Chapter 8

The Courts and Criminal

Trial Procedure

Copyright © 2004 Nelson, a division of Thomson Canada

Criminal Courts
 Only 9% of persons charged actually
have a trial.
 Increasing caseloads have resulted in
staying of charges due to delays
(Askov ruling).
 Alternatives
– Plea-bargaining.
– Mediation.
– Specialty courts.

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R. v. Askov (1990)
 One major issue facing our legal system is increasing
caseloads in our courts. In the past, the problem has usually
been resolved by plea bargaining, but this means that
prosecutors, police, crime defence lawyers & judges still
become involved.

 Alternatives are now being created that involve hearing

cases outside of court.

 This issue also led to the Supreme Court ruling in R. v. Askov

that a delay of almost 2 years between the preliminary
inquiry & trial was unconstitutional (estimated normal delay
– 6 to 8 months)

 As a result, the Ontario legal system permanently stayed in

excess of 100,000 charges.
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Functions of Criminal
Courts
Due Process Crime Control
 Make impartial  Protect society
decisions. from criminals.
 Consider all
 Ensure
convictions and
relevant punishment of
evidence. offenders.
 Follow procedural  Deter crime and
rules to discover protect the law-
truth. abiding.
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Bureaucratic Function
 Focuses on day-to-
day operation of the
courts.
 Speed and
efficiency are most
important.
 Success means
moving cases along,
dealing with
backlogs. 5
Organization of the
Courts
Provincial and
Territorial Courts
 Limited jurisdiction courts
– Specialize in certain areas (e.g.
traffic offences).
– Includes circuit courts in rural areas.
– Hear most minor offences.
– Includes justice of the peace
(magistrate).

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Provincial and
Territorial Courts
 General jurisdiction courts
– Serious criminal offences.
– May use juries or judge only.
– Some specialized courts (e.g.
domestic violence).

Middlesex County
Courthouse, 1830
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Courts of Appeal
 Panel of judges.
 Review decisions made by lower
courts.
 Highest authority in province.
 Decisions may be appealed to
Supreme Court of Canada.

9
Supreme Court of
Canada
 Final authority over all public and
private law.

 Judicial review.
– Is the law constitutional?

 Interprets law.

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Lower and Higher
Courts
 Lower courts
– Provincial courts which hear
summary and provincial offences.

 Higher (superior) courts

– Hear only indictable offences.
– Includes provincial appeal courts.

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Court System
 Proof prior to trial
– Probable cause.
 Proof to convict
– Beyond a reasonable doubt.
 Participants
– Defendant, crown prosecutor, defence
counsel, judge, jury, victim, witness.
 Procedures
– Governed by law, tradition, and judicial
authority.
12
Daily Court Business
Common Practices

 Defendant
– Guilty plea to one or more charges.

 Prosecutor
– Stay proceedings, withdraw or
dismiss charges.
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The Defence Lawyer
 Represents interests  Assesses the value
of the client. of a plea bargain.
 Prepares case,  Represents client at
determines all stages.
strategy.  Challenges the
 Helps client evidence, questions
understand laws, witnesses.
procedures, and  May not allow client
possible sentence. to lie on the stand.
 Deals with police
and prosecution.
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Crown Prosecutor
 Job is to enforce, not  Examines records
necessarily convict. and witnesses.
 Must present all  Decides whether to
relevant evidence. go ahead with the
 Conviction rate is case.
seen as success,  Lays out evidence
acquittal as failure. and examines
 Makes opening witnesses in
statements to the preliminary
jury, sets the tone. hearings.
 Heavy workload, 6-
10 cases per day,
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Judge
 Presides over court.
 Admits or excludes evidence.
 Instructs juries re: evidence and
charges.
 Determines guilt or innocence if there
is no jury.
 Judges are appointed by
– Federal government for superior court and
higher.
– Provincial government for lower levels.
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Criminal Trial

Procedure

17
The Plea
 Guilty
– 90% of defendants plead guilty.
– Plea bargains are not necessarily accepted.
– Guilty plea must be free and voluntary.
– May be sentenced or remanded.
 Not guilty
– Trial date is set.
– Type of court depends on seriousness of
offence.
– Some offences may be tried immediately
before a provincially appointed judge.
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Preliminary Hearing
 Defendant may request preliminary
hearing for indictable offenses in order
to
– See what evidence exists.
– Whether there is enough to continue with
trial.
 Accused may request a publication
ban until case is finished.
– Prosecution may also request ban but not
necessarily granted.
 Defendant may waive preliminary
hearing
– Plead guilty, speed things up, avoid 19
Prosecutor Discretion
Options Factors
 Drop charges.  Sufficient
 Plea-bargain. evidence to
 Indictment or convict?
summary  Type of offence.
conviction.  Offender’s
 Stay record.
proceedings.  Type of
witnesses and
victims.
Informant for
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
Police Discretionary
Powers
 Been the subject of appeals in court since the CRofF
(1982)

