. This includes giving explanations as to why the accused did not choose to testify.

Recitation of the Law

It is generally not permitted for counsel to read and interpret the law for the jury in their closing arguments.

Acceptance of Evidence

The party calling a witness does not need to assert that the trier of fact accept everything said by the witness wholesale.

Correcting Errors

Crown counsel can ask that the trier reject evidence of a Crown witness in preference of other evidence heard. However, counsel cannot ask for the rejection of evidence in favour of a theory not in evidence. Likewise, a party is not precluded from calling evidence that may contradict other witnesses called by the same party.

A judge is required to correct with the jury any missteps of counsel in their closing irrespective of whether the issue was raised by either counsel. One manner of curing the error in submissions to the jury is by "drawing the jurors’ attention to the misstatements and emphasizing that they do not constitute evidence". Only in the "clearest cases" should a party be granted "limited opportunity to reply".

Defence Submissions

Referencing the Risk of Wrongful Convictions

A "passing reference" to the risk of wrongful conviction or miscarriages of justice is a legitimate argument in a jury address. However, it it "does not help" the jurors in their task. The counsel should not be permitted to "bludgeon" the jury with a "barrage" of reminders that mistakes can be made. Juries afterall should be credited with common sense and intelligence.

Repeating the point can amount to intimidation to the point of demanding an acquittal despite sufficient evidence of guilt.

Submissions of Defence Counsel in a "cut-throat" Defence Case

In a case where two or more co-accused attempt to redirect blame onto the other, there will generally be an acceptance that an enthusiastic and forceful defence that accuses a co-accused of wrongdoing will be permitted.

Crown Closing Submissions

Closing Submissions of the Crown are a form of advocacy and so may include passionate rhetoric and forceful positions.

The rhetoric and argument must be limited to the facts that are in evidence.

Once the Crown has completed their evidence, it is not allowed to change its theory of the case because of the addition of defence evidence.

The Crown cannot argue a position that is based on speculation and not supported by the facts.

However, the Crown must:

• "abstain from inflammatory rhetoric",
• abstain from "demeaning commentary and sarcasm",
• not "misstate the law",
• "not invite the jury to engage in speculation"
• not "express personal opinions about either the evidence or the veracity of a witness"

Crown counsel should not state their own personal opinion to the jury, misrepresent the evidence and use rhetorical excess that may affect the jury.

Use of Multimedia

The use of powerpoint slides should be done with caution. The judge may want to give limiting instructions where slides and accompanying images may potentially mislead the jury.

Effect of Inappropriate Submissions

Inflammatory remarks during opening submissions may allow for a mistrial, particularly in the context of a jury trial.

Unfairness from an improper jury address may be remedied by:

1. "specific correcting reference to it in the charge to the jury" or
2. "if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, ... the prejudiced party may be granted a limited opportunity to reply."

The second remedy "may arise where the substantive legal theory of liability which the Crown has added or substituted in its closing has so dramatically changed that the accused could not reasonably have been expected to answer" it. Alternatively, it may be "appropriate to grant a reply where the accused is actually misled by the Crown as to the theory intended to be advanced."

Examinations

This page was last substantively updated or reviewed March 2021. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

All examinations of witnesses are expected to be done in open court.

Summary Conviction Trials

802
[omitted (1)]

Examination of witnesses

(2) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent.

On oath

(3) Every witness at a trial in proceedings to which this Part applies shall be examined under oath.
R.S., c. C-34, s. 737.

– CCC (CanLII), (DOJ)

---

Objections

Where trial counsel does not object to inadmissible evidence, that failure cannot make inadmissible evidence admissible.

Child Witnesses

The court has a responsibility to ensure that a child witness understands the question being asked and that the evidence given was clear and unambiguous.

Appellate Review

The judge's decision on how a witness should be examined is entitled to deference.

Topics

• Examinations-in-Chief
• Cross-Examinations
• Re-Direct Examinations
• Refreshing Memory

See Also

• Principled Exception to Hearsay
• Collateral Fact Rule
• Prior Consistent Statements
• Prior Inconsistent Statements
• Adverse and Hostile Witnesses
• Testimonial Evidence#Witnesses Refusing to Testify
• Competence and Compellability

Examinations-in-Chief

This page was last substantively updated or reviewed January 2016. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principle

An examination-in-chief or direct examination is where the party calling a witness to give evidence asks the witness questions to elicit evidence.

Rule Against Leading Questions

A leading question is a question that suggests the desired answer. In general, counsel cannot ask leading questions on of the witness that they call. Leading questions are questions that clearly seek a particular answer (eg. "you saw the accused, didn't you?") or are questions that assume a foundation not in evidence (eg. "what happened after the accused stabbed him?").

Rationale

The reason for not allowing leading questions include:

• bias of the witness in favour of the calling party
• the danger that the calling party will only bring out helpful information without any balance that could come from the witnesses own version
• the possibility that the witness will merely agree with everything put to the witness by the calling party.
• a witness who is nervous, not alert, confused or otherwise easily persuaded may accept the suggestion of a leading question without reflection.

The leading question may "impose the questioner’s will on the witness so as to elicit inaccurate information, absent an intention to do so on the part of the counsel or witness”

The importance of not leading depends on the circumstances. The rule should be flexible at the least for the sake of expediency.

Discretion in the "Interests of Justice"

A judge has discretion to allow any leading question where it is "necessary in the interests of justice."

Exception

It is usually permissible to lead on a number of issues:

• introductory or non-controversial matters such as name, address, position, etc.
• for the purpose of identifying persons or things
• where "necessary to direct the witness to a particular matter or field of inquiry."
• to allow one witness to contradict another regarding statements made by that other
• where the witness is declared hostile;
• where the witness is defective based on age, education, language, mental capacity
• where it is a complicated matter, at the judge's discretion

A judge has discretion to allow leading where it is in the interest of justice.

Consequence of Leading Questions

The answer to a leading question is not necessaries inadmissible but will carry very little or less weight, especially on critical issues.

The weight given to an answer from a leading question will depend on "how leading the question was, the subject matter and other evidence before the Court." It will often be that the inappropriateness of the question, and so the weight given to the answer, will be assessed in the light of whole circumstances of the case, after subsequent testimony of the witness.

Objections

Objections should not be made to leading questions unless the question is "critical" to the case.

The use of leading questions will be tolerated more when for the purpose of a "controlled examination" rather than where is becomes a "cross‑examination for the purpose of discrediting or contradicting" the witness.

Cross-Examinations

This page was last substantively updated or reviewed August 2021. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

The cross-examination is a "cornerstone of the adversarial trial process", it is "a fundamental feature of a fair trial", and is the "ultimate means of demonstrating truth and testing veracity." However, while the right to cross-examination is broad, counsel are generally bound by the rules of relevancy and materiality.

A witness may be cross-examined on any matter that may "impair his credibility."

Purpose of Cross-Examination

It is generally understood that the purpose of cross-examination is to elicit evidence regarding:

1. the credibility of the witness;
2. the facts to which he has deposed in chief, including the cross-examiner's version of them; and
3. the facts to which the witness has not deposed but to which the cross-examiner thinks he is able to depose.

Cross-examination intends to "explore the evidence of the witness, exposing weaknesses, biases, and inaccuracies, and thereby assist in the truth finding process."

Appellate Review

The admission of inadmissible evidence through improper cross-examination questions is a question of law and reviewable on a standard of correctness.

A court reviewing a cross-examination must be able to distinguish between those questions that are merely improper from those that compromise trial fairness.

Scope of Cross Examination

The scope of questioning can be broad. It is recognized as "being protected by ss. 7 and 11(d)" of the Charter.

This right is especially important in cases that turn on credibility.

The right however is limited by the requirements of relevancy and materiality, with relevancy being the main criteria.

Disreputable Conduct

Witnesses, except for an accused, may be cross-examined on disreputable conduct so long as it relevant.

It is not permissible for either party to ask any questions about the veracity of another witness.

Form and Extent of Questioning

The cross-examiner is entitled to ask questions without letting the witness know the purpose of the questions, though is subject to the court's discretion and cannot be put in a way that would mislead the witness as to what is asked.

It is permissible to use an encirclement technique wherein questions to exclude all alternative possibilities are asked and then not ask the desired possibility and allow the court to infer based on inference.

The process of cross-examination is afforded "wide discretion" on what can be questioned on.

Good Faith Basis

Suggestions can be put to the witness as long as there is a "good faith" basis for the question. This is often a function of what is known by the lawyer at the time of the examination. So, for example, a defence lawyer examining an eye-witness in a case who was told by the accused that he did the offence cannot suggest to the witness that they are mistaken as to whom they identified. Similarly, in a case where the defence is alibi, the defence counsel cannot still attack the credibility of the witnesses establishing the offence as he does not have a basis to believe they are being untruthful.

The permissibility of the question is a "function" of:

• "the information available to the cross-examiner";
• their "believe in its likely accuracy"; and
• the "purpose for which it is used".

Questions based on information known to counsel that may be inadmissible, incomplete or uncertain may be put to the witness. The examiner however cannot put questions that they know to be false or are reckless as to the falsity of the information.

Questions are permitted that are in persuit of a hypothesis supported by reasonable inference, experience and intuition. Questions "caculated to mislead is ... improper and prohibited."

Uncorroborated gossip, such as that found online, may not be sufficient to meet the "good faith" requirement before it can be cross-examined on.

Collateral Matters

There is no obligation to cross examine only on topics germane to the allegations. Counsel may cross-examine on collateral topics.

Duty to Cross Examine

Counsel has a duty to cross-examine a witness that he intends to suggest is not being truthful or misleading.

A failure of counsel to cross-examine a witness will permit the trier-of-fact to conclude that the evidence is accurate.

