Pleading Not Guilty and Criminal Trials (1:VII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 4, 2021.

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 accused 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 accused can consult a lawyer and make a decision.

1. Arraignment hearing (Trial Fix Date Procedure)

At the arraignment hearing, 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 self-represented accused or the defence counsel to note this information.

The judge or Justice of the Peace will then ask the self-represented accused (or defence counsel) 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 to the Judicial Case Manager (JCM) to set a trial date. It is important that the accused attends the JCM to receive a trial date.

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, they 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:

1. Provincial Court trial with a judge, without a jury;
2. Supreme Court trial with a judge, without a jury; or
3. Supreme Court trial comprised of a judge and jury.

If the accused/defence 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/defence elects a Supreme Court trial, they have the right to test the Crown’s case in a Preliminary Inquiry (see below). This right to a Preliminary Inquiry can be waived by the accused/defence, 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 the Crown’s 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 very low threshold. The test is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” (USA v Shephard [1977] 2 SCR 1067). If the judge determines that there is sufficient evidence then the accused will be ordered to stand trial; if the judge finds that there is not sufficient evidence, the accused 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.

Preliminary Inquiries are only 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 of 14 years or more.

C.The Trial

1. Conduct of the Trial

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

1. The Crown calls the case and introduces itself.
2. The defence/accused stands and introduces themselves. This will be done by the defence counsel if the accused has a lawyer.
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. Defence/accused can choose to:
   1. make a “no evidence” motion (this is done prior to deciding to call evidence);
   2. choose not to call any evidence; or
   3. call defence witnesses.
7. If a defence is called, they can then call witnesses, starting with the evidence of the accused, as their evidence should not be tainted by hearing the evidence of other defence witnesses prior to the accused giving evidence. Crown may cross-examine each witness as they are called.
8. 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 their 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.

2. Nature of the Trial

The goal of the defence at trial is NOT to find the truth or to seek justice. The goal of the defence counsel (or the accused if self-represented) is to test the Crown’s case and to present evidence, where appropriate, in order to either show that the evidence as a whole fails to prove the accused’s guilt beyond a reasonable doubt, or to raise a reasonable doubt as to the guilt of the accused. Keep in mind that one way to reach reasonable doubt is to convince the trier of fact that, based on the evidence presented, they simply cannot know for sure what happened. The adversarial process, with defence counsel and Crown Counsel fulfilling their respective roles before a neutral trier of fact, has been one of the most effective ways to find the truth and seek justice. The adversarial process depends upon capable defence counsel vigorously challenging Crown’s case and pursuing viable defences.

3. Presentation of Prosecution's case

Once a plea has been entered, witnesses will be excluded and the trial begins. The Crown may start with an opening address and then begin calling witnesses for examination and introducing any real evidence (objects, documents, etc.). Next, defence counsel or the accused (if not represented), may cross-examine the Crown witnesses. The Crown may then re-examine their witness; however, this re-examination is limited to clarifying or explaining answers given during cross-examination. During re-examination new material can only be entered only with leave of the Court. If leave is granted, and new material entered during re-examination, then the defence will be given an opportunity to recross-examine on the new evidence (See: Earl J Levy, Examination of Witnesses in Criminal Cases).

The goal in cross-examination is to both secure any helpful, defence friendly evidence that the witness may agree to, and to challenge the unhelpful evidence that the witness has testified to. Oftentimes a witness has nothing helpful to say about the accused and cross examination is used to challenge the reliability and/or credibility of the witness's evidence. The defence/accused is entitled to cross-examine a witness on any issue that is relevant or material to the case and is entitled to substantial leeway in their manner of conducting cross examination. The rule in Browne v. Dunn (1893) 6 R 67, H.L, states that the defence/accused must put its case to each witness on cross-examination. This means that if there is a good possibility that the accused will testify in their own defence or the accused has a specific defence theory that defence/accused's counsel will argue at the end of the defence/accused’s case, then each Crown witness must be confronted with the defence’s/accused’s anticipated defence evidence or theory and provided the opportunity to comment upon that evidence or theory. Typically, this is done at the end of the defence/accused’s cross-examination of each witness with a number of “I suggest to you that…”

Reliability refers to a witness’s ability to perceive an event accurately, and later recall and describe that event with detail and precision. Reliability challenges can focus on the scene, lighting, visibility, intoxication, and any obstructions or distractions, which may have affected the witness’s perception. It can also be the state of the witness at the time (perhaps they were intoxicated at the time).

