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

{{REVIEWED LSLAP | date= July 26, 2021}}

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 very 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.” ''USA v Shephard'' [1977] 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 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.

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 defence/accused is entitled to cross-examine a witness on any issue that is relevant or material to the case. The defence/accused does not have to have evidence on a particular point but does have to have a reasonable basis to believe whatever it is suggesting to the witness. The rule in ''Browne v. Dunn'' (1893) 6 R 67, H.L, states 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/accused theory that defence/accused counsel will argue at the end of the defence/accused’s case, then each Crown witness must be confronted with the defence’s/accused’s anticipated defence evidence or theory and provided 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…”

:::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:

:::For a thorough discussion of the rules of hearsay admissibility, see Watt’s Manual of Criminal Evidence and ''R v Khelawon'', [2006] 2 SCR 787.  

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 ''USA v Shephard'' and  ''R v Charemski'', [1998] 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.

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.

:::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 [''R v Paice'', 2005 SCC 22]. 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”.  

:::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'', (''R v Zora'', 2020 SCC 14).  

If the accused has a criminal record and plans on testifying in their own defence, then the defence/accused should be prepared to argue a ''Corbett'' application [see ''R v. Corbett'' [1988] 1 SCR. 670] at the end of Crown counsel’s case and before a final decision is made to have the accused testify, particularly if the accused 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)'' [1992] 1 SCR 742:

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'' (a trial within a trial). For a more complete explanation of the law on opinion evidence, see ''R v Mohan'' [1994] 2 SCR 9.

Section s 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. ''R v Stone'', [1999] 2 SCR 290 sets out the guidelines which apply to both Crown and defence in disclosing expert opinion evidence.

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 or not 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. See ''R v Ahmad'', 2020 SCC 11 for more information.