In a jury trial, the right to a fair trial will sometimes require that the accused's evidence be subject to cross-examination on material issues so that the trier-of-fact can properly assess whether to accept or reject the accused's evidence. This does not create a free-standing obligation on the Crown to cross-examine on materials facts in cases generally.

In fact, there is a valid view on cross-examination that where the defence amounts to a "straight denial of the charge or some necessary element of the charge, there is a school of thought that it is counterproductive to cross-examine extensively, thereby allowing the witness just to repeat his denial." This rule of avoidance also applies to defences such as alibi, consent, identity, and flat-out denials. There is no obligation to cross-examine on any of these topics. It may also permit the judge to refuse counsel from calling evidence that contradicts the witness.

Witnesses Called by Court

A witness who is called by the Court will typically be cross-examinable by both Crown and Defence.

Improper Questioning

The trial judge has a "duty to prevent pointless, irrelevant cross-examination."

Generally, it is improper to do the following during cross examination:

• unduly repeat cross-examination questions
• question solely to harass or embarrass the witness
• intentionally insult or abuse a witness
• ask a question to elicit evidence that is not admissible
• ask questions that elicit privileged information
• aggressive questioning that crosses the line to abusive
• ask the accused why the complainant would make up the accusation
• ask a witness whether any another witness is lying
• ask compound questions
• any question where the "prejudicial effect outweighs their probative value".
• any question the examiner knows that the witness cannot answer.
• a question that has no purpose other than to elicit hearsay.

Abusive Questioning

Cross-examination will enter into the realm of abusive when the examination focuses on aspects such as the witnesses general lifestyle, dress and history fulfilling fiscal responsibilities.

There should be no attempts to take "random shots at a reputation imprudently exposes" or asking "groundless questions to waft an unwarranted innuendo" to the trier-of-fact.

The courts should not let the complainant become "a victim of an insensitive judicial system."

Cross-Examination by Self-Represented Accused

A self-presented accused is presumed to be entitled to cross-examine any witness called by the Crown. Section 486.3(1) entitles the Crown or the witness to apply for an order prohibiting the accused from "personally" cross-examining that witness. The section allows for a prohibition in relation to the following situations:

1. any charge where the witness is under the age of 18 years (mandatory) [s. 486.3(1)]
2. any charge of 264 [criminal harassment], 271 [sexual assault], 272 [sexual assault with a weapon/causing bodily harm] and 273 [aggravated sexual assault] (mandatory) [s. 486.3(2)]
3. any charge where it is necessary to "allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice" (discretionary) [s. 486.3(3)]

Section 486.3 reads:

Accused not to cross-examine witness under 18

486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Accused not to cross-examine complainant — certain offences

(2) In any proceedings against an accused in respect of an offence under any of sections 264 [criminal harassment], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] and 273 [aggravated sexual assault], the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Other witnesses

(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) [accused not to cross-examine witness under 18] or (2) [accused not to cross-examine complainant — certain offences], or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Factors to be considered

(4) In determining whether to make an order under subsection (3) [accused not to cross-examine complainant — other circ.], the judge or justice shall consider

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the nature of any relationship between the witness and the accused;

(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

(g) any other factor that the judge or justice considers relevant.

Application

(4.1) An application referred to in any of subsections (1) to (3) [testimony outside court room – requirements for eligibility] may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

No adverse inference

(5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.
2005, c. 32, s. 15; 2015, c. 13, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Under 486.3(2), the Crown can seek to have the court appoint a lawyer to the accused for the purpose of conducting a cross-examination where the judge is "...of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness.”

The initial onus lies on the crown to establish that the presumption in s.486.3 applies. This onus is on the balance of probabilities. If established, it is on the accused to establish that the proper administration of justice requires that the presumption should not be followed.

This section trumps the right to cross examine as the accused sees fit.

Factors to be considered include the circumstances of the case, the nature of the relationship between the accused and the witness and the nature of the alleged criminal acts. As well as the likelihood of the accused being aggressive and whether the questioning by the self-represented accused would be focused, rational, and relevant.

The court has no jurisdictions to set the rate of remuneration for counsel.

General Limitations on Cross-Examination

A Court is not permitted to completely prohibit the cross of a witness who testifies. Nor may a court cut-off a direct examination and end any further questioning by either party.

Discretion to Limit Cross

The court has a discretionary power to limit cross-examination where repetitive, irrelevant, and unproductive.

Time limitations

While the court may order the end to a cross-examination that has exhausted relevance, the court should not "set" a fixed amount of time for cross-examination ahead of time.

However, the use of some form of limitations on time to cross a witness has been recommended as a reasonable solution to excessively long trials.

Confrontation Rule (The Browne v Dunn Rule)

The confrontation rule, also known as the rule in Brown v Dunn, states that where a party is advancing a theory that contradicts the testimony of a particular witness being questioned, the counter-version must be put to the witness. More specifically, the witness should have "an opportunity to address or explain the point upon which credibility is attacked." The rule prevents a witness from being "ambushed."

Flexible Application

Courts have not stuck strictly to the requirement of presenting the counter version in each and every case involving credibility, stating that it is not a hard and fast rule. The examiner does not need to "slog through a witness's evidence-in-chief putting him on notice of every detail the defence does not accept."

A more flexible approach has been to focus on whether the failure created an unfairness.

Purpose

The rule intends to create fairness for witness who is being impeached, the counsel who called the witness being impeached, and the trier of fact.

When Applied

It has been suggested that the rule should only apply to "matters of substance" and not "minor details."

It is only the "nature of the proposed contradictory evidence and its significant aspects" that should be put to the witness.

Nature of Confrontation

It is not necessary to confront witnesses with matters beyond their observations or knowledge for which they cannot testify to.

Failure to Confront

Some courts have simply put the failure to confront the witness as a matter of weight given to the evidence.

Nevertheless, failure to put the counter story to a particular witness can result in an adverse finding on the counter-story.

Where the accused has not confronted the relevant Crown witnesses with the counter theory of events, the Crown will generally be given the option of recalling their witnesses to address the counter-story.

Not Applicable to Accused Testimony

Where the accused testifies and refutes the Crown's evidence, the rule may not apply such that the Crown need not confront the accused's accused version of events. The accused would have been aware of the Crown evidence that came out in trial and would have been able to address it in their testimony. However, this tactical choice not to confront will prohibit the Crown from making a full comparison between the witnesses versions and in a jury trial would require limiting instructions notifying the jury that the accused did not have "potential benefit" his credibility being tested.

There is no obligation under the confrontation rule to require the Crown to cross-examine an accused on a bare denial of the allegations.

Breach of Duty

The decision whether a breach is found is at "the discretion of the trial judge after taking into account the circumstances of the case."

Factors

To determine a breach of the Brown v Dunn rule, a number of factors can be considered:

• The seriousness of the breach;
• The context in which the breach occurred;
• The stage in the proceedings when an objection to the breach was raised;
• The response by counsel, if any, to the objection;
• Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
• The availability of the witness to be recalled; and
• In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

Jury Trials

The Crown must be cautious in arguing a breach of the Browne and Dunn rule to a jury in closing as it risk creating the false impression of a reversed burden of proof.

Appellate Review

The question of whether the rule in Browne and Dunn applies is reviewed on a standard of correctness. There is however deference to the “factual findings underpinning the trial judge’s conclusion”.

Remedy

The timeliness of the objection is a factor to be considered to determine a proper remedy.

A reviewing court must accord "substantial deference" to the trial judge on their use of discretion in deciding on a remedy.

Recalling the Witness

The first remedy to be considered is the possibility of recalling the witness.

If the option to recall a witness is determined to be inappropriate or "highly impracticable," it should be left to the trial judge to determine whether the jury needs special instructions. An instruction should involve warning them that the weight given to uncontradicted evidence should take into account the opposing witness was never questioned.

The logistics of recalling a witness should be left to the discretion of the trial judge.

If the Crown declines an offer by the court to recall a witness, there is no obligation upon the judge to provide special instructions to the jury on considering the evidence.

A significant gap between the initial testimony and the recall period can be of concern for fairness.

Cross-examining an Accused on a Prior Statement

The crown may withhold a statement of the accused until the defence's case at which time it can only be used where the statement is voluntary and only for the purpose of attacking credibility. If the Crown is to hold back the statement for cross-examination it is necessary for voluntariness to be proven as part of the Crown's evidence, if there is no consent, or else the crown will be foreclosed from using the statement as it would require them to split their case.

The defence may introduce parts of the statement on rebuttal not used by the crown.

Cross-examination by Defence Counsel

Defence counsel cannot cross-examine a witness to elicit statements made by the accused. Only the Crown is permitted to do so.

Cross-examination by Crown Counsel

It is not appropriate for Crown counsel to threaten a witness with prosecution for perjury during the examination.

Cross-Examination of the Accused

An appellate court should only intervene when the questioning is so improper that it "tends bring the administration of justice into disrepute"

Any cross-examination by the Crown that would prejudice the accused's defences or bring the administration of justice into disrepute may render the trial unfair and the verdict reversible.

Questions must always be considered in context, and certain improper questions may be proper in the right context.

Collateral Instances of Honesty

The Crown may not cross-examine the accused on lies told by the accused to the police at unrelated instances.

Correlation Between Arrest and End of Spree

It is improper to cross-examine an accused on any correlation between a break in a pattern of similar offences and the arrest of the accused.

Accused's Criminal Record

Except where the accused places his character at issue, the Crown cannot cross-examine the witness on the accused of the prior criminal record at large. The crown can ask the accused of the date and place of conviction; the offence convicted; the sentence imposed. The accused cannot be asked about the details of the accused's criminal record.

Administrative pardons can be used for the purposes of cross-examination in trial.

Honesty of Other Witnesses

Questions asking the witness to comment on the credibility of other witnesses is improper. That includes:

• asking the accused why the complainant would make up the accusation
• asking the accused whether the complainant is lying or committing perjury
• asking accused if police officer(s) are lying
• asking to comment on the veracity of any other witness;

While it is not permissible to ask an accused whether or why another witness is lying, it is permissible to put another set of facts from another witness and ask whether they are true or not.

