All About Law Chapter 6 - Trial Procedures PDF

Trial Procedures 6 What You Should Know Selected Key Terms What is the adversarial system, adversarial system hung jury and how does it work? challenge for cause jury panel What procedures...

Trial Procedures 6 What You Should Know Selected Key Terms What is the adversarial system, adversarial system hung jury and how does it work? challenge for cause jury panel What procedures are followed circumstantial evidence oath in selecting a jury? credibility peremptory challenge What different types of evidence can be used by the Crown attorney perjury Crown and the defence? defence counsel sequester What sections of the Charter direct evidence voir dire apply to evidence and the rights of the accused? What is the significance of the judge’s charge to the jury? Chapter at a Glance 6.1 Introduction 6.2 Courtroom Participants 6.3 Juries and Jury Selection 6.4 Presentation of Evidence 6.5 Reaching a Verdict The judges of the Supreme Court of Canada are formally called “justices.” They are chosen from the highest courts in the provinces and territories. 180 Unit 2 Criminal Law NEL 6.1 Introduction Have you ever watched criminal trials on television or in movies and seen the prosecutors and defence lawyers argue their cases in court? What other people were involved in the courtroom process? Were there many witnesses, or only the accused? Did the trial involve a jury or a judge sitting alone? In this chapter, you will learn about trial procedures in criminal courts in Canada. This exploration will include learning about the people involved in the criminal trial process and understanding what is expected of each of them. You will also learn about the jury selection process and examine the role that juries play in determining the guilt or innocence of an accused. Finally, you will discover that the criminal trial process is a complex system with strict rules about what can be used as evidence in a trial. 6.2 Courtroom Participants Trial procedures in Canada are based on the adversarial system, which involves adversarial system the system of two opposing sides: the Crown (representing society) and the defence (repre- law in which two or more opposing sides present their case in court senting the accused). In a criminal trial, the burden is on the Crown to prove beyond a reasonable doubt that the accused committed the offence. For a conviction, both the actus reus (“wrongful deed”) and mens rea (“guilty mind”) elements of the offence must be proven, as you learned in Chapter 4. The type of offence committed determines the kind of trial available to Did You Know? the accused. This chapter focuses on trial by judge and jury. If the accused The term “reasonable is tried in a provincial court for a summary conviction or minor indictable doubt” has been described as a doubt based on offence, trial procedures are similar to what is described in this chapter. No reason and common sense jury is chosen, however, and the proceedings are less formal; the judge alone that is “logically derived is the decision maker. from the evidence.” witness jury court Crown recorder prosecutor accused observers judge court clerk This diagram shows defence the participants in the counsel criminal justice system. Do you know what role each individual plays in the trial process? NEL Chapter 6 Trial Procedures 181  Courtroom Organization Did You Know? Canadian trial procedures are adapted from English law and are basically On December 22, the same in each province and territory. The roles of various people involved 2008, Prime Minister in these procedures are outlined on the following pages. Stephen Harper officially appointed Thomas Cromwell of the Nova The Judge Scotia Court of Appeal Judges are often referred to as “the Bench” or “the Court.” The federal gov- to the Supreme Court ernment appoints judges of the Superior and Federal Courts and the Supreme of Canada. Cromwell is fluently bilingual and Court of Canada. The provincial or territorial judges and justices of the peace a respected jurist. He is are appointed by the lieutenant governor of each province and territory. The the Atlantic Canadian judges of the Supreme Court of Canada are formally titled “justices.” They representative on the are paid by the federal government and are generally chosen from among court, replacing retired the highest courts of the provinces and territories or from among lawyers Michel Bastarache. who have had at least 10 years of experience. Judges must act impartially, that is, without bias. They must not have a preconceived opinion about the case before they hear the evidence. Judges have full control of the courtroom during preliminary hearings and trials. Judges set the tone for the courtroom and act impartially when presiding over a case. They can exclude the public — and even the accused — if they think this is necessary to administer justice and maintain order. Cameras have only recently been allowed into some Canadian courts. The Ontario Court of Appeal has agreed to allow some appeals to be televised on an experimental basis, making Ontario the first province to televise appeal court proceedings. However, broadcasts of Supreme Court hearings are televised on the Canadian Parliamentary Affairs Channel (CPAC). This is the interior of the Supreme Court of Canada. It was recently renovated, and more cameras have been installed for recording, giving people full view of the courtroom. In addition, electronic updates include a web-based portal for electronic filing of appeal documents and webcasting of hearings, allowing everyone more access Digital rights not available. to the court. The Supreme Court of Canada first allowed a camera in its court in 1981 to broadcast its decision in the Patriation Reference case. The Court has an arrangement with the Canadian Public Affairs Channel (CPAC), which allows CPAC to broadcast hearings at a later date. Do you think cameras and other electronic devices should be allowed in all courtrooms? Discuss. 182 Unit 2 Criminal Law NEL  One of the most important roles judges play in criminal court proceedings is deciding what evidence is admissible, since these decisions can greatly influence the outcome of trials. Judges must follow specific rules when allowing evidence into court. Decisions made by judges on the admissibility of evi- dence (whether to allow it in or restrict its use) can also form the basis for appeals. For example, if a trial judge made an error in allowing into evidence an accused’s confession that was not voluntarily made, the accused could appeal the decision. In a trial without a jury, the judge has numerous other roles. He or she must rule on the credibility (whether the evi- Digital rights not available. dence is believable ) of witness statements, decide whether the accused is guilty or not, and in cases where mandatory min- imum sentences are not involved, they must set the sentence. Some jurisdictions also appoint justices of the peace, who have less power than judges. Justices of the peace may preside over the court of first appearance, where the charge against the accused (defendant) is first read. Most bail hear- ings occur before a justice of the peace. They may also issue documents for police, such as search and arrest warrants. In some jurisdictions, justices of the peace may conduct Justice of the Peace Jack Chiang is shown trials for offences against municipal bylaws and provincial here during his swearing-in ceremony in laws, such as driving without a licence or speeding under October 2007 in Kingston, Ontario. the Highway Traffic Act. Agents of Change BERTHA WILSON Seeing Beverley McLachlin as the Chief Justice of Bertha Wilson had been appointed a judge in the the Supreme Court of Canada might give you the Ontario Court of Appeal in 1975, and then, seven impression that women have always been part of years later, she was named to the Supreme Court of the Court. However, it took 115 years from the Canada. Her appointment was significant because it time of Confederation in 1867 for a female judge championed the role of women in the legal profession. to be appointed to the Supreme Court of Canada — She arrived at the Supreme Court 17 days before the Bertha Wilson, who was the first woman appointed Charter of Rights and Freedoms was declared. to the Supreme Court of Canada in 1982. Madame Justice Wilson protected the rights of the Bertha Wilson was born in Kirkcaldy, Scotland, disadvantaged during her time on the Court, which in 1923 and immigrated to Canada in 1949. She included many landmark and controversial rulings. received her law degree from Dalhousie University Bertha Wilson sat on the Supreme Court of Canada in Halifax, Nova Scotia. She was called to the Bar when Dr. Henry Morgentaler challenged Canada’s of Nova Scotia in 1957 and to the Bar of Ontario abortion laws. The Court struck down the Criminal two years later. When she had applied to Dalhousie Code’s abortion laws as being contrary to the Charter, law, the dean suggested she “go home and take up making it legal for any woman in Canada to obtain an crocheting.” Fortunately, she did not listen and per- abortion. She also sat on the court when the issue of severed (persisted) in her legal studies. spousal abuse was brought into the public spotlight. continues… NEL Chapter 6 Trial Procedures 183  Agents of Change (continued) BERTHA WILSON When Bertha Wilson passed away in May 2007, the Chief Justice of the Supreme Court wrote: “In her unassuming and persistent way, Bertha Wilson was a trailblazer who had a profound impact on the administration of justice, the development of law in Canada. To do what Bertha Wilson did took intelligence, vision and courage, all of which this extraordinary woman possessed in exceptional measure.” For Discussion 1. Why is Bertha Wilson considered a pioneer in Canada’s legal profession? 