Pleading Not Guilty and Criminal Trials (1:VII)

A. Arraignment hearing

The purpose of an arraignment hearing is for the court to be advised whether the matter is for trial or disposition (guilty plea) and to set aside the required court time for the trial or disposition. It is also an opportunity to canvass any possible disclosure or Charter issues. If the client is not prepared to make a decision on whether to plead guilty or run a trial at the time of the hearing, the arraignment hearing should be adjourned until the clinician can consult with the supervising lawyer and obtain clear instructions from the client.

1. Setting the trial date

LSLAP clinicians are encouraged to, but are not required to appear in court to set a trial date. Whether or not the student is attending, a Trial Date Request Form must be completed and faxed to the Judicial Case Manager prior to the appearance date. This form must be approved by the LSLAP Supervising Lawyer and then given to the Administrator to be faxed.

Note: The client must still attend the Arraignment Hearing and enter a plea of not guilty in order for the trial date to be set.

2. Arraignment hearing (trial fix date procedure)

If the clinician will be attending the arraignment hearing they should take a copy of the trial date request form. The clinician must bring two additional copies of the report to the appearance. One copy is filed with the court and the other given to the Crown.

At the appearance, a not guilty plea is entered and the time estimate for the trial is confirmed. The Crown will provide the court with its time estimates and the number of witnesses. It is essential for the clinician to note this information.

The judge or JP will then ask the clinician for their position on the time estimate and then decide how much time is appropriate to set aside for the trial The clerk will provide counsel with a form to take tothe Judicial Case Manager (JCM) to set a trial date. It is important that the client attends the JCM with the clinician, as the JCM will then adjourn the client to the pre-trial conference (PTC) date. It is essential that the clinician remind the JCM that he/she is an LSLAP student and a pre-trial conference (PTC) be set.

Once the trial and PTC dates are set, the clinician will receive a pink trial scheduling memo indicating the dates and times of the appearances. This must be brought back to the LSLAP office and placed in the file. The Public Relations director as well as LSLAP's administrative assistant must be advised of these dates so that supervising lawyers can be arranged. It is advisable to have the JCM print out an extra copy of the pink memo to be given to the client.

B. Appearance for trial - elections as to mode of trial

There are a number of different modes of procedure, although LSLAP students will only appear on summary matters.

1.Summary conviction offences

The accused has no right of election. The trial is held before a Provincial Court judge. There is no preliminary inquiry.

2. Hybrid offences and indictable offences

For a hybrid offence where the Crown chooses to proceed summarily, see above.

For a hybrid offence where the Crown chooses to proceed by indictment, or where the offence is strictly indictable, the accused has the right to elect a mode of trial, unless the indictable offence is listed in sections 469 or 553 of the Criminal Code.

Where the accused has the right of election, he or she will be asked to elect at the arraignment hearing.

3. Electable offences

For a list of electable offences, see sections 536 (4), 554, 558, 565 and 471 of the Criminal Code. For an offence not listed in sections 469 or 553, the accused may elect to be tried by: a)a Provincial Court trial with a judge, without a jury, b)Supreme Court trial with a judge, without a jury, or c)Supreme Court trial comprised of a judge and jury.

If the accused 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 elects a Supreme Court trial they have the right to test the Crowns case in a Preliminary Inquiry (see below). This right to a preliminary inquiry can be waived by an accused, however this rarely occurs because, the most common reason for electing a trial before a Supreme Court (instead of a Provincial Court) is to gain the advantage of testing and discovering Crowns case during the preliminary inquiry.

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 ("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:

1. The Crown calls the case.
2. 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.
3. 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.
4. Crown will call its witnesses (called direct examination), and defence may cross-examine each witness as they are called.
5. Crown indicates that their case is closed.
6. 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.
7. 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.
8. 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.

Students should refer to Fundamentals of Trial Techniques by Thomas A Mauet (1992), an excellent general guideline to conducting a trial. See also Appendix E: Trial Books.