Credibility refers to a witness’s desire or motivation to describe that event truthfully. Some common credibility challenges include:

• A motive based on personal animus towards the accused;
• A motive based on a personal bias towards the complainant or victim of the alleged crime;
• A motive based on a perceived advantage from the police arising from providing evidence to the police; and
• A witnesses’ character is such that they simply cannot be trusted (history of perjury, fraud or lying to the police).

Practice Recommendation - Prior Inconsistent Statements

Sections 9 and 10 of the Canada Evidence Act outline the principles of cross-examination as to previous statements of a witness in criminal investigation. Prior statements can be used to question the reliability or credibility of that witness. The trier of fact decides whether there was actually an inconsistency and whether that inconsistency affects the witness’s credibility or reliability or both. NOTE: There are times when the defence may not want to put a prior statement to a witness, even if there are inconsistencies (i.e., if the previous version is much worse than the version the witness presented in court). Procedure for putting a prior inconsistent statement to a witness: “You gave a statement to the police on December 4, 2010?” (yes). “I am showing you a transcript of that statement.” OR “I am showing you a 4-page written statement. Is this your handwriting? Are those your initials at the bottom of each page and your signature at the end of the document?” “I refer you to page 3, line 8, where you said [read out what is in the transcript or statement verbatim, including any ums and ahs. However, you may abbreviate any swear words to their first letter]. You said that? (yes) You knew it was important to tell the police the truth? (yes) That was the truth? (if no) So you lied to the police when you told them that?" “You said in your direct examination when my friend was asking you questions [summarize conflicting evidence from your notes]? (yes) But here you told the police [reread the line of the transcript]. Which version do you now say is the truth?"

a) Common objections

When the Crown is in the process of examining its witnesses, it is the defence/accused’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 defence/accused must rise from their seat, face the judge, say “objection,” and then state the reason for the objection. At that point, the 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. The defence/accused should also consider whether the witness should be excused from the courtroom prior to stating the reason for the objection or at any point in the discussion about the objection.

Leading Questions:

A leading question is one where the answer is suggested in the question. For example: “Did you see Joe punch Steve?” The party calling the witness cannot ask leading questions. However, on cross-examination, the practice is allowed and encouraged. A common exception to the rule against leading questions in direct is when leading questions are used in order to introduce matters to the court. For example, “Your name is John Doe and you reside at 555 University Drive?” Leading questions may also be used in direct examination if they relate to non-contentious issues. (Note: it is good practice to let the Crown Counsel know what the contentious issues are ahead of time in order to prevent an objection of leading a witness during trial).

Hearsay:

Witnesses are expected to tell the court what they personally observed, heard or did. Hearsay is a common objection that arises because witnesses are often told things by other persons about the event.

Hearsay is generally defined as an out of court statement, offered in evidence to prove the truth of the matter asserted. The key factor in determining if a statement is, in fact, hearsay is the purpose for which the statement is being used. For example, if the witness on the stand states “the passenger in the car told me that the light was red” this is hearsay if: it is being used to prove that the light was actually red. It is unobjectionable and being used for a non-hearsay purpose if the colour of the light is not a contentious fact and the statement is instead being used as evidence that the passenger was alert and responsive.

There are some categorical exceptions to the hearsay rule, where evidence, even though introduced for a hearsay purpose, will generally be admissible if the prerequisites for that exception are met. These are called the “traditional” exceptions to the hearsay rule and include:

1. Voluntary confessions;
2. Dying declarations;
3. Declarations against the interest of the declarant;
4. Records made in the usual course of business and in the course of a duty which are admissible under the Canada Evidence Act (for example, hospital medical files);
5. Declarations of a state of mind or bodily condition as evidence of the state reported, but not of its cause (for example, using the declaration “I’m cold” to establish that the person making the statement was cold, but not using it for the assumption that the weather outside was cold that day);
6. Statements of intention (used to increase the probability that the person who made the statement actually performed that intended action);
7. Spontaneous declarations (Res Gestae - statements made so closely to the event that they are connected to it); and
8. Past Recollection Recorded.

