Law 12 Chapter 7

8/7/2019 Law 12 Chapter 7

1/38

The Criminal CourtThe Criminal Court

SystemSystemChapter 7Chapter 7


2/38

In this chapter we will look atIn this chapter we will look at

The Criminal Court StructureThe Criminal Court Structure

The ParticipantsThe ParticipantsThe Role of the JuryThe Role of the Jury

The Criminal Trial ProcessThe Criminal Trial Process


3/38

The Criminal Court StructureThe Criminal Court Structure

Responsibility for Canadas criminal courts is dividedResponsibility for Canadas criminal courts is dividedbetween the Federal and Provincial governments.between the Federal and Provincial governments.

The Federal parliament is responsible for formulatingThe Federal parliament is responsible for formulatingcriminal law and establishing courts to administercriminal law and establishing courts to administervarious federal laws.various federal laws.

The Supreme Court of Canada, The Federal Court ofThe Supreme Court of Canada, The Federal Court ofCanada and the Tax court of Canada are good examples.Canada and the Tax court of Canada are good examples.

The Provincial court system consists of provincial courtsThe Provincial court system consists of provincial courts

and the superior court of the province.and the superior court of the province. Provincial courts have trial divisions, superior courtsProvincial courts have trial divisions, superior courts

have both trial and appeals divisions.have both trial and appeals divisions.


4/38

Figure 7.2 The Canadian Criminal Court Structure and Avenues of Appeal, p. 163


5/38

The Provincial Court, CriminalThe Provincial Court, Criminal

DivisionDivision Provincial court is the lowest level of Canadian courts.Provincial court is the lowest level of Canadian courts. Judges are appointed by the provincial government and cases areJudges are appointed by the provincial government and cases are

tried by judge alone.tried by judge alone. They have the jurisdiction to hearThey have the jurisdiction to hear summary conviction offencessummary conviction offences,,

less serious crimes that carry a lighter penalty, and certainless serious crimes that carry a lighter penalty, and certain

indictable offencesindictable offences, more serious crimes that carry a heavier, more serious crimes that carry a heavierpenalty.penalty.

A persons first contact with the criminal court system is usually inA persons first contact with the criminal court system is usually inprovincial court, because this court conducts allprovincial court, because this court conducts all preliminarypreliminaryhearingshearings, a judicial inquiry to determine whether there is sufficient, a judicial inquiry to determine whether there is sufficientevidence to put the accused person on trial.evidence to put the accused person on trial.

An

An appealappeal is an application to a higher court to review the decisionis an application to a higher court to review the decisionmade by a lower court. An appeal from the provincial courtmade by a lower court. An appeal from the provincial court

regarding a summary conviction offence is heard by a single judgeregarding a summary conviction offence is heard by a single judgeof the superior court. If its regarding an indictable offence, it isof the superior court. If its regarding an indictable offence, it isheard by the appeals division of the superior court, a panel of threeheard by the appeals division of the superior court, a panel of threeto five judges.to five judges.


6/38

Superior Courts Of The ProvinceSuperior Courts Of The Province

They are the highest criminal and civil courts in theThey are the highest criminal and civil courts in theprovinces and have a trial and appeal division.provinces and have a trial and appeal division.

Has jurisdiction in both criminal and civil matters,Has jurisdiction in both criminal and civil matters,beyond the lower courts.beyond the lower courts.

Judge and jury unless the accused and the provincialJudge and jury unless the accused and the provincialAttorney General consent to trial by judge alone. ByAttorney General consent to trial by judge alone. Byjudge alone in provincial court or by judge and jury injudge alone in provincial court or by judge and jury inSuperior court.Superior court.

Appeals from the Superior Court are heard in the

Appeals from the Superior Court are heard in theSuperior Court, Appeal division. Three to five judgesSuperior Court, Appeal division. Three to five judges

hear the case and the appeal is won or lost based on thehear the case and the appeal is won or lost based on themajority decision of the judges.majority decision of the judges.


7/38

Figure 7.5 Court Procedure for Criminal Cases, p. 166


8/38

The Federal Court SystemThe Federal Court System Federal Court of CanadaFederal Court of Canada A court that hears casesA court that hears cases

involving the federal government and consists of a trialinvolving the federal government and consists of a trialand appeal division.and appeal division.

