Trial Process: Difference between revisions

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===Purpose of a trial===
===Purpose of a trial===
A trial is the process by which a judge attempts to ascertain the truth in order to convict the guilty and acquit the innocent.<ref>  
{{seealso|Role of Trial Judge}}
R v Levogiannis, [http://canlii.ca/t/1frxq 1993 CanLII 47] (SCC), [1993] 4 SCR 475 ("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.")<br>
A trial is a process by which a judge attempts to ascertain the truth in order to convict the guilty and acquit the innocent.<ref>  
R v Nikolovski, [http://canlii.ca/t/1fr59 1996 CanLII 158] (SCC), [1996] 3 SCR 1197 ("The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth.")<br>
{{CanLIIRP|Levogiannis|1frxq|1993 CanLII 47 (SCC)|[1993] 4 SCR 475}}{{perSCC|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.")<br>
R v G. (B.), [http://canlii.ca/t/1fqlt 1999 CanLII 690] (SCC), [1999] 2 SCR 475 ("[T]he essential principle of every criminal trial [is] the search for truth.")<br>
{{CanLIIRP|Nikolovski|1fr59|1996 CanLII 158 (SCC)|[1996] 3 SCR 1197}}{{perSCC|Cory J}} ("The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth.")<br>
R v Chamandy, (1934) [http://canlii.ca/t/g18m3 1934 CanLII 130] (ON CA), 61 C.C.C. 224 (Ont. C.A.) ("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.")
{{CanLIIRP|G(B)|1fqlt|1999 CanLII 690 (SCC)|[1999] 2 SCR 475}}{{perSCC-H|Bastarache J}} ("[T]he essential principle of every criminal trial [is] the search for truth.")<br>
{{CanLIIRP|Chamandy|g18m3|1934 CanLII 130 (ON CA)|61 CCC 224}}{{perONCA|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.")
</ref>
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.<ref>
{{CanLIIRP|Mullins-Johnson|1tb2m|2007 ONCA 720 (CanLII)|228 CCC (3d) 505}}{{TheCourtONCA}}
</ref>
</ref>
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.<ref>R v Mullins-Johnson, [http://canlii.ca/t/1tb2m 2007 ONCA 720] (CanLII)</ref>


The trial fundamentally is "about the search for the truth as well as fairness to the accused".<Ref>
The trial fundamentally is "about the search for the truth as well as fairness to the accused."<ref>
R v Handy, [http://canlii.ca/t/51r6 2002 SCC 56] (CanLII), [2002] 2 SCR 908 ("[t]he  criminal  trial  is,  after  all,  about  the  search  for  truth  as  well fairness  to  an  accused")</ref>
{{CanLIIRP|Handy|51r6|2002 SCC 56 (CanLII)|[2002] 2 SCR 908}}{{perSCC-H|Binnie J}} ("[t]he  criminal  trial  is,  after  all,  about  the  search  for  truth  as  well fairness  to  an  accused")
</ref>
This is guided by these principles:
This is guided by these principles:
#  the presumption of innocence<ref>R v Handy at para 44<br>see also [[Presumptions]]</ref>
#  the presumption of innocence<ref>
{{ibid1|Handy}}{{atL|51r6|44}}<br>see also [[Presumptions]]</ref>
# the right against self-incrimination <ref> s. 11(d) of the Charter</ref>
# the right against self-incrimination <ref> s. 11(d) of the Charter</ref>
# the ultimate burden on the crown to prove guilt beyond a reasonable doubt.<Ref>Section 11(c) of the Charter</ref>
# the ultimate burden on the crown to prove guilt beyond a reasonable doubt.<ref>Section 11(c) of the Charter</ref>


"Trial fairness" does not equate the right to a "perfect" trial. <Ref>
The trial process is the primary means of resolving disputes in a "just, peaceful, and orderly way."<ref>
R v Lyons, [http://canlii.ca/t/1ftlw 1987 CanLII 25] (SCC), [1987] 2 SCR 309 at 362B ("The Charter guarantees the accused a fundamentally fair trial, not a perfect trial.")<Br>
{{CanLIIRPC|Groia v Law Society of Upper Canada|hsb9d|2018 SCC 27 (CanLII)|[2018] 1 SCR 772}}{{atL|hsb9d|1}} ("Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way.")
R v Harrer, [http://canlii.ca/t/1frhf 1995 CanLII 70] (CanLII) [1995] 3 SCR 562 at p 587<Br>
</ref>
</ref>


