Pleading Not Guilty and Criminal Trials (1:VII) - Revision history

LSLAP at 18:54, 13 October 2025

2025-10-13T18:54:11Z

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	{{REVIEWED LSLAP \| date= 13 August 2025}}		{{REVIEWED LSLAP \| date= 1 August 2025}}
	{{LSLAP Manual TOC\|expanded = criminal}}		{{LSLAP Manual TOC\|expanded = criminal}}

LSLAP: /* c) Post-Conviction */

2025-09-25T16:21:10Z

c) Post-Conviction

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	==== c) Post-Conviction ====		==== c) Post-Conviction ====
	There are certain arguments that can only be made post-conviction. One example of this is entrapment. In entrapment a conviction is entered but not recorded until the court determines whether allowing the conviction to stand would constitute an abuse of court process because the commission of the offence was the result of police conduct which induced the accused to commit the offence ([https://canlii.ca/t/j7xvl ''R v Ahmad'', 2020 SCC 11]).		There are certain arguments that can only be made post-conviction. One example of this is entrapment. In entrapment a conviction is entered but not recorded until the court determines whether allowing the conviction to stand would constitute an abuse of court process because the commission of the offence was the result of police conduct which induced the accused to commit the offence (''[https://canlii.ca/t/j7xvl R v Ahmad]'', 2020 SCC 11).

	==== d) Sentencing ====		==== d) Sentencing ====

LSLAP: /* a) Closing Argument and Submissions */

2025-09-25T16:20:46Z

a) Closing Argument and Submissions

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	==== a) Closing Argument and Submissions ====		==== a) Closing Argument and Submissions ====

	The defence and the Crown will make closing arguments that summarize their view of the facts and the pertinent law. The judge or jury may then retire to consider a verdict. If the defence has called evidence, it must make submissions first. Often a case will be decided based on the credibility of the witnesses. If the accused takes the stand, then the case is likely to hinge on a credibility issue, with rules as described in [https://canlii.ca/t/1fsm9 ''R v W(D)'', [1991<nowiki>]</nowiki> 1 SCR 742].		The defence and the Crown will make closing arguments that summarize their view of the facts and the pertinent law. The judge or jury may then retire to consider a verdict. If the defence has called evidence, it must make submissions first. Often a case will be decided based on the credibility of the witnesses. If the accused takes the stand, then the case is likely to hinge on a credibility issue, with rules as described in ''[https://canlii.ca/t/1fsm9 R v W(D)]'', [1991<nowiki>]</nowiki> 1 SCR 742.

	==== b) Verdict ====		==== b) Verdict ====

LSLAP: /* f) Expert Opinion Evidence */

2025-09-25T16:20:03Z

f) Expert Opinion Evidence

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	==== f) Expert Opinion Evidence ====		==== f) Expert Opinion Evidence ====
	Opinion evidence is permitted where it assists the trier of fact to draw conclusions from the evidence. There are two types of opinion evidence: non-expert and expert. Non-expert opinion evidence is generally not permitted. Expert evidence is not permitted where the trier of fact is capable of reaching a conclusion without such evidence. Expert opinions are necessary where the trier of fact would be unable to draw a conclusion with respect to the evidence. Experts must first be established as such – the determination is made in a ''Voir Dire''. For a more complete explanation of the law on opinion evidence see [https://canlii.ca/t/1frt1 ''R v Mohan'', [1994<nowiki>]</nowiki> 2 SCR 9].		Opinion evidence is permitted where it assists the trier of fact to draw conclusions from the evidence. There are two types of opinion evidence: non-expert and expert. Non-expert opinion evidence is generally not permitted. Expert evidence is not permitted where the trier of fact is capable of reaching a conclusion without such evidence. Expert opinions are necessary where the trier of fact would be unable to draw a conclusion with respect to the evidence. Experts must first be established as such – the determination is made in a ''Voir Dire''. For a more complete explanation of the law on opinion evidence see ''[https://canlii.ca/t/1frt1 R v Mohan]'', [1994<nowiki>]</nowiki> 2 SCR 9.

