Pleading Not Guilty and Criminal Trials (1:VII)

A. Arraignment hearing

The purpose of an arraignment hearing is for the court to be advised whether the matter is for trial or disposition (guilty plea) and to set aside the required court time for the trial or disposition. It is also an opportunity to canvass any possible disclosure or Charter issues. If the client is not prepared to make a decision on whether to plead guilty or run a trial at the time of the hearing, the arraignment hearing should be adjourned until the clinician can consult with the supervising lawyer and obtain clear instructions from the client.

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.

Note: The client must still attend the Arraignment Hearing and enter a plea of not guilty in order for the trial date to be set.

2. Arraignment hearing (trial fix date procedure)

If the clinician will be attending the arraignment hearing they should take a copy of the trial date request form. The clinician must bring two additional copies of the report to the appearance. One copy is filed with the court and the other given to the Crown.

At the appearance, a not guilty plea is entered and the time estimate for the trial is confirmed. The Crown will provide the court with its time estimates and the number of witnesses. It is essential for the clinician to note this information.

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.

B. Appearance for trial - elections as to mode of trial

There are a number of different modes of procedure, although LSLAP students will only appear on summary matters.

1.Summary conviction offences

The accused has no right of election. The trial is held before a Provincial Court judge. There is no preliminary inquiry.

2. Hybrid offences and indictable offences

For a hybrid offence where the Crown chooses to proceed summarily, see above.

For a hybrid offence where the Crown chooses to proceed by indictment, or where the offence is strictly indictable, the accused has the right to elect a mode of trial, unless the indictable offence is listed in sections 469 or 553 of the Criminal Code.

Where the accused has the right of election, he or she will be asked to elect at the arraignment hearing.

3. Electable offences

For a list of electable offences, see sections 536 (4), 554, 558, 565 and 471 of the Criminal Code. For an offence not listed in sections 469 or 553, the accused may elect to be tried by: a)a Provincial Court trial with a judge, without a jury, b)Supreme Court trial with a judge, without a jury, or c)Supreme Court trial comprised of a judge and jury.

If the accused fails to elect when the question is put to them, under section 565(1) of the Criminal Code they will be deemed to have elected a trial in Supreme Court with a judge and jury.

If an accused elects a Supreme Court trial they have the right to test the Crowns case in a Preliminary Inquiry (see below). This right to a preliminary inquiry can be waived by an accused, however this rarely occurs because, the most common reason for electing a trial before a Supreme Court (instead of a Provincial Court) is to gain the advantage of testing and discovering Crowns case during the preliminary inquiry.

If there are two or more accused who are jointly charged in an Information, then under section 536(4.2), if one party elects to proceed before a Supreme Court and the other wants Provincial Court, both are deemed to have elected to proceed in Supreme Court. If one person elects a judge and jury in Supreme Court and the other elects judge alone, both are deemed to have elected to proceed by judge and jury.

4. Preliminary inquiry

A preliminary inquiry is held before a Provincial Court judge. The primary purpose of a preliminary inquiry is to determine whether or not there is sufficient evidence to put the accused on trial. Whether or not there is sufficient evidence is measured on a low threshold ("whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty", USA v Shephard (1976), 30 CCC (2d) 424 (SCC)). If the judge determines that there is sufficient evidence then the client will be ordered to stand trial; if the judge finds that there is not sufficient evidence, the client will be discharged.

Although the primary purpose of the Preliminary Inquiry is to determine if there is sufficient evidence to meet the threshold test for committal, the 2004 amendments to the Criminal Code substantially streamlined the Preliminary Inquiry process. The historical secondary purpose of defence counsel using the Preliminary Inquiry process to discover and test the case remains an important secondary purpose. See R v. Rao [2012] BCCA 275 (CanLII) at paras 96-98.

C. Pre-Trial Conference (PTC)

The pre-trial conference is a procedural appearance for LSLAP files to confirm there is a trial supervising lawyer and that the matter is indeed going to trial, that there are no disclosure issues, and that Charter challenge notices have been given. The clinician is encouraged to, but need not attend the PTC. Clinicians are reminded that they must give notice of any Charter challenges at least 14 days prior to the trial date. In addition, a trial supervising lawyer must be confirmed by the PTC in order for LSLAP to confirm the trial date.

It can be many months between the fixing of a trial date and the trial. The clinician must endeavour to remain in contact with the client during this long time period. LSLAP requires that the clinician contact the client 2 weeks before the PTC to make sure the contact information has not changed and that the client knows when to appear in court.

If the clinician is unable to get in contact with the client before the PTC, the clinician must either appear at the PTC, or formally withdraw from the record by sending a letter to the court registry and Crown as well as the client. If both the student and the client attend the PTC, the student should obtain new contact information from the client. If the client does not attend the PTC, the student must formally withdraw from the record at that time. The student should never disclose that there have been attempts to contact the client, or when the last contact was, as this is privileged information and would constitute a breach. The clinician must then mail a letter to the client’s last known address to inform them of the situation.

Note: In some cases, a clinician will be transferred a file after the PTC date, and find him or herself unable to get in contact with the client. The LSLAP Executive and the Supervising Lawyer must deal with these files on a case-by-case basis.

D.The trial

1. Conduct of the trial

The standard Provincial Court trial conducted by LSLAP generally proceeds by the following procedure:

1. The Crown calls the case.
2. The LSLAP clinician approaches the bar, introduces him or herself, the client, and the supervising lawyer for the record and advises the court that they are ready to proceed.
3. Usually Crown asks for an order excluding witnesses, which excludes any witnesses about to testify in the matter from the courtroom until such time as they are called. If Crown fails to do so and there are any witnesses in the courtroom, defence should remind the court of the need to make such an order.
4. Crown will call its witnesses (called direct examination), and defence may cross-examine each witness as they are called.
5. Crown indicates that their case is closed.
6. The clinician can choose to:

a) make a “no evidence” motion (this is done prior to deciding to call evidence, b) choose not to call any evidence, or c) call defence witnesses.

1. If the clinician chooses to call a defence, he or she can then call witnesses, and Crown may cross-examine each witness as they are called. #If a defence was called, defence counsel makes closing submissions, then Crown. 9.If a defence was not called, Crown makes closing submissions first, and then defence counsel. 10.The judge will consider the facts and law, make findings of fact and give his or her decision and reasons. If the accused is found guilty, a Pre-Sentence Report (PSR) may be ordered. If one is not ordered, the judge will then hear sentencing submissions.