Right to Silence

The crown cannot ask about the reasons behind the accused exercising the right to silence

The Crown is prohibited from attacking the accused's credibility on the basis that the accused claimed they wanted to be "helpful" at the time of arrest but failed to notify the investigator of certain facts. Such questions violate their right to silence. Any suggestion that the accused should not be trusted because he did not reveal anything prior to trial is impermissible.

Trial Strategy

Why Evidence Not Called

It is improper to ask the accused to explain why certain evidence was not presented in the course of the defence's case as it implies a non-existent duty to adduce defence evidence and potentially implicate privileged defence strategy.

Access to Disclosure

• question regarding the accused's access to the disclosure and suggest their version is crafted to avoid potential pitfalls

It is generally inappropriate to attempt to impeach the accused's credibility on the basis of their access to the disclosure and the likelihood of them crafting their evidence to suit it. However, this will be determined on a case-by-case basis.

It is further impermissible to cross-examine the accused on their possession and review of the disclosure materials as it may undermine their right to receive them.However, in some cases it is permissible such as to undermine a defence of alibi by arguing tailored evidence.

There is a limited ability to cross-examine an accused person using their knowledge and access to disclosure.

If the accused makes reference on direct to disclosure confirming his version of events, he may be cross-examined on his access to disclosure prior to trial.

Other Rules Relating to Crown Cross-Examination

Specifically for the Crown in cross-examining the accused, it is improper to do any of the following:

• to call the accused a "barefaced liar";
• to express personal views and editorial comments into the questions, including their belief that the witness is a "liar";
• to make baseless and highly prejudicial suggestions to the accused
• ask the accused to explain the failure to call certain witnesses, and to explain why his own evidence was not corroborated.
• to mock and unfairly challenge the accused's adherence to his religious beliefs

Using Documents to Cross-Examine

A document cannot be made admissible simply by putting the document to the witness. A document referred to by the opposing party does not make it admissible either.

A document may be used for cross-examination without showing the witness. Any document may be put to a witness without any proof thereof.

The Crown may use computer logs to cross-examine the accused on credibility even where it relates to conduct that is not the subject-matter of the offence.

See also: Documentary Evidence

Cross Examination of Non-Accused Persons

Character and Disposition

Generally a non-accused witness may be cross-examined on character traits and disposition that could go to their reliability and credibility, however, the reliability and credibility must be material to a trial issue.

A witness who is not the accused may be cross-examined on outstanding charges, including the underlying conduct, regardless of whether it occurred before or after the incident at issue. It may be relevant to credibility and other issues such as self-defence.

A non-accused witness may be cross-examined on conduct underlying a conviction. The only limitation is relevancy and propriety.

The Crown may cross a witness on impartiality and whether they are attempting to assist their friend, the accused.

A witness may be asked about whether he had any conversations with other witnesses during a break in the trial.

A witness may be questioned generally about the "improper conduct by the witness" only so long as it has a bearing on the witnesses credibility with respect to his evidence.

Child Witnesses

Children perform differently under cross examination than adults. A "skilful cross-examination is almost certain to confuse a child".

Sexual Assault Cases

It is recognized that cross-examination techniques of sexual assault complainants can tend to "put the complainant on trial rather than the accused". These approaches are "abusive and distort rather than enhance the search for truth." For that reason limits must be imposed on cross-examination.

One limitation imposed on cross-examination is upon the privacy interests of the complainant.

Cross-examinations cannot be for the purpose is directed to the "rape myths."

Any limitation on cross-examination cannot "interfere with the right of the accused to a fair trial."

Cross-Examination by Calling Party

• See Adverse and Hostile Witnesses

During a Preliminary Inquiry

An accused at a preliminary inquiry has "a right to full, detailed and careful cross-examination". Failure to be permitted to do so "is a failure to accord the accused an important right granted him by the provisions of the Criminal Code."

See Also: Preliminary Inquiry

After Re-Direct

The court has discretion to permit additional cross-examination after re-direct where the re-direct raises new matters.

See Also

• Prior Inconsistent Statements
• Analyzing Testimony

Re-Direct Examinations

• < Procedure and Practice
• < Trials

General Principles

Generally, once cross-examination is complete a witness cannot introduce new facts not covered in cross-examination except where permitted as "re-examination".

Purpose of Re-Direct

The "purpose of re-examination is to enable the witness to explain and clarify relevant testimony which may have been weakened or obscured in cross-examination."It is purpose is to rehabiliate and explain the evidence elicited in cross-examination.

Valid Subjects of Re-Direct

A party calling a witness is entitled to re-examine the witness after cross-examination. But the scope of the re-examination is limited to matters that arose in cross-examination. Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination.

Those limited matters arising from cross-examination must be the purpose of (1) rehabilitating the witness from any damaging evidence brought up on cross-examination and (2) explaining any ambiguous or misleading information elicited on cross-examination.

Form of Questions

The rule against leading questions still applies in re-examination.

Improper Re-Direct

Re-examination may not be used to improperly bolster the credibility of the witness after impeaching credibility in cross-examination.

The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination".

Use of Prior Statements in Re-Direct

The re-examination cannot be used to introduce a second inconsistent statement after a first inconsistent statement was introduced in cross.

A Crown may play an entire statement back to the witness in re-examination and put in as an exhibit.

Where recent fabrication arises in cross, the re-direct may be used to introduce a prior consistent statement of the witness.

New Subjects Usually Not Allowed

The judge should generally not permit counsel to "introduce" on re-direct "new subjects" where the topic "should have been covered" in direct examination.

Discretion to Permit "new facts" not arising from Cross-Examination

New facts can be permitted in re-examination at the discretion of the judge. If permitted, the judge must also permit the opposing counsel the firt to cross-examine further.

Re-Direct vs Reply or Rebuttal

In contrast to re-direct, reply or rebuttal evidence is only permitted where the evidence was not reasonably anticipated.

See Also

• Reply or Rebuttal)

Rebuttal, Reply and Re-Opening a Case

This page was last substantively updated or reviewed December 2020. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

Where a party closes its case, the party retains a limited right to call more evidence. Reply (or Rebuttal) evidence mostly applies to the Crown authority to call specific evidence anytime after the closing of its case. Where the right to call reply evidence is granted, it is limited to top-specific matters that are permitted by the court.

By contrast, "re-opening" a case is a limited right that permits either counsel after closing their case to re-open it for the broad calling of additional direct evidence on a particular area that was not called in the case-in-chief but is of sufficient importance as to be called nonetheless. Where reply relates to responding to particular aspects of the opposing side's evidence, re-opening relates to omissions for which it is in the interests of justice to correct.

Note that rebuttal, reply, and re-opening is distinct from the authority to permit redirect of a particular witness. This situation is governed by a different test .

Crown Reply or Rebuttal

Rule Against Splitting Crown Case

On closing of the Crown's case, the Crown is expected to have presented all relevant evidence available. The judge should not allow Crown to "split" it's case and present any part of its case after the defence.

Purpose of Rebuttal

The evidence is limited only to matters that were raised in the defence evidence.

The Crown should not be permitted to simply present sufficient evidence to avoid a directed verdict for and then be permitted to present the entirety of the remainder of the case with the benefit of defence evidence.

Anticipation of Relevancy

Evidence that is "clearly relevant to the issues and within the possession of the Crown" cannot properly be called in rebuttal. The Crown cannot "lie in wait" to trap the accused.

Traditionally, if the Crown evidence could have been reasonably anticipated as being relevant during the Crown's case then it should have been called then and should not be permitted to be called in rebuttal. That being said, it is also said that it is not necessary for the Crown to "lead all possibl[y] relevant evidence". It would otherwise "prolong and potentially confuse the trier of fact" as the evidence "may or may not be relevant". It is not necessary that the Crown lead "any evidence" that it has to counter a possible defence. Put differently, the Crown does not have to engage in guessing what the defence may be and call evidence to respond to guess-work.

As such, where Crown remains unaware of the testimony that will be called in defence evidence, their discovery of new information may permit them to call reply evidence.

The analysis will be different where it is a jury trial and the splitting of the case may overly magnify the importance of the new evidence.

When Permitted

The Crown should be permitted to call reply evidence when:

• The defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or
• "some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence case".

Surrebuttal

The trial judge may permit surrebuttal evidence to sure the accused has a fair trial.

See Also

• Reopening the Case

Role of Trial Judge

This page was last substantively updated or reviewed November 2022. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

An accused person is entitled to a Constitutional right to an impartial trier-of-fact.

A trial judge has a duty to ensure that the trial is fair and there are no miscarriage of justice.

The trial judge is more than just an umpire but "is not to enter the arena and appear to take on the role of an advocate."

Adversarial System

Our criminal justice system is on that is "essentially adversarial" where the Crown presents evidence of guilt and the accused points out weaknesses in the evidence and presents contrary evidence. The trier of fact is a neutral arbiter of the dispute. For this reason, it is improper for the judge to usurp the role of counsel in an inquisitorial manner.

The role of the judge in an adversarial process is to "listen to the testimony, assess all the evidence, make assessments of credibility and findings of fact, apply the law to the facts and make an ultimate determination on the merits, keeping in mind throughout the applicable burdens of proof." The judge is also expected to "ensure the proceedings are conducted fairly, properly and according to law, which include the rules governing procedure."

Presumed to Know the Law

Trial judges are presumed to know the elementary principles of law. It is not necessary that a judge cite the leading authorities, it is only necessary that the legal principles be applied properly.

Inherent Jurisdiction

The court's inherent jurisdiction is limited by its role within the system of separate branches of government.

Duty to Raise Issues

A trial judge has a duty to "conduct [a] trial judicially quite apart from the lapses of counsel." This may include a duty to conduct a voir dire on issues such as voluntariness absent the request of counsel.