2. Nature of the trial

The goal of defence counsel at trial is not to find the truth or to seek justice. The goal of defence counsel is to test the Crown’s case and to present evidence where appropriate, in order to either show that the evidence as a whole fails to prove the accused's guilt beyond a reasonable doubt, or to raise a reasonable doubt as to the guilt of the accused. Keep in mind that one way to reach reasonable doubt is to convince the trier of fact that based on the evidence presented; they simply cannot know for sure what happened. The adversarial process with defence counsel and Crown Counsel fulfilling their respective roles before a neutral trier of fact has been one of the most effective ways to find the truth and seek justice discovered by mankind. The adversarial process depends upon capable defence counsel vigorously challenging Crown's case and pursuing all viable defences.

3. Presentation of prosecution's case

Once a plea has been entered, witnesses will be excluded and the trial begins. The Crown may start with an opening address and then begin calling witnesses for examination and introducing any real evidence (objects, documents, etc.). Next, defence counsel or the accused, if not represented, may cross-examine Crown witnesses. The Crown may then re-examine their witness; however, this re-examination is limited to clarifying or explaining answers given during cross-examination. No leading questions may be put during re-examination and new material can be entered only with leave of the Court. If leave is granted, and new material entered during re-examination, then the defence will be given an opportunity to cross-examine on the new evidence (See: Earl J Levy, Examination of Witnesses in Criminal Cases).

The goal in cross-examination is to demonstrate that this particular witness's evidence is less worthy of belief, by challenging the witness's reliability or credibility, or both. The clinician is entitled to cross-examine a witness on any issue that is relevant or material to the case. The clinician does not have to have evidence on a particular point but does have to have a reasonable basis to believe whatever it is they are suggesting to the witness. The rule in Browne v. Dunn (1893) 6 R 67, H.L, states that the defence must put its case to each witness on cross-examination. This means that if there is a good possibility that your client will testify in their own defence or you have a specific defence theory that you will argue at the end of your case, then each Crown witness must be confronted with your anticipated defence evidence or theory and provided the opportunity to comment upon that evidence or theory. Typically this is done at the end of your 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. This can be the scene, lighting, visibility, any obstructions or distractions, which may have affected the witness’ perception. It can also be the state of the witness at the time (perhaps they were intoxicated at the time).

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

• Motive based on personal animus towards the accused,
• A motive based on a personal bias towards the complainant or victim of the alleged crime,
• A motive based on a perceived advantage from the police arising from providing evidence to the police, and
• A witnesses' character is such that they simply cannot be trusted (history of perjury, fraud or lying to the police).

Practice Recommendation - Prior Inconsistent Statements

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. There are times when the clinician may not want to put a prior statement to a witness, even if there are inconsistencies; for example, 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: "You gave a statement to the police on December 4, 2010?" ("Yes"). "I am showing you a transcript of that statement." OR "I am showing you a 4-page written statement. Is this your handwriting? Are those your initials at the bottom of each page and your signature at the end of the document?" "I refer you to page 3, line 8, where you said '[read out what is in the transcript or statement verbatim, including any ums and ahs, however, you may abbreviate any swear words to their first letter]' You said that? (yes) You knew it was important to tell the police the truth? (yes) That was the truth?" (if no) So you lied to the police when you told them that? "You said in your direct examination when my friend was asking you questions [summarize conflicting evidence from your notes]?" (yes) But here you told the police [reread the line of the transcript], which version do you now say is the truth? For more information, please see the LSLAP Guide to Criminal Defence Work.

a) Common objections

When the Crown is in the process of examining its witnesses, it is the clinician'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 clinician must rise from his or her seat, face the judge, say "objection," and then state the reason for the objection. At that point, Crown will either agree or disagree with the objection. If the Crown disagrees, the judge will make a ruling on the spot regarding the objection.

Leading Questions:

A leading question is one where the answer is suggested in the question. For example: "did you see Joe punch the 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.

Hearsay:

Witnesses are expected to tell the court what they personally observed, heard or did. Hearsay is a common objection that arises because witnesses are often told things by other persons about the event. Hearsay is presumptively inadmissible if the purpose of introducing the hearsay is to have the trier of fact accept the truth of what the witness heard another person say. The Hearsay rule has a number of exceptions (See Below for more information about Hearsay objections).

