1. Trial Procedures I CLN4U

2. Trial Procedures Canada's trial procedures have been well- established through legislation and common law Canada's trial procedures have been well- established through legislation and common law For example: For example: Leglislation – The Charter Leglislation – The Charter Common Law – results of key cases and “tests” developed by judges Common Law – results of key cases and “tests” developed by judges

3. Rights on Being Charged Covered by section 11 of the Charter Covered by section 11 of the Charter Informed of offence Informed of offence Trial within reasonable time Trial within reasonable time Innocent until proven guilty Innocent until proven guilty Not denied bail unreasonably Not denied bail unreasonably Right to a jury trial if max penalty is >5 years Right to a jury trial if max penalty is >5 years “Double Jeopardy” clause “Double Jeopardy” clause

4. Duty to Disclose In order to ensure a fair trial, the Crown Attorney is required to disclose all relevant information to the accused’s counsel prior to trial In order to ensure a fair trial, the Crown Attorney is required to disclose all relevant information to the accused’s counsel prior to trial R. v. Stinchcombe, [1991] R. v. Stinchcombe, [1991]

5. Burden of Proof The onus is on the Crown to prove the accused’s guilt beyond a reasonable doubt The onus is on the Crown to prove the accused’s guilt beyond a reasonable doubt If the Crown is unable to meet the burden of proof, the accused must be acquitted If the Crown is unable to meet the burden of proof, the accused must be acquitted All individuals are to be presumed innocent until proven guilty All individuals are to be presumed innocent until proven guilty R. v. Oakes, [1986] did not follow this R. v. Oakes, [1986] did not follow this

6. Role of the Judge Expected to remain impartial Expected to remain impartial Apply law to the facts Apply law to the facts If applicable, instruct the jury on the applicable laws If applicable, instruct the jury on the applicable laws

7. Role of the Jury Composed of 12 members Composed of 12 members Chosen by counsel for Crown and defense from a group of assembled potential jurors assembled Chosen by counsel for Crown and defense from a group of assembled potential jurors assembled Growing controversy about relevance of jury member’s race and gender for a fair trial Growing controversy about relevance of jury member’s race and gender for a fair trial

8. Chapter 9 Homework Read pages 290 – 296 Read pages 290 – 296 Answer questions #2, 4 and 5 on pg. 293 Answer questions #2, 4 and 5 on pg. 293 Answer questions #3, 4 and 5 on pg. 297 Answer questions #3, 4 and 5 on pg. 297

9. Trial Procedures II CLN4U

10. The Judge, The Crown, The Defence Judge: Impartial and unbiased Applies law to case, instructs jury Crown: Goal isn’t to “win” but to present the evidence of guilt for the judge/jury’s consideration Must present all evidence (even evidence that undermines their case) Defence: Prepares proper defence for accused

11. Challenges For Cause: Juror is biased (i.e. they know the accused) Preremptory: No explanation needed The Crown and Defence have unlimited challenges for cause, but only a certain number of preremptory challenges More serious offence = more preremptory challenges

12. Witnesses Used to substantiate claims made during trial Both Crown and Defence use witnesses to prove case May be testify to events or facts related to the case (i.e. have some involvement with the case) May be expert witnesses not directly involved with the case, but giving their expert opinion on the validity of evidence (i.e. experts in the medical field, ballistics, fire, tire treads, etc.) Expert witnesses have their qualifications assessed prior to testifying

13. Courtroom Evidence Trial Procedures

14. What is the point of Evidence? Evidence is the way in which the Crown and the defence try to reconstruct the chain of events. The evidence tries to convey the facts to the court so that a judgment can be announced. Only relevant evidence is usually admissible Evidence can be excluded from the trial if proper procedures during the investigative process are not followed.

15. Types of Evidence: Direct, Circumstantial, Physical Direct Evidence  Evidence given by a witness  usually a verbal description of what the witness knows about the events.  The way a witness describes and interprets the event depends on the individual’s personal filters (what they saw, heard, smelled or felt about an event)  Eye Witness Reliability Eye Witness Reliability

16. Direct Evidence cont…  The witness first tells his/her story to the court in examination in chief.  Examination in chief: oral examination of witness by the lawyer who summonsed the witness to testify  The witness is then subject to cross examination by the opposing lawyer.  Cross examination: oral examination of a witness by a lawyer who did not summons the witness to testify, designed to challenge the witnesses’ evidence

17. Circumstantial Evidence Indirect evidence that links the accused to the crime. For example, something belonging to the accused may have been left at the crime scene but there is no direct evidence to prove that the accused actually committed the crime.