Duty of Restraint

A judge has a duty of restraint during their court work as well as in their personal life. It is a guarantee of judicial independence or impartiality.

Judges are required to be "shielded from tumult and controversy that may taint the perception of impartiality."

Duty of Technological Competency

It has been suggested that courts and counsel have a duty of "technological competency."

ex mero motu

The doctrine of "ex mero motu" ("of one's own accord") has traditionally permitted a judge to intervene on its own motion in proceedings by making rules or issuing orders so as to prevent an injustice. This authority has been used to amend charges to conform with the evidence.

History

Currently, Justices of superior courts are required to retire at the age of 75. Prior to a 1960 amendment to the British North America Act, superior court justices had lifetime tenure.

Right of Parties to be Heard

There is a fundamental tenant that all parties affected by a decision shall be given an opportunity to be heard by the court before the court makes a ruling. This is the principle of audi alteram partem . The right to be heard also provides a person "the right to know the case to be met".

The judge has an obligation to allow each party who may be affected by a ruling to be permitted to respond to the case against them.

A failure to afford each side to present argument before a judgment is a denial of that right will violate procedural fairness and is fatal.

This right is protected by s. 7 and 11(d) of the Charter as well as s. 802(1) of the Code.

The right is not unqualified. A declaration of a party as a "vexatious litigant" has the effect of removing this right. Accordingly, it is only used sparingly.

Related to this principle is the common law rule that "a person cannot be deprived of his liberty or property without notice."

Refusal to consider an evidentiary objection is an improper refusal to assume jurisdiction that affects trial fairness.

The right is not an unlimited right to oral or in-person hearings before the decision-maker.

Often the right can be satisfied by providing parties to make written submissions only.

Timing of Interrim Rulings

Where a party seeks exclusion of evidence it is for the trial judge to "decide what procedure should be followed."

With "rare exceptions," a judge is "empowered to reserve on any application until the end of the case." This would include an application to quash an indictment.

The judge has discretion to defer rulings on the basis that:

1. "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own" and
2. it "discourages adjudication of constitutional issues without a factual foundation."

An exception for deferment of rulings are where the "interests of justice necessitate an immediate decision". This will include where "the trial court itself is implicated in a constitutional violation" or where "substantial on-going constitutional violations require immediate attention." As well, situations where an "apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial" should be exceptions. This is especially true where the trial is expected to be of considerable duration.

Rules of Court

Under s. 482(1) and (2), a superior court and provincial have the power to make rules governing criminal proceedings.

Under s. 482.1, the courts also have the power to make rules with respect to case management.

Hearing Evidence at Trial

Must Consider All Admissible Evidence

A trial judge must consider all evidence relating to the issue of innocence or guilt. Failure to do so is an error of law.

However, there is no requirement that the judge "record all or any specific part of the process of deliberation on the facts." A failure to record facts does not give rise to an error unless the judge's reasons demonstrate that not all the facts were considered.

When considering evidence on a multi-count indictment, the judge just give separate consideration to a verdict on each count.

Exposure to Inadmissible Evidence

Judges are regularly required to decide on whether it is properly admissible or not and disregard inadmissible evidence they are exposed to. It will not generally create an apprehension of bias.

Considering Theories of Counsel

Subject to "due process concerns", there is no prohibition on the trial judge making findings of guilt on a theory that has not been advanced by the Crown. However, where a judge relies on a theory that has not been argued, fairness requires that the defence be given an opportunity to respond to the avenue of conviction.

Weighing Evidence

No judge is expected to be a "tabula rasa".

A judge should only be deciding cases on the evidence adduced in the courtroom.

A judge cannot act based only on personal knowledge and familiarity of a matter without more.

A judge may not "detach" a part of the evidence.

Control over Trial Process

A criminal trial court to "control its process" is a fundamental value of the criminal justice system." A judge has "considerable" powers to intervene in a criminal trial to manage the proceedings.

A judge is authorized to make orders "necessary to ensure an orderly trial, without which the administration of justice risks being ...thrown into disrepute."

The jurisdiction over process includes the power to "penalize counsel for ignoring rules or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire." Penalties can include direction to "comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings."

Inappropriate behaviour is not accorded deference.

However, legitimate tactical decisions should be looked at with deference.

Superior Court

A Superior Court Justice has the inherent jurisdiction to eliminate any procedural unfairness that arises during a trial.

The Superior court has inherent jurisdiction to control the disclosure process of a matter before the provincial court.

Provincial Court

The "procedural directions contained in the Code are of necessity exhaustive". The powers of a provincial court judge are "entirely statutory." However, "the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a ‘doctrine of jurisdiction by necessary implication’ when determining the powers of a statutory tribunal.”

The inherent powers of a superior court judge to control the court process is said to be equally available to provincial court judges either expressly by statute or by necessary implication.

Consequently, a provincial court judge has implied jurisdiction to "vary one of its own orders in order to correct clerical mistakes or errors arising from an accidental slip or omission or in order to properly reflect the intention of the court"

Reconsidering Judgements

Generally, a "court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus."

Exclusion of Evidence

There is a limited power of a trial judge to exclude evidence in order to ensure trial fairness where other remedies are not sufficient. However, it is considered an "unusual exercise" of the trial management power.

Prohibition Orders on Defence Conducting their Defence

A judge may limit the examination or cross-examination of witnesses or the right to call defence witness only where it is justified in "clear and compelling circumstances".

Directing Crown Counsel

A trial judge should never direct Crown as to whom they must call to give evidence.

Judicial Intervention

• Judicial Intervention During Trial

Limiting Evidence

The judge is required to listen to evidence that "advances the work of the court". He or she cannot be required to listen to irrelevant or pointless evidence. The judge may even disallow the submission of non-relevant evidence.

The judge has an obligation to track the admission of evidence to ensure that the record is restricted to what is admissible, and also that it is only used for the purpose for which it was admitted.

The judge has the jurisdiction to edit the evidence, including written statements and oral testimony, as it is given. The judge may edit out portions of the evidence that is prejudicial or otherwise irrelevant or immaterial only so long as it does not distort the probative evidence.

Reserving Questions for Decision

Trial continuous

645
[omitted (1), (2) and (3)]

Questions reserved for decision

(4) A judge, in any case tried without a jury, may reserve final decision on any question raised at the trial, or any matter raised further to a pre-hearing conference, and the decision, when given, shall be deemed to have been given at the trial.

Questions reserved for decision in a trial with a jury

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) [manner of drawing cards] or (3.1) [power to order calling out names on cards] and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Exclusion Public from Hearing

• Excluding People From Court

Self-Represented Accused

see Right to Self-Representation

Sitting Position of Accused

• Accused in Court

Independent Research of the Judge

A judge should not enter "into the fray" by doing self-directed research that puts them in a role of being "advocate, witness and judge".

A judge can only rely on social studies, literature or scientific reports after they have been tested by the parties.

It is not inappropriate to use academic articles merely to outline the generally understood features of evidence already reflected in the commentary and practice, adnd are not outside the general knowledge of judges.

Judge Bound to Proceedings

Any justice may act before and after trial

790 (1) Nothing in this Act or any other law shall be deemed to require a justice before whom proceedings are commenced or who issues process before or after the trial to be the justice or one of the justices before whom the trial is held.

Two or more justices

(2) Where two or more justices have jurisdiction with respect to proceedings, they shall be present and act together at the trial, but one justice may thereafter do anything that is required or is authorized to be done in connection with the proceedings.
(3) and (4) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 172]
R.S., 1985, c. C-46, s. 790; R.S., 1985, c. 27 (1st Supp.), s. 172.

– CCC (CanLII), (DOJ)

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Loss of Judge During Proceedings

• Loss of Judge During Proceedings

Doctrine of Functus Officio

• Functus Officio

Communications with Counsel Out of Court

Ex parte communications (i.e. communications in absence of one of the parties) concerning an ongoing proceedings should be avoided. It is a rule that relates to the "public perception of fairness within the administration of justice." It also preserves "confidence of the public in the impartiality of the judiciary and thereby in the administration of justice".

Ex parte communications between judge and counsel concerning a case will "almost invariably raise a reasonable apprehension of bias".

"Off the Record" communciations

So called "off the record" conversations between the judge and counsel concerning a criminal proceedings are only permitted insofar as they are efforts to reach an informal resolution on the merits of the case. They should not happen mid-trial in front of the trial judge.

Maintaining Order

Preserving order in court

484 Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.

R.S., 1985, c. C-46, s. 484; R.S., 1985, c. 27 (1st Supp.), s. 203.

– CCC (CanLII), (DOJ)

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This section permits a judge to make an order of contempt for:

• persistent refusal of accused to stand on entry of the presiding judge.
• the use of recording devices in the court against the order of the judge.
• the high degree of intoxication of the accused appearing at trial

This section cannot be used to order the mode of dress of counsel.

Ordering Sheriff to Detain Accused

Flowing from the trial management powers, the trial judge as a right and responsibility to control proceedings and control the conduct of those before them. This includes directing the sheriffs to detain, handcuff or otherwise interfere with the accused's liberty where necessary.

Misc Powers

The judge does not have the power to order that counsel not communicate with a witness who is not in the middle of testimony. The rules of contempt of court and Professional Conduct are the only limitations on counsel's right to speak with witnesses and clients in court.

Execution of Orders

Under s. 3.1 of the Code, any order made by any type of judge will be effective immediately unless otherwise stated:

Effect of judicial acts

3.1 (1) Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

Clerk of the court

(2) Unless otherwise provided or ordered, if anything is done from the bench by a court, justice or judge and it is reduced to writing, the clerk of the court may sign the writing.