The trier-of-fact is not engaging "in a scientific investigation".<ref>
; Trial is Not Scientific
R v Barbour, [1938] SCR 465, [http://canlii.ca/t/fsldk 1938 CanLII 29] (SCC)
The trier-of-fact is not engaging "in a scientific investigation."<ref>
UK: Shortland v Hill & Anor [2017] [http://www.bailii.org/ew/cases/Misc/2017/B14.html EW Misc 14] (CC)  at para 20 ("So ours is not a system of scientific certainty in finding the truth. Iti s one that seeks the ''most likely'' answer based on the evidence that ''the parties'' have chosen to place before it".)
{{CanLIIRP|Barbour|fsldk|1938 CanLII 29 (SCC)|[1938] SCR 465}}{{perSCC|Duff CJ}}<Br>
{{UKCase|Shortland v Hill & Anor| [2017] EW Misc 14}} (CC) [http://www.bailii.org/ew/cases/Misc/2017/B14.html] {{at-|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".)
</ref>
</ref>
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".<ref>
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."<ref>
Shortland v Hill{{ibid}} at para 20<bR>
{{ibid1|Shortland v Hill}}{{at-|20}}<br>
</ref>
 
; 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.<ref>
{{CanLIIRP|Nyznik|h59cf|2017 ONSC 4392 (CanLII)|350 CCC (3d) 335}}{{perONSC|Molloy J}}{{atL|h59cf|16}}<br>
</ref>
 
A failure to convict does not mean that the complainant is not believed or believable.<ref>
{{CanLIIRx|WN|hx6ts|2019 CanLII 4547 (NL PC)}}{{perNLPC|Gorman J}}{{atL|hx6ts|4}}<br>
</ref>
It is also not equivalent to a finding that the allegations did not happen.<ref>
{{CanLIIRx|Jackson|j1b3l|2019 NSSC 202 (CanLII)}}{{perNSSC|Brothers J}}{{atL|j1b3l|152}}
</ref>
</ref>


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[[File:Trial_Process.png]]
[[File:Trial_Process.png]]


==Right to a Fair Trial==
==Fair Trial==
"Trial fairness" does not equate the right to a "perfect" trial. <ref>
{{CanLIIRP|Lyons|1ftlw|1987 CanLII 25 (SCC)|[1987] 2 SCR 309}}{{perSCC|La Forest J}} at 362B ("The Charter guarantees the accused a fundamentally fair trial, not a perfect trial.")<Br>
{{CanLIIRP|Harrer|1frhf|1995 CanLII 70 (SCC)|[1995] 3 SCR 562}}{{perSCC|La Forest J}}{{Atp|587}}<Br>
</ref>
 
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."<ref>
{{CanLIIRP|Spackman|fvf9n|2012 ONCA 905 (CanLII)|295 CCC (3d) 177}}{{perONCA-H|Watt JA}}{{atL|fvf9n|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.")<br>
{{supra1|Harrer}}{{atL|1frhf|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.")<br>
{{supra1|Lyons}}{{atp|362}} (SCR)<br>
</ref>
 
{{reflist|2}}
===Right to a Fair Trial===
Section 11(d) of the Charter guarantees:
Section 11(d) of the Charter guarantees:
{{quotation|
{{quotation1|
'''Proceedings in criminal and penal matters'''<br>
; Proceedings in criminal and penal matters
11. Any person charged with an offence has the right ...
11. Any person charged with an offence has the right {{ellipsis}}
:(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
:(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
| [http://canlii.ca/t/8q7l CCRF]
| [http://canlii.ca/t/8q7l 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".<ref>
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."<ref>
R v Quesnelle, [2014] 2 SCR 390, [http://canlii.ca/t/g7xds 2014 SCC 46] (CanLII), at para 64<br>
{{CanLIIRP|Quesnelle|g7xds|2014 SCC 46 (CanLII)|[2014] 2 SCR 390}}{{perSCC|Karakatsanis J}}{{atL|g7xds|64}}<br>
R v Mills, [1999] 3 SCR 668, [http://canlii.ca/t/1fqkl 1999 CanLII 637] (SCC)<br>
{{CanLIIRP|Mills|1fqkl|1999 CanLII 637 (SCC)|[1999] 3 SCR 668}}{{perSCC-H|McLachlin and Iacobucci JJ}}<br>
see also [[Principles of Fundamental Justice]]
see also [[Principles of Fundamental Justice]]
</ref>  
</ref>  
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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.<ref>
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.<ref>
R v Donahue, [http://canlii.ca/t/1l57c 2005 NLTD 117] (CanLII), at para 19<Br>
{{CanLIIRP|Donahue|1l57c|2005 NLTD 117 (CanLII)|743 APR 307}}{{perNLSC|Barry J}}{{atL|1l57c|19}}<Br>
</ref>
</ref>


