The Canadian Court System Part 2

The Participants There are two fundamental principles of Canada’s criminal justice system: An accused person is innocent until proven guilty. Guilt must be proven beyond a reasonable doubt. Beyond a reasonable doubt is a standard of proof whereby a defendant’s guilt must be proven to the extent that a reasonable person would have no choice but to conclude that the defendant did indeed commit the offence.

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The Judge The judge is the court official appointed to try cases in a court of law and to sentence convicted persons. Makes decisions on such things as admissibility of evidence and interpretation of the law. In a jury trial, the judge is the trier of law and the jury the trier of fact. The judge instructs the jury on points of law, the jury decides the verdict based on the judge’s instructions and the evidence or facts presented, and the judge sentences the person. In a non-jury trial, the judge does both. A Justice of the Peace is a court official who has less authority than a judge but can issue warrants and perform other judicial functions.

The Defence The Accused or defendant is the person charged with committing a criminal offence. Duty counsel refers to a lawyer on duty in a courtroom or police station to give free legal advice to persons just arrested or brought before the court. Defence counsel is the lawyer who defends an accused person on trial.

The Prosecution The crown attorney or prosecutor is the lawyer representing the government. They are responsible for bringing forward credible evidence of a crime. Evidence is information that tends to prove or disprove the elements of an offence.

Court Personnel Court Clerk – assists the judge by keeping a record of the trial exhibits, administering oaths and announcing the beginning or end of the court session. Court reporter – records word for word everything said during the trial. If required the reporter can produce a transcript or typed record of everything said in court. Court security officer – handles accused persons who are in custody and helps maintain security in the courtroom. Sheriff – responsible for the jury, including summoning, paying, secluding and guarding them. Bailiff – court official who assists the sheriff.

The Witnesses Witnesses give evidence, under oath or affirmation, of their knowledge of the circumstances surrounding a crime. They are compelled to appear in court by a subpoena, a court order requiring the witness to appear in court on a certain date to give evidence. Failure of a witness to appear can result in a contempt of court charge for obstructing the course of justice and disobeying the court’s authority. Committing perjury, knowingly making false statements in court while giving evidence, is a serious offence. The maximum penalty is 14 years in jail.

The Jury The jury is a group of 12 people who decide whether the accused is guilty or not guilty. They are chosen by the crown and defence from a pool of ordinary citizens. They listen to the trial, consider all the evidence and follow the judge’s instructions about the law. They withdraw to the jury room to deliberate, consider the evidence and decide guilt or innocence. Their decision must be unanimous!!

The Role of The Jury Comes from the French word “jurer”, which means to swear an oath. Eligible jurors are 18 years old, Canadian citizens, and a resident of the province for at least one year. Publicly elected politicians, lawyers, prison guards, police officers and probation officers cannot serve as jurors. People can be exempt from jury duty for health and religious reasons, financial hardship or if they have served on a jury in the past 2 years. If you wish to be excused from the jury you can apply to the sheriff.

Jury Selection Selected at random from electoral polling lists. A group of potential jurors is called a jury panel. The accused first comes before a judge and jury panel during the arraignment, the first stage of a criminal trial in which the court clerk reads the charge and the defendant enters a plea. If the plea is not guilty, the crown and defence will begin to select jurors from the panel under the supervision of the judge. The process involves six steps:

Names are randomly selected and read aloud to the court. The person whose name has been chosen goes to the front of the court and faces the accused. Both the Crown and the defense can object to a potential juror by challenging the individual.

A challenge for cause, the right of the Crown or defense to exclude someone from a jury for a particular reason, can be used if they feel that the potential juror has already formed an opinion, cannot physically perform their duties or has been convicted of a serious offence. Each side has unlimited challenges for cause. After a juror is accepted as suitable and impartial, the Crown or defense can still reject the juror by using a preemptory challenge, the right of the Crown or defense to exclude someone from a jury without providing a reason. 20 challenges for serious cases, 12 if the accused can be sentenced to more than five years and 4 if the sentence is less than five years. Selection process is complete and the jurors take the juror’s oath.

“I swear to well and truly try and true Deliverance make between our sovereign the Queen and the accused at the bar, whom I have in charge, and a true verdict give, according to the evidence, so help me God.”

The Criminal Trial Process Burden of proof refers to the Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt. It is not up to the accused to prove innocence. After the jury has been selected, here are the steps of a criminal trial………….

