The Canadian Criminal Court Process

The Canadian Adjudication Process Pre-trial procedures: • first appearance (arraignment) • bail hearing • disclosure meeting • preliminary hearing • pre-trial • plea bargaining • trial players • trial

Arraignment First Appearance (Arraignment): A criminal hearing in which the indictment is read (i.e. the accused's name is called, the charge is read, and the accused is asked to plead: guilty, not guilty, or request an adjournment so as to seek further legal advice.

Bail Hearing Bail Hearing: The hearing where it is determined whether the accused should be kept in custody or released on bail. Onus is on the Crown Attorney to prove accused should be kept in jail until the trial. A date is set for i) Preliminary Hearing (Inquiry) or, if they agree, for ii) trial. Bail Enforcement link: http://www.youtube.com/watch?v=7dmqO_h2SKg

IN THE SUPERIOR COURT OF JUSTICE Indictment IN THE SUPERIOR COURT OF JUSTICE CANADA ) HER MAJESTY THE QUEEN ) PROVINCE OF ONTARIO ) against YOURTOWN REGION ) MARCEL(LE) LECOUTEAU 1. MARCEL(LE) LECOUTEAU stands charged that s/he, on or about the 1st day of October in the year 2012, at the City of Yourtown in the Region of Yourtown, did use a weapon, to wit: an exacto knife, in committing an assault upon Bulk Bogus, contrary to the Criminal Code; 2. MARCEL(LE) LECOUTEAU stands further charged that s/he, on or about the 1st day of October in the year 2012, at the City of Yourtown in the Region of Yourtown, did have in his/her possession a weapon, to wit: an exacto knife, for a purpose dangerous to the public peace, contrary to the Criminal Code; DATED AT YOURTOWN this 5th day of December, 2012. ....................................................................... Assistant Crown Attorney and Agent for the Attorney General of Ontario

Disclosure Meeting Disclosure Meeting: A meeting where the Crown must present the defence with all evidence that they intend to bring to trial. While this protocol has existed for decades (more or less as a gentleman's agreement), it did not become mandatory until R. v. Stinchcombe, 1992)

R. v. Stinchcombe, 1992 The Supreme Court stated that the Crown has a legal duty to disclose all relevant information to the defence. “The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done.”

Disclosed Evidence Disclosed evidence could include: statements obtained from persons providing relevant information (even if they are not proposed as Crown witnesses); and notes taken from investigators; lab reports; etc Defence counsel must, at the earliest opportunity, make the trial judge aware of any failure of the Crown to disclose relevant information.

Preliminary Hearing To determine if there is enough evidence to have the case go to trial ~ at the end the judge will either dismiss case or commit accused to trial. Crown has to show there is evidence on each of points necessary for a conviction at trial. (Does not have to prove entire case)

Pre-Trial: Plea Bargaining Final chance to plea bargain (meeting with judge, Crown and defence counsel). Plea Bargaining: Negotiations can take place any time up to commencement of trial date. Crown may accept a guilty plea on a lessor charge (saves time and money of conducting a trial). Lawyers may make joint submissions on appropriate sentence.

Plea Bargaining con’t Plea bargaining tends to occur when: 1) the defence attorney feels that the defence is not 'airtight', or 2) the Crown may perceive that its case is weak and offer to reduce the charge(s). Sadly, it is most commonly employed to simply save time and money. The forgotten party in all this is the victims. They typically have no role whatsoever within plea bargaining.

The Trial

Court Players Judge: Decides on admissibility of evidence, rules on matters of law, instructs jury, and determines the sentence for those accused who are convicted. Crown Attorney: A lawyer who represents, and is responsible to, the state. Crown Attorneys are prosecutors; they argue against the defence. Defence Attorney: A lawyer who is responsible for protecting the rights of the accused and attempts to refute the Crown's evidence and discredit its witnesses. Jury: Random members of the public, selected for duty. Must deliver a verdict of “guilty” or “not guilty.”

Key Terms Trier of fact: The authority at a trial who decides what the truth is. If there is a jury, it is the trier of fact. If there is no jury, the judge is the trier of fact. The trier of fact makes “findings of fact” in a trial. Findings of fact: Determining what evidence and testimony are believable (that is, are facts) and which are not. Trier of Law: Even in a jury trial, the judge is always the "trier of law;" this is the person who makes rulings about how the law applies to the facts. Findings of law: A determination regarding how a specific statute (ie. Criminal Code, Young Offenders Act, Canada Evidence Act, etc.) or case law should be applied to a trial, either in process, or at sentencing.

Trial Format Opening Arguments: • Crown • Defence Crown calls the witness(es): • examination-in-chief (Crown) • cross examination (defence) • re-examination (Crown) • re-cross examination (defence) Defence calls its witness(es): • examination-in-chief (defence) • cross examination (Crown) • re-examination (defence) • re-cross examination (Crown) Closing Arguments: • Defence • Crown Deliberation: • jury, or • judge Verdict: • jury, or • judge

Law Joke of the Day A surgeon, an architect an a lawyer are having a heated discussion concerning which of their professions is actually the oldest profession. The surgeon says: "Surgery IS the oldest profession. God took a rib from Adam to create Eve and you can't go back further than that.“ The architect says: "Hold on! In fact, God was the first architect when he created the world out of chaos in 7 days, and you can't go back any further than THAT!“ The lawyer puffs his cigar and says: "Gentlemen, Gentlemen...who do you think created the CHAOS??!!"

Homework Read pages 290-293 of your textbook and complete questions 1-5 on page 293. Interesting links: Virtual Courtroom: http://www.courtprep.ca/ Criminal law – Justice Wise: http://www.courts.ns.ca/jwise/index.html Sample Mock Trial: http://www.youtube.com/watch?v=zd89JpoHePE