Trial Process

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Introduction

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.[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]

"Trial fairness" does not equate the right to a "perfect" trial. [7]

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]

  1. ↑ R v Levogiannis, 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.")
    R v Nikolovski, 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.")
    R v G. (B.), 1999 CanLII 690 (SCC), [1999] 2 SCR 475 ("[T]he essential principle of every criminal trial [is] the search for truth.")
    R v Chamandy, (1934) 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.")
  2. ↑ R v Mullins-Johnson, 2007 ONCA 720 (CanLII)
  3. ↑ R v Handy, 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")
  4. ↑ R v Handy at para 44
    see also Presumptions
  5. ↑ s. 11(d) of the Charter
  6. ↑ Section 11(c) of the Charter
  7. ↑ R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309 at 362B ("The Charter guarantees the accused a fundamentally fair trial, not a perfect trial.")
    R v Harrer, 1995 CanLII 70 (CanLII) [1995] 3 SCR 562 at p 587
  8. ↑ R v Barbour, [1938] SCR 465, 1938 CanLII 29 (SCC) UK: Shortland v Hill & Anor [2017] 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".)
  9. ↑ Shortland v Hill, ibid. at para 20

Ordering of Trial

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] 2 SCR 390, 2014 SCC 46 (CanLII), at para 64
    R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC)
    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), at para 19
  2. ↑ R v Simons (1976), 30 CCC (2d) 162 (ONCA) at p. 168 (*no CanLII links)
    R v Donahue, at para 19 citing Simons
    R v Sherman, 1995 CanLII 4269 (NS CA) citing Simons
    R v Blonde, 2015 ONSC 2113 (CanLII), 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]

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

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 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) 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
  2. ↑ Colpitts, ibid. at para 6
  3. ↑ Colpitts, ibid. at para 18

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.[1]

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.[2]

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.[3]

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.[4]

The crown should be permitted to call reply evidence when:[5]

  • The defense 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 defense case.
  1. ↑ R v Melnichuk, 1997 CanLII 383 (SCC), [1997] 1 SCR 602
  2. ↑ R v Kuyan (1988) 43 CCC (3d) 339 (*no CanLII links)
  3. ↑ R v Perry (1977), 36 CCC (2d) 209 (Ont. C.A.) (*no CanLII links)
  4. ↑ R v KT, 2013 ONCA 257 (CanLII) at para 42 per Watt JA
  5. ↑ KT, ibid. at para 43

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:[1]

  1. whether the evidence is relevant to a material issue in the case;
  2. the potential prejudice to the other party, if reopening is permitted; and
  3. 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.[2]

  1. ↑ R v Hayward (1993) 86 CCC (3d) 193 (ONCA) at para 17-19 (*no CanLII links)
  2. ↑ Hayward, ibid.

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".[1] In such cases the test will be the same for admitting fresh evidence on appeal.[2]

The test to re-open the defence's case after adjudication requires the applicant to establish:[3]

  1. 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;
  2. the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;
  3. the evidence must be credible in the sense that it is reasonably capable of belief; and
  4. it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The judge should consider whether the application is an attempt to reverse a tactical decision at trial.[4]

  1. ↑ R v Kowall 1996 CanLII 411 (ON CA), (1996), 92 O.A.C. 82, 108 CCC (3d) 481 at para 31
  2. ↑ See R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J cited by Kowall at para 31
  3. ↑ Kowall, supra at pp. 493-4
    R v Arabia, 2008 ONCA 565 (CanLII), 235 CCC (3d) 354 (Ont. C.A.) at para 46 per Watt JA
  4. ↑ Kowall, supra

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.[1]

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." [2]

A failure to request that the voir dire evidence be admitted into the trial by omission can be reason to re open the crown case.[3]

  1. ↑ R v Robillard, 1978 CanLII 200 (SCC), [1978] 2 SCR 728 per Pigeon J
    R v P(MB), 1994 CanLII 125 (SCC), [1994] 1 SCR 555 per Lamer CJ
    R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716 per Cory J (plurality)
    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
  2. ↑ Salhany, ibid.
    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.”)
  3. ↑ R v Wu, 2010 ABCA 337 (CanLII)

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.[1]

On a judge-alone trial, the trial judge should consider the Palmer factors for Fresh Evidence.[2] The judge should not reopen the case where it is seen as "an attempt to reverse a tactical decision made at trial".[3]

The decision to reopen a trial should not be overturned unless there was a "misdirection" or an "unreasonable exercise of discretion".[4]

  1. ↑ R v Arabia, 2008 ONCA 565 (CanLII) at para 52 per Watt JA
    R v Hailemolokot, 2014 CanLII 56993 (MB CA), at para 8, 10 per Burnett JA
  2. ↑ Hailemolokot, ibid. at para 9
  3. ↑ Hailemolokot, ibid. at para 9
  4. ↑ R v Hailemolokot, ibid. at para 10

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 at 856-858
    R v West, 2011 BCCA 109 (CanLII), at para 17 per Neilson JA
  2. ↑ West, ibid. at para 17
  3. ↑ West, ibid. at para 17

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.
...
R.S., 1985, c. C-46, s. 786; 1997, c. 18, s. 110.


Definitions
785 In this Part,
...
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;


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.
...


– CCC

Finding of Guilt

801 (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.
...
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.


Proceeding with Summary Trial

801 (1)
...
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.
(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.


785 In this Part
...
"trial"
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.


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 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.
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.


Misc Definitions

Definitions
785 In this Part,
"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.


Proceeding to Trial Ex Parte

Organizations as Accused

800
...
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.


– CCC

Summary Conviction Accused

803 (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), 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.


...
(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.



Extra-Jurisdictional Offences

607 (1) ...
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) 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.
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.


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.[1]

  1. ↑ R v Hanna, 2013 ABCA 134 (CanLII)
    Re Sproule 1886 CanLII 51 (SCC), (1886), 12 SCR 140 at p. 194
    R v Miller, 1985 CanLII 22 (SCC), [1985] 2 SCR 613 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.
[annotations added]


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, 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.
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.


– CCC

Case Digests

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