Trial Procedures

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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
90 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.

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.
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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.

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
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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.

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.
90 or Crown attorneys, are
Crown prosecutors,
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.

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
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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

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.
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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.

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
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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

Exemptions From Jury Duty

The following people are usually exempt from
serving on a jury:
1.
2.
3.
4.
5.
6.
7.

Politicians
Judges, justices, lawyers, law students, military
Doctors, coroners, veterinarians
Law enforcement officers and firefighters
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People who are visually
impaired
People with certain mental or physical disabilities
People who have served on a jury within the previous
23 years
8. Anyone convicted of an indictable offence without a
pardon being granted
9. People may also be excused from jury duty if they
can convince the court with a specific reason (e.g.
illness).

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
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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?

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 for90cause
3. peremptory challenge

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.
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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.

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).
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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.

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
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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.

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
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Disclose any information from their deliberations even
after a trial has finished

The jurys final decision on the case is the

verdict and it must be unanimous (100%) or
else the jury is hung (undecided).
In controversial cases, a jury may be
sequestered (isolated) until the case is over.

Presenting Evidence
The presentation of evidence is very important for
any trial.
This includes:

Crown evidence
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Defence evidence
Witnesses
Rules of evidence
Self-incrimination

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
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to link the accused to the crime through circumstance
and physical evidence

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
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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.

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.
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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

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
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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.

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 be90allowed.
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.

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
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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.

Types of Evidence
These are common types of evidence introduced
during trials:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Privileged communications
Similar fact evidence
Hearsay evidence
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Opinion evidence
Character evidence
Photographs
Electronic devices and video evidence
Polygraph evidence
Confessions

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
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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.

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
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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)

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
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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 accuseds character.

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.
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Surveillance includes cameras and other

electronic devices used to intercept private
conversations.
Surveillance devices must be authorized by a
court order.

Polygraphs & Confessions

A polygraph (lie detector) test measures
changes in a persons 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.
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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.

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 sides key arguments and
evidence.
After the summations, the judge makes the charge to the
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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
judges charge to the jury.