There is no unfettered discretion to try a matter anywhere within the province. Otherwise, the law could become an "engine of oppression and injustice".<ref>
There is no unfettered discretion to try a matter anywhere within the province. Otherwise, the law could become an "engine of oppression and injustice."<ref>
R v Simons (1976), 30 CCC (2d) 162 (ONCA), [http://canlii.ca/t/htwm7 1976 CanLII 1369] (ON CA){{perONCA|Dubin JA}} at p. 168<br>
{{CanLIIRP|Simons|htwm7|1976 CanLII 1369 (ON CA)|30 CCC (2d) 162 (ONCA)}}{{perONCA|Dubin JA}}{{atp|168}}<br>
R v Donahue, at para 19 citing Simons<br>
{{supra1|Donahue}}{{atL|1l57c|19}} citing Simons<br>
R v Sherman, [http://canlii.ca/t/1mq0k 1995 CanLII 4269] (NS CA) citing Simons<br>
{{CanLIIRP|Sherman|1mq0k|1995 CanLII 4269 (NS CA)|418 APR 122}}{{perNSCA|Hallett JA}} citing Simons<br>
R v Blonde, [http://canlii.ca/t/gh1jl 2015 ONSC 2113] (CanLII), at para 60, citing Simons<br>
{{CanLIIRx|Blonde|gh1jl|2015 ONSC 2113 (CanLII)}}{{perONSC|P Smith J}}{{atL|gh1jl|60}}, citing Simons<br>
</ref>
</ref>


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==Crown's Case==
==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.<ref>
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.<ref>
R v KT, [http://canlii.ca/t/fx5wz 2013 ONCA 257] (CanLII) at para 41 per Watt JA<br>
{{CanLIIRP|KT|fx5wz|2013 ONCA 257 (CanLII)|295 CCC (3d) 283}}{{perONCA-H|Watt JA}}{{atL|fx5wz|41}}<br>
R v Kraus, [1986] 2 SCR 466, [http://canlii.ca/t/1ftr1 1986 CanLII 39] (SCC)
{{CanLIIRP|Krause|1ftr1|1986 CanLII 39 (SCC)|[1986] 2 SCR 466}}{{perSCC-H|McIntyre J}}
</ref>
</ref>


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".<ref>
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."<ref>
KT{{supra}} at para 42</ref>  
{{supra1|KT}}{{atL|fx5wz|42}}</ref>  


The Crown is expected to call, as part of its case, evidence that may rebut any alibi evidence and evidence of similar facts.<Ref>
The Crown is expected to call, as part of its case, evidence that may rebut any alibi evidence and evidence of similar facts.<ref>
R v Biddle [http://canlii.ca/t/1frlj 1995 CanLII 134] (SCC), [1995] 1 SCR 761 per Sopinka J</ref>
{{CanLIIRP|Biddle|1frlj|1995 CanLII 134 (SCC)|[1995] 1 SCR 761}}{{perSCC-H|Sopinka J}}</ref>
 
The accused is entitled to know to full case against the accused once the Crown closes its case.<Ref>
{{CanLIIRP|Krause|1ftr1|1986 CanLII 39 (SCC)|[1986] 2 SCR 466}}{{perSCC| J}}{{AtL|1ftr1|15}}
</ref>


{{reflist|2}}
{{reflist|2}}
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===Multiple Co-Accused===
===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 tradition for the particular jurisdiction.<ref>
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.<ref>
R v Colpitts, [http://canlii.ca/t/gv2bb 2016 NSSC 271] (CanLII) at paras 4 to 6, 17 per Coady J - cites examples of jurisdictions where ordering is based on the order of seniority or the order of seriousness of the charges
{{CanLIIRx|Colpitts|gv2bb|2016 NSSC 271 (CanLII)}}{{perNSSC|Coady J}}{{atsL|gv2bb|4| to 6}}, {{AtsL-np|gv2bb|17|}} - cites examples of jurisdictions where ordering is based on the order of seniority or the order of seriousness of the charges
</ref> However, most frequently the accused will be addressed in the order in which they appear in the information.<ref>
</ref>  
Colpitts{{ibid}} at para 6<Br>
However, most frequently the accused will be addressed in the order in which they appear in the information.<ref>
{{ibid1|Colpitts}}{{atL|gv2bb|6}}<Br>
</ref>
</ref>


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.<ref>
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.<ref>
Colpitts{{ibid}} at para 18<Br>
{{ibid1|Colpitts}}{{atL|gv2bb|18}}<Br>
</ref>
 
{{reflist|2}}
 
==Reply or Rebuttal==
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.<Ref>
R v Melnichuk, [http://canlii.ca/t/1fr30 1997 CanLII 383] (SCC), [1997] 1 SCR 602
</ref>
 
The judge may permit the crown to present further evidence at the close of the defence's case.
 
The evidence is limited only to matters that were raised in the defence evidence.<Ref>
R v Kuyan (1988) 43 CCC (3d) 339, [http://canlii.ca/t/g9ccl 1988 CanLII 7114] (ON CA){{perONVA|Griffiths JA}}</ref>
 
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.<Ref>R v Perry (1977), 36 CCC (2d) 209 (Ont. C.A.) {{NOCANLII}}</ref>
 
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.<ref>
R v KT, [http://canlii.ca/t/ghtd5 2013 ONCA 257] (CanLII) at para 42 per Watt JA</ref>
 
The crown should be permitted to call reply evidence when:<ref>KT{{ibid}} at para 43</ref>
*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 I did significance as a result of evidence adduced in the defence case.
{{Reflist|2}}
 
==Re-Opening the Case==
Once a party has closed their case, it is presumed they have finished presenting their evidence. It is the judge's discretion to allow a party, usually the crown, to re-open their case.
 
