The Trial Process

Contact Trial Criminal Law Procedure Evidence Charter of Rights Civil
Menus:
Dofasco south from eastport drive. Copyright EricO'Reilly Facing north at Jolley Cut. Copyright Micheal Toomer & Eric O'Reilly. Facing west at skywayduring refubishment. Copyright Micheal Toomer & Eric O'Rielly Hamilton Library. Copyright Micheal Toomer

.

Purpose
This guide goes chronologically through the process of simple trial in the Ontario Court of Justice. To get a more complete understanding of legal rules relevant to your case consult a lawyer. If in Hamilton get some free advice from the public defender on the main floor of the John Sopinka Courthouse. If you want to know if police violated you charter rights, or have other legal questions you may need to search canlii for cases similar to your own. For simple charges only a few witnesses or pieces of evidence hold the crown case together.

1) Arrest / Summons / Traffic Ticket
If you are stopped by the police and cannot leave Section 9, 10, & 11a of the Charter of Rights applies:

1) Before they stop you the police must have reasonable and probable grounds to suspect you of commiting a crime.
2) The police must tell you why they are stopping you.
3) Police should inform you of your right to promptly contact an attourney.

If any of these requirements were missing you may decide to file a charter challenge in order to exclude evidence collected if the arrest gave the police the opportunity to collect the evidence (example: after unconstitutional arrest the police search you or you vehicle). There is an Ontario law that allows police to stop people in cars at random, normally to enforce imparied driving laws (i.e. RIDE program) or just to check for valid insurance and seatbelts. The limits on this extraordinary power to detain people at random without suspicion of breaking any law is that the police can't do a random stop to investigate other crimes, only motor vehicle offences, see R. v. Ladoucer.

In any encouter between you and the police the information should flow in one direction, from the police to you. Exceptions to you speaking are limited to asking why the officer is stopping you, telling them you want to leave, saying 'I don't want to talk about that', telling the police your name, and possibly providing identification. (If arrested showing ID to the cops makes you more likely to get a summons than a ride to jail). Excercise your right to silence.

2) Charge
The indictment/summons/ticket describes the charge against you. It states, not only the specfic law you are alleged of violating, but also the time, date, location and description of the incident. The indictment is critical because it tells you what the crown has to prove in order to convict you. On the first date in court Judge will ask you if you plan to retain a lawyer or legal aid and then tell you another date to return to Court. If the charge is criminal you may be given a separate date to go to the police station and be fingerprinted.

Spelling errors on your traffic ticket or summons do not make the charge invalid. Certian errors of omission on a ticket are fatal defects. If you ticket is missing any of the following consider ignoring it instead of paying or defending:
1) the name of the officer,
2) the name of the defendant,
3) the name of the act and the section number of the offence,
4) the location where the allegation arose (specifically the city or town)
5) the amount of the fine.

2b) Diversion
If this is your first charge and it is for a minor offence (like theft under $5000, or possession of certian drugs) consider asking the crown counsel to divert your case out of the criminal process. Diversion often requires you to admit guilt, appologize, and perform community service. If you complete these requirements you will not be convicted and have no criminal record. To convince crown counsel to accept you for diversion show them documents like these:

1) Up to date ROEs proving that you are employed and can support yourself legally,
2) Statements that criminal record will harm your employment options, (if you will longer be insured or hired)
3) A Birth Certificate if you are under 18 years old when charged
4) Proof of enrollment in college
5) Copy of a cheque you endorsed and delivered to the person or buisness you stole from.
6) Letters of reference from people who have known you for many years and will write nice things about you.

3) Disclosure
Draft a letter requesting disclosure to the local crown in charge of your matter. The following links shed light on how to review the disclosure and any ITOthat authorized search, arrest, or wiretaps warrants. Consider if these defences apply to you. You must also decide if you should testify at trial (consider the risks of crown cross-examination of you). There is no replacement for good legal advice here. Consider the statements of the crown witnesses along with those of any of your own witnesses. Do they prove all elements of the charge? Disclosure helps you evaluate your chance of winning at trial.

4) Plea
Never plead guilty when you believe the crown cannot prove the charge beyond all reasonable doubt. You can change a not guilty plea to a guilty plea later on. You cannot do the opposite.

