1. Chapter 8

2. Court Room Organization
See figure 8-2
Judge
Have full control of the courtroom/maintains order (ex. Cameras)
Decisions made on evidence and questioning can form basis for appeals
Crown Prosecutor
Responsible to see justice for society
”Burden of Proof” is on the Crown
Crown must present all available evidence, even if it weakens their case
Judge can direct the prosecutor to call witness even if it damages their case
Have great influence, and can decided whether or not to lay charges

3. Defence Counsel Court Clerk Accused can represent self in lower courts
Defence lawyers must represent their clients to the best of their ability, even if it offensive to them or the public
Create a strategy to best suit their client
Court Clerk
Reads out the charges against the accused
Tags evidence
Swears in witnesses
paperwork

4. Court Recorder Sheriff Stay of proceedings
Records word for word all evidence given, all questions, and comments during the trial
Sheriff
Make sure the accused appears in court
Find prospective jurors
Serves summonses
Assist the judge as needed (seize and sell off property)
Stay of proceedings
Can stop the trial until further action is taken

5. Juries and Jury Selection
Accused can choose trial by Judge or Judge and jury
Advantages of Trial by Jury
Can reject oppressive laws
Can base its decision on social values
Defence needs to only convince 1 juror to have reasonable doubt
Dramatic arguments is more likely to move a jury than a judge
Jurors may feel empathy or sympathize with the accused

6. Advantages of Trial by Judge
May be less prejudiced than a jury (depending on how the accused is dressed or the offence they are charged with)
Legal technicalities may confuse jurors, but a judge is more likely to understand it
A judge will follow legal evidence and precedent compared to a jury being swayed by dramatic rhetoric from the prosecutor
A judge will present reasons for his/her verdict, while a jury will not. These reasons may help either side with an appeal

7. Empanelling Process of selecting jurors (12 for criminal)
Creates a list of names that are summoned to appear in court
The judge may exempt anyone with a personal interest in the case, a relationship with a trial participate, or a personal hardship.
The judge decides what questions jurors can be asked
Must be Canadian citizen, between 18 and 69 years old, and speak English or French to serve on a jury

8. People exempted from Jury Duty
MPs, Senators, politicians
Judges, Justices, lawyers, law students
Law enforcement officers
People visually impaired
People with mental or physical disability that impairs their ability to complete jury duty
Anyone convicted of an indictable offence that hasn’t been pardoned
Served on a jury within the last 2-3 years

9. Jury Challenges Challenge of Jury List Challenge for Cause
Challenge to the entire jury list
Must show there was fraudulent or willful misconduct in selecting prospective jurors (ex. All jurors from an ethic group are excluded)
Challenge for Cause
Jurors do not meet the requirements
Ex. Formed an opinion on the case, can’t understand English or French
Peremptory Challenge
Allows both the Crown and defence to eliminate prospective jurors without giving a reason
Number of challenges depend on charge (ex. 1st degree murder get 20)

10. Jury Duty Jurors can’t Sequester
Discuss with anyone other than other jurors
Read or follow media about the case
Disclose any information that is not presented in open court
Sequester
Jury is isolated until they reach a verdict

11. Presentation of Evidence
Arraignment
Reading of the charge to the accused and the accused enters a plea of guilty or not guilty
Steps in Presenting Evidence 1
Crown starts with examination-in-chief 2
Defence may cross-examine witness 3
Crown may reexamine witness 4
Defence may recross-examine with judge’s permission 5
Defence presents evidence 6
Crown may cross-examine witness 7
Defence may reexamine witness 8
Crown may make rebuttal 9
Defence may make surrebuttal

12. Crown Evidence Direct Evidence Circumstantial Evidence
Obtained through testimony of witnesses who actually saw the offence being committed
Circumstantial Evidence
Indirect evidence; evidence that makes it highly likely the accused committed the crime
Prosecutor can’t ask leading questions to witnesses

13. Defence Evidence Directed Verdict
The Crown doesn’t prove elements of an offence; judge instructs the jury to indicate a verdict of “not guilty”
Defence simply needs to show reasonable doubt
Defence can’t ask leading questions to witness

