D. Order of Trial

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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1) Trial Procedures

The procedures governing trial are set out in Parts XIX, XX, and XXVII of the Criminal Code and cover indictable offences tried by judge alone or judge and jury and summary conviction trials respectively.117Many of the procedures dealing with the actual conduct of trials are common to all three modes.118A trial is to proceed continuously, though the judge can grant adjournments.119The accused is to be present for the trial, but a judge is allowed to excuse the accused from attending.120In addition, provisions in the Code now permit the attendance of the accused at trial by video link, though this is only permitted for portions of the trial during which no evidence is taken.121If an accused absconds during trial, the court can either issue a warrant for the accused’s arrest and adjourn the trial, or continue the trial without the accused. In the latter case, defence counsel can continue acting for the accused, and the accused’s right to full answer and defence will not have been violated.122

The trial judge has discretion as to where the accused will sit during trial. Normally this will be in the prisoner’s dock, and the trial judge is not required to permit the accused to sit elsewhere unless the refusal will violate the accused’s right to full answer and defence.123

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The judge can ask questions during the trial, although doing so can raise issues as to whether there is a reasonable apprehension of bias (see the discussion below at section F). Juries are also entitled to ask questions, though within limits. It must be made clear to the jury that the parties are entitled to present the evidence as they want, and so questioning by jurors should not become another interrogation. Jurors’ questions are best left to the end, to be submitted in writing to the trial judge who can discuss with counsel whether they should be asked.124

2) Opening Statements

The Crown presents its case first, and, as a matter of practice, can begin with an opening statement to the jury explaining its theory of the case and the evidence to be called. However, this opening statement does not irrevocably commit the Crown to adopting a particular approach to the trial. The Crown is not obliged to call every witness it indicates will be called and, like any other counsel at trial, is entitled to modify the trial strategy as the case develops. The Crown’s theory of the case could change over the course of the trial in response to changing circumstances, including defence counsel’s closing address.125Short of oppressive prosecutorial conduct amounting to an abuse of process, the accused cannot object to a change of plans on the part of the Crown. In choosing not to call a witness who has been announced, of course, the Crown risks the jury drawing some type of adverse inference, and the accused would normally be entitled to point out the change to the jury when making closing submissions.126Normally the defence is not entitled to make an opening address to the jury immediately following the Crown’s opening remarks. However, a trial judge has discretion to let the accused do so, rather than have to wait until the close of the Crown’s case. Some authority suggests that making such an opening statement obliges the accused to actually call

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evidence, essentially because the purpose of the statement is to outline the evidence that will be called. However, the prevailing view appears to be that, in the special circumstances where the accused is allowed an opening statement immediately following the Crown’s, there is no obligation to later call witnesses for direct examination, and indeed that "counsel acting responsibly cannot be expected to give an undertaking at that stage to call evidence. That decision must be assessed against the concluded Crown case."127Nonetheless, the defence might adduce evidence through cross-examination of Crown witnesses, for example, and in appropriate cases should be allowed an opening statement. Cases returned for a new trial that have a measure of predictability might be ones where such an order is appropriate.128

3) Presentation of the Crown Case

Following the opening statement, Crown counsel is required to present evidence proving the charges against the accused. The procedures for taking evidence at trial are the same as at a preliminary inquiry. That is, the evidence is to be taken under oath in the presence of the accused, the accused is entitled to cross-examine the Crown witnesses, and the evidence is recorded.129

Although in principle it is up to the Crown to prove every essential element of the offence, it is open to the accused to concede various parts of the Crown’s case.130Often this is done through an agreed statement of facts, but not necessarily. An accused can concede the voluntariness of a statement and waive a voir dire, for example, without any particular form of words being necessary (as long as it is clear that counsel understood the issue and made an informed decision regarding waiver, that is sufficient). Silence or lack of objection to a statement being admitted is not waiver, however.131Even in cases of silence, however, the trial will not necessarily be fatally flawed by the admission of a statement; a trial judge will only have erred if there was clear evidence objectively

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showing the need to conduct a voir dire despite the failure of defence counsel to request one.132The Crown has considerable discretion in deciding how to present its case, consistent with the adversarial nature of the process. The Crown is not required, for example, to call every witness with relevant information, and has no obligation to call a witness it does not consider necessary to the prosecution’s case.133This rule applies equally even if the witness not called is the complainant. Failing to do so might put the Crown’s ability to prove its case at risk, and in some circumstances a trial judge might comment to a jury on the failure to call the complainant, but the decision is still within the Crown’s discretion. The defence is not entitled to have the Crown call all witnesses so it can cross-examine them, but it can call any witness not called by the Crown as part of the defence case. In some circumstances, the defence can apply under the Canada Evidence Act134 to cross-examine the witness.135Further, in some cases the trial judge could choose to call the person as the court’s witness, therefore allowing the defence to cross-examine. This might be the right course of action particularly where forcing the defence to call the witness might require the accused to give up the right to speak to the jury last (see the discussion of this issue at section D(8)).

Although evidence typically takes the form of testimony or documents from witnesses on the stand, other forms of evidence are permitted. Provisions in the Code create special rules around proof of ownership and value of property,136expert’s reports,137dates of birth,138and previous convictions.139Further, other provisions allow for the use of commission evidence for witnesses who are out of the country or who, through illness or other "good and sufficient cause," cannot attend the trial.140In addition, evidence that was taken at a preliminary inquiry can be used at a trial in some circumstances.141Videotaped testimony by a person under eighteen or with a physical or mental dis-

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ability can sometimes be used at a trial for various sexual offences.142

Further, the use of technology to present evidence is available if it will increase efficiency in any case, not merely in ones with thousands of documents.143

Section 652 allows a jury to "have a view," in order to see any place person or thing.144This ability is open to the jury any time prior to rendering their verdict, including after they have started their deliberations,145 and can also be used by a judge conducting a trial without a jury.146A Crown prosecutor will normally have indicated what evidence will be called in the opening address. Failing to actually call that evidence will not necessarily prove fatal to the prosecution. Thus, for example, if hearsay evidence is admitted in anticipation of direct evidence that is expected to be, but ultimately is not, called, adequate instructions by the trial judge to the jury can cure any problem.147

Section 545 of the Code allows a trial judge to imprison a witness who refuses to testify for periods of up to eight days at a time.

4) Presentation of the Defence Case
a) Application for a Directed Verdict

At the close of the Crown’s case it becomes the defence’s turn to present evidence, if it chooses to do so. Prior to that, however, it is open to an accused to apply for a directed verdict. Although a jury, when there is one, reaches a decision in a trial, in limited circumstances the trial judge has the authority to direct that an accused will be acquitted. This power is not created by statute, but arises at common law.148The directed verdict (sometimes referred to as a "non-suit" as there being no case to meet) takes its name from the fact that, historically, the trial judge literally directed the jury to retire and return a verdict of not guilty. Recently, the Supreme Court has modified the procedure so that trial judges are instead to withdraw the case from the jury and enter the acquittal personally,149but the name has remained.

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The test for granting a directed verdict is quite restricted, and is consistent with the differing...

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