If you are guilty and the crown can prove it, you can still negotiate with the crown to get a better deal. Trials are risky and costly. The crown will give you credit for pleading guilty. The more you convince the crown of the weaknesses in their evidence the better the crown's position sentencing will be if you plead guilty. Whatever the crown promises you it is the judge who decides your sentance based on section 718 of the Criminal Code and the Criminal Code Sentencing Tables. The crown will not offer you a deal they believe the judge will reject.

4b) Election
Heneceforth we assume you are pleading not guilty. Your trail will be heard by a Judge without any jury unless the maximum possible period of imprisonment you face is greater than 5 years. In this case Section 11f) of the Charter of Rights guarantees you a choice between a jury or just a Judge. This choice does not have to be made at plea. A Judge makes it easier and simpler to conduct the trial. It could be better to choose a jury if you believe that people would be sympathetic to you (or really hate the police/victim/crown witnesses).

5) Preparing for Trial
To win you need to make a plan of how you will establish reasonable doubt. This plan could be as simple as casting doubt on the crown's case. Perhaps the eyeball witnesses cannot identify you beyond all reasonable doubt. Perhaps the crown cannot prove you knowingly possessed any narcotics. Whatever your theory consider doing some of the following:

- collect evidence by interviewing witnesses. Consider recording the conversation with your cell. This prevents misunderstanding later. You might also want to tell the person that you are recording them.
- if the crown case rests on an eyewitness take pictures of the scene and make measurements of the distances at which any eyewitnesses were standing.
- when talking to people note any differences between their story and the police disclosure.
- research any violence in your victim's past if you are claiming self defence.
- research informants, their criminal recods, things they said to people other than the police etc.
- mail the crown a polite letter requesting they send you their witness list.
- prepare Summons to Witnesses when you need a persons' testimony and they might not come to your trial.
- write out all questions you plan to ask crown witnesses on cross examination, if you are calling anyone in your defense speak to them first to see what they will say.
- consider buying a dedicated audio recorder, your cell phone might not be sensitive enough for use at trial.
- consider writing to the crown to ask for relevant evidence left out of disclosure. In particular, if the witness list you get in the mail/fax includes an unexpexted name, and you have no idea what this witness might say you have a right to get a "will-say" statement from the crown.

After completing the investigation and reading the disclosure again you should have a good idea of the crown's case, parts of it you can attack, and what evidence you may need to call.

6) Court Applications
You may need to apply to the court for additional disclosure if the crown rejects a request. You may need an order for production of relevant documents from a third party who posesses it since your disclosure rights covers only what police posess. You may attempt to exclude evidence based on the following:
- defects in the search warrant, wiretap authorization, or K9 search that uncovered evidence breached section 8 of the Charter.
- an illegal arrest or detention preceded a finding of evidence (when the police search you after an arrest without cause).
- the circumstances of you case support a stay of process.

To initiate an applications you go to court and serve the application form on crown counsel. When filling in the application follow these rules. Some applications are decided in Court before trial, others are dealt with during the trial. For Hamilton accused call the John Sopinka Court trial coordinator at 905-645-5322. If your defense is that you weren't at the scene when the crime happened you must send an alibi notice to the crown before trial. If you are applying to exclude evidence under the Charter you must give notice to the Provincial and Federal Crown.

7) The Trial - Courtroom Etiquette
Stand when the Judge enters and exits. When speaking to the Judge always start with "Your Honour". Stand when you speak to a witness or the Judge. Turn your cell off. Once the trial starts do not speak to the crown lawyer. If you need to refer to crown counsel call them 'my friend'. Ask the judge for permission before handing anything (like a previous statement) to a witness.

8) Crown's Direct Examination
The crown always goes first presenting it's evidence. This is because the accused is presumed innocent. Before any testimony is given witnesses will be asked to leave the Court so they cannot influence each other. If an important crown witness fails to show up follow these instructions.

The trial really starts when the crown calls their witnesses. Bring an audio recorder and ask the Judge for permission to record witness testimony for note taking pruposes only.You must pay attention to the questions the crown asks but you must pay greater attention to the answers the witnesses give. Your main job is to listen to the witnesses carefully. Are they consistent with older statmentents they made, or with other other evidence? Write down answers when the witness omits, adds to, or contradicts any previous statements. Reocrd testimony that is unexpected, or at odds with other evidence.

