Criminal Law Notebook

Trial Process

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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), 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), 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), per curiam
  3. ↑ R v Handy, 2002 SCC 56 (CanLII), 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 (NLPC), 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), 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 (NSCA), 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), 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), 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), per Gonthier, Cory and Major JJ, at pp. 856-858
    R v West, 2011 BCCA 109 (CanLII), 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

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

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:

When both parties appear

800 (1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.
[omitted (2), (2.1) and (3)]

– CCC

Note up: 800(1)

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

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

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

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 and XX.1

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, and 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)], in so far as they are not inconsistent with this Part, 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.
[annotation(s) added]

– CCC

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

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), 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

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

Note up: 557

Case Digests

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