90Trial Procedures

Chapter 6

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The Adversarial System

• Trial procedures in Canada are based on the adversarial system: two or more opposing sides present and argue their case in court.• In order for an accused person to be found

guilty, a judge or jury must find them guilty beyond a reasonable doubt in a court of law.• Canadian courtrooms have several participants,

including the accused, the defence counsel, Crown prosecutors, witnesses, a judge, a jury, a court recorder and members of the general public there to observe.

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Judges – Who Are They?

• Judges are often referred to as "the Bench" or "the Court."• The federal government appoints judges for the

Superior and Federal Courts as well as the Supreme Court of Canada.• Provincial governments appoint judges and

justices of the peace. • Lawyers or law professors with at least 10 years

experience may qualify to be a judge.

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A Judge's Responsibilities

• During a trial, a judge must act impartially or in an unbiased manner.• Judges control the courtroom during bail or

preliminary hearings and trials.• They must ensure that proper rules and

procedures are followed in court.• If there is no jury, a judge must also hear the

evidence and decide on the verdict in the case.• Judges may also rule on a number of motions,

including whether or not to admit evidence.

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The Lawyers

• The adversarial system features lawyers to represent the government and the accused.• Lawyers who represent the government are the

Crown Prosecution and those who represent the accused are the Defence Counsel.• Crown prosecutors, or Crown attorneys, are

responsible for trying to convict the accused. The Crown also has significant powers to lay or withdraw criminal charges.• Defence attorneys must defend the accused

against the charges to the best of their ability, however heinous the charges are.

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Other Court Officials

• In addition to judges and lawyers, there are other court officials who have important responsibilities in court:

– Court clerk: reads out charge(s), swears in witnesses, handles evidence and paperwork

– Court recorder: sits near the witness box and records each testimony and statement, word for word

– Sheriff: assists the judge, find prospective jurors, organizes and secures the court

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Juries

• Serious indictable offences are decided by juries – members of the public who are randomly selected to hear a case and decide on the verdict.• There are usually 12 people selected to serve on

a jury through a process called empanelling.• A jury panel is a group of citizens who are

selected for possible inclusion on a jury.• If a case is controversial, the number of potential

jurors included in the jury panel increases.

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Who Can Be a Juror?

• Although each individual province and territory may have its own additional criteria, a potential juror must have these qualifications:

He or she must be…

1. A Canadian citizen

2. At least 18 years old

3. A resident of a province or territory for at least one year

4. Fluent in English or French

5. Mentally competent

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Exemptions From Jury Duty• The following people are usually exempt from

serving on a jury:1. Politicians2. Judges, justices, lawyers, law students3. Doctors, coroners, veterinarians4. Law enforcement officers and their spouses5. People who are visually impaired6. People with certain mental or physical disabilities7. People who have served on a jury within the previous

2–3 years8. Anyone convicted of an indictable offence without a

pardon being granted9. People may also be excused from jury duty if they

can convince the court with a specific reason (e.g. illness).

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Screening Potential Jurors

• During the screening of potential jurors, the Crown and defence have an opportunity to ask a series of questions, which commonly include:– Are you a Canadian citizen?– Are you fluent in French or English?– Have you been convicted of an indictable offence for

which you have not been granted a pardon?– What is your occupation?– Do you have a mental or physical disability or medical

condition that may interfere with your ability to serve as a juror?

– Have you been summoned for jury duty in the last three years?

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Jury Challenges

• There are three types of challenges that the Crown and defence can use to accept or eliminate a prospective juror:

1. challenge of jury list

2. challenge for cause

3. peremptory challenge

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Challenge of Jury List

• The Crown and defence may challenge how valid the jury list is, but this is rarely done.• If either side can prove the list is fraudulent or

biased, a challenge of jury list may be successful.• Example: The accused is of Aboriginal descent.

The 100 prospective jurors who have been empanelled are all Caucasian. The accused feels the jury list is unfair and challenges its validity.

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Challenge for Cause

• This type of jury challenge can be used by the Crown or defence when they wish to exclude a potential juror for a specific reason. • A challenge for cause is usually based on the

belief that a juror has some kind of bias (e.g. racism, sexism, religious discrimination).• Example: The accused is Jewish and his

defence lawyers believe a prospective juror is anti-Semitic and can prove it. • This type of challenge may be used as many

times as necessary.

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Peremptory Challenge• This type of jury challenge may be used by the

Crown or defence when they wish to exclude a potential juror without a specific reason.• Peremptory challenges are often based on the

"gut feeling" of a lawyer or as a strategy.• Example: A woman accuses her boyfriend of

aggravated sexual assault. The Crown wants more young women on the jury than men and may use peremptory challenges to try and achieve this goal. • This type of challenge has limits, depending on

the severity of the crime. The most serious charges provide the Crown and defence with 20 challenges each, which is the maximum.