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 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:

1. Necessity: whether the benefit of the evidence would be lost in its entirety if it is not entered (i.e., the declarant, the person who originally made the statement, is unavailable, or there is no other source by which the evidence can be admitted and have similar value); and
2. Reliability: this test is essentially the judicial determination of what would have been gained by cross-examination. In some cases, the circumstances in which the statement was made suggest its trustworthiness and reduce the danger of admitting evidence without an opportunity for cross-examination.

For a thorough discussion of the rules of hearsay admissibility, see Watt’s Manual of Criminal Evidence and R v Khelawon, [2006] 2 SCR 787.

Speculation:

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

Opinions from Non-Experts:

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. There are exceptions to these exceptions. For example, although generally the court does not permit non-expert opinion evidence, someone who is intimately familiar with a person’s appearance can, in certain situations, provide evidence that they recognize that person from surveillance photographs or video.

4. Challenging the Admissibility of Evidence

Prior to the trial commencing, the defence/self-represented accused should have reviewed the key evidence in the case and identified potential challenges to the admissibility of that evidence. One should consider if the admissibility issue or Charter challenge to the evidence can be canvassed with the Crown prior to the start of a trial. Generally, unless there is a good strategic reason to not inform the Crown, (i.e., informing the Crown will allow it to call additional evidence that the defence knows is available, but is not currently being called) admissibility issues should be brought to the Crown’s attention ahead of time.

Since rules of admissibility of evidence tend to be complex issues that require a critical analysis of the law followed by an application of the law to the facts, a self-represented accused person should consult legal advice when challenging the admissibility of Crown’s evidence. Some challenges to the admissibility of evidence are simply made through objections and legal arguments at the time the Crown seeks to adduce the evidence, while others will require the court to hear additional evidence that is relevant to its admissibility.

5. Voir Dires

A Voir Dire is usually referred to as a “trial within a trial”. It is usually held during the Crown’s case where evidence is required in order to determine the admissibility of evidence. For example, Voir Dires can be held to determine whether a confession is voluntary and admissible or whether it should be excluded under section 24(2) of the Charter. If the evidence heard in the Voir Dire is deemed to be admissible, counsel can agree that evidence on the Voir Dire will form part of the evidence at trial. Care should be taken to ensure that the evidence that is considered in the trial proper, from the Voir Dire, is properly identified and admitted from the Voir Dire into the trial proper.

Two common Voir Dire challenges are a challenge to the admissibility of items seized in a search and a challenge to the admissibility of an accused’s confession to the police.

If there are grounds to challenge a search, Crown Counsel must be alerted to the fact that the defence/accused will be challenging the admission of the items seized during the search into evidence with sufficient detail to put Crown on notice as to the nature of that challenge (typically an alleged breach of section 8 of the Charter).

If Crown is seeking to enter a confession into evidence that was given to the police (or other person in authority), Crown Counsel must first establish that the confession was voluntary in a Voir Dire. It is common practice that any alleged breaches of section 10 of the Charter (i.e., accused not provided with access to counsel prior to their interrogation) are dealt with in the Crown Counsel’s Voir Dire on voluntariness.

If an accused testifies at a Voir Dire, they can only be cross-examined on the issues raised in the Voir Dire.

6. Directed Verdict/ No Evidence Motion

In all criminal cases, it is the Crown’s obligation to prove beyond a reasonable doubt:

1. The time and date of the offence;
2. The location and jurisdiction of the offence (e.g.: it happened in Surrey, British Columbia);
3. The identity of the accused;
4. That the crime actually happened (Actus Reus); and
5. That the accused intended to commit the crime (Mens Rea).

If the Crown failed to lead any evidence on any of the above, the defence/accused 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, [1977] 2 SCR 1067 and R v Charemski, [1998] 1 SCR 679. Arguments by the Crown and defence will be heard. If the defence/accused’s “no evidence” motion fails, the defence/accused may then call its own evidence.

NOTE: The defence/accused 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/accused cannot call evidence. In practice, the only time defence brings a no evidence motion is when the client may want to give evidence at trial. If defence counsel is of the view that there is no evidence and the accused will not testify, the defence will bring an insufficient evidence motion (stating that the Crown has not proven its case). When the accused does not testify, the defence will make closing submissions last. When the accused does testify, the defence will make closing submissions first. It is a perceived advantage to go last.