2. What issues were decided in two landmark decisions made while she was a Supreme Court of Canada justice? 3. What skills do you think are necessary to be a good judge? This photo of Bertha Wilson as a Supreme Court Judge was taken in 1989. 4. In 2008, four out of nine Supreme Court judges were women. These women share in common a dedication to the law and a When Angelique Lyn Lavallee, a victim of spousal commitment to supporting the rights and abuse, killed her husband and argued self-defence, it freedoms of Canadians. Do you foresee a day was Madame Justice Wilson who allowed the “bat- when the majority of Supreme Court judges tered woman defence” and acquitted Lavallee. (For a will be women? Discuss. detailed discussion of the Lavallee case, see Chapter 8.) The Crown Attorney Because crime is considered to be an act against society, governments hire Crown attorney the lawyer lawyers to be Crown attorneys (Crown prosecutors). Prosecutors are respon- who prosecutes on behalf of the sible to see that justice is done. As you have already learned, the burden of government and society proof is on the Crown. This means the Crown attorney must prove beyond a reasonable doubt that the accused committed the offence. Crown attorneys must disclose all available evidence whether they plan to introduce it or not, even if it may weaken their case. In law, this is called the principle of disclosure, and it ensures that an accused is given the oppor- tunity to answer and prepare a full defence to a charge. Prosecutors also have great influence. For example, they consult with police on cases and decide whether to lay criminal charges. They can also withdraw charges that have been laid. 184 Unit 2 Criminal Law NEL The Defence Counsel The defence counsel represents the accused to ensure that the accused’s legal defence counsel the legal rights are protected and that a proper legal defence is provided. The accused representative of an accused can represent himself or herself in lower courts, but is encouraged to hire court clerk a person who keeps professional counsel. This is reflected in the old saying that persons who records and files, and processes represent themselves “have a fool for a client.” Because lawyers are trained documents for a court in procedural and substantive law, they can direct a case through the courts. They will also advise clients on the law involved in the case and how best court recorder a person who documents court proceedings to proceed. Defence lawyers must represent their clients to the best of their ability, even in cases where the crime is very offensive to the public. The Court Clerk and Court Recorder The court clerk reads out the charge against the accused, swears in witnesses, and handles evidence and much of the paperwork and routine tasks required by the court. The court recorder sits near the witness box to record, word for word, all evidence given and all questions and comments made during a trial. Communications are recorded by keying them using shorthand machines or specialized computers, or by verbally inputting them into conelike devices. Because the court relies on an accurate record and may request that evidence be read back, this is a very exacting job. These records are kept and transcripts are made available later, if necessary, for appeals. The Sheriff The sheriff and his or her deputies carry out much of the court administration and trial preparation. It is his or her job to make sure the accused appears in court, to find prospective jurors, and to assist the judge. The sheriff also serves summonses (orders to appear in court) and carries out court orders, such as seizing The transcript of a trial is extremely and selling property to settle claims for damages. important. The court recorder’s job is an exacting one that requires attention to Other Court Officials detail and precision. Probation officers may be present in provincial or territorial courts, and judges may ask them to conduct interviews with convicted offenders. Such information may help judges in sheriff a Crown-appointed setting sentences. official who acts as part of the justice administration system Non-profit organizations, such as the John Howard Society, Elizabeth Fry Society, and Salvation Army, may have represen- tatives in court to help defendants. Services to help victims, such as the victim services provided by the Ontario Attorney The John Howard Society of Ontario, which has affiliates across Ontario, General and others, are also more easily available than they provides services to those people who were in the past. have come into contact with the law, their families, as well as those who are at risk of becoming involved in criminal activity. The society’s mission Digital rights not available. is “effective, just, and humane responses to crime and its causes.” NEL Chapter 6 Trial Procedures 185  Beginning Motions At the beginning of a trial, the Crown attorney and the defence may present motions to the judge. One such motion, a stay of proceedings, can stop the trial until further action is taken. In most circumstances, a stay of proceedings stops the trial from proceeding at all. Most often, a stay of proceedings is sought by the defence because the trial has not commenced within a reasonable amount of time. (Remember that the right to a prompt trial is guaranteed under the Charter of Rights and Freedoms in s. 11(b).) For example, the defence has been ready to proceed with the case, but the Crown has repeatedly asked for the dates to be changed. The rights of the accused to a trial within a reasonable time have been denied, so a stay of proceedings may be granted. The case of R. v. Askov, 1990, was very controversial in this regard, and it led to thousands of cases being stayed. It is discussed in the following Case feature. Other kinds of motions might challenge the legitimacy or admissibility of particular evidence. These motions are generally argued in the absence of the jury. Case R. v. Askov, 1990 CanLII 45 (S.C.C.) For more information, Go to Nelson Social Studies Elijah Askov and three others were charged with Supreme Court of Canada, which set aside the appeal conspiracy to commit extortion. The four were court judgment and stayed the proceedings. arrested and spent almost six months in custody The Supreme Court ruled that four factors must before being released on bail. The preliminary be considered in determining whether the delay in hearing date was set for December 1983 and bringing the accused to trial had been unreasonable: rescheduled to February 1984 at the request of the length of the delay; explanation for the delay; waiver accused. It was rescheduled again to July 4, 1984, as of time period, and prejudice to the accused agreed to by both sides. Then, because of courtroom The court suggested a guideline of institutional scheduling conflicts, the preliminary hearing could delay of eight to ten months for proceedings in not be completed until September —10 months provincial court, and six to eight months from the after the arrests. The accused were ordered to stand preliminary hearing until trial. trial. The earliest trial date available was October 1985, almost two years after the initial arrests. In For Discussion October 1985, the case was again delayed because 1. What right is guaranteed by section 11(b) of other cases had priority. The trial was rescheduled the Charter? for September 1986, nearly three years after the arrests. The defence moved to stay the proceedings 2. What was the main cause of the delay in this on the grounds that the trial had been unreasonably situation? delayed. This had violated the defendants’ rights 3. Identify four factors used to determine as guaranteed under section 11(b) of the Charter. whether a delay is unreasonable. The judge agreed and stayed the charges. 