Also hears appeals from federally appointed boards,Also hears appeals from federally appointed boards,commissions and administrative tribunals.commissions and administrative tribunals.

Supreme Court of CanadaSupreme Court of Canada highest appeals court inhighest appeals court inCanada, which also deals with constitutional questionsCanada, which also deals with constitutional questionsreferred to it by the Federal government.referred to it by the Federal government.

Consists of aConsists of a chief justice (Beverly Mclachlin)chief justice (Beverly Mclachlin) andandeight justices, all of whom are appointed by the federaleight justices, all of whom are appointed by the federalgovernment. Three come from Quebec, three fromgovernment. Three come from Quebec, three fromOntario, two from the western provinces and one fromOntario, two from the western provinces and one fromthe Atlantic Provinces.the Atlantic Provinces.

The court sits in Ottawa for three sessions a year:The court sits in Ottawa for three sessions a year:winter, spring and fall.winter, spring and fall.

Cases are heard by a panel of five, seven or nine judges,Cases are heard by a panel of five, seven or nine judges,

depending on the type of appeal.depending on the type of appeal.


9/38


10/38


11/38


12/38


13/38

Hears only appealsHears only appeals, from provincial courts of, from provincial courts ofappeal and the Federal Court ofAppeal.appeal and the Federal Court ofAppeal.

Grants leaveGrants leave, permission to appeal, for matters, permission to appeal, for mattersof national significance or when decisionsof national significance or when decisionsconflict in the provincial appeals court.conflict in the provincial appeals court.

The federal government may ask the court toThe federal government may ask the court to

rule on questions relating to constitutional issuesrule on questions relating to constitutional issuesor other federal concerns.or other federal concerns.

Other federal courts include the Tax Court ofOther federal courts include the Tax Court ofCanada, which deals with income tax mattersCanada, which deals with income tax matters

and the Court Martial Appeals court, which hearsand the Court Martial Appeals court, which hearsappeals from courts in the armed forces.appeals from courts in the armed forces.


14/38

The ParticipantsThe Participants

There are two fundamental principles ofThere are two fundamental principles ofCanadas criminal justice system:Canadas criminal justice system:

1.1. An accused person is innocent until provenAn accused person is innocent until provenguilty.guilty.

2.2. Guilt must be proven beyond a reasonableGuilt must be proven beyond a reasonabledoubt.doubt.

Beyond a reasonable doubtBeyond a reasonable doubt is a standard ofis a standard ofproof whereby a defendants guilt must beproof whereby a defendants guilt must be

proven to the extent that a reasonable personproven to the extent that a reasonable personwould have no choice but to conclude that thewould have no choice but to conclude that thedefendant did indeed commit the offence.defendant did indeed commit the offence.


15/38

http://www.courtprep.ca/en/swf/courtroom/courtroom_en.swf?


16/38

The JudgeThe Judge TheThejudgejudge is the court official appointed to try cases inis the court official appointed to try cases in

a court of law and to sentence convicted persons.a court of law and to sentence convicted persons.

Makes decisions on such things as admissibility ofMakes decisions on such things as admissibility ofevidence and interpretation of the law.evidence and interpretation of the law.

In a jury trial, the judge is the trier of law and the juryIn a jury trial, the judge is the trier of law and the jurythe trier of fact. The judge instructs the jury on points ofthe trier of fact. The judge instructs the jury on points oflaw, the jury decides the verdict based on the judgeslaw, the jury decides the verdict based on the judgesinstructions and the evidence or facts presented, and theinstructions and the evidence or facts presented, and thejudge sentences the person. In a nonjudge sentences the person. In a non--jury trial, thejury trial, thejudge does both.judge does both.

AAJustice of the PeaceJustice of the Peace is a court official who has lessis a court official who has lessauthority than a judge but can issue warrants andauthority than a judge but can issue warrants andperform other judicial functions.perform other judicial functions.


17/38


18/38

The DefenceThe Defence

TheThe AccusedAccused or defendant is the personor defendant is the personcharged with committing a criminalcharged with committing a criminaloffence.offence.

Duty counselDuty counsel refers to a lawyer on dutyrefers to a lawyer on dutyin a courtroom or police station to givein a courtroom or police station to givefree legal advice to persons just arrestedfree legal advice to persons just arrested

or brought before the court.or brought before the court. Defence counselDefence counsel is the lawyer whois the lawyer who

defends an accused person on trial.defends an accused person on trial.


19/38

The ProsecutionThe Prosecution

TheThe crown attorney or prosecutorcrown attorney or prosecutor isisthe lawyer representing the government.the lawyer representing the government.They are responsible for bringing forwardThey are responsible for bringing forwardcredible evidence of a crime.credible evidence of a crime.

Evidence is information that tends toEvidence is information that tends toprove or disprove the elements of anprove or disprove the elements of an

offence.offence.


20/38

Court PersonnelCourt Personnel

Court ClerkCourt Clerk assists the judge by keeping a record ofassists the judge by keeping a record ofthe trial exhibits, administering oaths and announcingthe trial exhibits, administering oaths and announcingthe beginning or end of the court session.the beginning or end of the court session.

Court reporterCourt reporter records word for word everything saidrecords word for word everything said

during the trial. If required the reporter can produce aduring the trial. If required the reporter can produce atranscripttranscript or typed record of everything said in court.or typed record of everything said in court.

Court security officerCourt security officer handles accused persons whohandles accused persons whoare in custody and helps maintain security in theare in custody and helps maintain security in thecourtroom.courtroom.

SheriffSheriff responsible for the jury, including summoning,responsible for the jury, including summoning,paying, secluding and guarding them.paying, secluding and guarding them.

BailiffBailiff court official who assists the sheriff.court official who assists the sheriff.


21/38

The WitnessesThe Witnesses

WitnessesWitnesses give evidence, under oath or affirmation, ofgive evidence, under oath or affirmation, oftheir knowledge of the circumstances surrounding atheir knowledge of the circumstances surrounding acrime.crime.

They are compelled to appear in court by aThey are compelled to appear in court by a subpoenasubpoena,,

a court order requiring the witness to appear in court ona court order requiring the witness to appear in court ona certain date to give evidence.a certain date to give evidence.

Failure of a witness to appear can result in aFailure of a witness to appear can result in a contemptcontemptof courtof court charge for obstructing the course of justice andcharge for obstructing the course of justice anddisobeying the courts authority.disobeying the courts authority.

CommittingCommitting perjuryperjury, knowingly making false statements, knowingly making false statementsin court while giving evidence, is a serious offence. Thein court while giving evidence, is a serious offence. Themaximum penalty is 14 years in jail.maximum penalty is 14 years in jail.


22/38

The JuryThe Jury

TheThejuryjury is a group of 12 people who decideis a group of 12 people who decidewhether the accused is guilty or not guilty.whether the accused is guilty or not guilty.

They are chosen by the crown and defence fromThey are chosen by the crown and defence froma pool of ordinary citizens.a pool of ordinary citizens.

They listen to the trial, consider all the evidenceThey listen to the trial, consider all the evidenceand follow the judges instructions about theand follow the judges instructions about thelaw.law.

They withdraw to the jury room toThey withdraw to the jury room to deliberatedeliberate,,

consider the evidence and decide guilt orconsider the evidence and decide guilt orinnocence.innocence. Their decision must be unanimous!!Their decision must be unanimous!!


23/38

The Role of The JuryThe Role of The Jury

Comes from the French word jurer, which means toComes from the French word jurer, which means toswear an oath.swear an oath.

Eligible jurors are 18 years old, Canadian citizens, and aEligible jurors are 18 years old, Canadian citizens, and aresident of the province for at least one year.resident of the province for at least one year.

Publicly elected politicians, lawyers, prison guards, policePublicly elected politicians, lawyers, prison guards, policeofficers and probation officers cannot serve as jurors.officers and probation officers cannot serve as jurors.

People can be exempt from jury duty for health andPeople can be exempt from jury duty for health andreligious reasons, financial hardship or if they havereligious reasons, financial hardship or if they have

served on a jury in the past 2 years.served on a jury in the past 2 years. If you wish to be excused from the jury you can apply toIf you wish to be excused from the jury you can apply to

the sheriff.the sheriff.


24/38

Jury SelectionJury Selection

Selected at random from electoral polling lists.Selected at random from electoral polling lists. A group of potential jurors is called aA group of potential jurors is called ajuryjury

panelpanel. The accused first comes before a judge. The accused first comes before a judgeand jury panel during theand jury panel during the arraignmentarraignment, the, thefirst stage of a criminal trial in which the courtfirst stage of a criminal trial in which the courtclerk reads the charge and the defendant entersclerk reads the charge and the defendant entersa plea.a plea.

If the plea is not guilty, the crown and defenceIf the plea is not guilty, the crown and defence

will begin to select jurors from the panel underwill begin to select jurors from the panel underthe supervision of the judge.the supervision of the judge. The process involves six steps:The process involves six steps:


25/38

1.1. Peoples names are randomly selected and read aloudPeoples names are randomly selected and read aloudto the court.to the court.

2.2. The person whose name has been chosen goes to theThe person whose name has been chosen goes to thefront of the court and faces the accused.front of the court and faces the accused.

3.3. Both the Crown and the defence can object to aBoth the Crown and the defence can object to apotential juror by challenging the individual.potential juror by challenging the individual.

4.4. A challenge for causeA challenge for cause, the right of the Crown or, the right of the Crown ordefence to exclude someone from a jury for adefence to exclude someone from a jury for aparticular reason, can be used if they feel that theparticular reason, can be used if they feel that the

potential juror has already formed an opinion, cannotpotential juror has already formed an opinion, cannotphysically perform their duties or has been convictedphysically perform their duties or has been convictedof a serious offence. Each side has unlimitedof a serious offence. Each side has unlimitedchallenges for cause.challenges for cause.

5.5. After a juror is accepted as suitable and impartial, theAfter a juror is accepted as suitable and impartial, theCrown or defence can still reject the juror by using aCrown or defence can still reject the juror by using a

preemptory challengepreemptory challenge, the right of the Crown or, the right of the Crown ordefence to exclude someone from a jury withoutdefence to exclude someone from a jury withoutproviding a reason. 20 challenges for serious cases, 12providing a reason. 20 challenges for serious cases, 12if the accused can be sentenced to more than fiveif the accused can be sentenced to more than fiveyears and 4 if the sentence is less than five years.years and 4 if the sentence is less than five years.

6.6. Selection process is complete and the jurors take theSelection process is complete and the jurors take thejurors oath.jurors oath.


26/38

I swear to well and truly try and true Deliverance makeI swear to well and truly try and true Deliverance makebetween our sovereign the Queen and the accused at thebetween our sovereign the Queen and the accused at the

bar, whom I have in charge, and a true verdict give,bar, whom I have in charge, and a true verdict give,

according to the evidence, so help me God.according to the evidence, so help me God.


27/38

The Criminal Trial ProcessThe Criminal Trial Process

Burden of proofBurden of proof refers to the Crownsrefers to the Crownsobligation to prove the guilt of theobligation to prove the guilt of theaccused beyond a reasonable doubt. It isaccused beyond a reasonable doubt. It isnot up to the accused to prove innocence.not up to the accused to prove innocence.

After the jury has been selected, here areAfter the jury has been selected, here arethe steps of a criminal trial.the steps of a criminal trial.


28/38

1.1. The judgeThe judge explains to the jury their role as the trier ofexplains to the jury their role as the trier offacts. The jury then selects afacts. The jury then selects a forepersonforeperson who willwho willrepresent them and communicate with the judge, asrepresent them and communicate with the judge, aswell as lead the jury through deliberations and readwell as lead the jury through deliberations and read

the verdict at the end of the trial.the verdict at the end of the trial.2.2. The Crowns opening statementThe Crowns opening statement..-- Begins every trial, as the Crown has the burden!Begins every trial, as the Crown has the burden!-- It identifies the offence committed, summarizes theIt identifies the offence committed, summarizes the

evidence against the accused and outlines how theevidence against the accused and outlines how the

crown will present its case.crown will present its case.3.3. Crown examines witnessesCrown examines witnesses..-- First examination of a witness is calledFirst examination of a witness is called directdirect

examinationexamination, where each witness is asked to tell, where each witness is asked to tellwhat he or she observed about the crime.what he or she observed about the crime.

--The defence then

The defence then crosscross--examinesexamines the witness, tothe witness, totest the accuracy of the evidence or to convince thetest the accuracy of the evidence or to convince the

jury that there are contradictions to the witnessesjury that there are contradictions to the witnessestestimony.testimony.


29/38


30/38

4.4. Motion for dismissalMotion for dismissal..

-- Occurs after the Crown finishes callingOccurs after the Crown finishes callingwitnesses.witnesses.

-- This is a request by defence counsel thatThis is a request by defence counsel thatthe judge dismiss the charges against thethe judge dismiss the charges against thedefendant because the Crown failed todefendant because the Crown failed to

prove its case beyond a reasonable doubt.prove its case beyond a reasonable doubt.-- If the judge agrees, it could result in aIf the judge agrees, it could result in a

directed verdictdirected verdict, a decision by the judge, a decision by the judgeto withdraw the case from the jury andto withdraw the case from the jury and

enter a verdict of not guilty.enter a verdict of not guilty.-- If not, the trial continues.If not, the trial continues.


31/38

5.5. Defence Presents Opening StatementDefence Presents Opening Statement

-- Summarizes its case.Summarizes its case.

6.6. Defence examines witnessesDefence examines witnesses

-- May choose to call witnesses to refute testimonyMay choose to call witnesses to refute testimonyprovided by the Crowns witnesses or to showprovided by the Crowns witnesses or to showreasonable doubt.reasonable doubt.

-- Procedure of direct examination, by the defence, andProcedure of direct examination, by the defence, andcross examination, by the Crown, is repeated.cross examination, by the Crown, is repeated.

-- The accused may choose to testify on his or her ownThe accused may choose to testify on his or her ownbehalf but cannot be compelled to do so.behalf but cannot be compelled to do so.

7.7. Crown rebutsCrown rebuts

-- After the defence has presented its evidence, the CrownAfter the defence has presented its evidence, the Crown

has the opportunity tohas the opportunity to rebutrebut, or contradict any new, or contradict any newevidence the defence has introduced.evidence the defence has introduced.

8.8. Defence presents surrebuttalDefence presents surrebuttal

-- A reply to the opposing sides rebuttalA reply to the opposing sides rebuttal


32/38

9.9. Closing ArgumentsClosing Arguments-- Crown closes first if the defence has not called witnesses. DefenceCrown closes first if the defence has not called witnesses. Defence

closes first if it has called witnesses.closes first if it has called witnesses.-- Crown shows why the defendant is guilty beyond a reasonableCrown shows why the defendant is guilty beyond a reasonable

doubt. The defence tries to show that the Crown has not establisheddoubt. The defence tries to show that the Crown has not established

the actus reus and mens rea, showing that a reasonable doubtthe actus reus and mens rea, showing that a reasonable doubtexists.exists.

-- Intended to help the jury better understand the issues of the case,Intended to help the jury better understand the issues of the case,not to present new evidence.not to present new evidence.

10.10. Charge to the juryCharge to the jury-- After closing arguments, the judge gives aAfter closing arguments, the judge gives a charge to the jurycharge to the jury, the, the

judges explanation to the jurors of how the law applies to the casejudges explanation to the jurors of how the law applies to the casebefore them.before them.-- He advises the jurors on how to consider the evidence and how toHe advises the jurors on how to consider the evidence and how to

return a verdict in accordance with the law.return a verdict in accordance with the law.-- Must be very careful as the charge is often the basis for an appeal.Must be very careful as the charge is often the basis for an appeal.-- The judges role is to decide on matters of law and the jury mustThe judges role is to decide on matters of law and the jury must

decide on matters of fact. For example, the judge decides whatdecide on matters of fact. For example, the judge decides whatevidence is admissible, the jury decides on what evidence isevidence is admissible, the jury decides on what evidence isbelievable.believable.


