Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"
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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. | 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. | === 1. Arraignment hearing (trial fix date procedure) === | ||
At the arraignment hearing, 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 self-represented accused or the defence counsel to note this information. | |||
The judge or JP will then ask the self-represented accused (or defence counsel) 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 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. | |||
The judge or JP will then ask the | |||
== B. Appearance for trial - elections as to mode of trial == | == B. Appearance for trial - elections as to mode of trial == | ||
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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. | 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. | ||
Preliminary inquiries are only available to those accused who elect to be tried in the Supreme Court (by judge only or by judge and jury) and when at least one of the charges on the indictment is punishable by imprisonment for 14 years or more. | |||
== C | == C.The trial == | ||
===1. Conduct of the trial === | ===1. Conduct of the trial === | ||
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#If a defence was not called, Crown makes closing submissions first, and then defence counsel. | #If a defence was not called, Crown makes closing submissions first, and then defence counsel. | ||
#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. | #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. | ||
=== 2. Nature of the trial === | === 2. Nature of the trial === | ||
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==== a) Common objections ==== | ==== a) Common objections ==== | ||
When the Crown is in the process of examining its witnesses, it is the | When the Crown is in the process of examining its witnesses, it is the defence/accused 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 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: | Leading Questions: | ||
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# Past Recollection Recorded;) | # Past Recollection Recorded;) | ||
Each “Traditional” exception has its own requirements that must be met | 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 R v Starr, [2000] 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 is 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); | # Necessity: whether the benefit of the evidence would be lost in its entirety if it is 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); | ||
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Speculation: | Speculation: | ||
:::When | :::When people witness behaviour in everyday life they often reach conclusions regarding why they 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 one sees someone jumping up and down and swatting at the air one may speculate that the person is being bothered by an insect. Such speculation is not proper evidence unless the witness also saw or heard the insect. | ||
Opinions from Non-Experts: | 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 | :::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. There are often exceptions to these exceptions. For example, although generally the court does not permit non-expert opinion evidence, someone who is intimately familiar with a person’s appearance can in certain situations provide evidence that they recognise that person from surveillance photographs or video. | ||
=== | === 5. ''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 not being called) admissibility issues should be brought to the Crown’s attention ahead of time. | |||
As 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 person 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 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. | 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. | ||
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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 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'', | If an accused testifies at a ''Voir Dire'', they can only be cross-examined on the issues raised in the ''Voir Dire''. | ||
=== | === 6. Directed verdict/ no evidence motion === | ||
In all criminal cases, it is the Crown’s obligation to prove beyond a reasonable doubt: | In all criminal cases, it is the Crown’s obligation to prove beyond a reasonable doubt: | ||
*Time & Date of the offence. | *Time & Date of the offence. | ||
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*The accused intended to commit the crime (''Mens Rea''). | *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 | 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. | :'''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. | ||
=== | === 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 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). | 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 | 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 the Crown’s failure to present an 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 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 W(D) principles (below) should also be discussed. | |||
{| class="wikitable" | {| class="wikitable" | ||
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*"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." | *"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.'' | ''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. | ||
Note: When entering an exhibit such as a statement that defence wants to rely on for its truth, it is important to have the witness confirm that the statement they made was in fact true, otherwise the Judge may not be able to rely on it.'' | |||
|} | |} | ||
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Lack of ''Mens Rea'': | 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 | :::''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: | :::Examples: | ||