You have another, less important job to object to questions and answers that are inadmissible according to the rules of evidence. To object you simply stand up and say "Your Honour I object" and then state the reason. The following are some reaons you might object:

- the question is asking for an answer that is irrelevant to proving the charge
- crown counsel is leading the witness on material facts
- the question assumes important things that the witness has not yet agreed to. (example: Why did Marky shoot Ricky in the Timmies parking lot? to be allowable the crown requires earlier testimony from the same witness that they were both men were at Timmies, and that Marky shot Ricky.)
- the crown introduces an exhibit not previously disclosed to the defence
- the question asks the witness to comment on another witness' credibility (this is often irrelevant and can break the rule against oath helping.
- the question elicits hearsay, learn the exceptions where hearsay is allowed
- the question will elicit bad character evidence against the acccused (asking about a previous conviction may be ok, asking about the details is usually not)
- the exhibit submitted by the crown was not first authenticated by the producer.
- the document submitted is not the original, but a copy, violating the best evidence rule

Take my evidence quiz, to learn the improper and proper phrasing for some types of questions. Print off this list of objections for use at trial.

9) Defence's Cross-Examination of Crown Witnesses
You may wonder what the 'cross' means in cross-examination. The way that the courtroom used to be arranged crown counsel is seated closest to the witness box. When the defence counsel questions witnesses they would speak across the courtroom. For many tirals the accused does not testify and calls no witnesses, this leaves the cross examination of crown witnesses as your main tool to win.

During cross-examination you will lead the witness. Prepare list of answers you want from each separate crown witness. Do not ask where, why, when, what or who type questions. Instead, put complete statements to the witness. Example: 'You drank a six pack of beer that night at the party?' You speak it like it were a question. The witness just answers yes (hopefully). The more complicated the statement the less the chance the witness will agree to it: 'You were very drunk after finishing a six pack of smirnoff wine coolers' would be more much likely to return a 'no'. The lesson is that you strip out unecessary descriptions (very drunk), and split up longer statements to construct statements about short simple facts. Be descriptive only when it matters to your case. Well before trial prepare your cross-examination questions, (the following order can be useful):

1) Things the witness saw, heard, or did that help your case. example: "You texted me an invitation telling me to come to your home that night" (night of the alleged break and enter).

2) Things the witness will admit, that may harm their case, but are not that important. "You did not tell me to leave after I walked in your unlocked front door?"

3) Things you can ask the witness that attack their reliability. This could include testing their memory about the weather, asking about distances, and lines of sight through which they observed the incident, ask if they personally knew the defenant (if identity is disputed), ask if they were on any intoxicating medication, alcohol, or drugs. Perhaps, ask about motives for testifying. Your success requires preparation and investigation so you know which questions will result in damaged witness reliability.

4) If the witness has already given, during direct or cross, testimony that contradicts anything they witness said in the past use the question format in this link. Get the previous statements from crown disclosure, you interviews with the witness, emails and tests they wrote etc.

5) Instances the reflect badly on the character of the witness. "You were convicted of armed robbery less than two years ago?" or even "On the date of October 15th 2014 you walked into a Max Milk and pointed a firearm at the clerk", if you've done your homework and got dirt on the witness, read the collateral evidence rule. If the accused or other defence witnesses plan to testify this line of cross might be risky.

6) This part only applies if the defence plans to call witnesses. You must know in advance what you and your witnesses are going to say. Anything you plan to say that contradicts the crown witness' testimony must be told to them. (yes I know, the witness will proably deny it, but the rule is that you cannot condradict the witness unless you give them a chance to respond.

When writing your cross questions the above ordering can be good because you want to get the helpful things out of the witness before you attack their credibility and turn them hostile. Chronological order can also be effective.

After the crowns last witness leaves the stand reread the information/charge. If none of the crown witnesses testified about a particular part of the charge then stand up a say 'Your Honour I request that you grant a no evidence motion since no proof was offered that (read the part of the charge that was not proven)'

10) Voir Dire
A voir dire is often initiated by an application prior to trial or after an objection during trial. Examples include defence charter challenges to exclude evidence, or crown evidence to include incriminating statements given by the accused to police. For Charter Challenges the accused has to prove there was more than a 50% chance the police violated Charter Rights of the accused, and that evidence was found in the process. For confessions the crown must prove beyond a reasonable doubt that accused voluntarily confessed. A voir dire is like a mini trial and the party who bears the burden of proof goes first. Witnesses are called and after they testify arguments are made.

