The Criminal Trial Process

1. The Criminal Trial Process

2. 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.

3. 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.

4. 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.

5. 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).

6. 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 andactus reus

7. 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.

8. 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 calledhung jury. They are dismissed, a new jury is chosen and the case is tried again.

9. 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.