IN THE SUPERIOR COURT OF JUSTICE. CANADA ) HER MAJESTY THE QUEEN ) PROVINCE OF ONTARIO ) against ) YOURTOWN REGION ) MARCEL(LE) LECOUTEAU

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1 The Canadian Adjudication Process pre-trial procedures: first appearance (arraignment) bail hearing disclosure meeting preliminary hearing pre-trial plea bargaining trial players trial format trial procedure Habeas Corpus: (Latin, meaning "you have the body.") A court order requesting that a specific person being detained be promptly produced, by the detaining authority, before a judge for a hearing to decide whether the detention is lawful. This was first established in the Magna Carta, Pre-Trial Hearings First Appearance (Arraignment): A criminal hearing in which the indictment is read (i.e. the accused's name is called, the charge is read, and the accused is asked to plead: i) guilty, ii) not guilty, or request an adjournment so as to seek further legal advice. A date is set for i) Preliminary Hearing (Inquiry) or, if they agree, for ii) trial. If accused has been held in custody, bail may be set. Bail Hearing: The hearing where it is determined whether the accused should be kept in custody or released on bail. The Crown Attorney must convince the court that the accused should be kept in jail until the trial. IN THE SUPERIOR COURT OF JUSTICE CANADA ) HER MAJESTY THE QUEEN ) PROVINCE OF ONTARIO ) against ) YOURTOWN REGION ) MARCEL(LE) LECOUTEAU 1. MARCEL(LE) LECOUTEAU stands charged that s/he, on or about the 1st day of October in the year 2005, at the City of Yourtown in the Region of Yourtown, did use a weapon, to wit: an exacto knife, in committing an assault upon Bulk Bogus, contrary to the Criminal Code; 2. MARCEL(LE) LECOUTEAU stands further charged that s/he, on or about the 1st day of October in the year 2005, at the City of Yourtown in the Region of Yourtown, did have in his/her possession a weapon, to wit: an exacto knife, for a purpose dangerous to the public peace, contrary to the Criminal Code; DATED AT YOURTOWN this 5th day of December, indictment... Assistant Crown Attorney and Agent for the Attorney General of Ontario Disclosure Meeting: A meeting where the Crown must present the defence with all evidence that they intend to bring to trial. While this protocol has existed for decades (more or less as a gentleman's agreement), it did not become mandatory until R. v. Stinchcombe, 1992) R. Vs Stinchcombe, 1992 The Supreme Court stated that the Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done. Discretion (Protecting informers) The Crown does have some discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. 1

2 R. Vs Stichcombe, 1992 Defence s Duty to inform judge of failure to disclose: Defence counsel must, at the earliest opportunity, make the trial judge aware of any failure of the Crown to to disclose relevent information. Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. Disclosed evidence could include: statements obtained from persons providing relevant information (even if they are not proposed as Crown witnesses) and notes taken from investigators; lab reports; etc Preliminary Hearing: This is a hearing by a judge to determine whether or not there is enough evidence to have the case go to trial. At the end of a preliminary inquiry, the judge either dismisses the charge(s), or commits the accused for trial. The Crown does not have to prove its case to get a committal. It just has to show there is evidence on each of the points necessary for a conviction at trial. A charge will only be dismissed at a preliminary inquiry if there is no case to answer because of a complete lack of evidence on a crucial issue. Pre-trial: A hearing with the Crown, defence, and a judge - other than would hear the trial.. A final chance to plea bargain. Work out an Agreed Statement of Facts. This statement can then be submitted to the trier of fact with no need to call witnesses to support the facts contained in the statement. Plea-Bargaining: Negotiations (can take place any time up to the trial date) between the defence counsel and Crown prosecutor concerning the charges and pleas of the accused. The Crown may accept a guilty plea on a lesser charge instead of incurring the expense and time of a trial on the original charge. The Crown may also agree to make a joint submission to the judge on the appropriate sentence, if the accused agrees to plead guilty. Plea Bargaining Plea bargaining is the process wherein the prosecution and the defence come to an agreement to resolve the case by allowing a criminal defendant to plead guilty to a lesser crime than the one charged. Plea bargaining itself is neither legislatively sanctioned nor prohibited in Canada. It tends to occur when: 1) the defence attorney feels that the defence is not 'airtight', or 2) the Crown may perceive that its case is weak and offer to reduce the charge(s). Sadly, it is most commonly employed to simply save time and money. Such negotiations can occur at various points during the process, all the way up to the trial date. Plead: At some point, the accused must enter a plea. The very essence of plea negotiations is sentence reduction, which is influenced by many uncertain elements, such as the quality of the relationship between the defence lawyer and the Crown, and the cooperation between the suspect and the police. The forgotten party in all this is the victims. They typically have no role whatsoever within plea bargaining. Even the defendants themselves will find themselves isolated from, ignorant of, or confused by this 'behind-the scenes' process dominated by lawyers. In groups, students will examine the case of R. v. Feeney, 1997,, page 304. The groups will then answer the following questions: Group A 1, 2 B 3, 4 C 5, 6 Question 2