7. Presentation of defence case

All accused have the right to testify in their own defence and the right to call other witnesses.

After the defence/accused examines its witnesses, the Crown has the right to cross-examine these witnesses. The defence/accused may re-examine them in relation to new areas that could not have been anticipated ahead of time. For a discussion on when this is appropriate, see “Presentation of Prosecution’s Case,” above (see Examination of Witnesses in Criminal Cases by Earl J Levy QC for a discussion of these techniques).

Although the decision for the accused to take the stand and testify in their own defence does not have to be made until Crown has closed its case, the defence/accused needs to know their potential defences before the trial begins. Where the accused has identified a defence for the crime, it is often a good idea to structure the entire defence case around highlighting that defence. However, the defence/accused should pay careful attention to capitalize on the Crown’s failure to present an element of the offence. The defence/accused should also remember that a no-evidence motion may be brought and decided before the accused must decide to testify or not.

The defence/accused will be invited to make closing submissions once all evidence has been heard. If the defence/accused has called evidence, the defence closes first. If the defence/accused does not call evidence, Crown closes first. The three main sections of closing submissions are i) the facts, ii) the law, and most importantly, iii) 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 accused testifies, the W(D) principles (below) should also be discussed.

Practice Recommendation - Entering Exhibits

An exhibit should be entered through the witness who made (or found) the exhibit so they can validate it. Exhibits may be a photograph, a written document such as an email, or physical evidence such as an assault weapon. In the case of a photograph, the person who took the actual photograph is the one likely to enter the exhibit. It is also possible for the person identified in the photograph to enter the exhibit. Example of an exhibit being entered by someone who took the photograph: “You have previously provided me with a photograph. Did you take this photograph? When did you take this photograph? And this is a true and accurate depiction of the scene as depicted on the date you took the photograph?” “Your Honour, I ask that this photograph be entered as the next exhibit” Example where an individual depicted in the photograph enters the exhibit: “You have provided me with a photograph of some injuries. Who is depicted in this photograph? When was this photograph taken? And is this a true and accurate depiction of your injuries as of the date this was taken? “Your Honour, I ask that this photograph be entered as the next exhibit.” 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. Note: When entering an exhibit such as a statement that defence wants to rely on for its truth, it is important to have the witness confirm that the statement they made was in fact true, otherwise the Judge may not be able to rely on it.

a) Common defences

For the defences below to be raised, they must have an air of reality. This means that all of the elements of the defence would exist if the defendant were believed on the stand. The defendant is responsible for raising this air of reality. Once that is completed, in order to obtain a conviction the Crown must then prove beyond a reasonable doubt that the defence was not applicable in the circumstance. If that is not achieved, the defendant is acquitted.

Self Defence: sections 34-42 of the Criminal Code

There are conditions where self-defence can be raised when the charge is assault. This can occur in a situation where the accused perceived force or a threat of force, their state of mind was to act in a defensive manner, and the actions taken by the accused were reasonable in the circumstances. This defence can take into account various factors, such as whether the accused had an alternative, the proportionality of the force used by the accused in the act or assault to the threat or assault, as well as any history that may exist between the parties.

Consent:

If an accused is charged with assault, Crown must prove beyond a reasonable doubt that the other person did not consent to the assault. A consensual fight is not an assault as the parties are consenting to the physical contact. Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused or the force was applied recklessly and the risk of the bodily harm was objectively foreseeable. See R v Paice, 2005 SCC 22 and R v Jobidon, [1991] 2 SCR 714.

Lack of Mens Rea:

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, they can raise a reasonable doubt as to whether they had the proper Mens Rea to commit the offence, particularly where the offence has a subjective Mens Rea requirement. Mens Rea is not a defence, but merely lack of an essential element that the Crown needs to prove.

Examples:

One commonly occurring offence is a Breach of a Court Order. Until recently there was some uncertainty about whether or not a Breach of a Court Order had to be established subjectively (the accused knew or was reckless about whether or not they were breaching) as opposed to objectively (a reasonable person in the position of the accused would have known that they were breaching) The Supreme Court of Canada resolved this issue finding that breaches require proof of subjective Mens Rea, (See R v Zora, 2020 SCC 14).