4. Why is it so important to have a trial within The Ontario Court of Appeal ordered the trial to a reasonable time? proceed. It found there was no misconduct on the 5. Do you think a stay of proceedings should be part of the Crown, no indication of any objection granted if the trial involves a serious offence by the accused to adjournments, and no evidence of such as a criminal assault? Explain. prejudice to the accused. This was appealed to the 186 Unit 2 Criminal Law NEL  Review Your Understanding 1. Explain the adversarial system. 2. Compare the role of a Crown attorney to the role of a defence lawyer. 3. Why is it important for judges to be impartial? 4. Why is the role of a court recorder so important to the appeal process? 5. Explain the significance of a stay of proceedings. 6.3 Juries and Jury Selection Although the jury system is not perfect, it usually satisfies the public more than a trial by judge. A jury lets the public see conflicts resolved by peers, rather than by a judge alone. A jury also reflects the conscience of the community. Juries are expensive, however, and they are used only for the more serious indictable offences. For certain less severe indictable offences, the accused can choose between trial by judge or trial by judge and jury. A judge alone will try the accused for summary conviction offences. Lawyers will advise their clients on whether to opt for a jury or judge alone. Some trials involve highly technical legal defences that might be better understood by a judge. Other cases involve a fact situation that a jury would find sympathetic. Juries serve an important role in Canada’s criminal justice system. Do you know anyone who has ever been asked to serve on a jury? Did You Know? Civil trials in Canada require only six jurors. You will learn more about civil trials in Chapter 11. Jury Selection The process of selecting the 12 jurors for a criminal trial is known as empanelling. This can take many days. First, a list of jurors is created from empanelling the selection an electoral (voting) list of all people living in the area where the court is of a jury located. A selection committee headed by the sheriff then randomly picks 75 to 100 names from the list. This large group of people who are potential NEL Chapter 6 Trial Procedures 187 jury panel a large group of jurors are referred to as a jury panel. The people selected are summoned to citizens, randomly selected, for appear at the court by notice from the sheriff. The more controversial the possible inclusion on a jury case, the more people are called. This is to ensure that those who are biased or who have already formed opinions about the case can be eliminated. A prospective juror who does not appear can be issued a warrant and can even be criminally charged. If you are selected from a jury panel to sit on a jury, the complexity of the case and seriousness of the charges facing the accused may determine how long the trial will last. The legislation in each province or territory outlines who can serve on a jury. Generally, however, prospective jurors must have the following qualifications: They must be Canadian citizens. They must be at least 18 years of age. They must have resided in the province or territory for at least one year. They must speak either English or French. They must be mentally fit to take on the responsibility. Jurors are expected to be ordinary citizens with no particular knowledge Doctors are exempt or skill in the law. That is why certain occupations are exempted from serving from jury duty because on juries. For example, a social worker employed in a federal prison would they are needed for be exempt from serving on a jury because she or he is too closely connected medical services. to corrections work. Judges, lawyers, and police officers would be too knowl- edgeable about the law, and their experience may influence their thoughts on the case. Medical doctors and veterinarians are also exempted from jury duty because they are considered experts like judges or firefighters. See the chart below for a list of people who are usually exempted from jury duty. People Usually Exempted from Jury Duty MPs, senators, and members of provincial legislatures and municipal governments judges, justices of the peace, lawyers, law students doctors, coroners, veterinarians This chart lists the law enforcement officers, special constables, sheriffs, prison wardens categories of people and guards, and spouses of anybody employed in these professions exempted from jury duty. people who are visually impaired A prospective juror can people with a mental or physical disability that seriously impairs their also ask to be excused ability to complete jury duty from jury duty in the case of serious hardship, such anyone who has served on a jury within the preceding two or three years as a personal illness. anyone convicted of an indictable offence that has not been pardoned If you want to be excused from jury duty, you can contact the judge where you are expected to appear for the jury selection process. You could be excused from sitting on a jury if you have a personal interest in the case, such as a 188 Unit 2 Criminal Law NEL relationship with a trial participant. You could also be excused if you are unable to speak the language spoken in the trial. If you experience a personal hardship, such as an upcoming scheduled surgery or an illness, you may also be excused. If you had a planned activity, such as a vacation, business trip, or school examinations, you may submit proof of your plans to the judge, and your jury duty may be postponed. If you wish to be excused from jury duty because of your religious beliefs, a justice would consider your request. If you receive a form called a Questions Asked of Potential Jurors Return to Jury Service Are you a Canadian citizen? Notice, you will be required to answer these types of Are you 18 years of age or more? questions to determine your Do you have good knowledge and command of the English or French eligibility for jury duty. If language? you do not complete the Have you been convicted of an indictable offence for which you have form, or you supply false or misleading information, you not been granted a pardon? could receive a fine of not Have you been summoned for jury duty in the last three years? more than $5000 and/or What is your occupation? Does it fall under any of the exempted serve six months in jail. In categories of occupations listed? your opinion, should prospective jurors be fined Do you have a mental or physical disability or medical condition that or imprisoned for violating you feel would not allow you to serve as a juror? the requirements of the Juries Act/Jury Act? Explain. At the start of a trial, prospective jurors assemble in the courtroom. Cards bearing the name, place of residence, and occupation of each prospective juror are placed in a container, and each person steps forward after his or her name is drawn. The judge decides what questions prospective jurors can be asked, such as whether they hold any prejudicial ideas about the accused because of his or her race. In selecting a jury, the Crown and defence must consider the Activity value systems of prospective jurors. For example, how might an older male, To learn more about a feminist, an older female, or a young bachelor view the accused in a case the jury selection process involving obscenity? Ethnicity, religion, age, financial status, occupation, and the responsibilities sexual orientation, intelligence, and gender are only a few of the character- of a juror, istics that are considered. Go to Nelson Social Studies The Challenges The Crown attorney and the defence counsel both want a jury that is responsive to their position. To get this, they challenge, eliminate, or accept various prospective jurors. The defence has the first right to challenge a prospective juror. After that, the prosecutor and the defence alternate the right of challenge. Three types of challenges can be used to eliminate prospective jurors: 1. challenge of jury list 2. challenge for cause 3. peremptory challenge NEL Chapter 6 Trial Procedures 189  Since both the Crown and the defence want a jury that is understanding or sympathetic to their point of view, both sides get to challenge prospective jurors. Challenge of Jury List Either side can challenge the validity of the jury list. However, this is rarely done. It will succeed only if there is evidence that the sheriff or selection committee was fraudulent or biased, or showed wilful misconduct in selecting prospective jurors. For example, the selection committee may have excluded any citizens from a particular ethnic group. However, there is no requirement that there must be a person on the