The Structure of Criminal Proceedings September 18, 2007.
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The Structure of Criminal Proceedings September 18, 2007
Form of Trial Depends on Type of Offence Summary Conviction (generally less serious) Indictable offences (generally more serious offences) Hybrid Offences (can be prosecuted as either summary or indictable)
Summary Conviction Offences Trial in provincial court before judge acting as judge and jury Process begins with laying an Information setting out the charge and minimal facts Maximum penalty $2000 and/or six months unless otherwise stated in the statute (See Code s. 787)
Indictable Offences Process begins by preferring an indictment setting out the offence and bare facts Method of trial can be in provincial court before a judge alone, in superior court before a judge or in superior court before a judge and jury Mode of trial depends on the statutory provision (See s. 469) or the election of the accused
Indictable Offences (cont) S. 553 absolute jurisdiction of Provincial Court S. 469 absolute jurisdiction of Superior Court (almost always by judge and jury) Everything else: determined by the election of the accused Option #1: Trial in Provincial Court (No Preliminary Inquiry) Option #2: Trial by Judge Alone in Superior Court (After Preliminary Inquiry in Provincial Court) Option #3: Trial by Superior Court Judge and Jury (After Preliminary Inquiry in Provincial Court)
Hybrid Offences Offence can be either punishable on summary conviction or as an indictable offence Crown decides how to proceed If by indictment, the accused may choose the mode of trial What are the considerations?
What method of trial will be used for…… Arson for fraudulent purpose (s.435(1) Murder (s.229, 235(1) Sexual assault(s.271 (1)) Public nudity(s.174(1)(a) Driving while disqualified(s.259(4))
Course of a Criminal Trial Arraignment Plea Opening Statements(occasionally) Crown Case Crown case closed Defence Case Closing Statements Charge to the Jury Verdict Sentence
Crown Case Crown calls witnesses to give evidence on each of the elements of the offence Crown examines each witness in direct examination(in chief) Defence may cross examine the witness
Following the Crown’s Case The Defence may: a) Make a “no evidence motion” (ie crown has not met evidentiary burden or b) Not call evidence(ie argue Crown has not met legal burden) or c) Call witnesses that may or may not include the accused
Defence Case Witness called and examined by defence counsel (in chief) Witness may be cross- examined by Crown counsel (or other defence counsel where there are co-accused)
Should the accused Give Evidence?? Accused becomes a witness and can be cross examined Crown can raise the criminal record of the accused but not otherwise