The Trial Process

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 372-436

372

CH AP TER 11

THE TRIAL PROCESS

A. INTRODUCTION

This chapter focuses on the actual process of a trial. That discussion

must begin at the pre-trial stage, with reference to the charging docu-

ments that bring a per son to court and set out the case to be met at tr ial.

From there we move to a discussion of the pleas an accused can enter,

and the various stages of a tr ial, including opening statements, exam-

ination of witnesse s, closing arguments, and charg ing of the jury. We

will then consider the rules surrounding jury deliberations and f‌inally

conclude with a discussion of the var ious powers a judge can exercise

during the trial.

B. THE CHARGE DOCUMENT

1) Informations, Indictments, and Direct Indictments

When a person is put on trial for an offence, there must be some par-

ticular document specifying the charge again st that person. Initially,

charges are laid by mea ns of an information,1 which was discussed in

Chapter 6. When an accused is tr ied by a provincial court judge, that

information is the relevant document, whereas when the accused is

1 Section 505.

The Trial Proces s 373

not tried by a provincial court judge, a different document — an indict-

ment — is prepa red.2 Most commonly, the indictment is prepared fol-

lowing the prelimin ary inquiry and can include any charge on which

the person was ordered to stand t rial or any charge founded on the

facts disclosed at the preliminary inqui ry.3

That latter rule — that an indictment can be preferred on a charge

where the facts making it out are disclosed at the preliminar y in-

quiry — does not allow a prosecutor to prefer an indictment on the very

charge for which the accused is discharged. Rather, that power is in-

tended to allow the preferment of charges for other offences that are

disclosed at the prelim inary inquiry.4 Nonetheless, a prosecutor can lay

an indictment concerning the offence for which an accused has been

discharged: section 577 of the Criminal Code permits exactly th at.

Section 577 allows for “direct indictments,” which permit the pros-

ecutor to prefer an indictment when the accused has not been g iven

the opportunity to request a preli minary inquir y, when the prelimin-

ary inquir y has been commenced but not concluded,5 or when the ac-

cused was discharged following the preliminary inquiry. This power

also applies where a committal for tr ial has been quashed,6 or where a

trial judge has sp ecif‌ically declined to order an accused to st and trial

on a charge not laid but disclosed in the ev idence at the preliminary

inquiry.7 As it is a special power, in effect, overriding procedures the

accused would otherwise be entitled to benef‌it from, a direct indict-

ment can be preferred by a Crown prosecutor only with the personal

consent in writing of the attorney general or deputy attorney general.8

The attorney general’s power to authorize a direct indictment cannot

be reviewed by a court.9 It does not violate the Charter, provided that the

accused receives full disclosure and nothing else in t he circumst ances

2 Section 566(1). Note that the power in s 577 to proceed by d irect indictment

means th at there could be occasions when an i ndictment is the f‌irst cha rge

document prepared.

3 Section 574.

4 R v Tapaquon, [1993] 4 SCR 535.

5 Courts had alr eady held that the power was ava ilable in this situat ion, but the

Code has si nce been amended to explicit ly state it. See R v Stewart (No 2) (1977),

35 CCC (2d) 281 (Ont CA).

6 R v Charlie (1998), 126 CCC (3d) 513 (BCCA).

7 R v McKibbon, [1984] 1 SCR 131.

8 Section 577(b) also permits direc t indictments in private pros ecutions where a

judge of the court per mits the direct indict ment to be preferred.

9 R v Balderstone (1983), 8 CCC (3d) 532 (Man CA), leave to appeal to SCC

refused, [1983] 2 SCR v; R v Stolar (1983), 32 CR (3d) 342 (Man CA), leave to

appeal to SCC refu sed, [1983] 1 SCR xiv [Stolar].

CRIMIN AL PROCEDURE374

makes the action an abuse of proces s.10 Indeed, the power is seen as

having potentially benef‌icial effects, such as protecting an accused’s

right to a trial w ithin a reasonable time, protecting the physical or

psychological health of witne sses, preservi ng Crown evidence, avoid-

ing multiple proceedings when there are co-accused, and so on.11

Once it is preferred, the indictment provides a fresh starting point

upon which the future proceedings are based, and an accused is no

longer entitled to look behind it, for example, to attempt to quash by

certiorari the committal for trial. The indictment is preferred and, there-

fore, acts as a type of barrier, once it is lodged with the trial court at the

start of the accused’s trial, in front of a court ready to proceed.12

Whether the trial proceeds by information or indictment, the docu-

ment is the starting point for the trial and sets out the case the accused

has to meet. The rules set out in Parts XVI and XX of the Code that

govern compelling appearance and jury trials also apply to summary

conviction offences by virtue of section 795, with only minor varia-

tions, so the requirements for an information and an indictment can

be discussed together. The Supreme Court has stressed the importance

of this document, holding that “it is fundamental to a fair trial that an

accused know the charge or charges he or she must meet.”13 As we will

see, though, the general tenor of the caselaw has been to considerably

downplay the signif‌icance of the technical requirements for these docu-

ments or any failures to comply with those requirements.

2) Joinder and Severance of Charges

Although many rules surrounding indictments were originally developed

to a great extent at common law, they are now primarily set out in the

Code. There are many rules in the Code and there has been a good deal of

10 R v Ertel (1987), 58 CR (3d) 252 (Ont CA), leave to appeal to SCC re fused

(1987), 61 CR (3d) xxix; R v Arv iv (1985), 45 CR (3d) 354 (Ont CA), leave to ap-

peal to SCC refu sed, [1985] 1 SCR v; Stolar, above note 9.

11 R v SJL, 2009 SCC 14 [SJL]. The Court refers at para 3 8 to ten reasons often

cited in support of d irect indictments, acknowle dging that some are vaguely

worded and that not al l will be relevant in a given c ase. The Court also con-

cludes in SJL t hat direct indictments a re available in the case of youn g persons

in the relative ly few cases where they can b e prosecuted by way of indictment.

12 R v Chabot, [1980] 2 SCR 985. See also R v Regan, 20 02 SCC 12, where a 5:4 ma-

jority of the Cour t were of the view that the dir ect indictment in that ca se acted

to “cleanse” any concer ns about loss of objectivity at an e arlier stage. Since the

attorney general p ersonally needed to conse nt, it was reasonable to conclude th at

a fresh, care ful, and objective review of the c ase must have taken place.

13 R v GR, [2005] 2 SCR 371 at para 2.