jury who has the same ethnic origin as the accused. Challenge for Cause challenge for cause a formal A challenge for cause is made on the basis that prospective jurors do not objection to a prospective juror meet the provincial or territorial requirements governing juries. For instance, for specific reasons perhaps they are not on the jury list or are in a disqualified category (see the list of people usually exempted from jury duty on page 188). They may also have formed an opinion on the case, or they may not speak and understand English or French. A challenge for cause can be made because the juror may be biased or have an opinion that favours one side or the other in the case. A challenge for cause can be made at any stage of the Did You Know? jury selection process prior to jurors being sworn onto a jury. The most common Any number of challenges for cause can be made, as long as the judge challenge for cause is rules the causes are valid. If one side does challenge for cause, the other side that the potential juror can try to prove the cause is untrue. The judge will appoint two jurors to is biased, either because decide if the challenge should be accepted. In Canada, lawyers can make a they are prejudiced in some way or they motion to be allowed to ask potential jurors about their racial views. If the have prior knowledge motion is granted, a question will be carefully worded to help determine if about the case. the person would be biased to the Crown or defence position. The issue of racial bias is discussed in the following case, R. v. Spence. 190 Unit 2 Criminal Law NEL  Case R. v. Spence, 2005 SCC 71 (CanLII) For more information, Go to Nelson Social Studies In June 2000, a South Asian (East Indian) pizza deliverer was robbed. A black man named Sean Spence was arrested and arraigned in court on the robbery charge in March 2002. During the jury selection process, the trial judge warned potential jurors that they would be eliminated if any of them displayed racial prejudice against black people. He allowed the defence counsel to challenge for cause on the basis of potential bias against a black accused. The trial judge refused to allow a challenge for cause to include the East Indian race of the com- plainant because he regarded the “interracial” element Digital rights not available. in the facts of this case to be irrelevant. In other words, the judge did not think East Indian jurors would be biased in favour of the victim. The jury was selected, and the accused was convicted at trial. On appeal to the Ontario Court of Appeal in 2004, defence counsel argued that potential members of a jury who are East Indian might empathize with a victim of the same race. Therefore, this might prejudice the accused in his right to a fair trial by an impartial jury. Counsel wanted the “interracial question” of the victim’s East Indian race as well as the race of Mr. Justice Ian Binnie of the Supreme Court of Canada the accused to be put to the potential jurors: “Would wrote the unanimous decision in this case. your ability to judge the evidence in this case without bias, prejudice, or partiality be affected by the fact that the accused person is a black man charged with of the accused. Neither the race of the complainant robbing an East Indian person?” The court agreed and nor his testimony about the events in question would set aside the conviction. It concluded that an accused have shed any light on identification. The interracial was entitled to have the question relating to the inter- element therefore did not need to be included in the racial nature of the crime posed to potential jurors. question to be asked to potential jurors. In June 2005, the Crown appealed to the Supreme Court of Canada. The court allowed the appeal For Discussion and restored the conviction in a 7–0 judgment. The 1. What type of challenge for cause was Supreme Court agreed that it is within the trial judge’s allowed at trial? discretion to limit a challenge for cause to the race of the accused based on the facts of the case. It is also up 2. What question did defence counsel want to the trial judge to determine whether there is an air potential jury members to consider? Why? of reality to the challenge for cause on the particular 3. Why did the trial judge restrict the wording circumstances of the case. In the circumstances of of the question to the race of the accused? this case, the trial judge did not think that leaving 4. Do you think that there should be more out the interracial element was unfair. The only issue opportunities to question jurors as part of of importance to the defence was the identification the jury selection process? Explain. NEL Chapter 6 Trial Procedures 191  Peremptory Challenge peremptory challenge a formal A peremptory challenge allows both the defence and the Crown to eliminate objection to a potential juror for a prospective juror without giving a reason. The Crown or defence may no specific reason simply have a gut feeling about the prospective juror and not want his or her participation in the case. Each side is allowed a set number of peremptory challenges based on the charge: very serious charges, such as first-degree murder — 20 challenges a charge where the penalty is five years or more — 12 challenges a charge where the penalty is under five years — 4 challenges The judge can also direct a juror to stand aside for any reasonable cause. If a full jury cannot be selected from the remaining prospective jurors, those asked to stand aside will be called again. The defence and the Crown prosecutor can then accept or reject them as jurors. If the full jury of 12 cannot be selected because of challenges, more prospective jurors can be called from the jury list. In extreme circumstances, the judge may order the sheriff to take prospective jurors off the street. Offences Allowing Trial by Jury murder seditious sed us (or ( subversive) bv treason offences offe offencces es alarming Her Maje Majesty M a es ssty piracy pir pira pira ra y orr piratical acy pi p raatt c l acts atical Do some of these offences inciting iinc ng g to t mutiny utin iiny utiny y intimidating Parliam Parliament arl arlliia a ent ntt or o a seem outdated to you? Why do you suppose these legislature attempting at att tte tt emp mptin pti ptin ngg or or conspiring con cons n to offences are all still in the bribery by the hholder o der hold e of of a commit com om co mmmitit any it a anny of of the thhe above offences the Criminal Code? judicial office accessory sory to murder or treason You Be the Judge R. v. Teerhuis-Moar, 2007 MBCA 120 (CanLII) For more information, Go to Nelson Social Studies Sydney Teerhuis-Moar, an Aboriginal man from The Manitoba Court of Queen’s Bench dismissed Winnipeg, had been charged with second-degree the claim. It stated that the statistical difference in murder. Prior to the trial, he challenged Manitoba’s the percentage of population did not lead to the Jury Act. He argued that the jury selection process in conclusion that Aboriginal people would be under- Manitoba, and particularly in Winnipeg, did not lead represented on a jury. More studies would be needed to juries that were representative of the community. He to verify the information. The accused also did not claimed that fewer Aboriginal people would be selected show any evidence to support his claim relating to for jury duty in Winnipeg because the Aboriginal people with criminal records. His application to the population in the city was only 7 percent, compared to Court of Appeal was dismissed. 11.7 percent in the province as a whole. He also argued Do you think that race should be a factor in that fewer Aboriginal people would be selected because the jury selection process? Explain. of having criminal records, making them not eligible. 