Canadian Trial Procedures and Judges

Trial Procedures in Canada

• Trial procedures in Canada are based on the adversarial system, where two or more opposing sides present and argue their case in court.
• For an accused person to be found guilty, a judge or jury must find them guilty beyond a reasonable doubt.
• Canadian courtrooms involve several participants, including the accused, defense counsel, Crown prosecutor, witnesses, a judge, a jury, a court recorder, and members of the public.

Judges

• Judges are often called "the Bench" or "the Court."
• Federal government appoints judges for Superior, Federal, and Supreme Courts.
• Provincial governments appoint judges and justices of the peace.
• Lawyers or law professors with at least 10 years' experience can be judges.

Judge's Responsibilities

• Judges must act impartially during trials, bail hearings, and preliminary hearings.
• They ensure proper procedures and court rules are followed.
• If there's no jury, the judge hears evidence and decides the verdict.
• Judges also rule on motions, including whether to admit evidence.

Lawyers

• Lawyers represent the government (Crown) and the accused (defense).
• Crown prosecutors (or Crown attorneys) try to convict the accused; they have powers to lay or withdraw charges.
• Defense attorneys defend accused persons against charges, regardless of severity.

Other Court Officials

• Court Clerk: Reads charges, swears in witnesses, handles evidence and paperwork.
• Court Recorder: Sits near the witness box, records testimonies word for word.
• Sheriff: Assists the judge, finds prospective jurors, organizes and secures the court.

Juries

• Juries decide serious indictable offenses.
• Jurors are randomly selected.
• A jury panel of 12 people are chosen through the process called empaneling.
• If a case is controversial, the number of potential jurors in the panel might increase.

Juror Qualifications

• Must be a Canadian citizen, at least 18 years old.
• Resident of the relevant province or territory for at least a year.
• Fluent in English or French.
• Mentally competent.

Jury Duty Exemptions

• Politicians, judges, lawyers, law students, doctors, coroners, and veterinarians.
• Law enforcement officers and their spouses.
• Individuals with visual impairments and certain mental/physical disabilities.
• People who have served on a jury in the past two to three years.
• Anyone convicted of an indictable offense without a pardon.
• People who can convince the court of a specific reason for an exemption (e.g., illness).

Screening Potential Jurors

• Crown and defense ask questions to potential jurors:
• Canadian citizenship, language fluency, prior convictions, occupations, disabilities, and recent jury duty.

Jury Challenges

• Three types of challenges to eliminate jurors: -Challenge to the jury list (rarely used, for proving fraud or bias)
• Challenge for cause (based on juror bias)
• Peremptory challenge (based on lawyer's intuition, with limits based on the severity of the crime)

Jury Duty Processes

• Sworn jury members are expected to honestly arrive at a verdict.
• Jurors can't discuss the case with others outside the jury, follow media reports or disclose deliberations following the trial's end.
• Verdict must be unanimous; otherwise, it's a hung jury.
• In controversial cases, juries can be sequestered.

Presenting Evidence

• Presenting evidence is crucial in any trial.
• Evidence includes Crown evidence, defense evidence, witness testimonies, rules of evidence and self-incrimination.

Crown Evidence

• Since the onus is on the Crown, it presents evidence against the accused.
• Direct evidence (witness testimony) and circumstantial evidence (indirect evidence linking the accused to the crime).

Defense Evidence

• Defense's priority is to raise reasonable doubt, not to present evidence.
• Defense may request a directed verdict if the Crown's case isn't strong enough.
• Defense often relies on witness testimony to counter Crown evidence.

Questioning

• Examination in chief: direct questions to ones’ own witness.
• Leading questions are disallowed.
• Cross-examination: questions asked by opposing lawyers to opposing witnesses.

Witnesses

• Witnesses generally appear voluntarily, but can be subpoenaed.
• Refusing to appear can result in fines or imprisonment.
• Witnesses are excluded from the courtroom until they testify to limit external influence.
• False statements by a witness may lead to perjury charges and prison sentences.

Rules of Evidence

• Admissibility of evidence is governed by the Canada Evidence Act.
• A voir dire (a hearing within a hearing) can be ordered to determine if questioned evidence is admissible.
• The jury is excluded during a voir dire.

Self-Incrimination

• The Charter protects witnesses from self-incrimination.
• Witnesses can refuse incriminating questions.
• Perjury is the only exception to this protection.
• Law enforcement can charge a witness with a crime if their testimony suggests guilt.

Types of Evidence

• Common types of evidence: privileged communication, similar fact evidence, hearsay evidence, opinion evidence, character evidence, photographs, electronic devices, polygraph evidence, confessions.

Privileged Communication

• Confidential communications (e.g., lawyer-client, doctor-patient) are protected and not admissible in court.
• The recipient of the privileged communication, if they choose to disclose it, can be charged with an abuse of position.

Similar Fact & Hearsay Evidence

• Similar fact evidence shows a pattern of similar past offenses, establishing behaviour.
• Hearsay is information repeated by a third party, not from direct experience.

Opinion & Character Evidence

• Opinion evidence is based on an expert's observations.
• Character evidence indicates the likelihood of the accused committing the crime but can be used by the Crown to question the accused's character.

Photographs & Surveillance

• Photographs are admissible if accurate representations of the crime scene.
• Judges may exclude photos meant to inflame the jury.
• Surveillance requires court authorization.

Polygraphs & Confessions

• Polygraph tests (lie detector tests) measure physiological changes and aren't admissible in court.
• Police may use polygraphs for investigations.
• Confessions are admissible if voluntary

Summation & Charge to the Jury

• Crown and defense provide summations outlining key arguments and evidence.
• Judge delivers a charge (explanation) to the jury of relevant facts and applicable law.
• Jury weighs evidence; the judge's charge can be challenged.