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Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"
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Pleading Not Guilty and Criminal Trials (1:VII) (view source)
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Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = criminal}} == A. Arraignment hearing == The purpose of an ''arraignment hearing'' is for the court to be advised whether the matter is for trial...") |
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If there are two or more accused who are jointly charged in an Information, then under section 536(4.2), if one party elects to proceed before a Supreme Court and the other wants Provincial Court, both are deemed to have elected to proceed in Supreme Court. If one person elects a judge and jury in Supreme Court and the other elects judge alone, both are deemed to have elected to proceed by judge and jury. | If there are two or more accused who are jointly charged in an Information, then under section 536(4.2), if one party elects to proceed before a Supreme Court and the other wants Provincial Court, both are deemed to have elected to proceed in Supreme Court. If one person elects a judge and jury in Supreme Court and the other elects judge alone, both are deemed to have elected to proceed by judge and jury. | ||
4.Preliminary | === 4. Preliminary inquiry === | ||
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 ("whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty", ''USA v Shephard'' (1976), 30 CCC (2d) 424 (SCC)). If the judge determines that there is sufficient evidence then the client will be ordered to stand trial; if the judge finds that there is not sufficient evidence, the client 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 2004 amendments to the ''Criminal Code'' substantially streamlined the Preliminary Inquiry process. The historical secondary purpose of defence counsel using the Preliminary Inquiry process to discover and test the case remains an important secondary purpose. See ''R v. Rao'' [2012] BCCA 275 (CanLII) at paras 96-98. | |||
== C. Pre-Trial Conference (PTC) == | |||
The pre-trial conference is a procedural appearance for LSLAP files to confirm there is a trial supervising lawyer and that the matter is indeed going to trial, that there are no disclosure issues, and that ''Charter'' challenge notices have been given. The clinician is encouraged to, but need not attend the PTC. Clinicians are reminded that they must give notice of any ''Charter'' challenges ''at least 14 days'' prior to the trial date. In addition, ''a trial supervising lawyer must be confirmed by the PTC in order for LSLAP to confirm the trial date''. | |||
It can be many months between the fixing of a trial date and the trial. The clinician must endeavour to remain in contact with the client during this long time period. LSLAP requires that the clinician contact the client ''2 weeks'' before the PTC to make sure the contact information has not changed and that the client knows when to appear in court. | |||
If the clinician is unable to get in contact with the client before the PTC, the clinician must either appear at the PTC, or formally withdraw from the record by sending a letter to the court registry and Crown as well as the client. If both the student and the client attend the PTC, the student should obtain new contact information from the client. If the client does not attend the PTC, the student must formally withdraw from the record at that time. The student should ''never'' disclose that there have been attempts to contact the client, or when the last contact was, as this is privileged information and would constitute a breach. The clinician must then mail a letter to the client’s last known address to inform them of the situation. | |||
:'''Note:''' In some cases, a clinician will be transferred a file after the PTC date, and find him or herself unable to get in contact with the client. The LSLAP Executive and the Supervising Lawyer must deal with these files on a case-by-case basis. | |||
== D.The trial == | |||
===1. Conduct of the trial === | |||
The standard Provincial Court trial conducted by LSLAP generally proceeds by the following procedure: | |||
#The Crown calls the case. | |||
#The LSLAP clinician approaches the bar, introduces him or herself, the client, and the supervising lawyer for the record and advises the court that they are ready to proceed. | |||
#Usually Crown asks for an order excluding witnesses, which excludes any witnesses about to testify in the matter from the courtroom until such time as they are called. If Crown fails to do so and there are any witnesses in the courtroom, defence should remind the court of the need to make such an order. | |||
#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. | |||
#The clinician can choose to: | |||
a) make a “no evidence” motion (this is done prior to deciding to call evidence, | |||
b) choose not to call any evidence, or | |||
c) call defence witnesses. | |||
#If the clinician chooses to call a defence, he or she can then call witnesses, and Crown may cross-examine each witness as they are called. #If a defence was called, defence counsel makes closing submissions, then Crown. 9.If a defence was not called, Crown makes closing submissions first, and then defence counsel. 10.The judge will consider the facts and law, make findings of fact and give his or her decision and reasons. If the accused is found guilty, a Pre-Sentence Report (PSR) may be ordered. If one is not ordered, the judge will then hear sentencing submissions. | |||