192 Unit 2 Criminal Law NEL Jury Duty After being selected, each juror is sworn in and then sits in the jury box. Prospective jurors who were not selected can leave, but they may have to return for later trials held during that session of the court. Selected jurors may also be required JUROR’S OATH to return for later trials. The judge may waive this requirement, though, particularly if a trial is lengthy. “I swear to well and truly try and At the start of a trial, the judge informs jurors of their duties. They may or may not take notes, depending on the judge and true deliverance make between jurisdiction. In all trials, however, jurors must not do any of our sovereign lady the Queen the following: discuss the case with anyone other than other jurors and the accused at the bar, follow media reports about the case whom I have in charge, and a disclose any information from jury discussions that is not revealed in open court even after the conclusion true verdict give, according to of the trial the evidence, so help me God.” Every juror must swear an oath before the court. The rather archaic language used in the oath has been passed down through Canadian legal history. The oath states that a juror swears to listen fairly and impartially to both the Crown’s and defence’s case and reach a verdict based solely on the evidence. oath a solemn promise or statement that something is true After the jury is selected, the judge advises jurors of their duties. During most trials, jurors go home at the end of each day. The judge may, in rare cases, sequester the jury for the entire trial. This means that the sequester to keep the jury together jury is separated from external influences until they reach their formal deci- and isolated until it reaches a verdict sion — the verdict. Sequestered jurors are isolated from their family, friends, verdict the final, formal decision of and work. They can communicate only with each other and the court officer a trial (for example, not guilty) appointed to look after their needs. They are not allowed to see, hear, or read any media reports in case the trial is being discussed. Sequestering is NEL Chapter 6 Trial Procedures 193  used to prevent jurors from being influenced by outside information or by Did You Know? anyone with an interest in the case. Thus, the verdict should be based solely Employers are required on evidence presented in court, and not on outside opinions or rumours. In by law to allow employees all trials, jurors are sent to a deliberation room to reach a verdict. time off for jury duty. Some A juror can be discharged during a trial if he or she is unable to continue employers may continue to for a valid reason. If the jury falls below 10 members, however, a new trial pay you your salary during must be ordered. jury duty, but, by law, they are not required to do Sitting on a jury is part of one’s civic duty, and, as such, a juror may not so. An employee cannot be paid. However, jurors may be entitled to a token payment for their ser- be fired for a prolonged vices, which increases if the trial is lengthy. Jury pay varies from province absence due to jury duty. to province, with several provinces paying jurors from their first day of jury duty. As of 2008 in Ontario, jurors began receiving a fee of $40 per day on the eleventh day of jury duty. The fee increases to $100 per day if a juror is required to serve for 50 or more days. A travel expense allowance is paid to jurors who live more than 40 kilometres from the court. Review Your Understanding 1. Describe the steps followed in jury selection. 2. Identify eight categories of people who are excluded from jury duty, and give one reason why you think each category is ineligible. 3. Explain the difference between a peremptory challenge and a challenge for cause. 4. Describe three grounds on which a prospective juror may be challenged for cause. 5. Explain sequestering, and identify the circumstances under which juries are sequestered. arraignment at the opening of a criminal trial, the charge read to the accused and the plea entered 6.4 Presentation of Evidence Arraignment The first step in a trial is the arraignment. This is when the charge is read by the court clerk to the accused. The arraign- ment must include the charge contained in the indictment (the formal written document charging an accused with a crime). Otherwise, an acquittal may result. The accused then enters a plea of guilty or not guilty. If the accused refuses to plead, a not-guilty plea is automatically entered on his or her behalf. The accused is usually arraigned in his or her first court appear- ance, and re-arraigned for trials in higher courts. Escorted by sheriff’s officers, Michael Mitchelmore is led into the Halifax provincial court for his arraignment in August 2005. Mitchelmore was charged on two counts of first-degree murder. 194 Unit 2 Criminal Law NEL Crown Evidence Section 11(d) of the Charter of Rights and Freedoms guarantees that any accused person is “presumed innocent until proven guilty.” After the arraignment, the onus (responsibility) is on the Crown to rebut (to counter or disprove) this presumption of innocence. direct evidence information The Crown first presents an opening statement, which summarizes its given by an eyewitness about the case against the accused. It then calls evidence such as witness testimony and event in question exhibits. Exhibits may be physical evidence, such as a weapon found at the circumstantial evidence indirect scene of the crime. Exhibits may also be paper evidence, such as a map of evidence not based on personal the crime scene drawn by the investigating police officer. All evidence that is knowledge relevant, reliable, and fair is admissible, according to the Canada Evidence Act. The Supreme Court of Canada has ruled that it is not necessary for the Crown to call obvious witnesses, even the victim, if the relevant evidence that person might provide can be presented in other ways. All About Law DVD Direct evidence is usually obtained from the testimony of witnesses who “Eyewitness: Unreliable Evidence” actually saw the offence being committed. In many instances, however, there from All About Law DVD may be no such witnesses. Direct evidence is a common kind of evidence, but it is not the most reliable. Eyewitness accounts may be contradictory, and witnesses may not recall what they saw with complete accuracy. For instance, if the witness needs eyeglasses, was he or she wearing them at Activity the time of observing the events in question? Furthermore, memories can To learn more about the change over time. Therefore, how long ago the witness observed the events Steven Truscott case, might affect his or her ability to supply relevant and reliable information. Go to Nelson Circumstantial evidence is indirect evidence. It can show that the accused Social Studies is most likely the only one who could have committed the criminal offence. Evidence must be proven as it is presented. For example, it must be proven that a glove found at the crime scene is the same one entered as an exhibit. If counsel is claiming that a certain person owned the glove, it must also prove that fact. Some evidence is easily proven. Fingerprints may connect a gun to its owner, or DNA tests may link the accused to the scene of a crime. Once evidence has been presented and proven, the judge or the jury must decide which evidence or testimony they find most convincing. In 1959, 14-year-old Steven Truscott was convicted of rape and murder on purely circumstantial evidence. Originally, he was sentenced to hang. Steven Truscott was released after spending 10 years in prison. On August 28, 2007, 48 years later, the Ontario Court of Appeal acquitted Truscott. In July 2008, the Ontario government announced it would pay Truscott $6.5 million in compensation for his ordeal. NEL Chapter 6 Trial Procedures 195  The examination-in-chief (direct examination) is the first questioning of your witness when called to the witness stand. Both Crown and defence can call witnesses. The rules of examination and cross-examination apply to both. Because a lawyer interviews witnesses during preparation, he or she knows what answers to expect. Therefore, the lawyer can ask no leading questions during direct examination. Leading questions indicate the answer — generally a “yes” or “no” response. Examples of leading questions include: “Did you see the accused driving a yellow car through the red light at 1:45 a.m.?” or “Did you see Alexander at midnight?” Proper, non-leading questions would be: “What happened at the intersection at the time in question?” or “At what time did you see Alexander?” After the examination-in-chief is finished (also referred to as direct examination), the opposing lawyer cross-examines the witness and is free to use leading questions. The judge and jury then weigh the evidence to decide what evidence is more convincing. Here, the witness’s credibility (reliability) is a key factor. The Crown may re-examine the witness about the points brought up by the defence. If the judge permits, the defence may then re-cross-examine. Either side will often ask questions that have little to do with the case, but which may reveal the character of the witness. The purpose of a trial is to find the truth, and the process of a trial is to Witnesses are questioned test the truth of evidence. In our adversarial system, two sides collide, and by both the Crown and the when the dust settles, the truth will emerge. This allows each side to get defence. If the witness is more information from the other side’s witnesses. It also allows both sides called by the Crown, the to uncover any conflicts or contradictions in their testimony. Because the defence’s questioning is called cross-examination. jury must decide the question of guilt solely