 One case involved a decision by the Saskatchewan

Court of Appeal. Court ruled that police held too much
discretionary power granted by the CC, particularly in
cases where police have reasonable & probable
grounds for believing that accused committed an
indictable offence (R. v. Beare, 1988)

 Supreme Court disagreed – ruling that “discretion is

an essential part of the criminal justice system”

 Section 24 of the Charter is a remedy for cases

involving the use of discretion in an “improper or 21

arbitrary” manner
Plea-Bargaining
 Charge bargaining
– Lesser charge, drop some, drop charges against
relatives.
 Sentence bargaining
– Recommend lighter sentence, agree to proceed
summarily, not appeal, look for lenient judge.
 Fact bargaining
– Agree not to enter certain information in evidence
about offender or the case.
 Label bargaining
– Avoid negative label (e.g. child molester).
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Sentence Bargaining

 Karla Homolka was convicted with

the deaths of Kristen French &
Leslie Mahaffy.

 Exchange for information &

testifying against her husband.
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Jury Trial
 Limited to offenses with maximum
sentence of 5 years or more.
 Usually at the request of the defendant
but may be ordered by the judge.

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Jury Selection
 Assemble list of eligible jurors (e.g. voter’s
list).
 Remove those not eligible (criminal record,
occupation).
 Summons a jury panel from the list.
 Laypersons try prospective juror for
impartiality.

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Challenges
 Peremptory Challenge
– Requires no reason
 Challenge for Cause
– Not common in Canada.
– Prior incarceration, relationship to the accused,
disability, non-citizen.
– Racial bias challenge recognized in 1993.

 Stand aside
– For personal hardship of juror. Judge decides.
 Need 12 jurors in all.
– Can’t continue a trial with fewer than 10.

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Legal Rights
To Confront the
Accuser
 The defendant has  No hearsay (except
the right to deathbed
– Be present at the statements).
trial.
– Cross-examine
witnesses.
 Children may be
allowed to testify
from behind screen
or closed circuit TV.
 Videotaped
statements are
rarely accepted. 28
 A Speedy Trial
 “Unreasonable delay”
depends on
– Length of delay.
– Why the delay occurred.
– Whether a waiver was
granted.
– Whether the delay is
harmful to the accused.
 Most cases are
resolved within 4
months.
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A Public Trial
 Purpose
– For the benefit of the accused.
– Not for public right to know or be
entertained.
 Bans
– Judge may order ban on publication or
exclude certain members of the public.
– Bans are used to protect witnesses and
complainants in sexual offence cases.
 Cameras and tape recorders are not
allowed (used in the United States). 30
The Criminal Trial

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Opening Statement
 Prosecution
– Outlines evidence and witnesses.
– Should not be inflammatory.
– May not mention accused's prior record.
 Defense
– May or may not make opening statement.
– Outlines case.
– Will show that prosecution’s case is inadequate.
 Opening statements
– Are very brief when no jury is involved.
 Guilt
– Must be established beyond a reasonable doubt. How
does this differ from Civil matters, and why?

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Trial Evidence
 Testimony
– Eyewitnesses.
– Expert witnesses (examples).
– Both written and oral statements.
 Real evidence
– Weapons, fingerprints, original and
duplicates.
 Direct evidence
– Eye witness observations.
 Circumstantial evidence
– From which inferences may be made.
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Rules of Evidence
 Hearsay evidence
may not be used.
 All witnesses may
be cross-examined.
 Accused has the
right to remain
silent.
 If the defense uses
witnesses, including
the accused, these
may be cross-
examined.
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Closing Arguments
 Order depends on
whether or not defense
used witnesses or
introduced evidence.
 May make inferences
about the evidence
presented.
 May not introduce new
evidence. 35
Charge to the Jury
 Principles of law.
 Definitions of offenses.
 Requirements of evidence.
 Meaning of reasonable doubt,
presumption of innocence.
 Possible verdicts.

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Verdict
 Jury must be unanimous.
– Hung jury results in mistrial.
 Guilty verdict
– Judge sets sentencing date.
– Pre-sentencing report may be ordered.
– Appeals may be started.
– Jury may make parole recommendation for 2nd
degree murder, otherwise no role in sentencing.
– Victim impact statements are allowed.
 Jury nullification
– Judge instructs jury to find the defendant not guilty
(may instruct the jury to acquit the defendant).

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Appeals
 Convicted
– May appeal verdict or sentence or criminal
responsibility. Prosecution may also appeal.
– May apply for release while under appeal.
 Appeal court
– May order new trial or overturn conviction.
– May also overturn an acquittal and convict.
 Supreme court
– Hears only cases involving important points of law.
 Summary conviction appeals
– Are usually heard in superior courts.

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