2002, c. 13, s. 2; 2019, c. 25, s. 3

– CCC (CanLII), (DOJ)

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View

• Demonstrative Evidence#View

Superior Court Inherent Jurisdiction

All Courts that are created by s. 96 of the Constitution Act, 1867 are vested with "inherent jurisdiction" to make orders on matters that are not necessarily authorized by statute.

The doctrine is of an "amorphous nature". And can be used in "an apparently inexhaustible variety of circumstances and may be exercised in different ways".

The doctrine is available as a "residual source of powers" that is available to a judge "whenever it is just or equitable to do so", which includes:

• ensuring "the observance of due process of law";
• preventing "improper vexation or oppression";
• "do justice between the parties" and
• securing "a fair trial" between the parties.

It can be used to "supplement under-inclusive legislation or to otherwise fill gaps in appropriate circumstances".

This jurisdiction may allow for the superior court to order the funding of costs associated with a matter before the provincial court where the following criteria are met:

1. the litigation would be unable to proceed if the order were not made;
2. the claim to be adjudicated is prima facie meritorious;
3. the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.

In considering these criteria, the justice must be satisifed that the matter is "sufficiently special that it would be contrary to the interests of justice to deny the advance costs application".

Limitations

The doctrine may be limited by statute. It cannot be used in such a way that it contravenes any statutory provision.

It is also limited by "institutional roles and capacities that emerge out of our constitutional framework and values".

It generally should be exercised "sparingly and with caution", such as where "inferior tribunals are powerless to act act and it is essential to avoid an injustice that action be taken."

Examples of Application

A publication ban was ordered by inherent jurisdiction. A publication ban can also be removed by inherent jurisdiction.

A superior court has limited inherent powers to reconsider its own orders, except where the legislation otherwise prohibits reconsideration.

Doctrine of Mootness

Under the doctrine of "mootness" suggests that a court may decline to decide a case that "raises merely a hypothetical or abstract question" that "will not have the effect of resolving some controversy which affects or may affect the rights of the parties".

Civility and Professionalism

Tone of Reasons

The reasons for judgement should be "restrained and appropriate, clinical in tone and minimalist in approach".

Sleeping

A judge found to be sleeping during trial will affect trial fairness and warrant a retrial.

Criticizing Judges

It is the public's right to criticize judges as long as it does not cast aspersions on their motives.

Code of Conduct

The Canadian Judicial Counsel (CJC) has a CJC’s Ethical Principles for Judges that all judges must follow.

Courtroom conduct

The judges are expected to display an attitude that reflects their authority. They must not use it to intimidate or belittle others.

Judicial Decisions

When drafting a decision, judges are expected to articulate the contested elements of the offence and give each element "dedicated attention" in their analysis.

Rulings and Orders

The decision to exercise discretion and require the reading of charges despite waiver, is not an order but is a ruling that can be reviewed on certiorari.

No Personal Preferences, Ideologies or Political Beliefs

A judge should not "wander into the public square" by using their decisions to signal their personal preferences, ideologies or political beliefs.

Reading Decisions

Where the decision is lengthy there is no prohibition against reading a summary in the presence of the accused then giving a written version at a later point. It is possible to give reasons part orally and part written. However, it is only the oral reasons that are operative.

The principle of openness and accountability requires that the essential reasoning be given orally.

The essential reasoning should include a "summary [to] clearly set out the offence, the essential reasoning of the trial judge, and the conclusion on the charge".

Delivery of Decisions

When a decision is lengthy, the trial judge may read a summary in court before the accused and then provide a more comprehensive and detailed copy in the written version that is filed on the record. However, it is the reasons given to the accused orally that are the "operative reasons" or "essential reasons". A failure to include sufficient reasons in the oral decision could run afoul of s. 650 and s. 7 and 11(d) of the Charter of Rights and Freedoms. The essential or operative parts of the reasons must include (a) the charges, (b) the verdict on each charge (c) some explanation for the result.

Sufficiency of reasons could be in the range of 9 paragraphs summarizing a 33 page decision.

Supplementary Reasons

The judge may lawfully provide supplementary reasons in the following circumstances:

1. "A trial judge may declare an outcome with "reasons to follow""
2. "The trial judge may have lengthy reasons prepared, and essentially finalized, but due to the length read only a summary, followed by immediate release of the longer version."
3. "The trial judge may announce his or her decision, but then correct that decision when an obvious error or illegality is identified."
   

e.g. R v Vader, 2019 ABCA 191 (CanLII), 89 Alta LR (6th) 146(complete citation pending) at paras. 56-57, (complete citation pending) </ref>

1. "The trial judge gives reasons that appear to deal with all the issues, and outline all of his or her reasons, but then releases truly “supplemental” reasons that add arguments or issues."

How much an initial decision and supplementary reasons can change depends on the circumstances.

Generally, editing for punctuation, grammar, citations are permitted. But changes that revise, correct, or reconsider the words spoken or the substance of the reasoning is not permitted.

Appellate Review of Supplementary Decisions

Parties are permitted to argue the discrepancies between the decisions.

It is open to the appellate court to ignore the supplementary reasons. And may simply review the decision on the initial reasoning.

The appeal courts can examine both sets of reasons when assessing the issue of appeal.

Relationship with the Legislatures

A judge must act as a "constitutionally mandated referee".

It is not courts that limit legislatures, rather it is the constitution that limits them by means of judicial interpretation.

It is the role of the legislature to assume the "responsibility of law reform".

Judicial Neutrality and Bias

• Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

• Sufficiency of Reasons

Misc Authority of Youth Court Justice

• Miscellaneous Authority of a Youth Court Justice

Misc Other Authorities

Provincial Court Judges

Officials with powers of two justices

483 Every judge or provincial court judge authorized by the law of the province in which he is appointed to do anything that is required to be done by two or more justices may do alone anything that this Act or any other Act of Parliament authorizes two or more justices to do.
R.S., 1985, c. C-46, s. 483; R.S., 1985, c. 27 (1st Supp.), s. 203.

– CCC (CanLII), (DOJ)

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See Also

• Judicial Immunity/Judicial Independence
• Judicial Notice
• Trial Verdicts
• Juries
• Criminal Code and Related Definitions#Judges

Other Parties

• Role of the Accused
• Role of the Defence Counsel
• Role of the Victim and Third Parties
• Role of Law Enforcement
• Role of the Crown
• Role of Court Administration

Loss of Judge During Proceedings

This page was last substantively updated or reviewed January 2021. (Rev. # 79483)

• < Procedure and Practice
• < Trials

General Principles

At common law, once a judge receives an information he remains seized with the charge until its conclusion unless it is waived by the judge to another judge.

Section 667.1 was enacted to override the common law and permit other judge's from hearing matters up until the point where they have commenced to hear any evidence.

Section 667.1 states:

Jurisdiction

669.1 (1) Where any judge, court or provincial court judge by whom or which the plea of the accused or defendant to an offence was taken has not commenced to hear evidence, any judge, court or provincial court judge having jurisdiction to try the accused or defendant has jurisdiction for the purpose of the hearing and adjudication.

Adjournment

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer of the court, or in the case of an offence punishable on summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings.
R.S., 1985, c. 27 (1st Supp.), s. 137.

– CCC (CanLII), (DOJ)

---

Once a judge begins hearing evidence and makes a ruling on it, the judge becomes seized with the matter and no other judge can take over.

Guilty Plea

Once the facts of the case are read to the judge to determine whether to accept the plea, the judge becomes seized with the case.

Absent an exception under s. 667.2, once the judge adjudicates the acceptance of a guilty plea, then the judge is seized with the matter.

Loss of Trial Judge While Seized

Where a judge falls ill, they remain seized with the matter unless there is unreasonable delay that results.

Where judge illness is the cause for delay, the Crown has a responsibility to consider whether to apply to have the seized judge replaced.

When a preliminary inquiry judge becomes unable to continue, s. 547.1 directs the following options:

Inability of justice to continue

547.1 Where a justice acting under this Part has commenced to take evidence and dies or is unable to continue for any reason, another justice may

(a) continue taking the evidence at the point at which the interruption in the taking of the evidence occurred, where the evidence was recorded pursuant to section 540 [taking evidence by preliminary inquiry judge] and is available; or

(b) commence taking the evidence as if no evidence had been taken, where no evidence was recorded pursuant to section 540 [taking evidence by preliminary inquiry judge] or where the evidence is not available.

R.S., 1985, c. 27 (1st Supp.), s. 100.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Continuation of proceedings

669.2 (1) Subject to this section, where an accused or a defendant is being tried by

(a) a judge or provincial court judge,

(b) a justice or other person who is, or is a member of, a summary conviction court, or

(c) a court composed of a judge and jury,

as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant.

Where adjudication is made

(2) Where a verdict was rendered by a jury or an adjudication was made by a judge, provincial court judge, justice or other person before whom the trial was commenced, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that is authorized by law in the circumstances.

Where no adjudication is made

(3) Subject to subsections (4) [continuation if judge or justice dies – If no adjudication made (jury trials)] and (5) [continuation if judge or justice dies – continuing with jury trial], if the trial was commenced but no adjudication was made or verdict rendered, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, commence the trial again as if no evidence on the merits had been taken.

If no adjudication made — jury trials

(4) If a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdict rendered, the judge before whom the proceedings are continued may, without further election by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.

Where trial continued

(5) Where a trial is continued under subsection (4) [continuation if judge or justice dies – If no adjudication made (jury trials)], any evidence that was adduced before a judge referred to in paragraph (1)(c) [continuation if judge or justice dies – jury trial] is deemed to have been adduced before the judge before whom the trial is continued but, if the prosecutor and the accused consent, any part of that evidence may be adduced again before the judge before whom the trial is continued.
R.S., 1985, c. 27 (1st Supp.), s. 137; 1994, c. 44, s. 65; 2011, c. 16, s. 15; 2022, c. 17, s. 40(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

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"Unable to Continue"

It is an open list of circumstances that are captured within the meaning of reasons for being "unable to continue" within the meaning of s. 669.2. It can include "illness", "absence" or "appointment". An "appointment" can include appointment to the court of appeal.

