The Trial Process

Question 1

The Trial Process

Answer 1

1. Arraignment
   
   • reading of the charge and the entering of the plee
2. Crown Opening
   
   • gives an outline
3. Crown Witnesses
   
   • Crown examination - no leading questions
   • Cross examination - can ask leading questions
   • Re-examination - crown asks clarification
4. Defence opening statement
5. Defence witnesses
   
   • Crown examination
   • Cross examination
   • Re-examination
6. Closing subissions

Question 2

Bail

Answer 2

Right to reasonable bail s.11 (e) Charter right:
- “Any person charged with an offence has the right: not to be denied reasonable bail without just cause”
- The person held in custody must propose a plan for release

Question 3

Grounds for detention

Answer 3

1. Primary
   
   • Whether detention is necessary to ensure the accused will appear in court
2. Secondary
   
   • Whether detention is necessary for the protection of public safety, including likelihood of re-offence
3. Tertiary
   
   • Whether detention is necessary to maintain confidence in the administration of justice

Question 4

R v. Zora

Answer 4

• The least onerous conditions must be placed on the accused, even though the accused must propose the bail conditions to be approved by the judge
• The judge must give the accused the least conditions even if greater conditions are proposed

Question 5

The Ladder Approach

Answer 5

• The conditions for bail should be graduated, should start off with the least onerous - promise to appear - and increase slowly if the accused violates or the crime is more serious

Question 6

R v. Boucher
Role of the Prosecutor

Answer 6

• The purpose of criminal prosecution is not to obtain a conviction, it is to lay credible evidence before a jury
• The role of a prosecutor excludes any notion of winning or losing – it is a matter of public duty
• The role of the prosecutor is to adopt a neutral attitude, pressing credible evidence firmly but fairly

Question 7

R v. Stinchcombe
Disclosure of Evidence

Answer 7

• Crown has a duty to disclose all relevant information
• Defence has no obligation to assist prosecution, it is purely adversarial. It is the Crown’s DUTY to disclose. Defence does not need to request it
• Crown must disclose before the accused elects trial mode or pleads
• Disclosure is a positive and ongoing duty – Crown must continue to disclose if they receive new information

Question 8

The Principal of Restraint

Answer 8

Section 493.1: courts shall exercise restraint when considering forms and conditions of release:
1. Release at the earliest opportunity
2. Least onerous conditions
3. Conditions must be reasonable

Section 493.2: courts must consider the circumstances of Aboriginal and vulnerable accused persons
- Over-represented population or otherwise disadvantaged in obtaining release

Question 9

The Jury

Answer 9

Charter s 11: Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial
tribunal.
(f) to be tried by a jury where the maximum punishment for the
offence is imprisonment for five years or more.

Question 10

R v. Turpin

Answer 10

There is no s 11(f) right not to be tried by a jury

Question 11

Jury Selection

Answer 11

• Jury selected from the jury array, with the basic information provided about jurors: name, address, occupation
• Different strategies for selecting a jury
• The accused has a right under s 11(d) to an impartial jury

Question 12

R v. Kokopenace

Answer 12

• The jury must be representative, this is the responsibility of the state
• Representativeness – focused on the process used to compile the jury roll, not its ultimate composition
• Standard is satisfied where there is a fair opportunity for a broad cross-section of society to participate in the jury process
• Kokopenace was an aboriginal man, tried by a white jury in a majority Indigenous area, this happened because Indigenous people living on reserves are not on jury roles

Question 13

R v. Chouhan

Answer 13

• Abolishing peremptory challenges is constitutional, no right to peremptory challenges

Question 14

R v. Stanely

Answer 14

• Stanely killed an Indigenous man, but used all his peremptory challenges to remove all people of colour from the jury roll, was acquitted by an all-white jury

Question 15

Reasonable effort for a representative jury

Answer 15

1. Compile the jury roll using random selection from lists that draw from a broad cross-section of society
2. Deliver jury notices to those who have been randomly selected

Question 16

R v. Parks

Answer 16

• The question regarding race is targeted; aimed at determining whether an individual’s beliefs would prevent them from judging the case impartially.
• The goal is to weed out individuals who would not be impartial because of racist beliefs

Question 17

R v. Williams
Racial Prejudice

Answer 17

• Where concerns are raised, better to err on the side of caution and allow the question to be asked.
• Racial prejudice can be insidious

Question 18

Jury Unanimity

Answer 18

• Juries must be unanimous.
• Jury deliberations happen in secret.
• It is a criminal offence to disclose information relating to jury deliberations (some exceptions)

Question 19

Burden & Quantum of Proof

Answer 19

• The Crown has the burden of proof and MUST prove guilt beyond a reasonable doubt

Question 20

Woolmington v DPP

Answer 20

-The Crown must always prove the guilt of the accused
- The accused has no obligation to establish his innocence
- The judge mistakenly described the burden of proof and beyond a reasonable doubt as though it falls on the accused

Question 21

R v. Starr

Answer 21

• Proof beyond a reasonable doubt is not a certainty, but it is closer to certainty than to a balance of probabilities

Question 22

R v. Lifchus

Answer 22

• Connected to a presumption of innocence
• Crown has the burden throughout; the burden never shifts to the accused
• Reasonable doubt not doubt based on sympathy or prejudice but on reason and common sense
• If jury concludes accused is probably guilty, must acquit