The factors to consider in exercising discretion to re-open a case prior to verdict are:<ref>
R v Hayward (1993) 86 CCC (3d) 193 (ONCA), [http://canlii.ca/t/g9h6t 1993 CanLII 14679] (ON CA){{perONCA|Doherty JA}}{{ats|17-19}}</ref>
#whether the evidence is relevant to a material issue in the case;
#the potential prejudice to the other party, if reopening is permitted; and
#the effect of permitting reopening on the orderly and expeditious conduct of the trial.
 
The main consideration is the potential prejudice to the opposing side by re-opening the case.<ref>
Hayward{{ibid}}</ref>
 
{{reflist|2}}
===Re-opening the Defence's Case===
The test to re-open the defence's case is more stringent post-conviction in order "to protect the integrity of the process, including the enhanced interest in finality".<ref>
R v Kowall [http://canlii.ca/t/6hzl 1996 CanLII 411] (ON CA), (1996), 92 O.A.C. 82, 108 CCC (3d) 481 at para 31</ref>
In such cases the test will be the same for admitting fresh evidence on appeal.<ref>
See R v Palmer, [http://canlii.ca/t/1mjtn 1979 CanLII 8] (SCC), [1980] 1 SCR 759, per McIntyre J cited by Kowall at para 31</ref>
 
The test to re-open the defence's case after adjudication requires the applicant to establish:<ref>
Kowall{{supra}} at pp. 493-4<Br>
R v Arabia, [http://canlii.ca/t/1ztzt 2008 ONCA 565] (CanLII), 235 CCC (3d) 354 (Ont. C.A.) at para 46 per Watt JA<br>
</ref>
# the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This general principal will not be applied as strictly in criminal trials as in civil trials;
#the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;
#the evidence must be credible in the sense that it is reasonably capable of belief; and
#it must be such that if believed it could reasonablybe expected, when taken with the other evidence adduced at trial, to have affected the result.
 
The judge should consider whether the application is an attempt to reverse a tactical decision at trial.<ref>
Kowall{{supra}}<br>
</ref>
 
{{reflist|2}}
 
===Re-opening the Crown's Case===
The judge may consider an application by the Crown to reopen their case. The standard will depend on what stage in the trial the application is made.<ref>
R v Robillard, [http://canlii.ca/t/1z75j 1978 CanLII 200] (SCC), [1978] 2 SCR 728 per Pigeon J<br>
R v P(MB), [http://canlii.ca/t/1frvf 1994 CanLII 125] (SCC), [1994] 1 SCR 555 per Lamer CJ<br>
R v G(SG), [http://canlii.ca/t/1fr1d 1997 CanLII 311] (SCC), [1997] 2 SCR 716 per Cory J (plurality)<br>
See also R. E. Salhany, Q.C., Canadian Criminal Procedure, 6th ed., looseleaf (Aurora:  Thomson Reuters Canada Limited, 2010) vol. 1 at paras 6.3975, 6.3980, 6.3990</ref>
 
The judge has discretion to reopen the case "to correct some oversight or to prove a matter which it had failed to do inadvertently, provided that there was no prejudice to the accused." However, "[o]nce the defence had begun to present its case, the judge’s discretion [is] narrowly restricted" and may only be reopened "to prove a matter, ex improviso, which no human ingenuity could have foreseen."
<ref>
Salhany{{ibid}}<br>
P(MB) at 568–570 (SCR), (the Crown will “be permitted to correct some oversight or inadvertent omission … in the presentation of its case, provided that justice requires it and there will be no prejudice to the defence.”)
</ref>
 
A failure to request that the voir dire evidence be admitted into the trial by omission can be reason to reopen the crown case.<Ref>
R v Wu, [http://canlii.ca/t/2dfbc 2010 ABCA 337] (CanLII)
</ref>
 
{{reflist|2}}
 
===Re-Opening Post Verdict===
 
The trial judge retains the discretion to reopen a trial after giving a trial verdict. The court is guided by the interest of "protecting the integrity of the process" and should only be done in the clearest of cases.<ref>
R v Arabia, [http://canlii.ca/t/1ztzt 2008 ONCA 565] (CanLII) at para 52 per Watt JA<br>
R v Hailemolokot, [http://canlii.ca/t/gds3j 2014 CanLII 56993] (MB CA), at para 8, 10 per Burnett JA<Br>
</ref>
 
On a judge-alone trial, the trial judge should consider the Palmer factors for [[Appellate Evidence|Fresh Evidence]].<ref>
Hailemolokot{{ibid}} at para 9<br>
</ref> The judge should not reopen the case where it is seen as "an attempt to reverse a tactical decision made at trial".<ref>
Hailemolokot{{ibid}} at para 9<br>
</ref>
 
The decision to reopen a trial should not be overturned unless there was a "misdirection" or an "unreasonable exercise of discretion".<ref>
R v Hailemolokot{{ibid}} at para 10<br>
</ref>
</ref>


