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

{{LSLAP Manual TOC|expanded = criminal}}

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 accused 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 accused can consult a lawyer and make a decision.

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.

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

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

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

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

For a list of electable offences, see sections 536 (4), 554, 558, 565 and 471 of the ''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]''. For an offence not listed in sections 469 or 553, the accused may elect to be tried by:

# Provincial Court trial with a judge, without a 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.

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.” (''[https://www.canlii.org/en/ca/scc/doc/1976/1976canlii8/1976canlii8.html?searchUrlHash=AAAAAQAodW5pdGVkIHN0YXRlcyBvZiBhbWVyaWNhIHYgc2hlcGhhcmQgMTk3NgAAAAAB&resultIndex=1 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.

The goal of the defence at trial is NOT to find the truth or to seek justice. The goal of the defence counsel (or the accused if self-represented) 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. The adversarial process depends upon capable defence counsel vigorously challenging Crown’s case and pursuing viable defences.

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 the 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. During re-examination new material can only 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 recross-examine on the new evidence (See: Earl J Levy, ''Examination of Witnesses in Criminal Cases'').

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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 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. 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.  

   

:'''NOTE:''' The defence/accused 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/accused cannot call evidence. In practice, the only time defence brings a no evidence motion is when the client may want to give evidence at trial. If defence counsel is of the view that there is no evidence and the accused will not testify, the defence will bring an insufficient evidence motion (stating that the Crown has not proven its case). When the accused does not testify, the defence will make closing submissions last. When the accused does testify, the defence will make closing submissions first. It is a perceived advantage to go last.

All accused have the right to testify in their own defence and the right to call other witnesses.

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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.  

# 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.

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).

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.

Where the accused has made a statement outside the trial, for example, while being questioned by the police (or a store detective, transit police, or other person in authority), the Crown may seek to use this statement,

* as evidence of an admission or confession by the accused, or

Section s 657.3(3), of the ''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]'', imposes an obligation on the defence to disclose any expert opinion evidence it intends to call prior to trial. ''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii688/1999canlii688.html?searchUrlHash=AAAAAQAJciB2IHN0b25lAAAAAAE&resultIndex=1 R v Stone]'', [1999] 2 SCR 290 sets out the guidelines which apply to both Crown and defence in disclosing expert opinion evidence.

==== a) Closing Argument and Submissions ====