on the basis of evidence, both sides will try to cast doubt on each other’s evidence. Once the Crown has called all its witnesses, it rests its case. It can reopen its case only if the examination-in-chief the judge decides that it would serve justice to do so. questions a lawyer asks her or his own witness in court Defence Evidence cross-examination the questions Before it calls any evidence, the defence can make a motion for a directed a lawyer asks a witness called by the opposing side verdict. It will do so if it believes the Crown has not proven its case. If the judge agrees that the essential elements of an offence (actus reus and mens leading question a question rea) have not been proven, he or she will instruct the jury to give a directed that contains the desired answer verdict of “not guilty.” In other words, jurors are told what verdict to give. If the judge rejects the defence motion for a directed verdict, the case con- directed verdict when a judge withdraws the case from the tinues. The defence then presents its case. Again, the defence only needs to jury and finds the accused not raise a reasonable doubt about whether the accused committed the offence guilty because the Crown has not in order to acquit. It does not have to prove that the accused is innocent. It is proven its case up to the Crown to prove the guilt of the accused beyond a reasonable doubt. The defence usually summarizes what it hopes to show and then pres- ents evidence in the form of witnesses. Now the roles are reversed. The defence cannot ask leading questions on their direct examination of their witnesses, but the Crown can do so on its cross-examination. The Crown may also give evidence in reply if the defence raises a new matter that the Crown had no opportunity to deal with during its direct examination. The defence then has the right to present surrebuttal (evidence to counter the Crown’s rebuttal evidence). 196 Unit 2 Criminal Law NEL  Steps in Presenting Evidence This chart shows the 1. Crown starts with examination-in-chief of witness. nine steps in presenting evidence. What is the 2. Defence may cross-examine witness. goal of the Crown 3. Crown may re-examine witness. and the defence in presenting evidence to 4. Defence may re-cross-examine with judge’s permission. the jury? Should the 5. Defence presents evidence. Crown have to call the victim as a witness 6. Crown may cross-examine witness. so that the defence 7. Defence may re-examine witness. has an opportunity to cross-examine him 8. Crown may make a rebuttal. or her? Explain. 9. Defence may make a surrebuttal. Witnesses Before the trial, the Crown gives the defence a list of Crown witnesses. Either the Crown or the defence may pay witnesses, but only if they are expert witnesses whose special knowledge can help the court. Although witnesses usually appear voluntarily, they may be served a subpoena (a court document subpoena a court document that orders them to appear). A subpoenaed witness who refuses to appear can ordering a person to appear in court be served with an arrest warrant and detained for 30 days. If a judge finds it is justified, the witness can be detained for up to 90 days. Any witness who fails to attend a trial to give evidence may be found guilty of contempt of court and fined or imprisoned for 90 days. Once the trial begins, if the judge has not already ordered excluding all witnesses, the defence can ask to have witnesses who have not yet testified removed from the courtroom. This is done to keep witnesses from changing their testimony. As each witness takes the stand, he or she must take an oath (swear to tell the truth) on a holy book or make an affirmation (a solemn and formal declaration) to tell the truth. A witness who knowingly gives false evidence with the intent to mislead the court commits the criminal offence of perjury. It is also an offence for a perjury the act of knowingly witness to give contradictory evidence. The maximum penalty for both offences is giving false evidence in a judicial proceeding 14 years of imprisonment. Digital rights not available. Perjury is intentionally giving false evidence in court. Do you think a maximum penalty of 14 years of imprisonment is justified? Explain. NEL Chapter 6 Trial Procedures 197  Anyone who can understand the nature of the oath and the questions asked by the various parties can be called as a witness. If a witness is found not to be mentally competent, his or her evidence can be declared inadmissible. A child who does not understand the nature of an oath or an affirmation can give unsworn evidence, providing the child understands the importance of telling the truth. In the charge to the jury, the judge should indicate the admissibility of such evidence. Because children may be frightened, the judge may allow them to give evidence from behind a screen and, for certain sexual offences, on videotape. When children are asked to testify, they must understand the need to tell the truth. Did You Know? Section 11(c) of the Charter guarantees the right of an accused not to be compelled The accused does not have to take the witness stand. If the accused has to take the witness stand. an inappropriate attitude or appearance, it may be in his or her best interests not to do so. This may also be true if the Crown’s cross-examination asks the accused questions that could lead to conviction. An accused will discuss with his or her lawyer the benefits and drawbacks of taking the stand. The fact that the accused does not take the stand should not be a factor in deter- mining whether the Crown has proved its case. credibility the fact or quality of The most important aspect of witness testimony is its credibility. Witnesses being believable or reliable are often asked repeatedly to recall things that they heard or saw. This is done to see if their answers are the same as in earlier accounts. Each side hopes to discredit the other’s witnesses. Evidence will often be contradictory, but that does not mean that witnesses are lying. People see things differently, and memory fades. Besides credibility, the weight that should be given to evidence is also significant. It is up to the jury or the judge to decide on the credibility of a witness and the weight his or her evidence deserves. 198 Unit 2 Criminal Law NEL  Questions a Judge or Juror Should Ask of Evidence These are some questions Does the witness have an interest in the outcome of the case? judges and jurors should ask about evidence. What Has the witness been influenced about the case since the offence do you think the judge or occurred? juror is trying to find out about evidence by asking Do other witnesses support this witness’s evidence? these questions? Does the witness’s testimony conflict with evidence he or she has given earlier? Rules of Evidence Rules of evidence have developed over the years and are very complex. Most are contained in common law, but there are also provisions in statute law, such as the Canada Evidence Act. If the admissibility of evidence is questioned during a trial, the judge will order a voir dire. This is a trial within a trial to voir dire a type of mini-trial held decide if evidence can be shown to the jury. within an actual trial to decide if certain evidence is admissible Sometimes it is difficult to determine whether the evidence should be admis- sible. For example, assume a footprint was found in the mud outside a building where a robbery occurred. The tread markings are similar to those of sneakers owned by the accused. Should the footprint evidence be admitted? Both the Crown and the defence need an opportunity to argue their posi- tions without a jury being prejudiced by their arguments in case the evidence Did You Know? is not allowed. During a voir dire, the jury leaves the courtroom, and the A voir dire may take Crown and defence present their positions to the judge. The judge considers days depending on the the presentations and the rules of evidence and then decides what part (if any) complexity of the case. of the evidence is admissible. The jury then returns, and the trial continues. Self-Incrimination In U.S. movies and TV shows, we often hear characters talking about “taking the Fifth.” This is a reference to the Fifth Amendment of the U.S. Constitution against self-incrimination (behaviour or evidence that indicates one’s guilt). self-incrimination the act of We do not have a Fifth Amendment in Canada. However, section 13 of the implicating oneself in a crime Charter of Rights and Freedoms does protect witnesses from self-incrimina- tion. It states that evidence witnesses give in court must not be used against them later. This encourages witnesses to answer all questions honestly. The Canada Evidence Act states that a witness can object to questions on the grounds of