Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"

=== 1. Setting the trial date ===

LSLAP clinicians are encouraged to, but are not required to appear in court to set a trial date. Whether or not the student is attending, a Trial Date Request Form must be completed and faxed to the Judicial Case Manager prior to the appearance date. This form ''must'' be approved by the LSLAP Supervising Lawyer and then given to the Administrator to be faxed.

 

 

 

The judge or JP will then ask the clinician for their position on the time estimate and then decide how much time is appropriate to set aside for the trial The clerk will provide counsel with a form to take tothe Judicial Case Manager (JCM) to set a trial date. It is important that the client attends the JCM with the clinician, as the JCM will then adjourn the client to the pre-trial conference (PTC) date. It is essential that the clinician remind the JCM that he/she is an LSLAP student and a pre-trial conference (PTC) be set.

 

Once the trial and PTC dates are set, the clinician will receive a pink trial scheduling memo indicating the dates and times of the appearances. This must be brought back to the LSLAP office and placed in the file. The Public Relations director as well as LSLAP's administrative assistant must be advised of these dates so that supervising lawyers can be arranged. It is advisable to have the JCM print out an extra copy of the pink memo to be given to the client.

On September 19, 2019, Section 240 of Bill C-75 will come into effect. After this date, preliminary inquiries will only be available to those accused who elect to be tried in the Supreme Court (by judge only or by judge and jury) and when at least one of the charges on the indictment is punishable by imprisonment for life. Therefore, a preliminary inquiry will be available only to those individuals who face the possibility of a life sentence.

== C. Pre-Trial Conference (PTC) ==

 

 

 

 

== D.The trial ==

When the Crown is in the process of examining its witnesses, it is the clinician's job to ensure the Crown is doing so properly. Below are some common actions that lead to objections in a trial. In order to raise an objection, the clinician must rise from his or her seat, face the judge, say "objection," and then state the reason for the objection. At that point, Crown will either agree or disagree with the objection. If the Crown disagrees, the judge will make a ruling on the spot regarding the objection.

Each “Traditional” exception has its own requirements that must be met.. In addition to (and as a potential exception to) the traditional common law exceptions, courts have developed the “principled approach” to determining the admissibility of hearsay. See R v Starr, [2000] 2 SCR 144. This approach considers the at necessity and reliability of the hearsay statement and can be used where there is no traditional hearsay exception engaged or to argue that evidence should be inadmissible despite a traditional hearsay exception.  The two requirements that must be met before hearsay evidence is admitted are:

:::When we witness behavior in everyday life we often reach conclusions regarding why we think that other person was behaving in that manner.  Witnesses are expected to tell the court what they saw a person say and do and not go on to speculate as to why they think that person did what they did. For example if you see someone jumping up and down and swatting at the air you may speculate that they are being bothered by an insect. Such speculation is not proper evidence unless you also saw or heard the insect.

:::As a rule, witnesses should not make any inferences or state their opinion about what that evidence proves in their testimony, for example "I think Steve was going grocery shopping because I saw him with an empty fabric grocery bag." Instead the witness should simply state "I saw Steve and in his hands he was holding an empty fabric grocery bag." Conclusions drawn from what is seen or heard is for the trier of fact to draw not the witness to opine.

=== 4. ''Voir Dires'' ===

If an accused testifies at a ''Voir Dire'', he or she can only be cross-examined on the issuesraised in the ''Voir Dire''.

=== 5. Directed verdict/ no evidence motion ===

If the Crown failed to lead any evidence on any of the above, the defence should make a no evidence motion. This asks the judge to direct the acquittal of the accused on the ground that there is absolutely no evidence of some essential element of the offence. The test was articulated by Ritchie, J. in ''USA v Shephard'', above (also ''R v Charemski'', [1998] 1 SCR 679). Arguments by the Crown and defence will be heard.  If the defence’s  "no evidence" motion fails, the defence may then call its own evidence.

:'''NOTE:''' The defence may make an insufficient evidence motion when the Crown has failed to bring  sufficient  evidence  to  prove  a  specific  element  of  the  offence  beyond  a reasonable doubt. If an insufficient evidence  motion fails, the defence cannot call evidence.   The  only  practical  difference  between  making  an  insufficient evidence motion and calling no evidence, allowing Crown to make its closing argument, and then urging the court to acquit based on reasonable doubt is who presents closing argument on the point first.  It is usually perceived an advantage to have the last word and hence insufficient evidence motions are typically only used in conjunction with a no evidence motion, where counsel is of the opinion that although a no evidence motion has just failed an insufficient evidence motion is very likely to succeed.

=== 6. Presentation of defence case ===

The defence will be invited to make closing submissions once all evidence has been heard. If the defence has called evidence, the defence closes first. If the defence does not call evidence, Crown closes first. The three main sections of closing submissions are: the facts, the law, and most importantly, applying the law to the facts that the judge should find. The judge can accept all, part, or none of a witness' testimony. If the client testifies, the ''W(D)'' principles (below) should also be discussed.

''The court will number each exhibit as they are entered, either place the appropriate number on your copy of each exhibit or keep an exhibit list so that you may refer the court or other witnesses to them later.''

:::''Mens Rea'' deals with the mindset of the accused at the time of the incident and means "guilty mind." ''Mens Rea'' of the offence must be proven by the Crown beyond a reasonable doubt. If the accused person did not intend to commit the offence, he or she can raise a reasonable doubt as to whether he or she had the proper ''Mens Rea'' to commit the offence.

=== 7. Accused testifying ===

If your client has a criminal record and he can testify in his own defence, then the clinician should be prepared to argue a Corbett application [See. ''R v. Corbett'' [1988] 1 S.C.R. 670] at the end of Crown counsel's case and before a final decision is made to have the accused testify, particularly if the client has convictions for crimes that are similar to the crime alleged.

=== 8. Presence of the accused ===

=== 9. Witnesses ===

Both sides may contact any and all witnesses who will be called at trial, including police officers. However witnesses are not required to speak to Crown or defence counsel prior to the trial.

A witness may be compelled to attend at trial to give evidence and to bring documents by means of a subpoena processed through the court registry that is personally served on them (ss 699 and 700 of the ''Criminal Code''). An arrest warrant may be issued for non-compliance (s  705).  Unless the witness is served with a subpoena, he or she is under no legal obligation to attend court proceedings. Crown Counsel will often agree to subpoena witnesses who have provided a police statement and Crown Counsel does not intend to call in its case but defence counsel wants to have called. Other defence witnesses are typically known to the client (such as alibi witnesses)  and  attend voluntarily.    Defence  counsel  should  obtain  subpoenas  for witnesses if they are important, not under Crown subpoena and not likely to attend voluntarily.

A witness is required either to swear an oath or to solemnly affirm that he or she will tell the truth. Section 16(3) of the ''Canada Evidence Act'' permits a witness who is able to communicate the evidence, but does not understand the nature of an oath or a solemn  affirmation due to age (under 14 years) or insufficient mental capacity, to testify – as long as he or she promises to tell the truth.

*An admission is a statement made to another civilian. It is generally admissible.

Defence counsel and the Crown will make closing arguments that recap their view of the  facts  and  the  pertinent  law.  The  judge  or  jury may then retire to consider a verdict. If the defence has called evidence, it must make submissions first. Often a case will be decided based on the credibility of the witnesses. If the client takes the stand then the case is likely to be a credibility issue, with rules as described in ''R vW(D)'', above.