Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"

=== 1. Arraignment Hearing (Fix Date Procedure) ===

At the arraignment hearing, a plea is entered and the time estimate for the trial or sentencing is confirmed. The Crown will provide the court with its time estimates and the number of witnesses. It is essential for the self-represented accused or their counsel to note this information.

The judge or Justice of the Peace will then ask the self-represented accused (or defence counsel) for their position on the time estimate and decide how much time is appropriate to set aside for the trial or sentencing. The clerk will provide counsel with a form to take to the Judicial Case Manager (JCM) to set a trial date. It is important that the accused attends the JCM to receive a trial date.

# Supreme Court trial with a judge, without a jury; or

# Supreme Court trial comprised of a judge and jury.

If the accused/defence fails to elect when the question is put to them, under section 565(1) of the ''Criminal Code'', they will be deemed to have elected a trial in Supreme Court with a judge and jury.

If an accused/defence elects a Supreme Court trial and at least one of the charges on the indictment is punishable by imprisonment of 14 years or more, they have the right to test the Crown’s case in a Preliminary Inquiry (see below). This right to a Preliminary Inquiry can be waived by the accused/defence, but rarely is waived.

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 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. The test is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” ([https://www.canlii.org/en/ca/scc/doc/1976/1976canlii8/1976canlii8.html?searchUrlHash=AAAAAQAodW5pdGVkIHN0YXRlcyBvZiBhbWVyaWNhIHYgc2hlcGhhcmQgMTk3NgAAAAAB&resultIndex=1 ''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. See [https://www.canlii.org/en/bc/bcca/doc/2012/2012bcca275/2012bcca275.html?searchUrlHash=AAAAAQAMciB2IHJhbyAyMDEyAAAAAAE&resultIndex=1 ''R v Rao'' 2012 BCCA 275] at paras 96-98.

The goal in cross-examination is to both secure any helpful, defence-supporting evidence to which the witness may agree, and to challenge the unhelpful evidence to which the witness has testified. Often, cross-examination is used to challenge the reliability and/or credibility of the witness’s evidence. The defence/accused is entitled to cross-examine a witness on any issue that is relevant or material to the case and is entitled to substantial leeway in their manner of conducting cross-examination. The rule from [https://www.canlii.org/en/ca/forep/doc/1893/1893canlii65/1893canlii65.html?searchUrlHash=AAAAAQANYnJvd25lIHYgZHVubgAAAAAB&resultIndex=1 ''Browne v Dunn'' (1893) 6 R 67, H.L],  provides that the defence/accused must put its case to each witness on cross-examination. This means that if there is a good possibility that the accused will testify in their own defence or the accused has a specific defence theory that they will argue at the end of their case, they must present the anticipated defence evidence or theory to each Crown witness and provide them the opportunity to comment upon that evidence or theory. Typically, this is done at the end of the defence/accused’s cross-examination of each witness with a number of “I suggest to you that...”

Reliability refers to a witness’s ability to perceive an event accurately, and later recall and describe that event with detail and precision. Reliability challenges can focus on the scene, lighting, visibility, intoxication, and any obstructions or distractions which may have affected the witness’s perception.

Credibility refers to a witness’s desire or motivation to describe that event truthfully. Some common credibility challenges include:  

* a motive based on a perceived advantage from the police arising from providing evidence to the police; and  

* a witness’s character is such that they simply cannot be trusted (history of perjury, fraud, or lying to the police).  

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| Sections 9 and 10 of the ''Canada Evidence Act'' outline the principles of cross- examination as to previous statements of a witness in criminal investigation. Prior statements can be used to question the reliability or credibility of that witness. The trier of fact decides whether there was actually an inconsistency and whether that inconsistency affects the witness’s credibility or reliability or both.

   

:'''NOTE''': Note: There are times when the defence may not want to put a prior statement to a witness, even if there are inconsistencies (i.e., if the previous version is much worse than the version the witness presented in court).

Procedure for putting a prior inconsistent statement to a witness:

==== a) Common Objections ====

When the Crown is in the process of examining its witnesses, it is the defence/accused’s job to ensure the Crown is doing so properly. Below are some common actions that lead to objections in a trial. In order to raise an objection, the defence/accused must rise from their seat, face the judge, say “objection,” and then state the reason for the objection. At that point, the Crownwilleitheragreeordisagreewiththeobjection. IftheCrowndisagrees, the judge will make a ruling on the spot regarding the objection. The defence/accused should also consider whether the witness should be excused from the courtroom prior to stating the reason for the objection or at any point in the discussion about the objection.

