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TRIAL PROCEDURE

Trial Procedure

A criminal trial is a formal hearing in court whose purpose is to determine if an accused person is guilty of a specific charge or charges. In Canada, the Crown must prove an accused’s guilt beyond a reasonable doubt. While this expression ‘beyond a reasonable doubt’ is familiar to us, understanding what it means can be tricky.

It has been held that beyond a reasonable doubt means proof not rising to a level of absolute certainty but it is much closer to that than merely proof on a balance of probabilities (think 50% +1).

There are jury trials in Canada but only for the most serious offences (indictable) and usually only if the accused wants to be tried by a panel of his or her peers. Usually, trials are decided by a judge sitting alone either in provincial court or superior court.

Trial Procedure

A criminal trial begins with the formal arraignment (reading of the charges) of the accused(s). A plea of “not guilty” is required in most cases. Once the arraignment has begun, the Crown commences producing evidence to demonstrate that an accused was the perpetrator of the particular offences.

The most common form of evidence relied upon in Canada is testimony. Testimony is sworn declarations of a human witness in court. Witnesses testify from the witness box (it’s not called the stand in Canada). Lawyers ask the witness questions and the responses are evidence. Every word is recorded so that a record of everything is kept.

The party calling a witness asks open ended questions seeking for that witness to related what they saw, heard, or felt. Once a party is finished asking their questions, the opposing party is entitled to cross-examine that witness.

Cross-examination is intended to flush out whether the witness was actually able to see, recall, or hear what they say they have. Further, cross-examination can be used to discredit the witness by creating some doubt as to their honesty.

Once each party who has a right to cross-examine has done so or has chosen not to, the party calling a witness has a limited right of re-examination (confined usually to topics arising in cross-examination and not contemplated by the party calling that witness).

This process repeats itself until the Crown has called all of its witnesses. Once it is finished, the defence is put to its election (whether or not to call any evidence).

There is no requirement for the defence to call evidence. As a corollary, it is therefore not required that an accused person testify in his/her own defence. The accused may choose to do so and in some circumstances might bear a tactical onus to offer their side of the story.

Once all witnesses who are going to testify have done so, the evidence is complete. The next portion of the trial is legal submissions. Submissions are usually verbal representations (sometimes written) to the judge or jury about how the law relates to the evidence that was heard. It is common for lawyers to refer to previous cases (called jurisprudence) to show how those previous cases were decided to help persuade the judge or jury that the current case being litigated should be decided in the same way.

Each party is entitled to make submissions. There are uncommon for objections to be made at this stage but the judge or jury may have questions of the lawyer(s).

Once submissions are complete, the trier of fact (judge or jury) must decide the case. In the case of a jury trial, the jurors are sequestered to deliberate on everything that they have heard. In a judge alone case, sometimes they pronounce their decision immediately. Other times, they ask to come back on another date having been given an opportunity to closely review everything that has been said.

A decision about the guilt or non-guilt of the accused is rendered either verbally or in writing and sometimes both. The judge or jury will address the main aspects of the case demonstrating why they were persuaded by a particular witness’ version and perhaps why they were not persuaded by another’s.

If an accused is found not-guilty of all the counts for which they stood trial, they are free to go. An acquittal carries a tremendous amount of legal significance.

If an accused is found guilty or one or more counts, then a sentencing process must be undertaken: see sentencing.

Sometimes a party who has been unsuccessful seeks to appeal the decision of the judge or jury.