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The Trial

Introduction

Trial procedures are different for "summary" offences than they are for "indictable" ones (refer to earlier pages about the process). Most people going to trial without a lawyer are likely to be facing a summary charge. Procedures for summary trials are set out in Part XXVII (27) of the Criminal Code.

Running a trial can be a very complicated business (even for a lawyer), so we cannot hope to give anything more than an overview here. If you are the accused person, the most important thing to remember is the final objective: to show the judge (or, if there is one, the jury) that there is a reasonable doubt whether you committed the offence, as charged.

If you are not represented by a lawyer, the judge will probably try to give you some guidance about procedure, and should be more tolerant of mistakes. This won't help you, though, if the Crown succeeds in proving its case beyond any reasonable doubt.

As a general rule, you have the right to be in the courtroom throughout the trial, but can chose to remain completely silent throughout, if you wish. Even if you act as your own lawyer, you do not have to testify unless you want to. Note that you can be excluded from the trial if you disrupt the proceedings [s.650].

How a Trial Runs

A typical small summary trial is held in a provincial court courtroom, with very few people present. There will be a judge (naturally), a prosecutor, an accused person (with or without a defence lawyer), a court clerk (to handle the paperwork and keep a record), a sheriff's deputy (mainly for security), and possibly a few spectators. People who are going to be witnesses are usually kept outside once the trial begins, to make sure they are not influenced by what others say in the witness box before them.

When the judge enters, the room is called to order and everyone stands. You may notice bows being exchanged between the judge and some of the people in the room. This is a custom between court officials and members of the Bar. It is not required for other people.

Once the judge is seated, everyone else may also sit, except when speaking to or being spoken to by the judge. As the accused, you will usually be told to sit in a specific place close to the sheriff's deputy, but will sit at the defence table if you are running your own trial.

There will be microphones in front of the judge and the lawyers' tables, and in the witness box. These just allow a tape recording to be made of everything that is said, so that a printed transcript can be made later if the verdict is appealed.

First, the clerk will call the case (by your name), and the prosecutor will introduce him- or herself to the judge. The defence then does the same, and confirms that it is ready to go ahead with the trial.

The prosecution calls its witnesses first. Each witness is brought in, swears an oath (or makes a solemn declaration) to tell the truth, and is questioned by the prosecutor. If the defence thinks there are things the witness has left out of the story, or feels that some of the testimony may have been inconsistent or untruthful, it can then ask its own questions.

When all the prosecution witnesses have testified, the Crown closes its case, and it is the turn of the defence. Witnesses are questioned in the same way, except that now it is the defence that goes first, and the Crown that tests each witness with its own questions, in "cross-examination". Before a witness leaves the box after cross-examination, defence is given an opportunity to ask further questions of its own, if some new matter has come up during cross-examination, and needs to be dealt with. This is called 're-examination', and the Crown has a similar right during its own case.

If the accused testifies, he usually does so before any other defence witnesses. It is not a rule, but is very advisable. Otherwise, the judge may well conclude that he was waiting to hear what the other witnesses would say, before speaking, so as not to be caught in a contradiction.

It should be made clear that the defence does not have to call any evidence at all, and whether it does or not, the accused himself does not have to take the witness stand. If he does, though, he can be cross-examined about anything that is relevant to the case and legally admissible. He can't, in other words, choose just to talk about whatever helps his case, and then go back to his seat.

Once all the witnesses have testified, the normal procedure is for the judge to ask the defence to sum up what it considers the evidence to have shown, and to make arguments for the judge to acquit. The prosecutor then makes his or her own final points, trying to convince the judge to convict.

The judge will usually give a verdict either immediately following the prosecutor's remarks, or after a brief recess. If there is an acquittal, you are free to go. If there is a conviction, the judge will often expect to be able to deal with sentencing immediately. The whole trial, from start to finish, will typically have taken anywhere from a matter of minutes, to a day or two at most.

CAUTION

This has been only the most sketchy overview of what may happen in a trial. There are many, many other things that can happen, and an enormous amount of information on rules, techniques, tactics, etc., that is not included. An unrepresented accused is facing an uphill battle in court. Get professional help if you can. If you can't afford a lawyer, try to get legal aid.

 

Further Reading:

 

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FIRST LINE CRIMINAL LAW INFORMATION

A Free Criminal Law and Procedure Handbook by Martin F. Allen,
Criminal Defence Lawyer in Victoria, B.C., Canada

BASTION LAW - Your First Line of Criminal Defence in Canada

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