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==Court Calling Witnesses==
==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.<ref>
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.<ref>
R v Finta, [http://canlii.ca/t/1frvp 1994 CanLII 129] (SCC), [1994] 1 SCR 701 at 856-858<br>
{{CanLIIRP|Finta|1frvp|1994 CanLII 129 (SCC)|[1994] 1 SCR 701}}{{perSCC|Gonthier, Cory and Major JJ}}{{Atps|856-858}}<br>
R v West, [http://canlii.ca/t/fkv75 2011 BCCA 109] (CanLII), at para 17 per Neilson JA<br>
{{CanLIIRP|West|fkv75|2011 BCCA 109 (CanLII)|BCJ No 583}}{{perBCCA|Neilson JA}}{{atL|fkv75|17}}<br>
</ref>
</ref>
This power should only be exercised "rarely" and "with caution" in order to avoid interference in the adversarial process or prejudice the accused.<ref>
This power should only be exercised "rarely" and "with caution" in order to avoid interference in the adversarial process or prejudice the accused.<ref>
West{{ibid}} at para 17</ref>
{{ibid1|West}}{{atL|fkv75|17}}</ref>
It should not be used after the close of the defence's case unless due to an unforeseen matter.<ref>
It should not be used after the close of the defence's case unless due to an unforeseen matter.<ref>
West{{ibid}} at para 17</ref>
{{ibid1|West}}{{atL|fkv75|17}}</ref>


{{reflist|2}}
{{reflist|2}}
==Rebuttal, Reply and Re-Opening a Case==
* [[Rebuttal, Reply and Re-Opening a Case]]


==Variation on Rules Depending on Venue==
==Variation on Rules Depending on Venue==
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===Summary Conviction Trials===
===Summary Conviction Trials===
Part states under s. 786 that the provisions applies to all proceedings captured in Part XXVII:
Part states under s. 786 that the provisions applies to all proceedings captured in Part XXVII:
{{quotation|
{{quotation2|
'''Application of Part'''<br>
; Application of Part
786 (1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.
786 (1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.
<br>...<br>
<br>
R.S., 1985, c. C-46, s. 786; 1997, c. 18, s. 110.
{{removed|(2)}}
|[{{CCCSec|786}} CCC]
R.S., {{LegHistory80s|1985, c. C-46}}, s. 786;  
{{LegHistory90s|1997, c. 18}}, s. 110.
|{{CCCSec2|786}}
|{{NoteUp|786|1}}
}}
}}


{{quotation|
{{quotation2|
'''Definitions'''<br>
; Definitions
785 In this Part,
785 In this Part {{AnnSec|Part XXVII}},<br>
<br>...<br>
{{ellipsis}}
proceedings means
'''"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
:(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)
:(b) proceedings where a justice is authorized by an Act of Parliament or an enactment made thereunder to make an order; (procédures)
...<Br>
{{ellipsis}}
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;
R.S., {{LegHistory80s|1985, c. C-46}}, s. 785;
|[{{CCCSec|785}} CCC]
R.S., 1985, c. 27 (1st Supp.), ss. 170, 203;  
{{LegHistory90s|1992, c. 1}}, s. 58;  
{{LegHistory90s|1995, c. 22}}, s. 7, c. 39, s. 156;  
{{LegHistory90s|1996, c. 19}}, s. 76;  
{{LegHistory90s|1999, c. 25}}, s. 23(Preamble);  
{{LegHistory00s|2002, c. 13}}, s. 78;  
{{LegHistory00s|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}}
 
|{{CCCSec2|785}}
|{{NoteUp|785}}
}}
}}


Section 800 requires that when both the accused and prosecutor appear for a summary conviction trial the judge must hold the trial:
Section 800 requires that when both the accused and prosecutor appear for a summary conviction trial the judge must hold the trial.<ref>
{{quotation|
see [[Obligation_of_Accused_to_be_Present_During_Proceedings#Summary_Offences]]
'''When both parties appear'''<br>
</ref>
800 (1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.
 
<br>...<br>
{{ref2}}
|[http://canlii.ca/t/7vf2#sec800 CCC]
}}


===Finding of Guilt===
===Finding of Guilt===
{{quotation|
{{quotation2|
801 (1) <br>...<Br>
801<Br>
'''Finding of guilt, conviction or order if charge admitted'''<br>
{{removed|(1)}}
(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.
; Finding of guilt, conviction or order if charge admitted
<br>...<br>
(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 {{AnnSec|730L}} or make an order against the defendant accordingly.
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.
<br>
|[{{CCCSec|801}} CCC]
{{removed|(3)}}
(4) and (5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 177]
R.S., {{LegHistory80s|1985, c. C-46}}, s. 801; R.S., 1985, c. 27 (1st Supp.), s. 177, c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1995, c. 22}}, s. 10.
|{{CCCSec2|801}}
|{{NoteUp|801|2}}
}}
}}