3 The Trial! Court Players Judge: Decides what evidence will be presented, rules on matters of law, instructs jury, and determines the sentence for those accused who are convicted. In a non-jury trial the judge is also the trier-of of-fact. fact. Jury: Random members of the public, selected for duty. Must deliver a verdict of guilty or not guilty. Crown Attorney: A lawyer who represents, and is responsible to, the state. Crown Attorneys are prosecutors; they argue against the defence. Defence Attorney: A lawyer who is responsible for protecting the rights of the accused. As the accused is presumed innocent until proven guilty, the defence attorney is not required to prove innocence. Rather, the defence counsel simply attempts to refute the Crown's evidence and discredit its witnesses. Trier of fact: The authority at a trial who decides what the truth is. If there is a jury, it is the trier of fact. If there is no jury, the judge is the trier of fact. The trier of fact makes findings of fact in a trial. Findings of fact: Determining what evidence and testimony are believable (that is, are facts) and which are not. Trier of Law: Even in a jury trial, the judge is always the "trier of law;" " this is the person who makes rulings about how the law applies to the facts. Findings of law: A determination regarding how a specific statute (ie. Criminal Code, Young Offenders Act, Canada Evidence Act, etc.) or case law should be applied to a trial, either in process, or at sentencing. Crown calls its witness(es): Defence calls its witness(es): Trial: Format Opening Argument(s): Crown defence (now, or after the Crown s case) Closing Arguments: Deliberation: Verdict: jury, or jury, or defence judge judge examination-in-chief (Crown) cross examination (defence) re-examination examination (Crown) re-cross examination (defence) examination-in-chief (defence) cross examination (Crown) re-examination examination (defence) re-cross examination (Crown) Crown Note: If the defence provided no witnesses, it will present its closing statement last. If the defence did provide witnesses, then the Crown will present its closing statement last. Proving a case "A proof is a proof. What kind of a proof? It's a proof. A proof is a proof. And when you have a good proof, it's because it's proven." Jean Chretien Law Joke of the Day!!! A surgeon, an architect an a lawyer are having a heated discussion concerning which of their professions is actually the oldest profession. The surgeon says: "Surgery IS the oldest profession. God took a rib from Adam to create Eve and you can't go back further than that. The architect says: "Hold on! In fact, God was the first architect when he created the world out of chaos in 7 days, and you can't go back any further than THAT! The lawyer puffs his cigar and says: "Gentlemen, Gentlemen...who do you think created the CHAOS??!!" 3

4 Proving a case Proof: Refers to the quality and quantity of evidence that establishes a fact about an issue. Prove: To persuade a trier of fact to believe a fact about an issue. Evidence: That which demonstrates, makes clear or ascertains the truth of the very fact or point at issue, either on one side or the other. Corroborating Evidence: Evidence that confirms or strengthens evidence already presented to the court. Note: All evidence, whether it is real evidence (an object that can be deposited with the court) or testimony, must be presented to the court by a witness. Witnesses Material Witness: Someone who has knowledge of an event, or may have seen/heard what happened. Witness is under an oath to tell the truth. For the most part, witnesses can only testify about what she/he perceived with his/her own senses (i.e. seen and/or heard). The witness cannot give evidence about what someone else might have seen / heard (i.e. hearsay). Eye Witness: A specific type of material witness; someone who actually observed the crime take place. Sidebar Hearsay: Giving evidence about what someone else has seen / heard. It is generally not allowed, because facts that are to be taken as evidence must come from the people who initially observed these facts. These people then swear an oath to speak the truth in court. In addition, the people who originally observed facts can be cross examined, whereas it would be difficult to cross examine a witness who does not have direct knowledge of the facts which they are relaying. Exceptions are permitted when the hearsay testimony applies to: statements made by the accused; statements made by someone who is deceased; establishing that the statement was made, but not to the truth of the statement. Expert Witness: A person whom the court considers to have sufficient expertise in their field that she/he can testify about more than what she/he has seen or heard. She/he can tell the court what conclusions she/he reaches as a result of certain facts and she/he can give her/his opinions about the facts. Only expert witnesses can testify about their opinions. Examples: sexual assault counselor effects of sexual assault; pathologist interpretation of autopsy results ballistics expert type of gun used based on other physical evidence Comparative examples of three types of witnesses clerk who sells the accused a gun material witness friend who sees accused shoot victim eye witness (a specific type of material witness) ballistics expert who analyzes slug expert witness Questioning of Witnesses Examination-in-chief: The questioning of a witness by the lawyer who called her/him as a witness. The purpose of examination is to provide evidence in support of this party s case. lawyer cannot ask leading questions questions must be relevant to the case Leading Questions: Questions phrased so as to indicate an answer. Traditional Acid Test: If the answer can be yes or no it is likely a leading question. (This test is not always accurate.) Purpose: All information must be presented to the jury through evidence (ie. witnesses) not attorneys! 4