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:::2) the accused did not know the nature of the item (for example, the accused thinks the substance is baking soda and not cocaine), | :::2) the accused did not know the nature of the item (for example, the accused thinks the substance is baking soda and not cocaine), | ||
=== | Intoxication: | ||
:::When considering the defence of intoxication, it is important to note that there are two types of offences divided by the requisite mental fault. General intent offences merely require the accused to carry out the act or omission while specific intent offences require the accused to carry out the act or omission and intend for the consequence to come about. | |||
:::There are only two levels of intoxication that are considered to be 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 does not qualify an accused for this defence. | |||
:::For general intent offences, advanced intoxication is not a defence. Extreme intoxication can negate general intent or physical voluntariness of Actus Reus for some offences if the accused can show that they did not commit the act with conscious mind and controlled body. However, the defence may be denied under s 33.1 of the Criminal Code if the intoxication is self-induced, the accused made a marked departure from the standard of care, and it is a violent offence. General intent offences include assault causing bodily harm, manslaughter, sexual assault, and arson. | |||
:::For specific intent offences, advanced intoxication can negate subjective mental fault (Mens Rea), and extreme intoxication can negate physical voluntariness of Actus Reus for offence. Specific intent offences include murder, robbery, assault with intent to resist arrest, and possession of stolen property. | |||
=== 8. 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. | 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 | 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 accused testifies, the judge must consider the instructions set out in ''R v.W(D)'' (1991), 3 CR (4th) 302 (SCC): | ||
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*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. | *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. | ||
=== | === 9. 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). | 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). | ||
=== | === 10. Witnesses === | ||
==== a) Privilege and compelling attendance of a witness ==== | ==== 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. | 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 | 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: | Witnesses must answer all questions put to them unless it is considered privileged. Privileged information includes: | ||
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==== c) Testimony of witness ==== | ==== c) Testimony of witness ==== | ||
A witness is required either to swear an oath or to solemnly affirm that he or she will tell the truth. Section 16(3) of the ''Canada Evidence Act'' permits a witness who is able to communicate the evidence, but does not understand the nature of an oath or a solemn affirmation due to age (under 14 years) or insufficient mental capacity, to testify – as long as | A witness is required either to swear an oath or to solemnly affirm that he or she will tell the truth. Section 16(3) of the ''Canada Evidence Act'' permits a witness who is able to communicate the evidence, but does not understand the nature of an oath or a solemn affirmation due to age (under 14 years) or insufficient mental capacity, to testify – as long as they promise to tell the truth. | ||
The judge decides whether to admit or exclude evidence, as governed by the laws of evidence, case law, the Charter, the ''BC Evidence Act'', the ''Canada Evidence Act'', and the statute creating the offence. Evidence must be relevant to the facts in issue. The facts in issue are those that go to establishing the essential elements of the offence and any legal defence to that offence. Evidence may be presented with respect to other issues as well, such as the credibility of a witness, provided that the evidence does not offend the collateral evidence rule. | The judge decides whether to admit or exclude evidence, as governed by the laws of evidence, case law, the Charter, the ''BC Evidence Act'', the ''Canada Evidence Act'', and the statute creating the offence. Evidence must be relevant to the facts in issue. The facts in issue are those that go to establishing the essential elements of the offence and any legal defence to that offence. Evidence may be presented with respect to other issues as well, such as the credibility of a witness, provided that the evidence does not offend the collateral evidence rule. | ||
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There are two different kinds of statements, admissions and confessions. | There are two different kinds of statements, admissions and confessions. | ||
*An admission is a statement made to another civilian. It is generally admissible | *An admission is a statement made to another civilian. It is generally admissible; | ||
*A confession is a statement made to a police officer (or person in authority), and there are very strict rules regarding the admission of such statements at trial. | *A confession is a statement made to a police officer (or person in authority), and there are very strict rules regarding the admission of such statements at trial. | ||
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==== a) Closing argument and submissions ==== | ==== a) Closing argument and submissions ==== | ||
Defence counsel and the Crown will make closing arguments that recap 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 client takes the stand then the case is likely to be a credibility issue, with rules as described in ''R | Defence counsel and the Crown will make closing arguments that recap 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 client takes the stand then the case is likely to be a credibility issue, with rules as described in ''R v W(D)'', above. | ||
==== b) Verdict ==== | ==== b) Verdict ==== | ||