If the accused testifies during a voir dire the law gives you protection from self incrimination. This protection does not extend to charges of perjury, or giving conradictory evidence later in the trial.

Any incriminating statement made by the accused to the police might also contain other parts favourable to the accused. If the Judge admits the statement into evidence the accused should argue that since the incrimnating part is allowed in evidence, it is only fair that any innocent explanation be allowed in as well.

11) Defence Case
The accused always testifies first if there are multiple defence witnesses. The accused's choice of whether or not to testify is guaraunteed to them by the Charter of Right's Freedoms. The choice, to take the stand or not, can be critical to the outcome of the trial. Once you choose to take the stand and give your story you become vulnerable to crown cross-examination on anything relevant to the alleged crime or your defence.

If a confession was admitted into evidence earlier, after a voir dire, it might be too dangerous for an accused to testify. The crown will use the incriminating statement during cross-examination. This will likely make the accused look like a liar. An accused who exercised their right to silence is in much better shape to testify in their defence.

When a defence witness is giving testimony the same rules of evidence that applied to the crown apply to the defence. There are some exceptions, the crown usually cannot lead bad-character evidence. See the
similar fact rule to learn the 'strikingly similar incidents' exception to this general rule prohibiting bad character evidence agaist the accused. Also, the more you attacked crown witnesses during their testimony the more the crown will be allowed to attack you. While testifying avoid saying things like, "I'm a decent person", "I never lie", "I never get drunk" etc.

Preaparing Your Case:
Interview your witnesses as if they were on the stand (using who, what, where, when questions instead of leading statments) and check the details of their stories, write their stories down , (and your own story if you will testify). Carefully review these stories, any parts of the stories relying on inadmissible hearsay should be eliminated. When you come to a part in the story that the crown will disagree with try to anticipate what the crown will ask on cross examination. Put these cross examination questions to your witness and see how they respond. During crown cross-examination object if your witnesses are asked "Do you know of any motive for Mr. Crown Witness to have lied in his testimony?" (This question reverses the burden of proof).

12) Closing Arguments
This is where you make legal arguments on why the crown has failed to prove guilt beyond a reasonable doubt:

1) Most important is to tell the judge of all the weakness in the crown's evidence. Repeat the useful parts of the witness' testimony to establish facts, then make an argument based on these facts: example 1) Facts: "Your Hounour, Mr. Omar was convicted of assault in 2011. Mr. Omar has an outstanding robbery charge sworn over 10 months ago. No trial date for this robbery charge has been set." Arguments: "I submit that Mr. Omar believes that his testimony is part of an exchange with the crown. I submit that no date has been set becuse the crown needed to see how Mr. Omar performed in this case in order to deal with his robbery charge." example 2) Facts: "Mrs. Clark testified that she saw a man in her driveway for about a minute around ten pm. Mrs. Clark also said she never saw that man before that night, he was a total stranger to her." Arguments: "I submit that seeing a stranger in you drieway for a minute at night makes it nearly impossible to reliably remember that persons face. I submit Your Honor give no weight to Mrs. Clark's in-court identification or her identification during the photo lineup". Note the use of "submit", this word sounds respectful.

2) Review any objections you made. In many cases the basis of the objection is relevant in weighing evidence. Even when you lose your objections there are many 'limiting instructions', one states that hearsay is generally less reliable than in court testimony. Here's an example that you might use if the crown relys on hearsay: "the only evidence that the defendant knew the car was stolen is from hearsay, hearsay has more potential reliability problems than in-person testimony'. Reminding the judge of important objections protects you from bad legal reasoning.

3) If the accused does testify you should include somthing like: "I respectfully remind your Hounor of the application of R. v. W.D. to the evidence in this case." (see R. v. W. (D.) 1991 CanLII 93 SCC).

You are not going to remember all this on the spot. You must have a prepared closing statment before trial based on what you think the witesses will say and what answers they will give to your questions (these must also be written in advance). Do not be afraid to ask the judge for extra time to edit your closing argument if your original assumptions about the witnesses were incorrect or if unexpected information comes to light. Every case decided in Ontario makes common law, meaning the legal parts of that decision apply to all subsequent cases. You might make use of decisions from older cases, possibly during closing arguments or charter applications. If you will refer to another case at trial bring three copies of the decision.