	Section 657.3(3), of the ''Criminal Code'', imposes an obligation on the defence to disclose any expert opinion evidence it intends to call prior to trial. [https://canlii.ca/t/1fqn2 ''R v Stone'', [1999<nowiki>]</nowiki> 2 SCR 290] sets out the guidelines which apply to both Crown and defence in disclosing expert opinion evidence.		Section 657.3(3), of the ''Criminal Code'', imposes an obligation on the defence to disclose any expert opinion evidence it intends to call prior to trial. ''[https://canlii.ca/t/1fqn2 R v Stone]'', [1999<nowiki>]</nowiki> 2 SCR 290 sets out the guidelines which apply to both Crown and defence in disclosing expert opinion evidence.

	=== 11. Conclusion of the Trial ===		=== 11. Conclusion of the Trial ===

LSLAP: /* 8. Accused Testifying */

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8. Accused Testifying

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	The accused cannot be compelled to testify (''Charter'', s 11(c)). If the accused chooses not to testify, no adverse inference may be drawn from that decision. A decision to call the accused should be made on the particular facts of each case, taking into account the strength of the Crown’s evidence as presented in the trial at the close of Crown’s case and the risks of exposing the accused to cross-examination. Prior convictions for crimes of dishonesty (e.g., theft, fraud, etc.) are admissible for the purpose of assessing credibility of the accused only.		The accused cannot be compelled to testify (''Charter'', s 11(c)). If the accused chooses not to testify, no adverse inference may be drawn from that decision. A decision to call the accused should be made on the particular facts of each case, taking into account the strength of the Crown’s evidence as presented in the trial at the close of Crown’s case and the risks of exposing the accused to cross-examination. Prior convictions for crimes of dishonesty (e.g., theft, fraud, etc.) are admissible for the purpose of assessing credibility of the accused only.

	If the accused has a criminal record, and particularly if the accused has convictions for crimes that are similar to the crime alleged, and plans on testifying in their own defence, the defence should be prepared to argue a ''Corbett'' application ([https://canlii.ca/t/1ftgm ''R v Corbett'', [1988<nowiki>]</nowiki> 1 SCR 670]). This should be presented at the end of Crown Counsel’s case and before a final decision is made as to whether to have the accused testify. If successful, a ''Corbett'' application prevents the Crown from using the accused’s criminal record during cross-examination for the purpose of attacking the accused’s credibility.		If the accused has a criminal record, and particularly if the accused has convictions for crimes that are similar to the crime alleged, and plans on testifying in their own defence, the defence should be prepared to argue a ''Corbett'' application (''[https://canlii.ca/t/1ftgm R v Corbett]'', [1988<nowiki>]</nowiki> 1 SCR 670). This should be presented at the end of Crown Counsel’s case and before a final decision is made as to whether to have the accused testify. If successful, a ''Corbett'' application prevents the Crown from using the accused’s criminal record during cross-examination for the purpose of attacking the accused’s credibility.

	If the accused testifies, the judge must consider the instructions set out in [https://canlii.ca/t/1fsm9 ''R v W(D)'', [1991<nowiki>]</nowiki> 1 SCR 742]:		If the accused testifies, the judge must consider the instructions set out in ''[https://canlii.ca/t/1fsm9 R v W(D)]'', [1991<nowiki>]</nowiki> 1 SCR 742]:
	# if the judge believes the accused, they must acquit,		# if the judge believes the accused, they must acquit,
	# if the judge does not believe the accused, but is still left with a reasonable doubt from the testimony, they must acquit, and		# if the judge does not believe the accused, but is still left with a reasonable doubt from the testimony, they must acquit, and

LSLAP: /* a) Common Defences */

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a) Common Defences

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	:::Examples:		:::Examples:

	:::One commonly occurring offence is a Breach of a Court Order. Until recently there was some uncertainty about whether or not a Breach of a Court Order had to be established subjectively (the accused knew or was reckless about whether or not they were breaching) as opposed to objectively (a reasonable person in the position of the accused would have known that they were breaching). The Supreme Court of Canada resolved this issue, finding that breaches require proof of subjective ''mens rea'' ([https://canlii.ca/t/j89v2 ''R v Zora'', 2020 SCC 14]).		:::One commonly occurring offence is a Breach of a Court Order. Until recently there was some uncertainty about whether or not a Breach of a Court Order had to be established subjectively (the accused knew or was reckless about whether or not they were breaching) as opposed to objectively (a reasonable person in the position of the accused would have known that they were breaching). The Supreme Court of Canada resolved this issue, finding that breaches require proof of subjective ''mens rea'' (''[https://canlii.ca/t/j89v2 R v Zora]'', 2020 SCC 14).