Speculation:

When we witness behavior in everyday life we often reach conclusions regarding why we think that other person was behaving in that manner. Witnesses are expected to tell the court what they saw a person say and do and not go on to speculate as to why they think that person did what they did. For example if you see someone jumping up and down and swatting at the air you may speculate that they are being bothered by an insect. Such speculation is not proper evidence unless you also saw or heard the insect.

Opinions from Non-Experts:

As a rule, witnesses should not make any inferences or state their opinion about what that evidence proves in their testimony, for example "I think Steve was going grocery shopping because I saw him with an empty fabric grocery bag." Instead the witness should simply state "I saw Steve and in his hands he was holding an empty fabric grocery bag." Conclusions drawn from what is seen or heard is for the trier of fact to draw not the witness to opine.

4. Voir Dires

A Voir Dire is usually referred to a "trial within a trial". It is usually held during the Crown's case 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 not to repeat the evidence and the Voir Dire will form part of the evidence at trial.

Two very common Voir Dires are a challenge to the admissibility of items seized in a search and a challenge to the admissibility accused confession to the police.

If there are grounds to challenge a search Crown Counsel must be alerted to the fact that defence counsel will be challenging the admission of that item 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 (i.e. accused not provided with access to counsel prior to his interrogation) are dealt with at the same time as Crown Counsel’s Voir Dire on voluntariness.

If an accused testifies at a Voir Dire, he or she can only be cross-examined on the issuesraised in the Voir Dire.

5. Directed verdict/ no evidence motion

In all criminal cases, it is the Crown’s obligation to prove beyond a reasonable doubt:

• Time & Date of the offence.
• Location and Jurisdiction of the offence (e.g.: it happened in Surrey, British Columbia).
• Identity of the accused.
• The elements of the crime actually happened (Actus Reus).
• The accused intended to commit the crime (Mens Rea).

If the Crown failed to lead any evidence on any of the above, the defence 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 USA v Shephard, above (also R v Charemski, [1998] 1 SCR 679). Arguments by the Crown and defence will be heard. If the defence’s "no evidence" motion fails, the defence may then call its own evidence.

Note: The defence may make an insufficient evidence motion when the Crown has failed to bring sufficient evidence to prove a specific element of the offence beyond a reasonable doubt. If an insufficient evidence motion fails, the defence cannot call evidence. The only practical difference between making an insufficient evidence motion and calling no evidence, allowing Crown to make its closing argument, and then urging the court to acquit based on reasonable doubt is who presents closing argument on the point first. It is usually perceived an advantage to have the last word and hence insufficient evidence motions are typically only used in conjunction with a no evidence motion, where counsel is of the opinion that although a no evidence motion has just failed an insufficient evidence motion is very likely to succeed.

6. 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 examines its witnesses, the Crown has the right to cross-examine these witnesses. The defence 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).

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 does not call evidence, Crown closes first. The three main sections of closing submissions are: the facts, the law, and most importantly, 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 client testifies, the W(D) principles (below) should also be discussed.

Practice Recommendation - Entering Exhibits

An exhibit should be entered through the witness who made (or found) the exhibit so they can validate it. Exhibits may be a photograph, a written document such as an email, or physical evidence such as an assault weapon. In the case of a photograph, the person who took the actual photograph is the one likely to enter the exhibit. It is also possible for the person identified in the photograph to enter the exhibit. Example of an exhibit being entered by someone who took the photograph: "You have previously provided me with a photograph. Did you take this photograph? When did you take this photograph? And this is a true an accurate depiction of the scene as depicted on the date you took the photograph?" "Your Honour, I ask that this photograph be entered as the next exhibit." Example where an individual depicted in the photograph enters the exhibit: "You have provided me with a photograph of some injuries. Who is depicted in this photograph? When was this photograph taken? And is this a true and accurate depiction of your injuries as of the date this was taken?" "Your Honour, I ask that this photograph be entered as the next exhibit." The court will number each exhibit as they are entered, either place the appropriate number on your copy of each exhibit or keep an exhibit list so that you may refer the court or other witnesses to them later.

a) Common defences

For the defences below to be raised, they must have an air of reality. 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 Crown must then 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 34-42 of the Criminal Code

There are conditions where self-defence can be raised when the charge is assault. This can occur in a situation where the accused perceived force or a threat of force, his or her state of mind was to act in a defensive manner, and the actions taken by the accused were reasonable in the circumstances. This defence can take into account various factors, such as whether the accused had an alternative, the proportionality of the force used by the accused, as well as any history that may exist between the parties.

