The Criminal Court
System
The Criminal Trial Process
hrsbstaff.ednet.ns.ca/pstacey/Law
The Criminal Court Structure
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Responsibility for Canada’s criminal courts is divided
between the Federal and Provincial governments.
The Federal parliament is responsible for formulating
criminal law and establishing courts to administer various
federal laws.
The Supreme Court of Canada, The Federal Court of
Canada and the Tax court of Canada are good examples.
The Provincial court system consists of provincial courts
and the superior court of the province.
Provincial courts have trial divisions, superior courts have
both trial and appeals divisions.
Figure 7.2 The Canadian Criminal Court Structure and Avenues of Appeal, p. 163
The Provincial Court, Criminal
Division
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Provincial court is the lowest level of Canadian courts.
Judges are appointed by the provincial government and cases are
tried by judge alone.
They have the jurisdiction to hear summary conviction offences,
less serious crimes that carry a lighter penalty, and certain
indictable offences, more serious crimes that carry a heavier
penalty.
A person’s first contact with the criminal court system is usually in
provincial court, because this court conducts all preliminary
hearings, a judicial inquiry to determine whether there is sufficient
evidence to put the accused person on trial.
An appeal is an application to a higher court to review the decision
made by a lower court. An appeal from the provincial court
regarding a summary conviction offence is heard by a single judge
of the superior court. If it’s regarding an indictable offence, it is
heard by the appeals division of the superior court, a panel of three
to five judges.
Superior Courts Of The Province
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They are the highest criminal and civil courts in the
provinces and have a trial and appeal division.
Has jurisdiction in both criminal and civil matters,
beyond the lower courts.
Judge and jury unless the accused and the provincial
Attorney General consent to trial by judge alone. By
judge alone in provincial court or by judge and jury in
Superior court.
Appeals from the Superior Court are heard in the
Superior Court, Appeal division. Three to five judges
hear the case and the appeal is won or lost based on the
majority decision of the judges.
Figure 7.5 Court Procedure for Criminal Cases, p. 166
The Federal Court System
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Federal Court of Canada – A court that hears cases
involving the federal government and consists of a trial
and appeal division.
Also hears appeals from federally appointed boards,
commissions and administrative tribunals.
Supreme Court of Canada – highest appeals court in
Canada, which also deals with constitutional questions
referred to it by the Federal government.
Consists of a chief justice (Beverly Mclachlin) and
eight justices, all of whom are appointed by the federal
government. Three come from Quebec, three from
Ontario, two from the western provinces and one from
the Atlantic Provinces.
The court sits in Ottawa for three sessions a year:
winter, spring and fall.
Cases are heard by a panel of five, seven or nine judges,
depending on the type of appeal.
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Hears only appeals, from provincial courts of
appeal and the Federal Court of Appeal.
Grants leave, permission to appeal, for matters
of national significance or when decisions
conflict in the provincial appeals court.
The federal government may ask the court to
rule on questions relating to constitutional issues
or other federal concerns.
Other federal courts include the Tax Court of
Canada, which deals with income tax matters
and the Court Martial Appeals court, which hears
appeals from courts in the armed forces.
The Participants
There are two fundamental principles of
Canada’s criminal justice system:
1.
An accused person is innocent until proven
guilty.
2.
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
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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
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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
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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
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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
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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
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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
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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
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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:
1.
2.
3.
4.
5.
6.
People’s 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 defence can object to a
potential juror by challenging the individual.
A challenge for cause, the right of the Crown or
defence 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 defence can still reject the juror by using a
preemptory challenge, the right of the Crown or
defence 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
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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………….
1.
2.
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3.
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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
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.
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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
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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…………………..
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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
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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
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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.