The Criminal Court System

The Criminal Court System

Topics Covered

• The Criminal Court System in Canada
• The Courtroom & its Participants
• The Role of the Jury
• Jury Selection
• Choosing between Judge or Judge and Jury
• The Criminal Trial Process
• Rules of Evidence
• Types of Evidence

The Criminal Court Structure

• Constitution Act, 1867: Established the division of responsibility for Canada’s criminal courts between the federal and provincial governments.

Provincial Court System

• Provincial Court: Bottom of the hierarchy.
  • Provincial government appoints judges.
  • Cases are heard by a judge alone.
  • Trial divisions only.
  • Divided into different divisions (criminal, civil, family).
  • Jurisdiction to hear summary conviction offences, certain indictable offences, and violations of provincial statutes (e.g., driving and parking offences).
• Superior Courts of Province: Highest level of the provincial criminal and civil system.
  • Hears more serious cases.
  • Heard by a judge and jury (optional).
  • Consists of trial and appeal divisions.

Federal Court System

• Federal Court of Canada: Has a trial and appeals division.
  • Jurisdiction to hear civil claims involving the federal government.
  • Also has jurisdiction to hear appeals.
• Supreme Court of Canada: Highest court in Canada; hears appeals only.
  • Consists of a chief justice and 8 justices (judges).
    • 3 from Quebec, 3 from Ontario, two from western Canada, and one from Atlantic Canada.
  • Holds three sessions per year in Ottawa.
  • Cases are heard by 5, 7, or 9 judges.
  • Difficult to get to the Supreme Court.
  • Mostly hears cases of national significance.
  • The federal government may ask the Supreme Court to rule on specific questions relating to constitutional issues or federal matters.

Other Courts

• Tax Court: Hears cases dealing with income tax matters; appeals are heard by the Federal Court of Canada.
• Court Martial Appeal Court: Hears appeals from courts relating to the Armed Forces (non-military judges).

Adversarial System

• The Canadian criminal law trial system involves two opposing sides:
  • Crown: Represents society (government).
  • Defence: Represents the accused.
• The onus is on the Crown to prove guilt, to the extent of "beyond a reasonable doubt."

Court Room Participants and Roles

• Judge: Sits at the front, controls proceedings, makes decisions on evidence admissibility, interprets the law, instructs the jury on points of law, determines the verdict in non-jury trials, and sentences the accused.
• Justice of the Peace: Less authority than a judge.
  • Performs judicial functions mainly in early stages of cases.
  • Can issue arrest and search warrants, hear bail hearings.
  • Hears some municipal and provincial law infraction cases and can perform marriages.
• The Defence: Represents the interest of the accused.
  • Accused = the person charged with a criminal offence.
  • Defendants/Accused may defend themselves but it is advisable to have a Defence Attorney.
  • Duty counsel – lawyer paid for by the province - offers free legal advice.
  • Advises accused of rights.
  • If the accused pleads not guilty, the Defence will try to show that there is “reasonable doubt” of the defendant’s guilt.
  • If the accused pleads guilty, the Defence will recommend an appropriate sentence to the judge.
• The Crown Prosecutor: Lawyer representing the government’s (society’s) interest.
  • Must prove guilt “beyond a reasonable doubt”.
  • Researches the law, gathers evidence for trial, reviews exhibits, and interviews witnesses.
  • Role is to “bring forward the credible evidence of a crime”.
  • Evidence – information that tends to prove or disprove the elements of an offence.
• Court Clerk: Assists the judge by keeping a record of trial exhibits, administers oath, and announces the beginning or end of the court session.
• Court Recorder/Reporter: Uses electronic monitoring system and records, verbatim, everything that is said during the trial.
  • Produces a transcript (a typed copy of the court proceedings).
  • Sometimes the court reporter does the court clerk job too.
• Court Security: Deals with accused persons who are in custody and helps maintain security in the courtroom.
  • Sheriff is responsible for jury management if there is one (pays, summons, etc).
  • A Bailiff assists the sheriff.
  • Some of these roles are combined sometimes.

Witnesses

• Witness: A person who gives testimony under oath in a court of law.
• Testimony: Evidence given by a witness, usually orally under oath.
• Subpoena: A legal document requiring a person to appear in court to give testimony.
• Failure to Appear: If someone is summoned to court but fails to appear, they can be held in contempt of court and may face penalties.
• Oath: Witnesses have to swear an oath to tell the truth before giving testimony.
• Perjury: The act of intentionally giving false testimony under oath, which is a serious offense.

