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

Arraignment
- First court appearance of accused
- Court clerk reads the charge and the accused enters a plea (guilty or not guilty)
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)
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
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)
Examination of Witnesses:
- First questioning of a witness = Direct Examination (or Examination- in-Chief)
- Done by Crown first (witnesses help prove guilt of accused)
Cross-Examination:
- Defence does this – to try and contradict Crown witness’ story (testimony)
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
If case continues….Defence presents its case:
- Opening statement (by Defence) – to summarize its case
Defence Calls witnesses – Direct Examination (by Defence)-to refute Crown’s witnesses or show reasonable doubt
Cross-Examination (this time by Crown)- to refute Defences’ evidence/testimony
Crown can rebut (contradict) Defence’s new evidence
Defence can present further evidence for a surrebuttal – to contradict Crown’s rebuttal!
Summary of Case: Closing Arguments:
- Crown will show that they proved guilt beyond a reasonable doubt; Defence will try to show reasonable doubt exists
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.
Deliberation: Jury is discussing the facts of the case and make a decision on guilt or innocence of the accused.
The Verdict: Must be unanimous; if not, it is called a hung jury
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.