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Jury Duty – Process

• After being selected to serve on a jury, each juror takes an oath (to arrive at a verdict honestly) and is sworn into the jury box.• Jurors cannot:

– Discuss the case with anyone outside of the jury– Follow media reports on the case– Disclose any information from their deliberations even

after a trial has finished

• The jury’s final decision on the case is the verdict and it must be unanimous or else the jury is hung (undecided).• In controversial cases, a jury may be

sequestered (isolated) until the case is over.

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Presenting Evidence

• The presentation of evidence is very important for any trial.

This includes:– Crown evidence– Defence evidence– Witnesses– Rules of evidence– Self-incrimination

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Crown Evidence

• Since the burden of proof is on the Crown, it is responsible for presenting evidence against the accused.

1. Direct evidence: usually based on witness testimony

2. Circumstantial evidence: indirect evidence that tries to link the accused to the crime through circumstance and physical evidence

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Defence Evidence

• The main responsibility of the defence is not to present evidence, but to raise reasonable doubt.• If the defence believes that the Crown has not

presented its case effectively, the defence may request a directed verdict - asking the judge to dismiss the charges on the basis that the Crown has not adequately proven its case.• If the defence decides to present its own

evidence, it is usually in the form of witnesses. Everything else is meant to counter the evidence that the Crown presents.

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Questioning

Examination-in-chief: the questions a lawyer

asks his or her own witness in court, also known

as direct examination. Leading questions are

not allowed during this examination.

Leading question: a question that already

contains or leads the witness to the desired

response

Cross-examination: the questions a lawyer asks

a witness called by the opposing side

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Witnesses

• Although most witnesses appear in court voluntarily, they may be served with a subpoena – a court document that orders a person to appear in court.• If a subpoenaed witness refuses to appear in

court, he or she may be fined or imprisoned for up to 90 days.• Witnesses are often excluded from a courtroom

until it is their turn to testify so they are not influenced by what they are watching.• A witness who knowingly gives false evidence

may be guilty of perjury and could go to prison for up to 14 years.

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Rules of Evidence

• All of the rules on the admissibility of evidence are contained in the Canada Evidence Act. • If the admissibility of evidence is questioned, a

judge may order a voir dire, also known as “a hearing within a hearing,” to decide if the evidence should be allowed.• If a voir dire is held, the jury is ordered out of

the courtroom until the hearing on the evidence is finished. The jury returns and the trial continues.

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Self-Incrimination

• The Charter of Rights and Freedoms protects witnesses from incriminating themselves while providing testimony during a trial.• If witnesses believe they are being asked

questions which could incriminate or implicate them in a crime, they may object to the question.• The only exception is perjury.• If law enforcement officials believe a witness is

guilty of a crime based on answers he or she provides during his or her testimony, they may lay a charge on that witness as soon as he or she steps out of the courtroom.

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Types of Evidence

• These are common types of evidence introduced during trials:

1. Privileged communications

2. Similar fact evidence

3. Hearsay evidence

4. Opinion evidence

5. Character evidence

6. Photographs

7. Electronic devices and video evidence

8. Polygraph evidence

9. Confessions

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Privileged Communications

• Any communication that is considered confidential is “privileged” and cannot be used in court.• Examples: lawyers-clients, doctors-patients,

spouses, religious officials who have heard confessions• The person who receives the communication is

the dominant party. If he or she decides to present confidential information, it will have no force as it is an abuse of his or her position.

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Similar Fact & Hearsay

Similar Fact: shows the accused has committed

similar offences in the past; is meant to establish a

pattern of behaviour; sometimes called “the similar

fact rule”

Hearsay: information that is repeated by a third

party; not coming from the direct experience or

knowledge of a witness (e.g. repeating something

he or she heard someone else say)

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Opinion & Character

Opinion: evidence based on the observations of

an expert who may be paid for the testimony;

expert testimony must be relevant to the case

Character: information about what kind of person

the accused is; indicating the likelihood of their

committing the crime. The defence may introduce

this type of evidence to generate sympathy for

its client, but this also allows the Crown to

question the accused’s character.

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Photographs & Surveillance

• Photographs may be entered as evidence if they are proven to be an accurate portrait of the crime scene.• A judge may exclude photographs if they are

simply meant to inflame the jury.

• Surveillance includes cameras and other electronic devices used to intercept private conversations.• Surveillance devices must be authorized by a

court order.

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Polygraphs & Confessions

• A polygraph (lie detector) test measures changes in a person’s blood pressure and pulse rate when he or she is asked questions. • Supreme Court has ruled that polygraphs are

not entirely reliable and therefore are not allowed to be introduced in court as evidence.• Police still use them as an investigative tool.• A confession occurs when an accused person

admits that he or she is guilty of a crime (inculpatory statement). • For a confession to be considered in court, it

must be provided voluntarily by the accused.

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Summation & Charge to the Jury

• After all witnesses have been called, the Crown and defence each present a summation, or closing statement.

• This is a summary of each side’s key arguments and evidence.

• After the summations, the judge makes the charge to the jury.

• In it, the judge reviews the facts and defines and explains the law that applies to the case for the jury.

• The judge can also indicate to the jury how the evidence should be weighed.

• After this, the Crown and defence can challenge the charge for legal errors. Many appeals result from the judge’s charge to the jury.