===Proceeding with Summary Trial===
===Proceeding with Summary Trial===
{{quotation|
{{quotation2|
801 (1) <Br>
801 <Br>
...<br>
{{removed|(1) and (2)}}
'''Procedure if charge not admitted'''<Br>
; 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 relating to preliminary inquiries.
(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 {{AnnSec|Part XVIII}} relating to preliminary inquiries.
<br>
<br>
(4) and (5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 177]
(4) and (5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 177]
<br>
<br>
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.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 801; R.S., 1985, c. 27 (1st Supp.), s. 177, c. 1 (4th Supp.), s. 18(F); {{{LegHistory90s|1995, c. 22}}, s. 10.
|[{{CCCSec|801}} CCC]
|{{CCCSec2|801}}
|{{NoteUp|801|3}}
}}
}}


{{quotation|
{{quotation2|
785 In this Part<br>...<br>
785 In this Part {{AnnSec|Part XXVII}}<br>
'''"trial"'''<br>
{{ellipsis}}
trial includes the hearing of a complaint. (procès ou instruction)
'''"trial"''' includes the hearing of a complaint. (procès ou instruction)<br>
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; {{LegHistory90s|1992, c. 1}}, s. 58; {{LegHistory90s|1995, c. 22}}, s. 7, c. 39, s. 156;  
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.
{{LegHistory90s|1996, c. 19}}, s. 76;  
|[{{CCCSec|785}} CCC]
{{LegHistory90s|1999, c. 25}}, s. 23(Preamble);  
{{LegHistory00s|2002, c. 13}}, s. 78;  
{{LegHistory00s|2006, c. 14}}, s. 7;  
{{LegHistory10s|2013, c. 11}}, s. 4;
2018, c. 16, s. 223, c. 21, s. 26;
2019, c. 25, s. 314.
|{{CCCSec2|785}}
|{{NoteUp|785}}
}}
}}


Line 292: Line 266:
===Compelling Appearances of Accused===
===Compelling Appearances of Accused===
On summary conviction offences, the procedure for compelling attendance is the same as found in Parts XVI and XVIII:
On summary conviction offences, the procedure for compelling attendance is the same as found in Parts XVI and XVIII:
{{quotation|
{{quotation2|
'''Application of Parts XVI, XVIII, XVIII.1, XX and XX.1'''<br>
; Application of Parts XVI, XVIII, XVIII.1, XX, XX.1 and XXII.01
795 The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice, and the provisions of Parts XVIII.1, XX and XX.1, in so far as they are not inconsistent with this Part, apply, with any necessary modifications, to proceedings under this Part.
795 The provisions of Parts XVI {{AnnSec|Part XVI}} and XVIII {{AnnSec|Part XVIII}} with respect to compelling the appearance of an accused before a justice, the provisions of Parts XVIII.1 {{AnnSec|Part XVIII.1}}, XX {{AnnSec|Part XX}} and XX.1 {{AnnSec|Part XX.1}}, insofar as they are not inconsistent with this Part {{AnnSec|Part XXVII}}, and the provisions of Part XXII.01 {{AnnSec|Part XXII.01}}, apply, with any necessary modifications, to proceedings under this Part {{AnnSec|Part XXVII}}.
 
<br>
<br>
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.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 795;  
|[{{CCCSec|795}} CCC]
R.S., 1985, c. 27 (1st Supp.), s. 176;  
{{LegHistory90s|1991, c. 43}}, s. 7;  
{{LegHistory10s|2011, c. 16}}, s. 16;
{{LegHistory20s|2022, c. 17}}, s. 52.
{{Annotation}}
|{{CCCSec2|795}}
|{{NoteUp|795}}
}}
}}


===Misc Definitions===
===Misc Definitions===
{{Quotation|
{{quotation2|
'''Definitions'''<br>
; Definitions
785 In this Part,<Br>
785 In this Part {{AnnSec|Part XXVII}},<Br>
"clerk of the appeal court" includes a local clerk of the appeal court; (greffier de la cour d’appel)<br>
'''"clerk of the appeal court"''' includes a local clerk of the appeal court; (greffier de la cour d’appel)<br>
"informant" means a person who lays an information; (dénonciateur)
'''"informant"''' means a person who lays an information; (dénonciateur)<br>
...
{{ellipsis}}
"order" means any order, including an order for the payment of money; (ordonnance)
'''"order"''' means any order, including an order for the payment of money; (ordonnance)<Br>
<Br>...<br>
{{ellipsis}}
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 785;  
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.
R.S., 1985, c. 27 (1st Supp.), ss. 170, 203;  
|[{{CCCSec|785}} CCC]
{{LegHistory90s|1992, c. 1}}, s. 58;  
{{LegHistory90s|1995, c. 22}}, s. 7, c. 39, s. 156; {{LegHistory90s|1996, c. 19}}, s. 76; {{LegHistory90s|1999, c. 25}}, s. 23(Preamble); {{LegHistory00s|2002, c. 13}}, s. 78; {{LegHistory00s|2006, c. 14}}, s. 7;  
{{LegHistory10s|2013, c. 11}}, s. 4;
2018, c. 16, s. 223, c. 21, s. 26;
2019, c. 25, s. 314.
{{Annotation}}
|{{CCCSec2|785}}
|{{NoteUp|785}}
}}
}}