	:::The main ''mens rea'' components to the charge of theft are that the action was without colour of right and the individual had intent to steal. Colour of right refers to an individual’s belief that they had entitlement to the property. If the court finds there is reasonable doubt as to the intention of the accused to steal, the accused will not be found guilty.		:::The main ''mens rea'' components to the charge of theft are that the action was without colour of right and the individual had intent to steal. Colour of right refers to an individual’s belief that they had entitlement to the property. If the court finds there is reasonable doubt as to the intention of the accused to steal, the accused will not be found guilty.
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	:::There are two levels of intoxication that are legally relevant: advanced intoxication and extreme intoxication (a level akin to automatism). Note that these are both very high levels of intoxication, and mild intoxication is never a defence. The accused bears the burden of proving that they had reached the point of advanced or extreme intoxication which requires expert evidence at trial.		:::There are two levels of intoxication that are legally relevant: advanced intoxication and extreme intoxication (a level akin to automatism). Note that these are both very high levels of intoxication, and mild intoxication is never a defence. The accused bears the burden of proving that they had reached the point of advanced or extreme intoxication which requires expert evidence at trial.

	:::For general intent offences, advanced intoxication is not a defence. Extreme intoxication can negate general intent or the physical voluntariness requirement of the actus reus for some offences if the accused can show that they did not commit the act with conscious mind and controlled body ([https://canlii.ca/t/jp648 ''R v Brown'', 2022 SCC 18]). Section 33.1 of the ''Criminal Code'' was amended in response to ''Brown''. Under the new provision, a person who lacks general intent or voluntariness as a result of self-induced extreme intoxication is nonetheless guilty of certain assault-type offences if 1) the intoxication was self-induced, and 2) before entering an intoxicated state, the accused markedly departed from the standard of care of a reasonable person when ingesting the intoxicating substances.		:::For general intent offences, advanced intoxication is not a defence. Extreme intoxication can negate general intent or the physical voluntariness requirement of the actus reus for some offences if the accused can show that they did not commit the act with conscious mind and controlled body (''[https://canlii.ca/t/jp648 R v Brown]'', 2022 SCC 18). Section 33.1 of the ''Criminal Code'' was amended in response to ''Brown''. Under the new provision, a person who lacks general intent or voluntariness as a result of self-induced extreme intoxication is nonetheless guilty of certain assault-type offences if 1) the intoxication was self-induced, and 2) before entering an intoxicated state, the accused markedly departed from the standard of care of a reasonable person when ingesting the intoxicating substances.

	:::For specific intent offences, advanced intoxication can negate subjective mental fault (''mens rea''). Specific intent offences include conspiracy, solicitation, embezzlement, and theft.		:::For specific intent offences, advanced intoxication can negate subjective mental fault (''mens rea''). Specific intent offences include conspiracy, solicitation, embezzlement, and theft.

LSLAP: /* a) Common Objections */

2025-09-23T16:59:40Z

a) Common Objections

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	:::# Past Recollection Recorded.		:::# Past Recollection Recorded.