self-incrimination. This act states that evidence from a witness in one court cannot be used against him or her in another criminal court case. The only exception is in a case of perjury to show that the wit- ness lied while previously testifying as a witness. Police can also use evidence a witness has given in court to gain more evidence to lay a charge against that witness. For example, Kyla testifies that she shot the prison guard, and that Gunnar, who is charged with the murder, did not do so. The Crown cannot use Kyla’s testimony as a basis for charging her with the murder of the guard. Her admission may lead police to investigate. If they find enough new evidence to indicate that Kyla did indeed commit the offence, they can lay a charge of murder against her based on that evidence alone. NEL Chapter 6 Trial Procedures 199  You Be the Judge R. v. White, 1999 CanLII 689 (S.C.C.) For more information, Go to Nelson Social Studies While changing a tire near Fernie, British Columbia, an accident. The defence argued that White’s various Lawrence O’Brien was struck by a vehicle and statements to police were involuntary, and that they killed. The next morning, Joann White phoned the were obtained in violation of section 10(b) of the RCMP. She advised them that while driving the night Charter. Furthermore, admitting them into evidence before, she had swerved to miss a deer and had hit would violate the principles of fundamental justice a man. She panicked and left the scene. White gave under section 7 of the Charter, because one must not the same information to an officer who visited her be compelled to incriminate oneself. home and who then read her rights. The officer told How do you think the courts ruled in this White that under the Motor Vehicle Act, she had to case? Should White’s statements be disregarded provide a statement if requested to do so by police. because of self-incrimination? Explain your opinion. The officer told White that this statement could not If you were White, what would you have done when be used against her in court. the police arrived at your home the day after the White was charged under section 252(1)(a) of accident? Explain. the Criminal Code with failing to stop at the scene of Review Your Understanding 1. Summarize the order in which evidence is presented in a criminal trial, and state the purpose of each stage of the examination. 2. What is a leading question? Why is a leading question not asked in direct examination of a witness? 3. When would the defence ask the judge for a directed verdict? 4. Compare direct evidence and circumstantial evidence. 5. Who determines the credibility of witnesses? Types of Evidence The trial system is complex, as judges rule on whether certain evidence should be allowed or not. Some types of evidence and rules relating to their use are shown below. Types of Evidence privileged communications photographs similar fact evidence electronic devices and video These are types of evidence that may be hearsay evidence evidence admissible in a courtroom. opinion evidence polygraph evidence Illegally obtained evidence is not admissible. character evidence confessions 200 Unit 2 Criminal Law NEL Privileged Communications Privileged communications are any communications that cannot be presented privileged communication in court as evidence. Communication between spouses, for example, is privi- confidential communication that cannot be disclosed leged. This means that the Crown cannot force the spouse of an accused person to give evidence against the accused based on any communication between them. Of course, the accused’s spouse may choose to give evidence for the defence. Some exceptions apply, such as in crimes of violence against the spouse, certain crimes related to sex, and some offences committed against minors. Other privileged communications include conversations between lawyers and clients, parishioners and clergy, patients and doctors, and so on. The person who receives the communication is the dominant party in a posi- tion of power. If that person decides to give evidence based on privileged communication, that evidence is nullified (has no force in court). However, there can be exceptions to rules regarding privileged communications. For example, if a client admits something to his or her lawyer, that information can be brought forward as evidence if the client agrees. Similar Fact Evidence Similar fact evidence is evidence that shows the accused has committed similar offences in the past. The Crown generally uses this kind of evidence to imply that the accused has committed the offence again. It is also used to refute defence claims that the offence was a mistake or an accident. Because similar fact evi- dence discredits the accused’s past, it is only admitted in rare situations where it is relevant to the case. In other words, it must be similar to the circumstances in question in the current case. Such evidence can be extremely damaging to the accused’s case if the jury gives it too much weight. Generally, the judge will hold a voir dire, and the jury will leave the courtroom while the lawyers argue over whether to admit similar fact evidence. The judge will make a ruling on the evidence, and the jury will be allowed to return to the courtroom. Conversations between a lawyer and his or her client are privileged communications. NEL Chapter 6 Trial Procedures 201  You Be the Judge R. v. Perrier, 2004 SCC 56 (CanLII) For more information, Go to Nelson Social Studies In December 1997 and January 1998, a gang of possession of stolen property arising from the other men invaded family homes in Vancouver, British two home invasions. During the trial for the first two Columbia, on three occasions. All three home inva- incidents, the identity of the accused was at issue. sions occurred during the day. The attacks were While the Crown agreed that membership in the gang against middle-aged Asian women who had opened rotated, it argued that Perrier was involved in all three the door. In each case, one gang member would incidents and entered similar fact evidence of Perrier’s pose as a letter carrier and ring the doorbell of the involvement with the gang. The trial judge instructed targeted home. When the occupant of the house the jury that evidence could be admitted for all three answered the door, two other gang members would incidents in proving the guilt of the accused in one overpower her, and other gang members would or all of the incidents. Perrier was convicted on all join them in the robbery. In all three incidents, the charges. His appeal to the British Columbia Court of occupants were bound with duct tape while the gang Appeal was dismissed in October 2003. One court members robbed the homes. of appeal judge dissented, ruling that the trial judge In August 1999, Justin Perrier was convicted made an error in instructing the jury by allowing the for his involvement in the third robbery. In April evidence of gang activity as similar fact evidence. 2000, he was also convicted on charges of breaking What do you think the Supreme Court of and entering, robbery, unlawful confinement, and Canada ruled in this case? Explain why you think so. Hearsay Evidence hearsay evidence information Hearsay evidence is something that someone other than the witness has said not coming from the direct, or written who is not in court. For example, Georgina says she heard Silas personal experience or knowledge say he had seen Anton (the accused in a murder trial) stab and kill Gavin. of the witness Georgina’s statement would be challenged as hearsay evidence because she did not see the murder. Furthermore, Silas (the person who actually made the statement) is not in court to testify about what he actually saw Anton doing to Gavin. Hearsay evidence usually involves a third party who did not see the incident nor even hear what was said at the time in question. In some circumstances, however, hearsay is admissible, such as when the person who made the statement has died. An out-of-court statement may be admitted as evidence. However, it must show proof that the statement was actually made, not for its content. For example, an out-of-court statement could indicate that a witness was in a location where he or she talked to the accused, but the actual content of this discussion would not be admissible. Hearsay evidence is also admissible if the witness is quoting a person who was dying, as long as the evidence would have been admitted if the person had lived. To be admitted, hearsay evidence must be reliable and necessary to help the judge and jury decide the case. Opinion Evidence opinion evidence information Opinion evidence is what an expert witness thinks about certain facts in a based on the thoughts of the case. For example, a pathologist might give opinion evidence