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The Criminal Trial Process

+The Charter

Section 11(d) of the Charter of Rights and Freedoms states that a person charged with an offence is to be “presumed innocent until proven guilty according to law”.

This fundamental legal principle places the Burden of Proof on the Crown Attorney.

This means that the Crown has the obligation to prove the guilt of the accused beyond a reasonable doubt.

+A Trial . . .

STEP 1: The judge will explain to the jury that they are the ‘trier of facts’. The jury will select a foreperson to represent the jury, communicate with the judge, and lead the jury through their deliberations and announce the verdict.

STEP 2: Crown’s Opening Statement – The crown speaks first because they have the burden of proof. Identifies: the offence committed, summarizes the evidence (but does not present), and outlines how they will present their case.

+A Trial . . .

STEP 3: Examination of Witnesses – The first examination is called a direct examination, where the Crown asks questions about what he or she observed about the crime.

The defence may then do a cross-examination to test the accuracy of the evidence or to convince the jury that there are contradictions in the witness’ testimony.

+A Trial . . . STEP 4: The Defence Responds – After the Crown has

presented all their witnesses, defence may call for a motion to dismissal if they believe the Crown has not proven beyond a reasonable doubt the defendant’s guilt. If the judge agrees, they will enter a directed verdict of not guilty.

If the judge does not dismiss the charges, and the accused pleads not guilty, the trial continues, but this time with the defence presenting their opening statement and calling witnesses.

After the defence has presented, the Crown has the opportunity to rebut (contradict) evidence. Defence can then present further evidence for a surrebuttal (a contradiction of the rebut).

+A Trial

STEP 5: Summary of the Case – Each counsel presents a summary of the case in the form of closing arguments to help jury better understand the issues. If the defence called witnesses during the trial, they close

first. The Crown will attempt to show they proved beyond a

reasonable doubt the guilt. The defence will try to show that the Crown has failed to

establish mens rea and actus reus

+A Trial . . .

STEP 6: Charge to the Jury – After closing arguments the judge provides an explanation of the law and instructions on how the law applies to the case before them.

Judge needs to be careful and clear in how he explains this or it may form the basis of an appeal. This is the most common basis for a successful appeal.

The jury decides what evidence is believable. If the jurors believe the accused, or they do not know who to believe, they must acquit. If they believe beyond a reasonable doubt they are guilty, they must return a verdict of guilty.

+A Trial . . .

STEP 7: The Verdict – It is read aloud in court. The defence or Crown may ask to poll the jury (have them stand up and say the verdict).

Verdict must be unanimous.

If the jury cannot reach a decision, this is called hung jury. They are dismissed, a new jury is chosen and the case is tried again.

+A Trial . . . Step 8: Appeals – Must be filed a short period of time

after the verdict, usually within 30 days.

The Crown or defence can appeal a decision it considers improper or if found guilty.

An appellant files the appeal and the respondent responds to the appeal.

Typically heard by 3-5 judges without witness testimony. Use transcripts and exhibits from the trial. Judges need a majority decision.

Case is then heard in the court of appeals, who make one of the following decisions Affirms lower court’s decision Reverse the lower court’s decision To order a new trial.