Jury Selection - Empanelling Process

• 12 jurors (no less than 10) –average people
• Computer generated
• Sheriff and selection committee randomly choose 75-100 names
• These people are summoned to appear in court
• Names are drawn
• Potential jurors are scrutinized by Crown and Defence (Challenge for cause/Peremptory)
• Jurors are selected (12) and sworn in (oath)

Challenges:

• Challenge for Cause:
  • A challenge based on a specific reason, such as bias or prejudice.
  • Example: A potential juror admits they are related to the victim.
• Peremptory Challenge:
  • A challenge made without needing to provide a reason.
  • Example: The Defence lawyer feels a potential juror may be unsympathetic to their client.

Responsibilities of Jury

• Listen to trial
• Take instructions from Judge
• Examine evidence
• Deliberate – consider evidence
• Determine a verdict – must be a UNANIMOUS decision

Exempt from Jury Duty

• Anyone under 18 or over 69
• Certain professionals
• Anyone who served on a jury in the last two years
• Firefighters, lawyers, law students, judges, justices of the peace
• Anyone who is blind, or who has a mental or physical disability that would impair duties; difficulty understanding language

Trial by Jury - “Conscience of the Community”

• Judged by peers, rather than a judge
• Due to cost, jury trials are limited to more serious offences (ones that carry a minimum sentence of 5 years)
  • Charter/Legal Right

Advantages to Trial by Jury

• Defence only needs to sway ONE juror (since a unanimous decision is required)
• Rhetoric (lawyer lingo) may have a greater influence on a jury than on a judge who is used to it
• Jury may make decisions based on social values of the time, rather than on precedents
• Juror(s) may feel empathy for accused
• Jurors may relate to accused

Advantages to Trial by Judge

• A jury might bring prejudices
• Juror(s) may not understand legal technicalities
• Jurors may be swayed by good rhetoric of a good Crown attorney (Judge will make decision based on facts)

The Criminal Trial Process

• Based on the Adversarial system which pits the Crown - who represents society and the Defence - who represent the accused.
• The burden of proof or Onus (responsibility of proving guilt) lies with the Crown Because: everyone is presumed innocent until proven guilty.
• He/she must prove guilt to this extent: Beyond a Reasonable Doubt

Steps in the Criminal Trial Process

1. Arraignment
   • First court appearance of accused
   • Court clerk reads the charge and the accused enters a plea (guilty or not guilty)
2. Empanelling of Jury (jury selection): 12 jurors (no less than 10) –average people
   • Computer generated
   • Sheriff and selection committee randomly choose 75-100 names
   • These people are summoned to appear in court
   • Names are drawn
   • Potential jurors are scrutinized by Crown and Defence (Challenge for cause/Peremptory)
   • Jurors are selected (12) and sworn in (oath)
3. The Trial Begins…
   • Judge Addressed Jury: Judge explains the jury’s role as trier of facts
   • Judge asks jury to select a foreperson – to represent jury and communicate with lead jury during deliberations and will also state verdict at end of trial
4. Crown’s Opening Statements:
   • Has the burden of proof, so goes first (everyone is presumed innocent until proven guilty)
   • Identifies the offence committed, summarizes the evidence against the accused, and outlines the way the Crown will present its case
   • Jury is not to consider this information in decision (verdict)
5. Examination of Witnesses:
   • First questioning of a witness = Direct Examination (or Examination- in-Chief)
   • Done by Crown first (witnesses help prove guilt of accused)
6. Cross-Examination:
   • Defence does this – to try and contradict Crown witness’ story (testimony)
7. Defence Responds:
   • Defence may ask for a Motion for Dismissal- if they feel the Crown has not proved their case “beyond a reasonable doubt”
   • If the judge agrees, the Judge may issue a directed verdict of not guilty
8. If case continues….Defence presents its case:
   • Opening statement (by Defence) – to summarize its case
9. Defence Calls witnesses – Direct Examination (by Defence)-to refute Crown’s witnesses or show reasonable doubt
10. Cross-Examination (this time by Crown)- to refute Defences’ evidence/testimony
11. Crown can rebut (contradict) Defence’s new evidence
12. Defence can present further evidence for a surrebuttal – to contradict Crown’s rebuttal!
13. Summary of Case: Closing Arguments:
    • Crown will show that they proved guilt beyond a reasonable doubt; Defence will try to show reasonable doubt exists
14. Charge to the Jury: Judge explains to jury, the law and instructs them on how to apply it to the case. Also advises on how to consider evidence and how to render a verdict in accordance with the law.
15. Deliberation: Jury is discussing the facts of the case and make a decision on guilt or innocence of the accused.
16. The Verdict: Must be unanimous; if not, it is called a hung jury
17. Possibility of Appeal: important safeguard
    • May: reaffirm the old verdict, reverse the decision or order a new trial