Leading Questions:

:::A leading question is one where the answer is suggested in the question. For example: “Did you see Joe punch Steve?” The party calling the witness cannot ask leading questions. However, on cross-examination, the practice is allowed and encouraged. A common exception to the rule against leading questions in direct is when leading questions are used in order to introduce matters to the court. For example: “Your name is John Doe and you reside at 555 University Drive?” Leading questions may also be used in direct examination if they relate to non-contentious issues. (Note: it is good practice to let Crown Counsel know what the contentious issues are ahead of time in order to prevent an objection of leading a witness during trial).  

Hearsay:

=== 4. ''Challenging the Admissibility of Evidence'' ===

Prior to the trial commencing, the defence/self-represented accused should have reviewed the key evidence in the case and identified potential challenges to the admissibility of that evidence. One should consider if the admissibility issue or Charter challenge to the evidence can be canvassed with the Crown prior to the start of a trial. Generally, unless there is a good strategic reason to not inform the Crown, (i.e., informing the Crown will allow it to call additional evidence that the defence knows is available, but is not currently being called) admissibility issues should be brought to the Crown’s attention ahead of time.

Since rules of admissibility of evidence tend to be complex issues that require a critical analysis of the law followed by an application of the law to the facts, a self-represented accused should consult legal advice when challenging the admissibility of Crown’s evidence. Some challenges to the admissibility of evidence are simply made through objections and legal arguments at the time the Crown seeks to adduce the evidence, while others will require the court to hear additional evidence that is relevant to its admissibility.

=== 5. ''Voir Dires'' ===

A ''Voir Dire'' is a “trial within a trial”. It is usually held during the Crown’s case, where evidence is required in order to determine the admissibility of evidence. For example, ''Voir Dires'' can be held to determine whether a confession is voluntary and admissible, or whether it should be excluded under section 24(2) of the ''Charter''. If the evidence heard in the ''Voir Dire'' is deemed to be admissible, counsel can agree that evidence on the ''Voir Dire'' will form part of the evidence at trial. Care should be taken to ensure that the evidence that is considered on the trial proper, from the ''Voir Dire'', is properly identified and admitted from the ''Voir Dire'' into the trial proper.  

Two common ''Voir Dire'' challenges are a challenge to the admissibility of items seized in a search and a challenge to the admissibility of an accused’s confession to the police.

    

If there are grounds to challenge a search, Crown Counsel must be alerted to the fact that the defence/accused will be challenging the admission of the items seized during the search into evidence with sufficient detail to put Crown on notice as to the nature of that challenge (typically an alleged breach of section 8 of the ''Charter'').   

If Crown is seeking to enter a confession into evidence that was given to the police (or other person in authority), Crown Counsel must first establish that the confession was voluntary in a ''Voir Dire''. It is common practice that any alleged breaches of section 10 of the ''Charter'' (i.e., accused not provided with access to counsel prior to their interrogation) are dealt with in the Crown Counsel’s ''Voir Dire'' on voluntariness.         

If an accused testifies at a ''Voir Dire'', they can only be cross-examined on the issues raised in thee ''Voir Dire''.

# That the crime actually happened (''Actus Reus''); and   

# That the accused intended to commit the crime (''Mens Rea'').  

If the Crown failed to lead ''any'' evidence on any of the above, the defence/accused should make a no-evidence motion. This asks the judge to direct the acquittal of the accused on the ground that there is absolutely no evidence of some essential element of the offence. The test was articulated by Ritchie, J. in '[https://www.canlii.org/en/ca/scc/doc/1976/1976canlii8/1976canlii8.html?searchUrlHash=AAAAAQAodW5pdGVkIHN0YXRlcyBvZiBhbWVyaWNhIHYgc2hlcGhhcmQgMTk3NgAAAAAB&resultIndex=1 'USA v Shephard'' [1977<nowiki>]</nowiki> 2 SCR 1067] and [https://www.canlii.org/en/ca/scc/doc/1998/1998canlii819/1998canlii819.html?searchUrlHash=AAAAAQANciB2IGNoYXJlbXNraQAAAAAB&resultIndex=1 ''R v Charemski'', [1998<nowiki>]</nowiki> 1 SCR 679]. Arguments by the Crown and defence will be heard. If the defence/accused’s “no evidence” motion fails, the defence/accused may then call its own evidence.

=== 7. Presentation of Defence Case ===

All accused have the right to testify in their own defence and the right to call other witnesses. After the defence/accused examines its witnesses, the Crown has the right to cross-examine these witnesses. The defence/accused may re-examine them in relation to new areas that could not have been anticipated ahead of time. For a discussion on when this is appropriate see “Presentation of Prosecution’s Case,” above (see ''Examination of Witnesses in Criminal Cases'' by Earl J Levy QC for a discussion of these techniques).

    

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

The defence/accused will be invited to make closing submissions once all evidence has been heard. If the defence/accused 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 ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii93/1991canlii93.html?autocompleteStr=W(D)%20&autocompletePos=1 W(D)]'' principles (from R v W(D), below) should also be discussed.

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