18. Physical Evidence Hair, fingerprints, bodily fluids, etc  (From previous lesson)

19. Hearsay Hearsay: Evidence consisting of matters that a witness was told Witnesses cannot testify about indirect knowledge Example:  Dan assaults Dylan.  Paul was there to see it.  If Jesse, testifies that Paul told her that Dan assaulted Dylan it is deemed second hand information and therefore hearsay.

20. Voir Dire a mini-hearing held during a trial on the admissibility of challenged evidence. Example: a defendant may object to a plaintiff's witness. The court would suspend the trial, immediately preside over a hearing on the standing of the proposed witness, and then resume the trial with or without the witness, or with any restrictions placed on the testimony by the judge as a result of the voir dire ruling. In a jury trial, the jury would be excused during the voir dire.

21. Criminal Defences CLN 4UI

22. Vince Li not criminally responsible for beheading Vince Li not criminally responsible for beheading

23. Defences Every person is entitled to present a defence at trial Every person is entitled to present a defence at trial A defence may be defined broadly as any denial or answer to the charge against the accused person A defence may be defined broadly as any denial or answer to the charge against the accused person If the Crown's case is very weak, a defence lawyer may choose not to present any evidence If the Crown's case is very weak, a defence lawyer may choose not to present any evidence To convict, the Crown must prove the facts and the required state of mind To convict, the Crown must prove the facts and the required state of mind In a more narrow sense, a defence may be defined as a legally recognised excuse or justification for criminal conduct In a more narrow sense, a defence may be defined as a legally recognised excuse or justification for criminal conduct

24. Alibi When an accused person claims that he or she was not present at the time of the offence. When an accused person claims that he or she was not present at the time of the offence. Independent evidence supporting this claim strengthens an alibi defence. Independent evidence supporting this claim strengthens an alibi defence.

25. Self-Defence The right to defend oneself of one's family from death or serious injury The right to defend oneself of one's family from death or serious injury A person must not have provoked the assault A person must not have provoked the assault Reasonable Force: A person who is attacked may use only the amount of force necessary to defend against the attack. Reasonable Force: A person who is attacked may use only the amount of force necessary to defend against the attack. Has been extended to include "battered woman syndrome", such as in R. v. Lavallee [1990]. (page 48) Has been extended to include "battered woman syndrome", such as in R. v. Lavallee [1990]. (page 48)

26. Defence of Property Similar to self-defence Similar to self-defence A person may use reasonable force to prevent someone from entering his or her home or coming onto that person's property A person may use reasonable force to prevent someone from entering his or her home or coming onto that person's property No excessive force No excessive force Does not justify shooting, stabbing, or setting traps that would injure a trespasser Does not justify shooting, stabbing, or setting traps that would injure a trespasser

27. Provocation Something that causes another person to lose his or her self-control Something that causes another person to lose his or her self-control Can be an act or an insult Can be an act or an insult Can reduce a charge to manslaughter - only time a person may use provocation as a defence Can reduce a charge to manslaughter - only time a person may use provocation as a defence

28. Duress (or Compulsion) A person who commits an offence because he or she was threatened with immediate death or serious injury A person who commits an offence because he or she was threatened with immediate death or serious injury Not typically accepted as a defence to violent crimes such as sexual assault, aggravated assault, or murder Not typically accepted as a defence to violent crimes such as sexual assault, aggravated assault, or murder

29. Duress (or Compulsion) Example: Alice holds a gun up to Joan’s head and tells her, “Drive me to the hospital as fast as you can, or I’ll kill you.” They get in the car, and Joan drives with the gun pointed at her head. If Alice is stopped for and subsequently charged with careless driving, she may have a viable duress claim.

30. Necessity A person who does an illegal act to prevent a more serious result may raise the defence of necessity A person who does an illegal act to prevent a more serious result may raise the defence of necessity There are several conditions: There are several conditions: The accused must show that the act was done to avoid a greater evil The accused must show that the act was done to avoid a greater evil There must have been no alternative There must have been no alternative The illegal act must not have been more than necessary to avoid the evil The illegal act must not have been more than necessary to avoid the evil

31. Necessity Example: Alice’s child is having an allergic reaction and has stopped breathing. Alice is in a rural area without a working cellphone or any other means of contacting someone. So, she drives her child to the hospital as fast as she can and doesn’t hurt anyone in the process. If she is stopped and later charged with careless driving, she may be able to invoke the necessity defense. She can argue that any harm caused by her driving was less than the harm she may have avoided: her child’s death.