Types of Evidence

• Direct Evidence: Testimony given by a witness to prove an alleged fact.
  • Valuable evidence but it can be challenged, "Reasonable doubt” can still be cast.
  • Most valuable when more people have the same account.
  • Example: Milley saw Willy stab Jesse.
• Circumstantial Evidence: Indirect evidence that leads to a reasonable assumption.
  • Generally admissible in trial unless the connection between the evidence and the assumption/inference is too weak to help the judge/jury in the case.
  • The Judge must be convinced that the accused’s guilt is one of the conclusions that could be drawn from the evidence.
  • Whole cases can be built on this type of evidence.
  • Most valuable when there is a lot of it (like pieces in a puzzle).
  • Examples: Milley testifies she saw Willy running out of the Bank that was robbed. In “12 Angry Men” – it could be the fact that the boy had a fight with his father and was overheard saying, “I’ll kill you.”
• Character Evidence: Evidence used to establish the likelihood that the accused is the type of person who either would or would not commit a certain offence.
  • The Crown can generally not attack the accused’s character (as to protect the accused from attacks on character).
  • They may bring this up - IF the Defence brings up this type of info/evidence. Then the Crown may rebut it by presenting contradictory evidence.
  • Example: The Defence may call a boss of someone to testify about the character of their client, having been a loyal, dedicated employee for 25 years at a bank (for a robbery case).
• Electronic Surveillance: The use of any electronic device to overhear or record communications between people.
  • Must be authorized by Judge in advance.
    • Surveillance: The use of any electronic device to overhear or record communications between people.
    • Wiretapping: The interception of telephone communications
    • Bugging: The recording of a speaker’s oral communication
• Polygraph Test (Lie-Detector): When a trained examiner questions someone, using a machine that detects physical signs to indicate deception (measures changes in pulse, respiration, and blood pressure).
  • Test results are inadmissible in court due to the fact that the accuracy of lie detectors depends on the examiner.
  • Anything said during the course of the exam are admissible, however.
• Forensic Science (Evidence): The use of scientific methods in solving crimes.
  • Forensic scientists may spend time at a crime scene /labs and they may have to testify in court in trials, offering their expert testimony.
  • Very valuable evidence since it’s scientifically proven.
  • Examples: A coroner will determine the cause of death; Entomologists can determine the time of death; Gunshot residue specialists can determine if the suspect shot a gun; Blood splatter experts can determine facts about the trauma, murder weapon, etc.
• Physical Evidence: Any object, impression, or body element that can be used in a criminal investigation.
  • Valuable evidence – may be used to link or eliminate a suspect.
  • Can also be circumstantial or Forensic evidence.
  • Example: In “12 Angry Men,” the knife would be physical evidence.
• Opinion Evidence (Expert): Testimony shared by an expert.
  • Crown or Defence may not ask a witness to give an opinion about a matter that goes beyond common knowledge unless he [or she] is a recognized expert in a field.
  • Valuable evidence but sometimes the opposing side offers up its own opposing expert to testify – to cast “reasonable doubt.”
  • Examples: A Coroner may testify as to the cause of death; a car mechanic may testify about the condition of a car’s brakes.
    • A VOIR DIRE – is a “trial within a trial” held between the Judge and lawyers to determine admissibility of evidence; jury leaves if a jury trial

Common Objections

• During a trial, both the Crown and Defence may object to questions asked by the opposing lawyer. When an “Objection” is made, the JUDGE rules on whether the line of questioning is admissible.
• The Judge will say one of two things after an objection is brought forth:
  • Overruled – the objection is overruled and line of questioning may continue
  • Sustained – the objection is allowed, the line of questioning must stop; deemed inadmissible.

Types of Objections

• Objection, Leading!:
  • A Leading Question – suggests a particular answer. The usual answer to a Leading Question is “Yes” or “No.”
  • Example: Is it true that you saw Bill stab Mark?
  • During Direct Examination, Leading Questions are generally inadmissible unless an unobjectionable question, like, “Is your name Bob Brown?”
  • During Cross-examination – Leading questions may be asked about facts already established during Direct examination.
• Hearsay Statements: Evidence given by a witness based on information received from someone else (rather than personal knowledge).
  • This evidence is inadmissible because of its unreliability. Lawyers may only ask witnesses about what they saw or experienced first-hand.
• Opinion Evidence: Lawyers cannot ask a witness to give an opinion about a matter that goes beyond common knowledge unless the witness is an expert in a related field.
  • Example: Lawyers may ask the Forensic Scientist his opinion on whether a DNA match has been made at a crime scene.
• Immaterial or Irrelevant Questions: These have no connection (or bearing) to the matter at hand.
  • Is deemed inadmissible.
  • Example: Defence asks an arresting officer witness about his personal life.
• Non-Responsive Answers: If the Crown or Defence asks a question and the witness doesn’t answer the question to satisfaction, an objection may be made and counsel may ask the Judge to direct the witness to answer the question.