The reasons are broad can include a judge’s inherent authority to disqualify themselves for “good and sufficient” reason.

Transcript Evidence or Agreed Statement of Fact

Depending on the circumstances, it is permissible to continue a trial with a new judge under s. 669.2 by admitting a transcript of the previous trial by consent. However, there will be circumstances where it is necessary for the judge to hear and see the evidence such as where there is contradictory evidence between the complainant and accused. In such cases, the court should not rely on transcripts even with the consent of parties.

"as if no evidence... has been taken"

The requirement to recommence as if no evidence has been taken only applies to a trial without a jury. Only a judge acting with a jury has the ability to "complete the trial" within the meaning of s. 669.2(3).

Procedure

A party may apply to have a different judge to take over the matter and conduct the sentencing.

Appointment to Different Court

Jurisdiction when appointment to another court

669.3 Where a court composed of a judge and a jury, a judge or a provincial court judge is conducting a trial and the judge or provincial court judge is appointed to another court, he or she continues to have jurisdiction in respect of the trial until its completion.
1994, c. 44, s. 66.

– CCC (CanLII), (DOJ)

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Appointment to the Court of Appeal

There appears to be no established protocol to deal with matters before a trial judge who is appointed to the Court Appeal.

Juries

This page was last substantively updated or reviewed January 2020. (Rev. # 79483)

• < Procedure and Practice
• < Trials
• < Juries

General Principles

The Canadian jury system has been described as one of the "most familiar symbol and manifestation of the Rule of Law in this country".

The jury brings to the system the "values and insights of ordinary citizens" as well as their "common sense".

A jury's task is not to "reconstruct what happened" but rather to determine if the burden of proof sufficient to make out a conviction has been met.

Courts must ensure that nothing is put before a jury in the form of evidence or argument that would play on any emotions or unfair reasoning, including inflamatory remarks.

Capacity of Jury Members

The jury system assumes that jurors are "intelligent and reasonable fact-finders".

Right to a Jury Trial

Section 11(f) of the Charter provides certain rights to trial by jury:

11. Any person charged with an offence has the right ...

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

– CCRF

An offence with a maximum penalty of 5 years less a day cannot be considered a "more severe punishment" due to the existence of some "collateral negative consequences" to the period of incarceration.

Where an offence violates s. 11(f) the appropriate remedy would not be an entitlement to a jury trial, but rather a "reading down" of the offence maximum penalties.

Similarly, s. 471 provides a presumption of a right to a jury in all indictable offences:

Trial by jury compulsory

471. Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury.
R.S., c. C-34, s. 429.

– CCC (CanLII), (DOJ)

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Jurors bring their own life experience's to their task.

A prospective juror is presumed capable of "setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties."

Members of the jury are to come to a unanimous conclusion on the verdict. They do not have to agree on the means or path to that verdict.

Specific Offences

Offences under s. 469, including first or second degree murder, shall be tried by judge and jury.

Trial without jury

473 (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 [exclusive jurisdiction offences] may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.

Joinder of other offences

(1.1) Where the consent of the accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], the judge of the superior court of criminal jurisdiction may order that any offence be tried by that judge in conjunction with the offence listed in section 469 .

Withdrawal of consent

(2) Notwithstanding anything in this Act, where the consent of an accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], that consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.
R.S., 1985, c. C-46, s. 473; R.S., 1985, c. 27 (1st Supp.), s. 63; 1994, c. 44, s. 30.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Topics

• Jury Selection
  • Juror Eligibility
  • Right to a Representative Jury
  • Selecting Jurors From Panel
    • Selecting Additional and Alternate Jurors
  • Challenge to Jury Panel
  • Peremptory Challenge
  • Challenge for Cause
• Jury Procedure
• Jury Instructions
  • Jury Deliberations
• Discharging a Juror
• Special Issues Relating to Jurors

See Also

• See Guilty Plea in Jury Trials
• Defence Election

Juror Eligibility

• < Procedure and Practice
• < Trials
• < Juries
• < Jury Selection

General Principles

Under s. 626, a "qualified" juror is defined as a person who "according to ... the laws of a province" is qualified and who is "summoned as a juror" in accordance with the governing provincial law:

Qualification of jurors

626 (1) A person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province is qualified to serve as a juror in criminal proceedings in that province.

No disqualification based on sex

(2) Notwithstanding any law of a province referred to in subsection (1) [qualification of jurors], no person may be disqualified, exempted or excused from serving as a juror in criminal proceedings on the grounds of his or her sex.
R.S., 1985, c. C-46, s. 626; R.S., 1985, c. 27 (1st Supp.), s. 128.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Provincial Rules

Each province will have a Juries Act, or equivalent which sets out the eligibility and the process for summoning them to court.

Jury Selection

• < Procedure and Practice
• < Trials
• < Juries
• < Jury Selection

General Principles

Every person charged with a crime has a right to a fair trial before an impartial tribunal. This right includes the right to an impartial jury.

The right to a jury is protected by s. 1(d) which guarantees the right to be tried by an "independent and impartial tribunal" and s. 11(f) which guarantees the right to a jury that is "impartial and representative".

A jury selected to decide a case as the trier-of-fact is formally known as a "petit jury". It usually consists of 12 persons. The petit jury is selected at random from a "jury panel" who is a group of several hundred people selected from the "jury roll".

Any legal errors in jury selection will require a new trial. This includes errors of law by the judge or unreasonable exercise of discretion in managing the selection process.

Topics

• Juror Eligibility
• Right to a Representative Jury
• Selecting Jurors From Panel
  • Selecting Additional and Alternate Jurors
• Challenge to Jury Panel
• Peremptory Challenge
• Challenge for Cause

Selecting Jurors From Panel

This page was last substantively updated or reviewed August 2021. (Rev. # 79483)

• < Procedure and Practice
• < Trials
• < Juries

General Principles

A jury panel consists of all persons summoned to attend court for the purpose of being evaluated as a potential member of a jury that will hear a trial.

The process of selecting jurors typically begins with the trial judge canvasing to panel for those with exemptions that would exclude them from participating in the jury trial.

Exemptions

The exemption process has two phases. First, there is the general exemptions wherein the judge considers all requests for exemption based on personal circumstances, including ineligibility based on profession, criminal record, lack of citizenship, or undue hardship. Second, there is the specific exemptions wherein the judge can exempt persons due to personal connection with parties or witnesses in the proceedings.

Procedure

The selection process is governed by each province's Juries Act in addition to s. 631 to 644 of the Code.

Jury List and Jury Panel

The "jury roll" (or "jury list") is prepared either by the sheriff's office or the regional Court's prothonotary based on persons resident in a certain geographical region. From the List a jury panel is randomly created.

Selection Judge Not Necessarily Trial Judge

The judge presiding over a trial does not necessarily have to be the same judge who presides over the selection:

Presiding judge

626.1 The judge before whom an accused is tried may be either the judge who presided over matters pertaining to the selection of a jury before the commencement of a trial or another judge of the same court.
2002, c. 13, s. 51.

– CCC (CanLII), (DOJ)

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Background Check on Jury Members

The Crown may ask police to do a criminal record check on potential jurors. However, any information that the Crown learns must be disclosed to the defence.

Exemptions

General Exemptions

The list of general exemptions are found in the Juries Act. They will typically include:

• those who hold political positions such as members of parliament, provincial legislature or senators.
• justice system participants including judges, lawyer, court staff and police officers.

Specific Exemptions

Persons related to or associated with persons participating in the proceedings, including accused, counsel, judge or witnesses.

Selecting Jurors From the Panel

Names of jurors on cards

631 (1) The name of each juror on a panel of jurors that has been returned, his number on the panel and his address shall be written on a separate card, and all the cards shall, as far as possible, be of equal size.

To be placed in box

(2) The sheriff or other officer who returns the panel shall deliver the cards referred to in subsection (1) [manner of placing juror names on cards] to the clerk of the court who shall cause them to be placed together in a box to be provided for the purpose and to be thoroughly shaken together.
[omitted (2.1) and (2.2)]

Cards to be drawn by clerk of court

(3) If the array of jurors is not challenged or the array of jurors is challenged but the judge does not direct a new panel to be returned, the clerk of the court shall, in open court, draw out one after another the cards referred to in subsection (1) [manner of placing juror names on cards], call out the number on each card as it is drawn and confirm with the person who responds that he or she is the person whose name appears on the card drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by.

Exception

(3.1) The court, or a judge of the court, before which the jury trial is to be held may, if the court or judge is satisfied that it is necessary for the proper administration of justice, order the clerk of the court to call out the name and the number on each card.

Juror and other persons to be sworn

(4) The clerk of the court shall swear each member of the jury, and any alternate jurors, in the order in which his or her card was drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability.

Drawing additional cards if necessary

(5) If the number of persons who answer under subsection (3) [manner of drawing cards] or (3.1) [power to order calling out names on cards] is not sufficient to provide a full jury and the number of alternate jurors ordered by the judge, the clerk of the court shall proceed in accordance with subsections (3) [manner of drawing cards], (3.1) [power to order calling out names on cards] and (4) [power to swear in jury and support persons] until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection (2.2) [power to swear more than 12 jurors] — and any alternate jurors are sworn.
[omitted (6)]
R.S., 1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992, c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13, s. 52; 2005, c. 32, s. 20; 2011, c. 16, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Section 2 defines "clerk of the court".

Section 631(6) imposes a ban on publication of information that tends to identify jurors.

Electronic Selection

Electronic or automated means

631.1 Any electronic or other automated means may be used to select jurors so long as the jurors would be randomly selected as required by the jury selection process described in subsections 631(1) to (5).