as an expert witness, usually an expert witness on the cause of death after an autopsy. Unless the expert is qualified 202 Unit 2 Criminal Law NEL (declared an expert in his or her field), his or her opinion is generally inadmis- sible. To be admitted, opinion evidence must be relevant and necessary to help the judge or jury reach a decision. Expert evidence can have a major impact because a judge or jury may see the expert as being infallible (incapable of making a mistake). For that reason, a judge will allow the evidence only if it is on a topic that is outside the “experience and knowledge of a judge or jury.” Character Evidence The Crown often wants to introduce evidence of any negative character traits and previous convictions of the accused. This kind of character character evidence information evidence is prejudicial (intended to influence the jury to convict). Therefore, indicating the likelihood of an accused committing or not the Crown is restricted in its use. For example, the Crown cannot use a committing the crime series of questions to indicate that the accused has a criminal character or nature. The jury must decide the question of guilt from the facts of the case, not from prior history. The defence, however, is allowed to introduce character evidence to support the accused’s credibility. If convincing enough, this kind of evidence may lead to acquittal. There is a cost, however. If the defence introduces evidence of good character, such as a good school or employment record, the Crown is free to introduce evidence of bad character, including previous convictions. The Canada Evidence Act states that witnesses may be questioned about any previous criminal convictions as a way to verify their credibility. This also applies to an accused person who chooses to testify. However, questioning must not attack the credibility of the accused, unless such cross-examination is relevant to the fact that the accused is lying when presenting his or her evidence. Photographs Photographs may be entered as evidence if it can be established that they are an accurate portrait of the crime scene. Photographic evidence can be manipulated very easily in today’s tech-savvy world. In fact, the software Photoshop has become part of popular vocabu- lary. It is important to consider who took the photograph, as well as when, where, and how the picture was taken and processed. Often, the photographer and film processor must take the stand to answer questions relating to the accuracy of the photograph. In addition, a judge has the right to not admit photographs that are meant merely to inflame the jury, such as shocking visuals of a murder crime scene. Electronic Devices and Video Evidence Evidence obtained through electronic devices or video surveillance will be admitted in court only if Criminal Code procedures have been strictly followed. The Code states that electromagnetic, mechanical, or other devices must not be used to intercept private conversa- tions unless this is authorized by a court order or one of the parties involved in the conversation has consented. Court rulings have gen- This sophisticated chip is not erally agreed that electronic surveillance must be “treated as a last only a microphone; it is also resort.” In other words, physical evidence and witness statements a high-powered transmitter. will often be considered first to connect the accused to a crime scene. NEL Chapter 6 Trial Procedures 203  The Criminal Code also permits police to intercept private conversations without authorization in certain circumstances, if they believe the following: that the situation is an emergency that interception is needed immediately to prevent an unlawful act that would cause serious harm to any person or to property that one of the parties under surveillance is either performing that act or is its intended victim As well, a person who fears bodily harm can authorize police to intercept his or her private conversations without obtaining judicial permission. This right can be critically important in cases of spousal abuse and stalking. Video surveillance evidence can be admitted in court. Search warrants are not needed for video surveillance in public places. However, they are required on private property. The judge must set terms and conditions in the warrant that will ensure privacy is respected in those areas in which a person has a reasonable expectation of privacy. For example, the conditions might list what specifically can be filmed around a person’s home. People can take photographs and video footage with their cellphones. Should cellphone images of an alleged criminal incident be admissible in court? Explain. Polygraph Evidence In a polygraph (lie detector) test, a person is asked questions while hooked up to a machine that measures changes in blood pressure, respiration, and pulse rate to indicate whether the person is telling the truth. The Supreme Court of Canada (see Phillion v. R., 1977) has ruled that polygraph tests are hearsay and therefore inadmissible as evidence. Polygraph tests are not infal- lible. There is a concern that a jury might convict an accused based on his or her failure of the test, rather than on the credibility of the evidence presented. 204 Unit 2 Criminal Law NEL  You Be the Judge R. v. Oickle, 2000 SCC 38 (CanLII) For more information, Go to Nelson Social Studies Several fires involving four buildings and two motor third officer then interrogated Oickle for more than vehicles had occurred in and around Waterville, an hour, and he confessed to setting seven of the Nova Scotia. The fires appeared to have been eight fires. Oickle was placed in a cell to sleep at deliberately set. Richard Oickle, a member of the 2:45 a.m. At 6:00 a.m., an officer noticed that Oickle volunteer fire brigade, responded to each fire. He was awake and crying, and he asked if he would was one of eight people asked to take a polygraph agree to re-enact the setting of the fires. This, too, test. Before taking the test, Oickle was informed of was videotaped and showed Oickle being told that his right to remain silent, right to obtain counsel, he could stop the re-enactment at any time. Oickle and right to leave at any time. He was also told that, was driven to the various crime scenes, where he although polygraph results were not admissible in described how he had set each fire. He was charged court, anything he said during the test was. Oickle with seven counts of arson. was told he had failed the polygraph test, which was The trial judge ruled that Oickle’s statements were an “infallible determiner of truth.” He was again voluntary and admissible, and convicted him on all reminded of his rights and then questioned for an counts. A further appeal to the Nova Scotia Court hour. After 40 minutes of further questioning, Oickle of Appeal excluded his confession and entered an confessed to setting fire to his fiancée’s car and gave acquittal. A final appeal to the Supreme Court of a statement. He was arrested and again informed Canada resulted in a 6–1 judgment. of his rights. Review the procedures used by the police in Oickle’s police interview had been videotaped. obtaining the confession and the different lower It showed that at 8:30 p.m., he told police he was court judgments. What do you think the majority tired. They informed him he could call a lawyer. A of the Supreme Court decided? Why? Confessions A confession is an accused person’s acknowledgment that the charge, or some essential part of it, is true. The Charter of Rights and Freedoms states that anyone who is detained or arrested must be promptly informed that he or confession a statement in which she has a right to legal counsel before making any statement. Any statement the accused admits that some or all that is taken from an accused person who has not been told of his or her of the charges laid are true Charter right can later be excluded as evidence. A statement can be either inculpatory, which is an admission, or exculpatory, a denial. An example of inculpatory demonstrating guilt an inculpatory statement would be if the accused said, “I had blood on my exculpatory clearing the defendant hands,” because this statement suggests an admission of guilt. An example of guilt of an exculpatory statement would be, “I was in another country when the crime happened.” This statement places the accused far away from the scene of the crime at the time in question. How a confession is obtained also affects whether it is admissible in court. If there is reason to believe the confession was not voluntary — that police promised leniency, for example, or subjected the accused to lengthy questioning — the judge may reject it as evidence. Even if such a confession is admitted as evidence, the jury may reject it or give it little weight in reachin