|This page was last substantively updated or reviewed January 2020. (Rev. # 86899)|
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:
- the presumption of innocence
- the right against self-incrimination 
- 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.
R v Levogiannis, 1993 CanLII 47 (SCC),  4 SCR 475, per L'Heureux‑Dubé J ("The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.")
R v Nikolovski, 1996 CanLII 158 (SCC),  3 SCR 1197, per Cory J ("The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth.")
R v G(B), 1999 CanLII 690 (SCC),  2 SCR 475, per Bastarache J ("[T]he essential principle of every criminal trial [is] the search for truth.")
R v Chamandy, 1934 CanLII 130 (ON CA), 61 CCC 224, per Riddell JA ("A criminal trial is not a contest between individuals nor is it a contest between the Crown and the accused; it is an investigation that should be conducted without animus on the part of the prosecution, with the single view of determining the truth.")
- R v Mullins-Johnson, 2007 ONCA 720 (CanLII), 228 CCC (3d) 505, per curiam
- R v Handy, 2002 SCC 56 (CanLII),  2 SCR 908, per Binnie J ("[t]he criminal trial is, after all, about the search for truth as well fairness to an accused")
Handy, ibid., at para 44
see also Presumptions
- s. 11(d) of the Charter
- Section 11(c) of the Charter
- Groia v Law Society of Upper Canada, 2018 SCC 27 (CanLII),  1 SCR 772, at para 1 ("Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way.")
R v Barbour, 1938 CanLII 29 (SCC),  SCR 465, per Duff CJ
Shortland v Hill & Anor  EW Misc 14 (UK) (CC)  , at para 20("So ours is not a system of scientific certainty in finding the truth. It is one that seeks the most likely answer based on the evidence that the parties have chosen to place before it".)
Shortland v Hill, ibid., at para 20
R v Nyznik, 2017 ONSC 4392 (CanLII), 350 CCC (3d) 335, per Molloy J, at para 16
R v WN, 2019 CanLII 4547 (NL PC), per Gorman J, at para 4
- R v Jackson, 2019 NSSC 202 (CanLII), per Brothers J, at para 152
Ordering of 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".
R v Lyons, 1987 CanLII 25 (SCC),  2 SCR 309, per La Forest J at 362B ("The Charter guarantees the accused a fundamentally fair trial, not a perfect trial.")
R v Harrer, 1995 CanLII 70 (SCC),  3 SCR 562, per La Forest J, at p. 587
R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177, per Watt JA, at para 102 ("Trial fairness is not the exclusive preserve of those charged with crime. A fair trial is a trial that appears fair, not only from the perspective of the accused, the person on trial, but also from the perspective of the community … A fair trial is a trial that satisfies the public interest in getting at the truth, but at the same time preserves basic procedural fairness for the accused.")
Harrer, supra, at para 45 ("At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view:... Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.")
Lyons, supra, at p. 362 (SCR)
Right to a Fair Trial
Section 11(d) of the Charter guarantees:
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".
R v Donahue, 2005 NLTD 117 (CanLII), 743 APR 307, per Barry J, at para 19
R v Simons, 1976 CanLII 1369 (ON CA), 30 CCC (2d) 162 (ONCA), per Dubin JA, at p. 168
Donahue, supra, at para 19 citing Simons
R v Sherman, 1995 CanLII 4269 (NS CA), 418 APR 122, per Hallett JA citing Simons
R v Blonde, 2015 ONSC 2113 (CanLII), per P Smith J, at para 60, citing Simons
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.
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.
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
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:
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
Proceeding with Summary Trial
Compelling Appearances of Accused
On summary conviction offences, the procedure for compelling attendance is the same as found in Parts XVI and XVIII:
Proceeding to Trial Ex Parte
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 Court Judge-Alone Proceedings Are a Court of Record
A provincial court must receive evidence in the same manner described in for a preliminary inquiry judge: