The Criminal Court The Criminal Court SystemSystem

The Criminal Trial ProcessThe Criminal Trial Process

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The Criminal Court StructureThe Criminal Court Structure Responsibility for Canada’s criminal courts is Responsibility for Canada’s criminal courts is

divided between the Federal and Provincial divided between the Federal and Provincial governments.governments.

The Federal parliament is responsible for The Federal parliament is responsible for formulating criminal law and establishing courts formulating criminal law and establishing courts to administer various federal laws.to administer various federal laws.

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

The Provincial court system consists of provincial The Provincial court system consists of provincial courts and the superior court of the province.courts and the superior court of the province.

Provincial courts have trial divisions, superior Provincial courts have trial divisions, superior courts have both trial and appeals divisions.courts have both trial and appeals divisions.

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

The Provincial Court, Criminal The 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 Judges are appointed by the provincial government and

cases are tried by judge alone.cases are tried by judge alone. They have the jurisdiction to hear They have the jurisdiction to hear summary conviction summary conviction

offencesoffences, less serious crimes that carry a lighter penalty, , less serious crimes that carry a lighter penalty, and certain and certain indictable offencesindictable offences, more serious crimes that , more serious crimes that carry a heavier penalty.carry a heavier penalty.

A person’s first contact with the criminal court system is A person’s first contact with the criminal court system is usually in provincial court, because this court conducts all usually in provincial court, because this court conducts all preliminary hearingspreliminary hearings, a judicial inquiry to determine whether , a judicial inquiry to determine whether there is sufficient evidence to put the accused person on there is sufficient evidence to put the accused person on trial.trial.

An An appealappeal is an application to a higher court to review the is an application to a higher court to review the decision made by a lower court. An appeal from the decision made by a lower court. An appeal from the provincial court regarding a summary conviction offence is provincial court regarding a summary conviction offence is heard by a single judge of the superior court. If it’s heard by a single judge of the superior court. If it’s regarding an indictable offence, it is heard by the appeals regarding an indictable offence, it is heard by the appeals division of the superior court, a panel of three to five judges.division of the superior court, a panel of three to five judges.

Superior Courts Of The ProvinceSuperior Courts Of The Province

They are the highest criminal and civil courts in They are the highest criminal and civil courts in the provinces and have a trial and appeal the provinces and have a trial and appeal division.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 Judge and jury unless the accused and the provincial Attorney General consent to trial by provincial Attorney General consent to trial by judge alone. By judge alone in provincial court or judge alone. By judge alone in provincial court or by judge and jury in Superior court.by judge and jury in Superior court.

Appeals from the Superior Court are heard in the Appeals from the Superior Court are heard in the Superior Court, Appeal division. Three to five Superior Court, Appeal division. Three to five judges hear the case and the appeal is won or judges hear the case and the appeal is won or lost based on the majority decision of the judges.lost based on the majority decision of the judges.

Figure 7.5 Court Procedure for Criminal Cases, p. 166

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

involving the federal government and consists of a trial involving the federal government and consists of a trial and 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 in – highest appeals court in Canada, which also deals with constitutional questions Canada, which also deals with constitutional questions referred to it by the Federal government.referred to it by the Federal government.

Consists of a Consists of a chief justice (Beverly Mclachlin)chief justice (Beverly Mclachlin) and and eight justices, all of whom are appointed by the federal eight justices, all of whom are appointed by the federal government. Three come from Quebec, three from government. Three come from Quebec, three from Ontario, two from the western provinces and one from Ontario, two from the western provinces and one from the 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 Cases are heard by a panel of five, seven or nine judges, depending on the type of appeal.judges, depending on the type of appeal.

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

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

The federal government may ask the court to The federal government may ask the court to rule on questions relating to constitutional rule on questions relating to constitutional issues or other federal concerns.issues or other federal concerns.

Other federal courts include the Tax Court of Other federal courts include the Tax Court of Canada, which deals with income tax matters Canada, which deals with income tax matters and the Court Martial Appeals court, which and the Court Martial Appeals court, which hears appeals from courts in the armed forces.hears appeals from courts in the armed forces.

The ParticipantsThe Participants There are two fundamental principles of There are two fundamental principles of

Canada’s criminal justice system:Canada’s criminal justice system:1.1. An accused person is innocent until An accused person is innocent until

proven guilty.proven guilty.2.2. Guilt must be proven beyond a Guilt must be proven beyond a

reasonable doubt.reasonable doubt.Beyond a reasonable doubtBeyond a reasonable doubt is a standard is a standard

of proof whereby a defendant’s guilt of proof whereby a defendant’s guilt must be proven to the extent that a must be proven to the extent that a reasonable person would have no choice reasonable person would have no choice but to conclude that the defendant did but to conclude that the defendant did indeed commit the offence.indeed commit the offence.

The JudgeThe Judge The The judgejudge is the court official appointed to try is the court official appointed to try

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

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

In a jury trial, the judge is the trier of law and the In a jury trial, the judge is the trier of law and the jury the trier of fact. The judge instructs the jury on jury the trier of fact. The judge instructs the jury on points of law, the jury decides the verdict based on points of law, the jury decides the verdict based on the judge’s instructions and the evidence or facts the judge’s instructions and the evidence or facts presented, and the judge sentences the person. In presented, and the judge sentences the person. In a non-jury trial, the judge does both.a non-jury trial, the judge does both.

A A Justice of the PeaceJustice of the Peace is a court official who has is a court official who has less authority than a judge but can issue warrants less authority than a judge but can issue warrants and perform other judicial functions.and perform other judicial functions.

The DefenceThe Defence

The The AccusedAccused or defendant is the or defendant is the person charged with committing a person charged with committing a criminal offence.criminal offence.

Duty counselDuty counsel refers to a lawyer on refers to a lawyer on duty in a courtroom or police station duty in a courtroom or police station to give free legal advice to persons to give free legal advice to persons just arrested or brought before the just arrested or brought before the court.court.

Defence counselDefence counsel is the lawyer who is the lawyer who defends an accused person on trial.defends an accused person on trial.

The ProsecutionThe Prosecution

The The crown attorney or prosecutorcrown attorney or prosecutor is the lawyer representing the is the lawyer representing the government. They are responsible for government. They are responsible for bringing forward credible evidence of bringing forward credible evidence of a crime.a crime.

Evidence is information that tends to Evidence is information that tends to prove or disprove the elements of an prove or disprove the elements of an offence.offence.

Court PersonnelCourt Personnel Court ClerkCourt Clerk – assists the judge by keeping a record – assists the judge by keeping a record

of the trial exhibits, administering oaths and of the trial exhibits, administering oaths and announcing the beginning or end of the court session.announcing the beginning or end of the court session.

Court reporterCourt reporter – records word for word everything – records word for word everything said during the trial. If required the reporter can said during the trial. If required the reporter can produce a produce a transcripttranscript or typed record of everything or typed record of everything said in court.said in court.

Court security officerCourt security officer – handles accused persons – handles accused persons who are in custody and helps maintain security in the who are in custody and helps maintain security in the courtroom.courtroom.

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

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

The WitnessesThe Witnesses WitnessesWitnesses give evidence, under oath or give evidence, under oath or

affirmation, of their knowledge of the circumstances affirmation, of their knowledge of the circumstances surrounding a crime.surrounding a crime.

They are compelled to appear in court by a They are compelled to appear in court by a subpoenasubpoena, a court order requiring the witness to , a court order requiring the witness to appear in court on a certain date to give evidence.appear in court on a certain date to give evidence.

Failure of a witness to appear can result in a Failure of a witness to appear can result in a contempt of courtcontempt of court charge for obstructing the charge for obstructing the course of justice and disobeying the court’s course of justice and disobeying the court’s authority.authority.

Committing Committing perjuryperjury, knowingly making false , knowingly making false statements in court while giving evidence, is a statements in court while giving evidence, is a serious offence. The maximum penalty is 14 years serious offence. The maximum penalty is 14 years in jail.in jail.

The JuryThe Jury The The jury jury is a group of 12 people who is a group of 12 people who

decide whether the accused is guilty or not decide whether the accused is guilty or not guilty.guilty.

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

They listen to the trial, consider all the They listen to the trial, consider all the evidence and follow the judge’s evidence and follow the judge’s instructions about the law.instructions about the law.

They withdraw to the jury room to They withdraw to the jury room to deliberatedeliberate, consider the evidence and , consider the evidence and decide guilt or innocence.decide guilt or innocence.

Their decision must be unanimous!!Their decision must be unanimous!!

The Role of The JuryThe Role of The Jury Comes from the French word “jurer”, which Comes from the French word “jurer”, which

means to swear an oath.means to swear an oath. Eligible jurors are 18 years old, Canadian citizens, Eligible jurors are 18 years old, Canadian citizens,

and a resident of the province for at least one and a resident of the province for at least one year.year.

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

People can be exempt from jury duty for health People can be exempt from jury duty for health and religious reasons, financial hardship or if they and religious reasons, financial hardship or if they have served on a jury in the past 2 years.have served on a jury in the past 2 years.

If you wish to be excused from the jury you can If you wish to be excused from the jury you can apply to the sheriff.apply to the sheriff.

Jury SelectionJury Selection Selected at random from electoral polling Selected at random from electoral polling

lists.lists. A group of potential jurors is called a A group of potential jurors is called a jury jury

panelpanel. The accused first comes before a . The accused first comes before a judge and jury panel during the judge and jury panel during the arraignmentarraignment, the first stage of a criminal , the first stage of a criminal trial in which the court clerk reads the trial in which the court clerk reads the charge and the defendant enters a plea.charge and the defendant enters a plea.

If the plea is not guilty, the crown and If the plea is not guilty, the crown and defence will begin to select jurors from the defence will begin to select jurors from the panel under the supervision of the judge.panel under the supervision of the judge.

The process involves six steps:The process involves six steps:

1.1. People’s names are randomly selected and read People’s names are randomly selected and read aloud to the court.aloud to the court.

2.2. The person whose name has been chosen goes to the The person whose name has been chosen goes to the front 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 a Both the Crown and the defence can object to a potential 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 or defence to exclude someone from a jury for a defence to exclude someone from a jury for a particular reason, can be used if they feel that the particular reason, can be used if they feel that the potential juror has already formed an opinion, cannot potential juror has already formed an opinion, cannot physically perform their duties or has been convicted physically perform their duties or has been convicted of a serious offence. Each side has unlimited of a serious offence. Each side has unlimited challenges for cause.challenges for cause.

5.5. After a juror is accepted as suitable and impartial, the After a juror is accepted as suitable and impartial, the Crown or defence can still reject the juror by using a Crown or defence can still reject the juror by using a preemptory challengepreemptory challenge, the right of the Crown or , the right of the Crown or defence to exclude someone from a jury without defence to exclude someone from a jury without providing a reason. 20 challenges for serious cases, providing a reason. 20 challenges for serious cases, 12 if the accused can be sentenced to more than five 12 if the accused can be sentenced to more than five years 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 the Selection process is complete and the jurors take the juror’s oath.juror’s oath.

““I swear to well and truly try and true Deliverance make I swear to well and truly try and true Deliverance make between our sovereign the Queen and the accused at the between 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.”

The Criminal Trial ProcessThe Criminal Trial Process

Burden of proofBurden of proof refers to the refers to the Crown’s obligation to prove the guilt Crown’s obligation to prove the guilt of the accused beyond a reasonable of the accused beyond a reasonable doubt. It is not up to the accused to doubt. It is not up to the accused to prove innocence.prove innocence.

After the jury has been selected, After the jury has been selected, here are the steps of a criminal here are the steps of a criminal trial………….trial………….

1.1. The judgeThe judge explains to the jury their role as the explains to the jury their role as the trier of facts. The jury then selects a trier of facts. The jury then selects a forepersonforeperson who will represent them and who will represent them and communicate with the judge, as well as lead the communicate with the judge, as well as lead the jury through deliberations and read the verdict jury through deliberations and read the verdict at the end of the trial.at the end of the trial.

2.2. The Crown’s opening statementThe Crown’s 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 It identifies the offence committed, summarizes

the evidence against the accused and outlines the evidence against the accused and outlines how the crown will present its case.how the crown will present its case.

3.3. Crown examines witnessesCrown examines witnesses..- First examination of a witness is called First examination of a witness is called direct direct

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

- The defence then The defence then cross-examinescross-examines the witness, the witness, to test the accuracy of the evidence or to to test the accuracy of the evidence or to convince the jury that there are contradictions convince the jury that there are contradictions to the witnesses testimony.to the witnesses testimony.

4. 4. Motion for dismissalMotion for dismissal..- Occurs after the Crown finishes Occurs after the Crown finishes

calling witnesses.calling witnesses.- This is a request by defence counsel This is a request by defence counsel

that the judge dismiss the charges that the judge dismiss the charges against the defendant because the against the defendant because the Crown failed to prove its case beyond Crown failed to prove its case beyond a reasonable doubt.a reasonable doubt.

- If the judge agrees, it could result in a If the judge agrees, it could result in a directed verdictdirected verdict, a decision by the , a decision by the judge to withdraw the case from the judge to withdraw the case from the jury and enter a verdict of not guilty.jury and enter a verdict of not guilty.

- If not, the trial continues.If not, the trial continues.

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 testimony May choose to call witnesses to refute testimony

provided by the Crown’s witnesses or to show provided by the Crown’s witnesses or to show reasonable doubt.reasonable doubt.

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

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

7. 7. Crown rebutsCrown rebuts- After the defence has presented its evidence, the After the defence has presented its evidence, the

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

8. 8. Defence presents surrebuttalDefence presents surrebuttal- A reply to the opposing sides rebuttal- A reply to the opposing sides rebuttal

9. 9. Closing ArgumentsClosing Arguments- Crown closes first if the defence has not called witnesses. Crown closes first if the defence has not called witnesses.

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

reasonable doubt. The defence tries to show that the Crown reasonable doubt. The defence tries to show that the Crown has not established the actus reus and mens rea, showing has not established the actus reus and mens rea, showing that a reasonable doubt exists.that a reasonable doubt exists.

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

10. 10. Charge to the juryCharge to the jury- After closing arguments, the judge gives a After closing arguments, the judge gives a charge to the charge to the

juryjury, the judge’s explanation to the jurors of how the law , the judge’s explanation to the jurors of how the law applies to the case before them.applies to the case before them.

- He advises the jurors on how to consider the evidence and He advises the jurors on how to consider the evidence and how to return a verdict in accordance with the law.how to return a verdict in accordance with the law.

- Must be very careful as the charge is often the basis for an Must be very careful as the charge is often the basis for an appeal.appeal.

- The judge’s role is to decide on matters of law and the jury The judge’s role is to decide on matters of law and the jury must decide on matters of fact. For example, the judge must decide on matters of fact. For example, the judge decides what evidence is admissible, the jury decides on decides what evidence is admissible, the jury decides on what evidence is believable.what evidence is believable.

11. 11. Jury deliberatesJury deliberates- After the charge has been given, the sheriff After the charge has been given, the sheriff

escorts the jurors to the jury room to deliberate or escorts the jurors to the jury room to deliberate or reach a decision.reach a decision.

- If they believe the accused or they don’t know If they believe the accused or they don’t know who to believe, they must acquit.who to believe, they must acquit.

- If they are left with reasonable doubt regarding If they are left with reasonable doubt regarding the defendant’s guilt they must also acquit.the defendant’s 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 Both the Crown and the defence have the right to

ask that the jury be polled or stand individually ask that the jury be polled or stand individually and confirm their agreement with the verdict.and confirm their agreement with the verdict.

- A jury that can’t reach a verdict is called a A jury that can’t reach a verdict is called a hung hung juryjury. In this case the jury is discharged and a new . In this case the jury is discharged and a new jury is selected to try the case again.jury is selected to try the case again.

Figure 7.10 Trial by Jury, p. 183

Rules Of EvidenceRules Of Evidence

During a trial, the Crown or the During a trial, the Crown or the defence may object to questions asked defence may object to questions asked or the answers provided by witnesses. or the answers provided by witnesses.

When an objection is made the judge When an objection is made the judge rules on whether the evidence in rules on whether the evidence in question is admissible or accepted by question is admissible or accepted by the court.the court.

Here are the most common grounds Here are the most common grounds for objection…………………..for objection…………………..

Leading questionLeading question – A question that suggests to – A question that suggests to a witness a particular answer. Such a question is a witness a particular answer. Such a question is not allowed during direct examination. During not allowed during direct examination. During cross examination it is allowed only if it pertained cross examination it is allowed only if it pertained to previous testimony. to previous testimony.

Hearsay statementsHearsay statements – Evidence given by a – Evidence given by a witness based on info received from someone witness based on info received from someone else rather than personal knowledge. else rather than personal knowledge. Inadmissible in court!Inadmissible in court!

Opinion statementsOpinion statements – A witness cannot be – A witness cannot be asked their opinion on something unless they are asked their opinion on something unless they are an expert in the field.an expert in the field.

Immaterial/Irrelevant questionsImmaterial/Irrelevant questions – A question – A question that has no bearing on the case.that has no bearing on the case.

Non-Response answersNon-Response answers – When a witness – When a witness doesn’t answer the question given, and has to be doesn’t answer the question given, and has to be directed to do so by the judge.directed to do so by the judge.

Types of EvidenceTypes of Evidence Direct evidenceDirect evidence – testimony by a witness to prove an – testimony by a witness to prove an

alleged fact. (eyewitness)alleged fact. (eyewitness) Circumstantial evidenceCircumstantial evidence – indirect evidence that – indirect evidence that

leads to a reasonable inference of the defendant’s guilt. leads to a reasonable inference of the defendant’s guilt. To be admissible the defendant’s guilt must be a To be admissible the defendant’s guilt must be a conclusion drawn from the evidence.conclusion drawn from the evidence.

Character evidenceCharacter evidence – establishes the likelihood that – establishes the likelihood that the defendant is the type of person who either would or the defendant is the type of person who either would or would not commit a certain offence. The Crown is not would not commit a certain offence. The Crown is not allowed to attack the defendant’s character but the allowed to attack the defendant’s character but the defence is allowed to show the defendant’s good defence is allowed to show the defendant’s good character. Once done however, the Crown can rebut character. Once done however, the Crown can rebut this evidence by using the defendant’s past this evidence by using the defendant’s past convictions.convictions.

Electronic SurveillanceElectronic Surveillance – admissible provided wire – admissible provided wire tapping or bugging was authorized before hand by a tapping or bugging was authorized before hand by a judge.judge.

Voir DireVoir Dire - A trial within a trial where the jurors are excluded - A trial within a trial where the jurors are excluded while the admissibility of evidence is discussed.while the admissibility of evidence is discussed.

AppealsAppeals

The ability to appeal is an important safeguard in our The ability to appeal is an important safeguard in our system.system.

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

An appeals court hearing the case can affirm the An appeals court hearing the case can affirm the lower court’s decision, reverse it or order a new trial.lower court’s decision, reverse it or order a new trial.

Both the defence and the Crown can appeal a case it Both the defence and the Crown can appeal a case it considers improper. They can appeal the decision or considers improper. They can appeal the decision or the sentence.the 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 the the responding side is called the respondentrespondent..

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