Consent:

If an accused is charged with assault, Crown must prove beyond a reasonable doubt that the other person did not consent to the assault. A consensual fight is not an assault as the parties are consenting to the physical contact. Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused or the force was applied recklessly and the risk of the bodily harm was objectively foreseeable. In R v Jobidon, [1991] 2 SCR 714 the Court held that consent cannot be used as a defence for a criminal act such as assault which may cause "serious hurt or non-trivial bodily harm".

Lack of Mens Rea:

Mens Rea deals with the mindset of the accused at the time of the incident and means "guilty mind." Mens Rea of the offence must be proven by the Crown beyond a reasonable doubt. If the accused person did not intend to commit the offence, he or she can raise a reasonable doubt as to whether he or she had the proper Mens Rea to commit the offence.

Examples:

The main Mens Rea components to the charge of theft are that the action was without color of right and the individual had intent to steal. Color of right refers to an individual's belief that they had entitlement to the property they are accused of fraudulently obtaining. If it can be proved that the individual had no intent to steal, or had an honest belief of the right to the property, theft has not occurred. The main Mens Rea components of the charge of Personal possession of a Controlled Drug or Substance includes knowledge of the substance. The possessor must know the nature of the item. An accused has a Mens Rea defence to possession if:

1) the accused did not know he or she had the item on him or her, or

2) the accused did not know the nature of the item (for example, the accused thinks the substance is baking soda and not cocaine),

7. Accused testifying

The accused cannot be compelled to testify (see s 11(c), Charter). If the accused chooses not to testify, no adverse inference may be drawn. 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 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 only.

If your client has a criminal record and he can testify in his own defence, then the clinician should be prepared to argue a Corbett application [See. R v. Corbett [1988] 1 S.C.R. 670] at the end of Crown counsel's case and before a final decision is made to have the accused testify, particularly if the client has convictions for crimes that are similar to the crime alleged.

If the accused testifies, the judge must consider the instructions set out in R v.W(D) (1991), 3 CR (4th) 302 (SCC):

• If the judge believes the accused, he must acquit,
• If the judge does not believe the accused, but is still left with a reasonable doubt from the testimony, he must acquit, and
• Even if the judge does not believe the accused and is not left with a reasonable doubt from the testimony, the Crown must still prove its case beyond a reasonable doubt.

8. Presence of the accused

As a general rule, the accused must be present and remain in the courtroom throughout the trial. In very unusual circumstances, the case may proceed ex parte (i.e. in the accused's absence).

9. Witnesses

a) Privilege and compelling attendance of a witness

Both sides may contact any and all witnesses who will be called at trial, including police officers. However witnesses are not required to speak to Crown or defence counsel prior to the trial.

A witness may be compelled to attend at trial to give evidence and to bring documents by means of a subpoena processed through the court registry that is personally served on them (ss 699 and 700 of the Criminal Code). An arrest warrant may be issued for non-compliance (s 705). Unless the witness is served with a subpoena, he or she is under no legal obligation to attend court proceedings. Crown Counsel will often agree to subpoena witnesses who have provided a police statement and Crown Counsel does not intend to call in its case but defence counsel wants to have called. Other defence witnesses are typically known to the client (such as alibi witnesses) and attend voluntarily. Defence counsel should obtain subpoenas for witnesses if they are important, not under Crown subpoena and not likely to attend voluntarily.

Witnesses must answer all questions put to them unless it is considered privileged. Privileged information includes:

• i) discussions between a client and his or her lawyer in situations when the lawyer was acting in a professional capacity,
• ii) any information tending to reveal the identity of a confidential police informant, unless disclosure is the only way to establish the innocence of the accused, and
• iii) communication between spouses.