The main Mens Rea components to the charge of theft are that the action was without colour of right and the individual had intent to steal. Colour of right refers to an individual’s belief that they had entitlement to the property. If the court finds there is reasonable doubt as to the intention of the accused to steal the accused will not be found guilty.

The main Mens Rea components of the charge of “Personal Possession of a Controlled Drug or Substance” includes knowledge of the substance. The possessor must know the nature of the item. An accused has a Mens Rea defence to possession if:

1) the accused did not know they had the item on them; or

2) the accused did not know the nature of the item and was not reckless or wilfully blind as to the nature of the item (for example, the accused reasonably thinks the substance is baking soda and not cocaine).

Intoxication:

When considering the defence of intoxication, it is important to note that there are two types of offences divided by the requisite mental fault. General intent offences merely require that the accused intended to carry out the act or omission while specific intent offences require the accused to carry out the act or omission and intend for the specific consequence to come about.

There are two levels of intoxication that are considered to be legally relevant: advanced intoxication and extreme intoxication (a level akin to insane automatism). Note that these are both very high levels of intoxication, and mild intoxication does not qualify an accused for this defence. The accused bears the burden of proving that they had reached the point of extreme intoxication which is a very high bar and requires expert evidence at trial.

For general intent offences, advanced intoxication is not a defence. Extreme intoxication can negate general intent or physical voluntariness of Actus Reus for some offences if the accused can show that they did not commit the act with conscious mind and controlled body. Previously, the defence may have been denied under s 33.1 of the Criminal Code if the intoxication is self-induced, the accused made a marked departure from the standard of care, and it is a violent offence. However, the Supreme Court recently ruled, in R v Brown, 2022 SCC 18, that section 33.1 is unconstitutional and therefore, if an accused has proven that extreme intoxication akin to automatism is present, they cannot then be denied this defence based on the above reasons. General intent offences include assault causing bodily harm, manslaughter, sexual assault, and arson.

For specific intent offences, advanced intoxication can negate subjective mental fault (Mens Rea). Specific intent offences include conspiracy, solicitation, embezzlement, and theft.

8. Accused testifying

The accused cannot be compelled to testify (see s 11(c), Charter). If the accused chooses not to testify, no adverse inference may be drawn from that decision. A decision to call the accused should be made on the particular facts of each case, taking into account the strength of the Crown’s evidence as presented in the trial at the close of Crown’s case and the risks of exposing the accused to cross-examination. Prior convictions for crimes of dishonesty (e.g., theft, fraud, etc.) are admissible for the purpose of assessing credibility of the accused only.

If the accused has a criminal record and plans on testifying in their own defence, then the defence/accused should be prepared to argue a Corbett application (see R v. Corbett [1988] 1 SCR. 670) at the end of Crown counsel’s case and before a final decision is made to have the accused testify, particularly if the accused has convictions for crimes that are similar to the crime alleged. If successful, a Corbett application prevents the Crown from using the accused’s criminal record during cross-examination for the purpose of attacking the accused’s credibility.

If the accused testifies, the judge must consider the instructions set out in R v. W(D) [1992] 1 SCR 742:

1. If the judge believes the accused, they must acquit;
2. If the judge does not believe the accused, but is still left with a reasonable doubt from the testimony, they must acquit; and
3. Even if the judge does not believe the accused and is not left with a reasonable doubt from the testimony, the Crown must still prove its case beyond a reasonable doubt.

9. Presence of the accused

As a general rule, the accused must be present and remain in the courtroom throughout the trial. In very unusual circumstances, the case may proceed ex parte (i.e. in the accused’s absence).

10. Witnesses

a) Privilege and Compelling Attendance of a Witness

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 trial to give evidence and bring documents by means of a subpoena processed through the court registry that is personally served on them (s 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, they are 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 accused (such as alibi witnesses) and attend voluntarily. The defence/accused should obtain subpoenas for witnesses if (1) they are important, (2) they are not under Crown subpoena and (3) they are not likely to attend voluntarily.

Witnesses must answer all questions put to them unless the information that Crown Counsel/defence is asking is legally privileged. Some examples of legal privilege are:

1. discussions between a client and their lawyer in situations when the lawyer was acting in a professional capacity;
2. any information tending to reveal the identity of a confidential police informant, unless disclosure is the only way to establish the innocence of the accused; and
3. communication between spouses.

b) Preparing a Witness

The defence/accused should thoroughly prepare witnesses for trial. A witness must tell the truth as they know it, but prior rehearsal of possible questions and answers is advised. All answers should address the specific questions asked. Witnesses should be appropriately dressed.

c) Testimony of a Witness

A witness is required either to swear an oath or to solemnly affirm that they 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 they promise to tell the truth.