33/38

11.11. Jury deliberatesJury deliberates

-- After the charge has been given, the sheriff escorts theAfter the charge has been given, the sheriff escorts thejurors to the jury room to deliberate or reach a decision.jurors to the jury room to deliberate or reach a decision.

-- If they believe the accused or they dont know who toIf they believe the accused or they dont know who tobelieve, they must acquit.believe, they must acquit.

-- If they are left with reasonable doubt regarding theIf they are left with reasonable doubt regarding thedefendants guilt they must also acquit.defendants guilt they must also acquit.

12.12. Jury returns a verdictJury returns a verdict

-- The verdict has to be unanimous.The verdict has to be unanimous.-- Once reached, the verdict is read in open court.Once reached, the verdict is read in open court.

-- Both the Crown and the defence have the right to askBoth the Crown and the defence have the right to askthat the jury be polled or stand individually and confirmthat the jury be polled or stand individually and confirm

their agreement with the verdict.their agreement with the verdict.-- A jury that cant reach a verdict is called aA jury that cant reach a verdict is called a hung juryhung jury..

In this case the jury is discharged and a new jury isIn this case the jury is discharged and a new jury isselected to try the case again.selected to try the case again.


34/38

Figure 7.10 Trial by Jury, p. 183


35/38

Rules Of EvidenceRules Of Evidence

During a trial, the Crown or the defenceDuring a trial, the Crown or the defencemay object to questions asked or themay object to questions asked or theanswers provided by witnesses.answers provided by witnesses.

When an objection is made the judgeWhen an objection is made the judgerules on whether the evidence in questionrules on whether the evidence in questionis admissible or accepted by the court.is admissible or accepted by the court.

Here are the most common grounds forHere are the most common grounds forobjection..objection..


36/38

Leading questionLeading question A question that suggests to aA question that suggests to awitness a particular answer. Such a question is notwitness a particular answer. Such a question is notallowed during direct examination. During crossallowed during direct examination. During crossexamination it is allowed only if it pertained to previousexamination it is allowed only if it pertained to previous

testimony.testimony. Hearsay statementsHearsay statements Evidence given by a witnessEvidence given by a witness

based on info received from someone else rather thanbased on info received from someone else rather thanpersonal knowledge. Inadmissible in court!personal knowledge. Inadmissible in court!

Opinion statementsOpinion statements A witness cannot be asked theirA witness cannot be asked theiropinion on something unless they are an expert in theopinion on something unless they are an expert in thefield.field.

Immaterial/Irrelevant questionsImmaterial/Irrelevant questions A question thatA question thathas no bearing on the case.has no bearing on the case.

NonNon--Response answersResponse answers When a witness doesntWhen a witness doesntanswer the question given, and has to be directed to doanswer the question given, and has to be directed to doso by the judge.so by the judge.


37/38


38/38

AppealsAppeals

The ability to appeal is an important safeguard in ourThe ability to appeal is an important safeguard in oursystem.system.

Notice of an appeal must be filed quickly, usually withinNotice of an appeal must be filed quickly, usually within30 days.30 days.

An appeals court hearing the case can affirm the lowerAn appeals court hearing the case can affirm the lowercourts decision, reverse it or order a new trial.courts decision, reverse it or order a new trial. Both the defence and the Crown can appeal a case itBoth the defence and the Crown can appeal a case it

considers improper. They can appeal the decision or theconsiders improper. They can appeal the decision or thesentence.sentence.

The side that files the appeal is called the

The side that files the appeal is called the appellantappellant,,the responding side is called thethe responding side is called the respondentrespondent..

The appeal is usually heard by a panel of 3 to 5 judges,The appeal is usually heard by a panel of 3 to 5 judges,who only have to reach a majority decision. A writtenwho only have to reach a majority decision. A writtenopinion of both the majority and dissenting sides can beopinion of both the majority and dissenting sides can beissued.issued.

Date post:	08-Apr-2018
Category:	Documents
Upload:	cmon-canada
View:	215 times
Download:	0 times

Law 12 Chapter 7

Documents