	:::Each “traditional” exception has its own requirements that must be met. In addition to (and as a potential exception to) the traditional common law exceptions, courts have developed the “principled approach” to determining the admissibility of hearsay. See [https://canlii.ca/t/525l ''R v Starr'', [2000<nowiki>]</nowiki> 2 SCR 144]. This approach considers the necessity and reliability of the hearsay statement and can be used where there is no traditional hearsay exception engaged or to argue that evidence should be inadmissible despite a traditional hearsay exception. The two requirements that must be met before hearsay evidence is admitted are:		:::Each “traditional” exception has its own requirements that must be met. In addition to (and as a potential exception to) the traditional common law exceptions, courts have developed the “principled approach” to determining the admissibility of hearsay. See ''[https://canlii.ca/t/525l R v Starr]'', [2000<nowiki>]</nowiki> 2 SCR 144. This approach considers the necessity and reliability of the hearsay statement and can be used where there is no traditional hearsay exception engaged or to argue that evidence should be inadmissible despite a traditional hearsay exception. The two requirements that must be met before hearsay evidence is admitted are:

	:::# Necessity: whether the benefit of the evidence would be lost in its entirety if it was not entered (i.e., the declarant, the person who originally made the statement, is unavailable, or there is no other source by which the evidence can be admitted and have similar value); and		:::# Necessity: whether the benefit of the evidence would be lost in its entirety if it was not entered (i.e., the declarant, the person who originally made the statement, is unavailable, or there is no other source by which the evidence can be admitted and have similar value); and

LSLAP: /* 7. Presentation of Defence Case */

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7. Presentation of Defence Case

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	Although the decision for the accused to take the stand and testify in their own defence does not have to be made until Crown has closed its case, the defence needs to know their potential defences before the trial begins. Where the accused has identified a defence, it is often a good idea to structure the entire defence case around highlighting that defence. However, the defence should pay careful attention to capitalize on any Crown failure to present sufficient evidence on any element of the offence. The defence should also remember that a no-evidence motion may be brought and decided before the accused must decide whether to testify or not.		Although the decision for the accused to take the stand and testify in their own defence does not have to be made until Crown has closed its case, the defence needs to know their potential defences before the trial begins. Where the accused has identified a defence, it is often a good idea to structure the entire defence case around highlighting that defence. However, the defence should pay careful attention to capitalize on any Crown failure to present sufficient evidence on any element of the offence. The defence should also remember that a no-evidence motion may be brought and decided before the accused must decide whether to testify or not.

	The defence will be invited to make closing submissions once all evidence has been heard. If the defence has called evidence, the defence closes first. If the defence/accused does not call evidence, Crown closes first. The three main sections of closing submissions are i) the facts, ii) the law, and most importantly, iii) applying the law to the facts that the judge should find. The judge can accept all, part, or none of a witness’ testimony. If the accused testifies, the W(D) principles must be discussed ([https://canlii.ca/t/1fsm9 R v W(D), [1991<nowiki>]</nowiki> 1 SCR 742]).		The defence will be invited to make closing submissions once all evidence has been heard. If the defence has called evidence, the defence closes first. If the defence/accused does not call evidence, Crown closes first. The three main sections of closing submissions are i) the facts, ii) the law, and most importantly, iii) applying the law to the facts that the judge should find. The judge can accept all, part, or none of a witness’ testimony. If the accused testifies, the W(D) principles must be discussed (''[https://canlii.ca/t/1fsm9 R v W(D)]'', [1991<nowiki>]</nowiki> 1 SCR 742).

	{\| class="wikitable"		{\| class="wikitable"
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	==== a) Common Defences ====		==== a) Common Defences ====
	For the defences below to be raised, they must have an air of reality (''[https://canlii.ca/t/51tb R v Cinous]'', 2002 SCC 29]). This means that all of the elements of the defence would exist if the defendant were believed on the stand. The defendant is responsible for raising this air of reality. Once that is completed, in order to obtain a conviction, the burden is on the Crown to prove beyond a reasonable doubt that the defence was not applicable in the circumstance. If that is not achieved, the defendant is acquitted.		For the defences below to be raised, they must have an air of reality (''[https://canlii.ca/t/51tb R v Cinous]'', 2002 SCC 29). This means that all of the elements of the defence would exist if the defendant were believed on the stand. The defendant is responsible for raising this air of reality. Once that is completed, in order to obtain a conviction, the burden is on the Crown to prove beyond a reasonable doubt that the defence was not applicable in the circumstance. If that is not achieved, the defendant is acquitted.