The judge decides whether to admit or exclude evidence, as governed by the laws of evidence, case law, the Charter, the BC Evidence Act, the Canada Evidence Act, and the statute creating the offence. Evidence must be relevant to the facts in issue. The facts in issue are those that go to establishing the essential elements of the offence and any legal defence to that offence. Evidence may be presented with respect to other issues as well, such as the credibility of a witness, provided that the evidence does not offend the collateral evidence rule.

d) Admission or confession (to a Person in Authority)

Where the accused has made a statement outside the trial, for example, while being questioned by the police (or a store detective, transit police, or other person in authority), the Crown may seek to use this statement,

• as evidence of an admission or confession by the accused, or
• for the purposes of cross-examination during trial.

There are two different kinds of statements: admissions and confessions.

1. An admission is a statement made to another civilian. It is generally admissible;
2. A confession is a statement made to a police officer (or person in authority), and there are very strict rules regarding the admission of such statements at trial.

Anything the accused says to the police before or after the arrest is admissible as a confession only if the Crown first proves it was made voluntarily. See Section IX: Charter below for more information on confessions.

e) Leading a witness

Counsel is generally not permitted to lead its own witness (i.e., suggest answers), with the exception of preliminary matters such as the witness’s identity, residence, age, and other matters that are not at issue, and that merely help to set the stage. However, leading questions are proper and encouraged for cross-examination.

f) Expert opinion evidence

Opinion evidence is permitted where it assists the trier of fact to draw conclusions from the evidence. There are two types of opinion evidence: non-expert and expert. Non-expert opinion evidence is generally not permitted. Expert evidence is not permitted where the trier of fact is capable of reaching a conclusion without such evidence. Expert opinions are necessary where the trier of fact would be unable to draw a conclusion with respect to the evidence. Experts must first be established as such – the determination is made in a Voir Dire (a trial within a trial). For a more complete explanation of the law on opinion evidence, see R v Mohan [1994] 2 SCR 9.

Section s 657.3(3), of the Criminal Code, imposes an obligation on the defence to disclose any expert opinion evidence it intends to call prior to trial. R v Stone, [1999] 2 SCR 290 sets out the guidelines which apply to both Crown and defence in disclosing expert opinion evidence.

11. Conclusion of the trial

a) Closing argument and submissions

The defence/accused and the Crown will make closing arguments that summarize 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 accused takes the stand, then the case is likely to be a credibility issue, with rules as described in R v W(D), above.

b) Verdict

If the Crown is able to prove each element of any of the offences charged beyond a reasonable doubt, there will be a guilty verdict. An accused can only be convicted of an offence that is on the Information; however, the accused may be convicted of:

• All, some, or one of the offences charged;
• A lesser included offence of an offence charged; and/or
• An attempt of an offence charged.

Crown can amend the Information to include new charges up until the close of Crown’s case. Once the defence’s case is called, no new charges can be added and applications to amend the Information will usually be denied.

c) Post-Conviction

There are certain arguments that can only be made post-conviction. One example of this is entrapment. In entrapment a conviction is entered but not recorded until the court determines whether or not allowing the conviction to stand would constitute an abuse of court process, because the commission of the offence was the result of police conduct which induced the accused to commit the offence. See R v Ahmad, 2020 SCC 11 for more information.

d) Sentencing

The judge will sentence the accused after a conviction or guilty plea. However, the judge will ask for submissions on sentencing from both sides regarding the offence and the offender. The defence/accused and Crown should be prepared to address sentencing immediately following a trial. This is briefer than sentencing submissions for a guilty plea. Alternatively, the Crown or defence/accused may adjourn the matter for sentencing on application. But such an application will be granted only if there are valid reasons for counsel to ask for more time to prepare or if a pre-sentence report is requested.

Judges have broad discretion in imposing most sentences – depending on the specific offence, whether it is provincial or federal, and whether it is summary or indictable. See Section VI: Resolving the Matter Prior to Trial, above, for more information on types of sentences a judge can order.

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