2022, c. 17, s. 38

– CCC (CanLII), (DOJ)

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{{{4}}}

Excusing Jurors During Selection

Excusing jurors

632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) [manner of drawing cards] or (3.1) [power to order calling out names on cards] or any challenge has been made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;

(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or

(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.

R.S., 1985, c. C-46, s. 632; 1992, c. 41, s. 2; 2001, c. 32, s. 39; 2002, c. 13, s. 53.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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The judge must vet the jury for hardship exemptions before beginning with peremptory challenges or challenges for cause. To do otherwise effectively reduces the number of challenges that each side may have.

A judge may exclude a potential juror on the basis that they are not vaccinated from COVID-19.

Summoning Potential Jurors When Panel is Exhausted

Where the Panel is Exhausted

Summoning other jurors when panel exhausted

642 (1) If a full jury and any alternate jurors considered advisable cannot be provided notwithstanding that the relevant provisions of this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer to summon without delay as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury and alternate jurors.

Orally

(2) Jurors may be summoned under subsection (1) [summoning other jurors when panel exhausted – authority] by word of mouth, if necessary.

Adding names to panel

(3) The names of the persons who are summoned under this section shall be added to the general panel for the purposes of the trial, and the same proceedings shall be taken with respect to calling and challenging those persons, excusing them and directing them to stand by as are provided in this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] with respect to the persons named in the original panel.
R.S., 1985, c. C-46, s. 642; 1992, c. 41, s. 4; 2002, c. 13, s. 56.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Selecting Additional and Alternate Jurors

• < Procedure and Practice
• < Trials
• < Juries

General Principles

It is generally accepted that only 12 jurors can decide a case. However, more than 12 jurors can hear a case.

631
[omitted (1) and (2)]

Alternate jurors

(2.1) If the judge considers it advisable in the interests of justice to have one or two alternate jurors, the judge shall so order before the clerk of the court draws out the cards under subsection (3) [manner of drawing cards] or (3.1) [power to order calling out names on cards].

Additional jurors

(2.2) If the judge considers it advisable in the interests of justice, he or she may order that 13 or 14 jurors, instead of 12, be sworn in accordance with this Part [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)] before the clerk of the court draws out the cards under subsection (3) [manner of drawing cards] or (3.1) [power to order calling out names on cards].
[omitted (3), (3.1), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992, c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13, s. 52; 2005, c. 32, s. 20; 2011, c. 16, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Trying of issues of indictment by jury

652.1 (1) After the charge to the jury, the jury shall retire to try the issues of the indictment.

Reduction of number of jurors to 12

(2) However, if there are more than 12 jurors remaining, the judge shall identify the 12 jurors who are to retire to consider the verdict by having the number of each juror written on a card that is of equal size, by causing the cards to be placed together in a box that is to be thoroughly shaken together and by drawing one card if 13 jurors remain or two cards if 14 jurors remain. The judge shall then discharge any juror whose number is drawn.
2011, c. 16, s. 13.

– CCC (CanLII), (DOJ)

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Selection of Alternate Jurors

Substitution of alternate jurors

642.1 (1) Alternate jurors shall attend at the commencement of the presentation of the evidence on the merits and, if there is not a full jury present, shall replace any absent juror, in the order in which their cards were drawn under subsection 631(3) [manner of drawing cards].

Excusing of alternate jurors

(2) An alternate juror who is not required as a substitute shall be excused.
2002, c. 13, s. 57; 2011, c. 16, s. 11.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Right to a Representative Jury

• < Procedure and Practice
• < Trials
• < Juries
• < Jury Selection

General Principles

The right to a "representative jury" is found within s. 11(d) [right to fair and public trial] and 11(f) [right to trial by jury] of the Charter.

"Representativeness" relates to the "process used to compile the jury roll" (ie. the list of persons from whom the jury is selected).

Juries are to consist of "a representative cross-section of Canadian society." The must be "honestly and fairly chosen". As such, an accused has no right to a jury roll of a "particular composition", including particular number of members of a certain race or ethnicity.

Selection Process

The jury selection process relies on the randomness of selection to achieve a fair sampling of jurors. Additional efforts to change the make-up of the jury may be considered inappropriate.

Representativeness is an entitlement that is essential at the "polling" and "panel" level of jury selection, but not so at the final stage of the final selection of the members of the jury.

A representative jury is important as it "contributes to a sense of confidence that the jury will be fair and impartial". A representative jury has the effect of bringing a diversity of backgrounds and experiences, in addition to cultural sensitivities.

Certain characteristics such as the type of employer the person has are immaterial and have no bearing on the right to representativeness.

A representative jury roll is achieved by ensuring that:

1. the "draw[s] from a broad cross-section of society" in order to capture as many eligible persons as possible.
2. the jurors are selected from the role in a random fashion.
3. the delivery of notices to those who have been randomly selected to attend court to be considered as someone who will sit on the jury.

See Also

• Challenge to Jury Panel

Peremptory Challenge (Prior to September 19, 2019)

• < Procedure and Practice
• < Trials
• < Juries

General Principles

Section 269 of Bill C-75 Repealed s. 634 on September 19, 2019 removing pre-emptory challenges

NOTE: R v Chouhan, 2021 SCC 26 (CanLII) found that the provisions were retrospective and applies to proceeding commenced before the amendment date of September 19, 2019

Peremptory challenges refer to the ability for each party to veto a selected juror without the obligation of giving reasons for it.

Peremptory challenges

634 (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638 [challenge for cause – grounds].

Maximum number

(2) Subject to subsections (2.1) to (4) , the prosecutor and the accused are each entitled to

(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;

(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or

(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

If 13 or 14 jurors

(2.01) If the judge orders under subsection 631(2.2) [power to swear more than 12 jurors] that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.

If alternate jurors

(2.1) If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror.

Supplemental peremptory challenges

(2.2) For the purposes of replacing jurors under subsection 644(1.1) [select replacement juror after discharge], the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.

Where there are multiple counts

(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.

Where there are joint trials

(4) Where two or more accused are to be tried together,

(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and

(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.

R.S., 1985, c. C-46, s. 634; 1992, c. 41, s. 2; 2002, c. 13, s. 54; 2008, c. 18, s. 25; 2011, c. 16, s. 8.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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The number of challenges will vary on the type of charge before court. Under s. 634(2), the standard number of challenges consist of:

Number of Peremptory Challenges	Offence(s)	Code
20	high treason or first degree murder	s. 634(2)(a)
12	offences with a maximum penalty greater than 5 years	s. 634(2)(b)
4	all Jury eligible offences with a penalty of 5 years or less	s. 634(2)(c)

Abuse of Process

An attempt by the Crown to strategically stand-aside all male jury candidates can be held as valid and not an abuse of process.

Discretion to Give Additional Preemptions

A judge has no discretion to award any side additional peremptions due to a selected juror needing to be replaced during the selection process.

Constitutionality

The limitation of 12 jurors for a trial on second-degree murder does not violate s. 7 of the Charter due to inequality with the number of peremptions available on a first degree murder trial.

Retrospectivity

The removal of 634 is not strictly procedural and so applies only prospectively.

The right to peremptory challenges remains vested in those cases where, before the date of amendment, the accused is charged with an exclusive jurisdiction offence, a direct indictment has been filed, or where there is an election for trial by judge and jury.

Jury Vetting by Crown or Defence

Background checks can be done by the police to ensure eligibility under the Criminal Code and provincial jury Acts. If information is found such as a criminal record, it must be disclosed to the defence.

There is a limited ability for the police to give opinion on jury selection that does not need to be disclosed due to the lack of reliability of the opinion and underlying information such as community reputation.

Defence must disclose any information they know that may indicate a juror is partial or ineligible.

Challenge for Cause

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General Principles

Presumption of Impartiality

Jurors are presumed by their oaths to be impartial judges.

However, where the potential bias is clear and obvious, or where it can be shown that there is a reason to suspect that members of a jury may possess bias that cannot be set aside, then the jury can be screened by a challenge for cause.

Grounds to Challenge

Section 638 provides both Crown and defence counsel to make a challenge for cause on the basis of several available grounds:

Challenge for cause

638 (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to;

(b) a juror is not impartial;

(c) a juror has been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record suspension is in effect;

(d) a juror is not a Canadian citizen;

(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627 [support for juror with physical disability], is physically unable to perform properly the duties of a juror; or

(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 [language of accused] to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.

No other ground

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1) [challenge for cause – enumerated grounds].

(3) and (4) [Repealed, 1997, c. 18, s. 74]

(5) [Repealed, R.S., 1985, c. 31 (4th Supp.), s. 96]

R.S., 1985, c. C-46, s. 638; R.S., 1985, c. 27 (1st Supp.), s. 132, c. 31 (4th Supp.), s. 96; 1997, c. 18, s. 74; 1998, c. 9, s. 6; 2019, c. 25, s. 271.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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There must be an "evidentiary foundation" for any claim of challenge for cause.

The judge has wide discretion to supervise the challenge. Including when to exclude the jury panel.

There is not a fixed rule that a jury panel should be excluded during a challenge for cause.

Challenge for Bias

Under section 638(1)(b), a party may challenge a juror "for cause", alleging that the juror may not be indifferent. The test is whether there is "a 'realistic potential' that the jury pool may contain people who are not impartial in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused …"

The purpose of challenge for cause is to screen out potential biases in juries.

The fundamental issue on challenges for cause is whether the accused can receive a fair trial pursuant to s. 11(d) of the Charter.

The party challenging cause must establish that:

1. a widespread bias exists in the community; and
2. some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.

There are the "attitudinal" and "behavioural" components to partiality.

There is a presumption that jurors are capable of setting aside their views and biases in favour of impartiality between Crown and the accused and compliance with the trial judge's instructions.

The decision to permit a challenge for cause is discretionary, but when in doubt the judge should "err on the side of permitting challenges."