	'''Self Defence: sections 34-35 of the ''Criminal Code'''		'''Self Defence: sections 34-35 of the ''Criminal Code'''

LSLAP: /* 1. Conduct of the Trial */

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1. Conduct of the Trial

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	# Crown will call its witnesses (called '''direct examination'''), and defence may '''cross-examine''' each witness as they are called.		# Crown will call its witnesses (called '''direct examination'''), and defence may '''cross-examine''' each witness as they are called.
	# Crown indicates that their case is closed. Next, the defence may do one of three things: 1) make a no-evidence motion, 2) ask for final submissions, or 3) call its own evidence.		# Crown indicates that their case is closed. Next, the defence may do one of three things: 1) make a no-evidence motion, 2) ask for final submissions, or 3) call its own evidence.
	# If the defence believes the Crown had “no evidence upon which a reasonable jury properly instructed could return a verdict of guilty" then they may motion for “no evidence”, and ask for the judge to deliver a directed verdict to acquit the accused (''[https://canlii.ca/t/1mx51 USA v Shephard]'', [1977<nowiki>]</nowiki> 2 SCR 1067]).		# If the defence believes the Crown had “no evidence upon which a reasonable jury properly instructed could return a verdict of guilty" then they may motion for “no evidence”, and ask for the judge to deliver a directed verdict to acquit the accused (''[https://canlii.ca/t/1mx51 USA v Shephard]'', [1977<nowiki>]</nowiki> 2 SCR 1067).
	# The defence does not have to call evidence. If the defence believes the Crown has raised some evidence but does not believe the Crown has met their burden of proof, then the defence can ask for closing submissions.		# The defence does not have to call evidence. If the defence believes the Crown has raised some evidence but does not believe the Crown has met their burden of proof, then the defence can ask for closing submissions.
	# If defence does choose to call witnesses, they may call the accused to testify. If the accused is going to testify, they should be the first witness so that their testimony is not tainted by hearing the evidence of other defence witnesses. Crown may cross-examine each witness as they are called.		# If defence does choose to call witnesses, they may call the accused to testify. If the accused is going to testify, they should be the first witness so that their testimony is not tainted by hearing the evidence of other defence witnesses. Crown may cross-examine each witness as they are called.

LSLAP: /* 4. Preliminary Inquiry */

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4. Preliminary Inquiry

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	A Preliminary Inquiry is held before a Provincial Court judge. The primary purpose of a preliminary inquiry is to determine whether or not there is sufficient evidence to put the accused on trial. Whether or not there is sufficient evidence is measured on a low threshold. The test is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (''[https://canlii.ca/t/1mx51 USA v Shephard]'', [1977<nowiki>]</nowiki> 2 SCR 1067). If the judge determines that there is sufficient evidence then the accused will be ordered to stand trial; if the judge finds that there is not sufficient evidence, the accused will be discharged.		A Preliminary Inquiry is held before a Provincial Court judge. The primary purpose of a preliminary inquiry is to determine whether or not there is sufficient evidence to put the accused on trial. Whether or not there is sufficient evidence is measured on a low threshold. The test is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (''[https://canlii.ca/t/1mx51 USA v Shephard]'', [1977<nowiki>]</nowiki> 2 SCR 1067). If the judge determines that there is sufficient evidence then the accused will be ordered to stand trial; if the judge finds that there is not sufficient evidence, the accused will be discharged.

	Although the primary purpose of the Preliminary Inquiry is to determine if there is sufficient evidence to meet the threshold test for committal, the historical secondary purpose of defence counsel using the Preliminary Inquiry process to discover and test the case remains important. (''[https://canlii.ca/t/frsf5 R v Rao]'', 2012 BCCA 275] at paras 96-98).		Although the primary purpose of the Preliminary Inquiry is to determine if there is sufficient evidence to meet the threshold test for committal, the historical secondary purpose of defence counsel using the Preliminary Inquiry process to discover and test the case remains important. (''[https://canlii.ca/t/frsf5 R v Rao]'', 2012 BCCA 275 at paras 96-98).

	== C.The Trial ==		== C.The Trial ==