The Trial Process
| Author | Stephen Coughlan |
| Profession | Professor of Law. Dalhousie University |
| Pages | 294-350 |
CHAPTER 11
THE TRIAL PROCESS
A. INTRODUCTION
This ch apter focuse s on the actual process of a trial. That discussion
must begin at the pre-trial stage, w ith reference to the charg ing docu-
ments that bring a person to court and s et out the case to be met at
trial. From there we move to a d iscussion of the pleas an accused can
enter, and t he various stages of a trial, including opening statements,
examination of witnesses, closing arguments, charging the jury, and
so on. We will then consider the rules surrounding jury deliberations,
and finally conclude with a discus sion of the various powers a judge
can exercise duri ng the trial.
B. THE CHA RGE DOCUMENT
1) Informations, Indictments, and Direct Indictments
When a per son is put on tr ial for a n offence, there must be some par-
ticular document specify ing the charge against that person. Initially,
charges are laid by means of an inform ation,1 which was discus sed in
Chapter 6. When an accused is tried by a provincial court judge that
information is t he relevant document, whereas when the accused is
1 Section 505.
294
The Trial Proces s 295
not tried by a provincial court judge a different document — an indict-
ment — is prepared.2 Most commonly, the i ndictment i s prepa red fol-
lowing the prelimin ary inquiry and can include any charge on which
the person was ordered to stand trial, or any charge founded on t he
facts disclosed at the preliminar y inquiry.3
The r ule that an indictment can be preferred on a charge where
the facts making it out are disclosed at the preliminar y inquiry does
not allow a prosecutor to prefer an ind ictment on the ver y ch arge for
which the accused is d ischarged. Rather, that power is intended to al-
low the preferment of charges for other offences that are di sclosed at
the preliminary inquiry.4 It does not follow, however, that a prosecutor
can never lay an indictment concerning offences for which an accused
is discharged. In fact, section 577 permits exact ly that.
Section 577 allows for “direct indictments,” which permit the pros-
ecutor to prefer an indictment when the accused has not been given
the opportunity to request a preliminary inquiry, the preliminary in-
quiry has been commenced but not concluded,5 or the accu sed was
discharged followi ng the prelim inary inquiry. This power also applies
where a committal for tr ial h as been quashed,6 or where a trial judge
has specifically declined to order a n accused to stand trial on a charge
not laid but disclosed in the evidence at the preliminar y.7 As it is a spe-
cial power, in effect overridi ng procedures the accused would other-
wise be entitled to b enefit from, a Crown prosecutor can only prefer a
direct indictment 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 can-
not be reviewed by a court.9 Also, the power does not violate the Char-
2 Section 566(1). Note that the power in s. 577 to proceed b y direct indictment
means th at there could be occasions when a n indictment is the first ch arge
document prepare d.
3 Section 574.
5 Courts had a lready held that the power wa s available in this situ ation, but
the Code ha s since been amended to explic itly state it. See R. v. Stewart (No. 2)
(1977), 35 C.C.C. (2d) 281 (Ont. C.A.).
6 R. v. Charlie (1998), 126 C.C.C. (3d) 513 (B.C.C.A.).
8 Section 577(b) also perm its direct indictments i n private prosecutions where a
judge of the court per mits the direct indict ment to be preferred.
refused, [1983] 2 S.C.R. v; R. v. Stolar (1983), 32 C.R. (3d) 342 (Man. C.A.),
leave to appeal to S.C.C. ref used, [1983] 1 S.C.R. xiv [Stolar].
CRIMIN AL PROCEDURE296
ter, provided that the accused receives f ull disclosure and nothing else
in the circumstances makes the act ion an abuse of process.10
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 behi nd it, for example to attempt to quash by
certiorari the committal for trial. The indictment is preferred, and
therefore acts as a type of bar rier, once it is lodged with the trial court
at the start of the accused’s trial, in front of a court ready to proceed.11
Whether the t rial proceeds by information or indictment, it 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 Criminal Code that govern
compelling appearance and jury trials also apply to summary convic-
tion offences by virtue of section 795, with only minor var iations, so
the requirements for i nformations and indictments can be discussed
together. The Court has stressed the importance of th is document,
holding that “it is fundamental to a fair t rial th at an accused know the
charge or charges he or she must meet.”12 As we wi ll see, though, the
general tenor of recent cases has been to considerably downplay the
significance of the technical requirements for these documents or a ny
failures to comply with those requirements.
2) Joinder and Severance of Charges
Although many rules surroundi ng indictments were origina lly de-
veloped 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 litigation over thes e issues, but a good general guideline is t hat
relatively few firm limitations are imposed on the structure of indict-
ments. An indictment (Form 4 from the Code) can contain any number
of “co un ts .”13 Each count is to cover a single t ransaction, though this
rule is specifically said to apply “in general” and t he concept of a “sin-
gle transact ion” is given a broad interpretation.14 Further, although for
10 R. v. Ertel (1987), 58 C.R. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. ref used
(1987), 61 C.R. (3d) xxix; R. v. Arviv (1985), 45 C.R. (3d) 354 (Ont. C.A.), leave
to appeal to S.C.C. refu sed, [1985] 1 S.C.R. v; Stolar, ibid.
11 R. v. Chabot, [1980] 2 S.C.R. 985.
12 R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45 at para. 2.
13 “Count” is defined in s. 2 of t he Code as a “charge in an infor mation or indict-
ment.”
14 Se ction 581(1). See the discu ssion of R. v. Lilly, [1983] 1 S.C.R. 794 [Lilly] at Sec-
tion B(5)(c), below in this chapter, in wh ich twenty-one separate wit hdrawals
from a trust ac count were the foundation for a single count of fraud, a nd, in
general, the di scussion of division of count s.
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