5 During an examination-in-chief, a lawyer is not allowed to ask leading questions of their own witness. Hostile Witness If a lawyer s own witness openly shows hostility against the interests (or the person) that the lawyer represents, the lawyer may ask the court to declare the witness "hostile", after which the lawyer may ask leading questions of this witness. The Secret to Successful Cross-Examination F. Lee Bailey Cross Examining a Witness Cross-Examination: The questioning of a witness by the opposing attorney (the attorney who did not call her/him as a witness). This happens after the examination-in-chief. The purpose of cross- examination is to suggest other possible interpretations of their evidence or discredit of the witness him/herself. lawyer can, and should, ask leading questions questions need not be relevant to the case itself, as they may serve solely to establish the credibility (or lack thereof) of the witness. The Rule in Browne v. Dunn (1893) Browne v. Dunn (1893) established that if an attorney plans to suggest within his/her closing argument that a given witness lied (regarding a certain point) in his/her testimony, then that attorney MUST put it (i.e. suggest) to the witness that he/she is lying DURING the actual examination. This rule serves two purposes: i) it gives the witness the opportunity to rebuke the accusation, ii) it gives the judge the opportunity to assess the witness credibility on the point in question. Note: A lawyer cannot simply say, May I suggest you are lying? Rather, the lawyer must put other questions to the witness that would ask the witness to explain apparent contradictions in his/her testimony. For example, Are you suggesting that you were in the garage for between ten and fifteen minutes, and you at no point took note of the fact that an SUV was in the garage? Micro Trial Group A will examine the following: Witness: Peter Gun, Fingerprint analyst Witness Type: Expert witness (can present findings of opinion) Evidence: Fingerprints found on the gun submitted for testing were found to match the fingerprints of Albert Sinclair the accused. Group B will oppose and will cross examine. 5

6 Group C will examine the following: Witness: Sam Ceiantel, friend of accused Witness Type: Material witness (can only discuss what he detected with his own senses) Evidence: Witness accompanied Albert Sinclair to the bar where the murder took place. He saw nothing else. However, he knew Albert was not on friendly terms with the victim (Tommy Cruiser) because Albert s ex-girlfriend went out with Tommy for a while after she left Albert. Group D will oppose and cross examine. Trial Outcomes Stay (of proceedings): This can be a motion entered by the Crown, or an order made by a judge. This decision suspends the present proceedings. The accused is free to go, but the charge has not been dropped or withdrawn. The Crown can start the proceedings again within one year if certain events occur (for example, new evidence is found). Quash: An order of the court to stop the prosecution permanently. Usually due to lack of evidence, or a finding that the Crown has committed a gross violation of procedural law. Acquittal: A decision of the court wherein the accused is found not guilty of the charges against him. Thus, the accused is free to go. Conviction: A decision of the court wherein the accused is found guilty of the charges against him. Thus, the accused is remanded into custody to await sentencing. Hung Jury: Occurs when a jury cannot make a unanimous decision on the verdict. A new trial must then take place. Reaching the Verdict The trier of fact must reach a verdict of guilty or not guilty based on the facts of the case. The jury is instructed by the judge (in the charge to the jury ) that they must return a verdict of not guilty if they find there is any reasonable doubt. Reasonable doubt: Refers to the level of certainty that the judge or jury needs to have before finding an individual guilty. The judge or jury must be satisfied that no reasonable person would doubt that this person is guilty. The decision of the jury must be unanimous. A judge can set aside the verdict of the jury if they perceive the verdict to represent a gross miscarriage of justice. Extra Points to Note Justice of the Peace: This is a judge that is appointed by the provincial Lieutenant-Governor. A Justice of the Peace is assigned to do limited duties, such as issuing warrants, performing civil marriages, presiding over traffic court, granting bail, etc. Voir Dire: A trial within a trial, held to determine whether evidence can be admitted. In a jury trial, the jury will be excused while both sides argue the matter. Private Prosecution: A rare procedure wherein a private individual begins prosecution. This might happen if the police decline to lay a charge. If the victim (or someone else affected by what has happened) believes a charge should be laid, then that person can hire a lawyer to pursue a prosecution privately. A private prosecutor must satisfy a judge that the case is worthy of prosecution. If the judge accepts the case, it is then handed to the Crown Attorney's office. 6