The Trial

Question 1

What are the three types of trials available to an adult accusedÉ

Answer 1

• trials before a judge of the Superior Court of Justice
• trial before a judge of the superior court
• before a judge of the Superior Court with a jury

Question 2

What resolutions should a paralegal canvas the Crown for at a pre-trial meeting?

Answer 2

• alternative measures
• peace bond (either a common law peace bond or a recognizance under s810 of the Code)
• discharge
• fine (with or without probation)
• suspended sentence with probation
• conditional sentence
• intermittent sentence

Question 3

What are the two types of peace bonds?

Answer 3

• common law peace bonds, which a judge of the OCJ or Superior Court has inherent common-law jurisdiction to make
• recognizance under section 810 of the Criminal C0de, which is used where the defendant appears likely to commit a criminal offence, but there is no reasonable grounds to believe an offence has actually been committed

Question 4

Section 625.1 of the criminal code provides for

Answer 4

pre-hearing conferences aka judicial pre-trials

Question 5

What is the timeline of a pre-hearing conference as governed by rule 4.2 of the OCJ?

Answer 5

• at least 3 days in advance of the judicial pre-trial conference, the Crown must give the pre-trial judge a copy of the synopsis of allegations
• if the defence chooses to provide the pre-trial judge with any additional materials, it must do so at least three days in advance of the ptr-trial conference if possible

Question 6

At judicial pre-trial, both parties must have the authority to make decisions on the following:

Answer 6

• disclosure
• applications including Charter appls
• the number of witnesses each party intends to call at the prelim inquiry or trial
• any admissions the parties are willing to make
• any legal issues that the parties anticipate may arise in the proceeding
• an estimate of the time needed to complete the proceeding
• resolution of the matter, if appropriate

Question 7

What steps may be taken by the pre-trial judge after the pre-trial conference?

Answer 7

• confirm/amend the estimates of the time required to hear the proceedings
• set timelines for the exchange of materials on applications to be heard or for the completion of disclosure on matters to be set for trial
• set times for the hearing of applications
• set a date for a further pre-trial, if required

Question 8

Where the alleged offence is a summary conviction offence, is it necessary that the accused attend trial?

Answer 8

No

Question 9

What is arraignment?

Answer 9

the formal reading of the charge to the accused and an inquiry by the court about how the accused pleads to each count

Question 10

a paralegal may, on behalf of their client, enter into an agreement with a prosecutor about a guilty plea if, following investigation,

Answer 10

• the paralegal advises the client about the likelihood of a guilty verdict
• the paralegal advises the client of the implications and possible consequences of a guilty plea and particularly about the sentencing authority and discretion of the court, that the court is not bound by any agreement about a guilty plea
• the client is prepared to voluntarily admit to the necessary factual and mental elements of the offence charged
• the client voluntarily instructs the paralegal to enter into an agreement as to a guilty plea

Question 11

A guilty plea must be informed, voluntary, and in full compliance with section 606(1.1) of the Criminal Code, which requires that the court be satisfied that the accused understands:

Answer 11

• that he or she is admitting all of the essential elements of the offence
• the nature and consequences of his or her plea, including collateral consequences
• that the court is not bound by any joint submission of Crown counsel and the accused’s paralegal as to appropriate sentence.

Question 12

If the accused pleads not guilty, they are putting the Crown to

Answer 12

the proof of the alleged offence beyond a reasonable doubt and negating any defence that reasonably arises on the evidence.

Question 13

What are the four special pleas preserved in the Code?

Answer 13

• autrefois acquit
• autrefois convict
• pardon
• justification

Question 14

the plea of justification applies only to

Answer 14

the offence of defamatory libel

Question 15

When is the Crown permitted to cross examine their own witness/seek to impeach their own witness?

Answer 15

When their witness is declared adverse and where the witness has made a prior statement that is inconsistent with their own testimony at trial

Question 16

What is the Browne v Dunne rule?

Answer 16

The paralegal should cross examine the witness on any points that the defence intends to call evidence of an alternate theory, since the witness should be afforded an opportunity to respond to anticipated contradictory testimony

Question 17

What happens if you fail to comply with Browne v Dunne?

Answer 17

less weight may be given to the witness who is later called to give the contradictory testimony

Question 18

What is the limited scope of re-examination?

Answer 18

Any newly raised points that came out in cross, or that require some clarification as a result of the cross exam

Question 19

A trial judge’s roe for questioning witnesses is

Answer 19

very limited, to clarification of some issue and not to the adducing of new evidence

Question 20

Admission of expert evidence depends on the application of what criteria? (R v Mohan)

Answer 20

• relevance
• necessity
• absence of any exclusionary rule, and
• a properly qualified expert

Question 21

What two stage analysis was established by the Court of Appeal in R v Abbey, for the admission of expert evidence?

Answer 21

Stage 1: considers preconditions to admissibility
- the evidence relates to subject matter appropriate for expert testimony
- the expert is properly qualified
- the evidence runs afoul of any exclusionary rule
- the evidence is logically relevant to the material issue

Stage 2: Cost benefit analysis, considering
- probative value
- reliability
- necessity
- the significance of the issues

Question 22

Where are the issues of admissibility of expert evidence considered?

Answer 22

A voir dire

Question 23

What is hearsay?

Answer 23

An out of court statement, admitted for the truth of its contents

Question 24

When is a hearsay statement admissible for the truth of its contents?

Answer 24

if it meets the separate requirements of necessity and reliability

Question 25

What are the two kinds of reliability for hearsay?

Answer 25

• procedural reliability
• substantive reliability

Question 26

What is procedural reliability?

Answer 26

adequate substitutes for testing truth and accuracy

Question 27

What is substantive reliability?

Answer 27

sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy

Question 28

When relying on corroborative evidence to establish substantive reality, the trial judge should (R v Bradshaw):

Answer 28

• identify the material aspects of the hearsay statement that are tendered for their truth
• identify the specific hearsay dangers raised by those aspects of the statement in the circumstances of the case
• based on the circumstances and the dangers, consider alternative, even speculative, explanations for the statement; and
• determine whether the corroborative evidence led at the voir dire rules out the alternative explanations

Question 29

What is a directed verdict/when is it called?

Answer 29

at the conclusion of the Crown’s case and before the defence decides whether to call any evidence, the defence paralegal may make an application for a directed verdict on the basis that the Crown has failed to lead sufficient evidence on each of the elements of the offence such that it would be unreasonable to convict on the basis of the evidence led to that point