The judge explains to the jury their role as the trier of facts The judge explains to the jury their role as the trier of facts. The jury then selects a foreperson who will represent them and communicate with the judge, as well as lead the jury through deliberations and read the verdict at the end of the trial. The Crown’s opening statement. Begins every trial, as the Crown has the burden! It identifies the offence committed, summarizes the evidence against the accused and outlines how the crown will present its case. Crown examines witnesses. First examination of a witness is called direct examination, where each witness is asked to tell what he or she observed about the crime. The defence then cross-examines the witness, to test the accuracy of the evidence or to convince the jury that there are contradictions to the witnesses testimony.

4. Motion for dismissal. Occurs after the Crown finishes calling witnesses. This is a request by defence counsel that the judge dismiss the charges against the defendant because the Crown failed to prove its case beyond a reasonable doubt. If the judge agrees, it could result in a directed verdict, a decision by the judge to withdraw the case from the jury and enter a verdict of not guilty. If not, the trial continues.

5. Defence Presents Opening Statement Summarizes its case. 6. Defence examines witnesses May choose to call witnesses to refute testimony provided by the Crown’s witnesses or to show reasonable doubt. Procedure of direct examination, by the defence, and cross examination, by the Crown, is repeated. The accused may choose to testify on his or her own behalf but cannot be compelled to do so. 7. Crown rebuts After the defence has presented its evidence, the Crown has the opportunity to rebut, or contradict any new evidence the defence has introduced. 8. Defence presents surrebuttal - A reply to the opposing sides rebuttal

Must be very careful as the charge is often the basis for an appeal. 9. Closing Arguments Crown closes first if the defence has not called witnesses. Defence closes first if it has called witnesses. Crown shows why the defendant is guilty beyond a reasonable doubt. The defence tries to show that the Crown has not established the actus reus and mens rea, showing that a reasonable doubt exists. Intended to help the jury better understand the issues of the case, not to present new evidence. 10. Charge to the jury After closing arguments, the judge gives a charge to the jury, the judge’s explanation to the jurors of how the law applies to the case before them. He advises the jurors on how to consider the evidence and how to return a verdict in accordance with the law. Must be very careful as the charge is often the basis for an appeal. The judge’s role is to decide on matters of law and the jury must decide on matters of fact. For example, the judge decides what evidence is admissible, the jury decides on what evidence is believable.

11. Jury deliberates After the charge has been given, the sheriff escorts the jurors to the jury room to deliberate or reach a decision. If they believe the accused or they don’t know who to believe, they must acquit. If they are left with reasonable doubt regarding the defendant’s guilt they must also acquit. 12. Jury returns a verdict The verdict has to be unanimous. Once reached, the verdict is read in open court. Both the Crown and the defence have the right to ask that the jury be polled or stand individually and confirm their agreement with the verdict. A jury that can’t reach a verdict is called a hung jury. In this case the jury is discharged and a new jury is selected to try the case again.

Figure 7.10 Trial by Jury, p. 183

Rules Of Evidence During a trial, the Crown or the defence may object to questions asked or the answers provided by witnesses. When an objection is made the judge rules on whether the evidence in question is admissible or accepted by the court. Here are the most common grounds for objection…………………..

Leading question – A question that suggests to a witness a particular answer. Such a question is not allowed during direct examination. During cross examination it is allowed only if it pertained to previous testimony. Hearsay statements – Evidence given by a witness based on info received from someone else rather than personal knowledge. Inadmissible in court! Opinion statements – A witness cannot be asked their opinion on something unless they are an expert in the field. Immaterial/Irrelevant questions – A question that has no bearing on the case. Non-Response answers – When a witness doesn’t answer the question given, and has to be directed to do so by the judge.

Types of Evidence Direct evidence – testimony by a witness to prove an alleged fact. (eyewitness) Circumstantial evidence – indirect evidence that leads to a reasonable inference of the defendant’s guilt. To be admissible the defendant’s guilt must be a conclusion drawn from the evidence. Character evidence – establishes the likelihood that the defendant is the type of person who either would or would not commit a certain offence. The Crown is not allowed to attack the defendant’s character but the defence is allowed to show the defendant’s good character. Once done however, the Crown can rebut this evidence by using the defendant’s past convictions. Electronic Surveillance – admissible provided wire tapping or bugging was authorized before hand by a judge. Voir Dire - A trial within a trial where the jurors are excluded while the admissibility of evidence is discussed.

Appeals The ability to appeal is an important safeguard in our system. Notice of an appeal must be filed quickly, usually within 30 days. An appeals court hearing the case can affirm the lower court’s decision, reverse it or order a new trial. Both the defence and the Crown can appeal a case it considers improper. They can appeal the decision or the sentence. The side that files the appeal is called the appellant, the responding side is called the respondent. The appeal is usually heard by a panel of 3 to 5 judges, who only have to reach a majority decision. A written opinion of both the majority and dissenting sides can be issued.