32. Automatism Criminal behaviour must be voluntary Criminal behaviour must be voluntary Crimes committed in an unconscious state are rare, however require an acquittal if proven, ex. sleepwalking, epileptic seizure, blow to the head... Crimes committed in an unconscious state are rare, however require an acquittal if proven, ex. sleepwalking, epileptic seizure, blow to the head... Precedent is R. v. Parks [1992] Precedent is R. v. Parks [1992]

33. Mistake of Fact A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts, not the law A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts, not the law Must be an honest mistake Must be an honest mistake Mistake of fact, when it occurs, cancels any "Criminal State of Mind" Mistake of fact, when it occurs, cancels any "Criminal State of Mind" Can not be used as a defence to absolute liability offences Can not be used as a defence to absolute liability offences

34. Mistake of Law Ignorance of the law is no excuse; not knowing that something is a criminal offence does not mean it is all right to commit the offence Ignorance of the law is no excuse; not knowing that something is a criminal offence does not mean it is all right to commit the offence But, when an accused person can show that a government official misled him or her about the law, an exception called "Officially induced error" applies But, when an accused person can show that a government official misled him or her about the law, an exception called "Officially induced error" applies

35. Mental Disorders Formerly known as "Defence of Insanity" Formerly known as "Defence of Insanity" An accused that suffered from a mental disorder at the time of the offence may not be criminally responsible. An accused that suffered from a mental disorder at the time of the offence may not be criminally responsible. Law assumes all persons are sane - burden of proof of mental illness falls to the defence Law assumes all persons are sane - burden of proof of mental illness falls to the defence The person must not have known what he or she did, or that it was wrong The person must not have known what he or she did, or that it was wrong

36. Mental Disorders The judge may order an assessment of the accused person's mental condition. The assessment may be done: The judge may order an assessment of the accused person's mental condition. The assessment may be done: To see whether the accused person if fit to stand trial. To see whether the accused person if fit to stand trial. To see whether the accused person was suffering from a mental disorder at the time the offence was committed To see whether the accused person was suffering from a mental disorder at the time the offence was committed Several other reasons Several other reasons The psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer, and the crown prosecutor The psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer, and the crown prosecutor

37. Mental Disorders If an accused is found not guilty by mental disorder, the judge has a choice: make an order concerning the person or refer the case to a review board. If an accused is found not guilty by mental disorder, the judge has a choice: make an order concerning the person or refer the case to a review board. If the judge makes an order, there are three choices available: If the judge makes an order, there are three choices available: An absolute discharge An absolute discharge Done if the mentally ill person is not a threat to the public. Done if the mentally ill person is not a threat to the public. A conditional discharge A conditional discharge A term in a psychiatric hospital A term in a psychiatric hospital

38. Mental Disorders When the judge orders that the person be kept in a psychiatric hospital, the judge's order last for a MAXIMUM of 90 days. After that, the review board reviews the person's case. When the judge orders that the person be kept in a psychiatric hospital, the judge's order last for a MAXIMUM of 90 days. After that, the review board reviews the person's case. If the judge does not make an order and refers the case to the review board, the board has a hearing and makes a decision. If the judge does not make an order and refers the case to the review board, the board has a hearing and makes a decision. The review board has the same three choices as the judge: absolute discharge, conditional discharge, term in psychiatric hospital. The review board has the same three choices as the judge: absolute discharge, conditional discharge, term in psychiatric hospital.

39. Intoxication Ordinarily, intoxication by alcohol or drugs is no excuse Ordinarily, intoxication by alcohol or drugs is no excuse Ex: In criminal law, a person who gets drunk and commits a criminal act is usually still responsible for his or her actions when drunk Ex: In criminal law, a person who gets drunk and commits a criminal act is usually still responsible for his or her actions when drunk Intoxication may be a defence for a narrow range of offences, such as murder or theft; these offences require the accused person to form a specific intent. Intoxication may be a defence for a narrow range of offences, such as murder or theft; these offences require the accused person to form a specific intent. A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases

40. Intoxication A person may be so intoxicated that he/she was unable to form this intent to kill. In this example, the accused person may not be convicted of murder, but could be convicted of manslaughter A person may be so intoxicated that he/she was unable to form this intent to kill. In this example, the accused person may not be convicted of murder, but could be convicted of manslaughter Long-term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for his/her actions and could use a defence of mental disorder. Long-term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for his/her actions and could use a defence of mental disorder. See explanation of R. v. Daviault (1994) on page 333 See explanation of R. v. Daviault (1994) on page 333

41. Entrapment and Abuse of Process The police may carry out undercover activities to detect crime The police may carry out undercover activities to detect crime In doing so, they may legally present a person with the opportunity to commit a crime, but they may not harass, bribe, or otherwise induce the person to break the law. In doing so, they may legally present a person with the opportunity to commit a crime, but they may not harass, bribe, or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called "entrapment" Police conduct that induces criminal behaviour is called "entrapment" The accused person must prove entrapment The accused person must prove entrapment Precedent setting case is R. v. Mack [1988] Precedent setting case is R. v. Mack [1988]