14. Witnesses Subpoena Contempt of Court Oath/Affirmation Perjury
Orders them to appear in court and testify
Contempt of Court
Any person who fails to give evidence is in contempt of court and can be fined or imprisoned
Oath/Affirmation
A pledge to tell the truth
Oath (on a bible), affirmation (formal declaration)
Perjury
Knowingly gives false evidence with the intent to mislead

15. Adverse Witness Accused Self-Incrimination Voir Dire
Is hostile to a certain position
May be called by either the Crown or defence
With Judge’s permission, the side that called the witness can ask leading questions
Accused
Doesn’t need to take the witness stand
Self-Incrimination
Evidence a witness gives in court can’t be used later to incriminate the witness in other proceedings
Voir Dire
Determines what evidence will allowed during the trial

16. Types of Evidence Privileged Communication Similar Fact Evidence
Certain individuals are NOT required to be present evidence in court
Ex. Spouse, Lawyer, Psychologist, etc.
Few exceptions occur – crimes against minors
Similar Fact Evidence
Shows the accused has committed similar offences in the past
Hearsay Evidence
Something that someone other than the witness has said or written
Not admissible in court, exceptions beings: quoting someone who is dying and is now unable to testify

17. Opinion Evidence Character Evidence Photographs Electronic equipment
What an expert witness thinks about certain facts in the case
Can be paid for their testimony
Character Evidence
Evidence that shows if the accused has good or bad character
The Crown in limited in its use, unless introduced by the defence, then the crown can any evidence including past convictions
Photographs
Can be used as evidence, but can’t be used to inflame the jury
Electronic equipment
Must follow proper procedures, otherwise evidence will not be allowed

18. Polygraph Evidence Confessions Not permissible in court
Regarded as hearsay evidence
Confessions
Any statement taken from the accused prior to being told his/her charter of rights can be excluded as evidence
Inculpatory
Admission
Exculpatory
Denial

19. Defences
Alibi – puts the accused somewhere else at the time the offence occurred
Self-Defence
Can defend yourself, those under your protection, your moveable property, your dwelling by only using “necessary” and “reasonable” force
“can use as much force as necessary to prevent any person from forcibly breaking or entering your dwelling/house”
Legal Duty
Allows certain to commit acts that would otherwise be offences
Ex. Police officers can drive above the speed limit
Ex. Teacher can use reasonable force to correct a child

20. Excusable Conduct Mental Disorder Duress – threat or use of violence
Honest Mistake – accused had no idea they committed an offence
Mental Disorder
Mental disorder
Can be remanded up to 60 days to evaluate their fitness
If unable to stand trial, the court can order treatment
Mental fitness at the time of the offence
If the accused is deemed not mentally fit at the time of the trial he/she will be found not criminally responsible for the crime
If accused is found not mentally fit they will be receive a discharge if they are not a treat to the public

21. Intoxication Automatism Consent Entrapment
A person can only be found guilty of general intent (ex. Manslaughter)
Automatism
”unconscious, involuntary behaviour” – not conscious of what they are doing
Would be found not guilty on account of mental disorder and subject to procedures under the mental disorder
Consent
The injured party can and did consent to the action (ex. Athletes)
Entrapment
Police action that encourages or aids a person to commit an offence

22. Mistake of Fact Double Jeopardy
Ignorance of the facts are not accepted, except:
Mistake was genuine and not a result of negligence
Law accepts ignorance
Ex. Receiving counterfeit money while shopping
Double Jeopardy
you can’t be tried for the same offence twice

23. Reaching a Verdict Summation Charge to the Jury Jury Deliberation
Summary of key facts
Crown usually goes first
No new evidence allowed
Charge to the Jury
Judge instructs what charges the jury are to review and deliberate on
Jury Deliberation
One jury member is selected as the foreperson
Will be sequestered while they deliberate on their decision
If they can’t reach a unanimous decision, it is called a “hung jury”; Accused will be tried again by a new jury