Challenges will normally be directed at all potential jurors but may be targeted at specific jurors.

Evidence

The basis of challenge can be established by way of expert testimony regarding the bias alleged.

Background Checks of Potential Jurors

The Crown has a limited ability to make police background checks into each prospective juror for the purpose of challenges under s. 638(1)(c). Where it is done so, the results must be disclosed to the defence.

The practice of doing background checks on potential jurors outside of the purpose of determine juror eligibility is prohibited.

Questioning

The questions should be “relevant, succinct and fair” and avoid invading "the privacy of prospective jurors in an attempt to probe personal feelings, opinions, and beliefs." The questions must remain "within the bounds of a legitimate inquiry into the impartiality of potential jurors."

The ability to challenge opinions is limited. Often the questions are narrow enough only to be answered yes or no.

It is solely the judge who determines the form of the question given the circumstances of the case.

Process

It is not appropriate to group jurors on the basis of race as it violates the requirement of random selection under s. 631.

There are two methods of selecting jurors on a challenge for cause. First, there is the "dynamic triers" method and then there is the "dynamic triers" method of selection.

An accused does not have a right to have a jury including members of a particular race, ethnicity or background.

Procedure

An intention to challenge for cause may require written notice:

Challenge in writing

639 (1) Where a challenge is made on a ground mentioned in section 638 [challenge for cause – grounds], the court may, in its discretion, require the party that challenges to put the challenge in writing.

Form

(2) A challenge may be in Form 41 [forms].

Denial

(3) A challenge may be denied by the other party to the proceedings on the ground that it is not true.
R.S., c. C-34, s. 568.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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An intention to a challenge of the array may also require notice:

Challenging the jury panel

629 (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.

In writing

(2) A challenge under subsection (1) [challenging the jury panel – grounds] shall be in writing and shall state that the person who returned the panel was partial or fraudulent or that he wilfully misconducted himself, as the case may be.

Form

(3) A challenge under this section may be in Form 40 [forms].
R.S., 1985, c. C-46, s. 629; R.S., 1985, c. 27 (1st Supp.), s. 130.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Ordering of Challenges

Order of challenges

635 (1) The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror for cause, and after that the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration.

Where there are joint trials

(2) Subsection (1) [ordering of challenges for cause] applies where two or more accused are to be tried together, but all of the accused shall exercise the challenges of the defence in turn, in the order in which their names appear in the indictment or in any other order agreed on by them,

(a) in respect of the first juror, before the prosecutor; and

(b) in respect of each of the remaining jurors, either before or after the prosecutor, in accordance with subsection (1) [ordering of challenges for cause].

R.S., 1985, c. C-46, s. 635; R.S., 1985, c. 2 (1st Supp.), s. 2; 1992, c. 41, s. 2; 2019, c. 25, s. 270.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Determination of Challenge for Cause

Determination of challenge for cause

640 (1) If a challenge is made on a ground mentioned in section 638 [challenge for cause – grounds], the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn.

Exclusion order

(2) On the application of the accused or prosecutor or on the judge’s own motion, the judge may order the exclusion of all jurors, sworn and unsworn, from the court room until it is determined whether the ground of challenge is true if the judge is of the opinion that the order is necessary to preserve the impartiality of the jurors.

R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9; 2019, c. 25, s. 272.

– CCC (CanLII), (DOJ)

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Subjects of Challenge

Race-based Challenge

Challenge for racial bias requires that the applicant "establish that there is widespread bias in the community and that some prospective jurors may not be capable of setting aside their bias." The recognized prejudice against visible minorities is widespread enough that a challenge for cause will be established in most cases.

Given the difficulty of presenting evidence of racial prejudice within a community, a judge may infer it based on evidence of national or provincial wide prejudice.

Variations of race-based challenges have not always been accepted.

There is broad acceptance that where the warranted to engage in a challenge for cause on the basis of race, the following question (from Parks) is permissible:

"Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is ... black... and the deceased is a white man?"

Gang-relation

Where an offence is gang-related and that relation creates a "reasonable risk of bias", jurors may be challenged. Where it is adjunct to racial bias it will more likely be relevant to jury selection.

Other Subjects

Challenge on the basis of national origin has been largely rejected.

There have been a few requests for challenge on the basis of bias towards those suffering from mental illness such as schizophrenia or psychosis.

Challenge for Cause (Prior to September 19, 2019)

• Challenge for Cause (Prior to September 19, 2019)

Challenge for Cause (Prior to September 19, 2019)

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General Principles

Unaccounted Juror

Objection that name not on panel

640 (1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence as the judge thinks fit to receive.
[omitted (2), (2.1), (2.2), (3) and (4)]
[repealed 2019, c. 25, s. 272 on September 19, 2019]

– CCC (CanLII), (DOJ)

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Result of Challenge

640
[omitted (1), (2), (2.1) and (2.2)]

If challenge not sustained, or if sustained

(3) Where the finding, pursuant to subsection (1), (2) or (2.2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.

Disagreement of triers

(4) Where, after what the court considers to be a reasonable time, the two persons who are sworn to determine whether the ground of challenge is true are unable to agree, the court may discharge them from giving a verdict and may direct two other persons to be sworn to determine whether the ground of challenge is true.
R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9. [repealed 2019, c. 25, s. 272 on September 19, 2019]

– CCC (CanLII), (DOJ)

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Dynamic Triers

640
[omitted (1)]

Other grounds

(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn — or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose — shall be sworn to determine whether the ground of challenge is true.
[omitted (2.1), (2.2), (3) and (4)]

[repealed 2019, c. 25, s. 272 on September 19, 2019] R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9.

– CCC (CanLII), (DOJ)

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The dynamic method of selecting jurors is intended to ensure "that the responsibility for determining the challenge for cause is shared by all jurors but the last juror selected."

The changing of triers with each selection is mandatory.

Static Triers

The process involving static triers was added to the Code in 2008.

Section 640(2.1) and (2.2) were added:

640
[omitted (1) and (2)]
(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors – sworn and unsworn – from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.
(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until twelve jurors and any alternate jurors are sworn. [repealed 2019, c. 25, s. 272 on September 19, 2019]
[omitted (3) and (4)]
R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9.

– CCC (CanLII), (DOJ)

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The accused may apply under s. 640(2.1) to have two triers select all members of the jury. They themselves cannot become members of the jury.

Sections 640(2),(2.1) and (2.2) do not remove the judge's inherent jurisdiction to exclude jurors from the courtroom during the challenge for cause.

Improper Use of Static Triers

The proper use static triers may mean that the jury was not properly constituted and therefor the verdicts must be quashed.

Instructing Triers

The instructions to the trier should contain the following elements:

1. the triers are to decide if the potential juror is impartial,
2. the decision is on the balance of probabilities;
3. the decision must be by both triers,
4. they may retire to the jury room or discuss it where they are; and
5. if the triers cannot agree within a reasonable time they are to say so.

The judge must also give the triers an "adequate understanding of the nature of their task and the procedure they were to follow."

Instructions will be adequate where when "viewed in their entirety, the instructions provided [the triers] with an adequate understanding of the nature of their task and the procedure they were to follow in order to select an impartial jury”.

When dealing with dynamic triers it is necessary to repeat the instructions to each and every one of them.

Decisions of Triers

There is no right for counsel to make submissions to the triers, but may do so at the discretion of the judge.

The decision of a trier can be based not only on the answers to the questions but also on the demeanour and reactions of the potential juror.

Generally, a judge should interfere with the trier's process by making their decision for them on any prospective juror.

However, s. 640(4) permits the judge to dismiss triers who cannot agree and then empanel replacements. Such disagreement also permits the judge to dismiss the juror.

Where a trier expresses uncertainty on the choice of a prospective juror, the judge may in some cases, be able to dismiss the prospective juror.

The triers do not need to make a decision on a particular prospective juror who the defence counsel has already decided is acceptable. However, once questioning starts, the opposing side cannot simply "admit" the challenge, thus rejecting the prospective juror, as in effect the opposing side would have in effect unlimited pre-emptory challenges.

See Also

• Challenge for Cause

Challenge to Jury Panel

This page was last substantively updated or reviewed January 2018. (Rev. # 79483)

• < Procedure and Practice
• < Trials
• < Juries

General Principles

Under s. 629, either party may challenge the jury panel or array from which jurors from which jurors are selected.

Under the heading of "challenging the array", s. 629 states:

Challenging the jury panel

629 (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.

In writing

(2) A challenge under subsection (1) [challenging the jury panel – grounds] shall be in writing and shall state that the person who returned the panel was partial or fraudulent or that he wilfully misconducted himself, as the case may be.

Form

(3) A challenge under this section may be in Form 40 [forms].
R.S., 1985, c. C-46, s. 629; R.S., 1985, c. 27 (1st Supp.), s. 130.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Trying ground of challenge

630. Where a challenge is made under section 629 [challenging the jury panel], the judge shall determine whether the alleged ground of challenge is true or not, and where he is satisfied that the alleged ground of challenge is true, he shall direct a new panel to be returned.
R.S., c. C-34, s. 559.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Jury Partiality

Issues of partiality will usually take the form of problems with the demographics of the array of potential jurors.

Where the selecting potential jurors intentionally excludes aboriginals, it may be found to be partial.

There is no Charter right that entitles an accused person to a jury that consists either entirely or proportionately of the same race as the accused. Nevertheless, systemic biases in the method of selection against certain races may result in partiality.

The public's confidence in the administration of justice relies on the impartiality of a jury.

Jurors are expected to apply their "entire life's experiences to the task of judging."

It is not only important that a juror be impartial but also seen to be impartial.

Evidence of Juror Partiality

Where a judge is made sufficiently aware of jury conduct that may have an appearance of preference, they have an obligation to conduct an inquiry into the matter and determine whether the juror can continue. Failure to conduct the inquiry is an error of law.