==Proceeding to Trial Ex Parte==
==Proceeding to Trial Ex Parte==
 
* [[Ex Parte Trial Proceedings]]
'''Organizations as Accused'''<br>
{{quotation|
800<br>...<br>
'''Appearance by organization'''<br>
(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.
<br>
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21.
|[http://canlii.ca/t/7vf2#sec800 CCC]
}}
 
'''Summary Conviction Accused'''<br>
{{quotation|
803 (1) ...<br>
'''Non-appearance of defendant'''<br>
(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), 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 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.
<br>...<br>
(5) to (8) [Repealed, 1991, c. 43, s. 9]
<br>
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.
|[{{CCCSec|803}} CCC]
}}
 
 
===Extra-Jurisdictional Offences===
{{quotation|
607 (1) ...<br>
'''Exception — foreign trials in absentia'''<br>
(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) or (3.7), 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.
<br>
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.
|[{{CCCSec|607}} CCC]
}}


==Court Record==
==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 need for inquiry. Consequently, recordings of the clerk of the court are presumed accurate.<ref>
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.<ref>
R v Hanna, [http://canlii.ca/t/fx378 2013 ABCA 134] (CanLII)<br>
{{CanLIIRP|Hanna|fx378|2013 ABCA 134 (CanLII)|80 Alta LR (5th) 262}}{{TheCourtABCA}} (2:1)<br>
Re Sproule [http://canlii.ca/t/21n5g 1886 CanLII 51] (SCC), (1886), 12 SCR 140 at p. 194<br>  
{{CanLIIRPC|Re Sproule|21n5g|1886 CanLII 51 (SCC)|(1886), 12 SCR 140}}{{perSCC-H|Strong J}}{{atp|194}}<br>  
R v Miller, [http://canlii.ca/t/1ftx9 1985 CanLII 22] (SCC), [1985] 2 SCR 613 at pp. 631, 633<br>
{{CanLIIRP|Miller|1ftx9|1985 CanLII 22 (SCC)|[1985] 2 SCR 613}}{{perSCC|Le Dain J}}{{atps|631, 633}}<br>
</ref>
</ref>


{{Reflist|2}}
{{Reflist|2}}
===Superior Courts===
===Superior Courts===
'''Superior Court Judge-Alone Proceedings Are a Court of Record'''<br>
; Superior Court Judge-Alone Proceedings Are a Court of Record
{{quotation|
{{quotation2|
'''Court of record'''<br>
; 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.
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.
<br>
<br>
'''Custody of records'''<br>
; 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.
(2) The record of a trial that a judge holds under this Part shall be kept in the court over which the judge presides.
<br>
<br>
R.S., c. C-34, s. 489.<Br>[''annotations added'']
R.S., c. C-34, s. 489.<Br>{{Annotations}}
|[{{CCCSec|559}} CCC]
|{{CCCSec2|559}}
|{{NoteUp|559|1|2}}
}}
}}
{{reflist|2}}
{{reflist|2}}
Line 378: Line 330:
===Provincial Court===
===Provincial Court===
A provincial court must receive evidence in the same manner described in for a preliminary inquiry judge:
A provincial court must receive evidence in the same manner described in for a preliminary inquiry judge:
{{quotation|
{{quotation2|
'''Taking evidence'''<br>
; 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, the evidence of witnesses for the prosecutor and the accused must be taken in accordance with the provisions of Part XVIII, other than subsections 540(7) to (9), relating to preliminary inquiries.
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 {{AnnSec|Part XIX}}, the evidence of witnesses for the prosecutor and the accused must be taken in accordance with the provisions of Part XVIII {{AnnSec|Part XVIII}}, other than subsections 540(7) to (9) {{AnnSec5|540(7) to (9)}}, relating to preliminary inquiries.
<br>
<br>
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.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 557;  
|[http://canlii.ca/t/7vf2#sec557 CCC]
R.S., 1985, c. 27 (1st Supp.), s. 203;  
{{LegHistory90s|1999, c. 3}}, s. 41;  
{{LegHistory00s|2002, c. 13}}, s. 35.
{{Annotation}}
|{{CCCSec2|557}}
|{{NoteUp|557}}
}}
}}


==Case Digests==
==Case Digests==
* [[Trial Process (Cases)]]
* [[Trial Process (Cases)]]

Latest revision as of 15:40, 14 July 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 95534)

Introduction

Purpose of a trial

See also: Role of Trial Judge

A trial is a process by which a judge attempts to ascertain the truth in order to convict the guilty and acquit the innocent.[1] 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.[2]

The trial fundamentally is "about the search for the truth as well as fairness to the accused."[3] This is guided by these principles:

  1. the presumption of innocence[4]
  2. the right against self-incrimination [5]
  3. the ultimate burden on the crown to prove guilt beyond a reasonable doubt.[6]

The trial process is the primary means of resolving disputes in a "just, peaceful, and orderly way."[7]

Trial is Not Scientific

The trier-of-fact is not engaging "in a scientific investigation."[8] 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."[9]

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.[10]

A failure to convict does not mean that the complainant is not believed or believable.[11] It is also not equivalent to a finding that the allegations did not happen.[12]

  1. ↑ R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 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), [1996] 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), [1999] 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.")
  2. ↑ R v Mullins-Johnson, 2007 ONCA 720 (CanLII), 228 CCC (3d) 505, per curiam
  3. ↑ R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908, per Binnie J ("[t]he  criminal  trial  is,  after  all,  about  the  search  for  truth  as  well fairness  to  an  accused")
  4. ↑ Handy, ibid., at para 44
    see also Presumptions
  5. ↑ s. 11(d) of the Charter
  6. ↑ Section 11(c) of the Charter
  7. ↑ Groia v Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, at para 1 ("Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way.")
  8. ↑ R v Barbour, 1938 CanLII 29 (SCC), [1938] SCR 465, per Duff CJ
    Shortland v Hill & Anor [2017] EW Misc 14 (UK) (CC) [1] , 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".)
  9. ↑ Shortland v Hill, ibid., at para 20
  10. ↑ R v Nyznik, 2017 ONSC 4392 (CanLII), 350 CCC (3d) 335, per Molloy J, at para 16
  11. ↑ R v WN, 2019 CanLII 4547 (NL PC), per Gorman J, at para 4
  12. ↑ R v Jackson, 2019 NSSC 202 (CanLII), per Brothers J, at para 152

Ordering of Trial

Fair Trial

"Trial fairness" does not equate the right to a "perfect" trial. [1]

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."[2]

  1. ↑ R v Lyons, 1987 CanLII 25 (SCC), [1987] 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), [1995] 3 SCR 562, per La Forest J, at p. 587
  2. ↑ 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:

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."[1]

  1. ↑ R v Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 SCR 390, per Karakatsanis J, at para 64
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ
    see also Principles of Fundamental Justice

Venue of Trial

See also: Change of Venue

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.[1]

There is no unfettered discretion to try a matter anywhere within the province. Otherwise, the law could become an "engine of oppression and injustice."[2]

  1. ↑ R v Donahue, 2005 NLTD 117 (CanLII), 743 APR 307, per Barry J, at para 19
  2. ↑ 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

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.[1]

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."[2]

The Crown is expected to call, as part of its case, evidence that may rebut any alibi evidence and evidence of similar facts.[3]

The accused is entitled to know to full case against the accused once the Crown closes its case.[4]

  1. ↑ R v KT, 2013 ONCA 257 (CanLII), 295 CCC (3d) 283, per Watt JA, at para 41
    R v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, per McIntyre J
  2. ↑ KT, supra, at para 42
  3. ↑ R v Biddle, 1995 CanLII 134 (SCC), [1995] 1 SCR 761, per Sopinka J
  4. ↑ R v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, per J, at para 15

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.[1] However, most frequently the accused will be addressed in the order in which they appear in the information.[2]

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.[3]

  1. ↑ R v Colpitts, 2016 NSSC 271 (CanLII), per Coady J, at paras 4 to 6, 17 - cites examples of jurisdictions where ordering is based on the order of seniority or the order of seriousness of the charges
  2. ↑ Colpitts, ibid., at para 6
  3. ↑ Colpitts, ibid., at para 18

Adjournment of Trial

See also: Adjournments

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.[1] This power should only be exercised "rarely" and "with caution" in order to avoid interference in the adversarial process or prejudice the accused.[2] It should not be used after the close of the defence's case unless due to an unforeseen matter.[3]

  1. ↑ R v Finta, 1994 CanLII 129 (SCC), [1994] 1 SCR 701, per Gonthier, Cory and Major JJ, at pp. 856-858
    R v West, 2011 BCCA 109 (CanLII), BCJ No 583, per Neilson JA, at para 17
  2. ↑ West, ibid., at para 17
  3. ↑ West, ibid., at para 17

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)

Note up: 786(1)

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)

Note up: 785

Section 800 requires that when both the accused and prosecutor appear for a summary conviction trial the judge must hold the trial.[1]

  1. ↑ see Obligation_of_Accused_to_be_Present_During_Proceedings#Summary_Offences

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)

Note up: 801(2)

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)

Note up: 801(3)

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)

Note up: 785

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)

Note up: 795

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)

Note up: 785

Proceeding to Trial Ex Parte

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.[1]

  1. ↑ R v Hanna, 2013 ABCA 134 (CanLII), 80 Alta LR (5th) 262, per curiam (2:1)
    Re Sproule, 1886 CanLII 51 (SCC), (1886), 12 SCR 140, per Strong J, at p. 194
    R v Miller, 1985 CanLII 22 (SCC), [1985] 2 SCR 613, per Le Dain J, at pp. 631, 633

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)

Note up: 559(1) and (2)

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)

Note up: 557

Case Digests

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