The Trial Process

• Author: Steve Coughlan
• Pages: 328-391

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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

trial. From there we move to a discu ssion of the pleas an accused can

enter, and the various stages of a tria l, including opening statements,

examination of witnesses, closing argument s, charging the jury, and

so on. We will then consider the rules surrounding jury deliberations,

and f‌inally conclude with a discussion of the various powers a judge

can exercise duri ng 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 means 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, wherea s when the accused is

1 Section 505.

The Trial Proces s 329

not tried by a provincial court judge a dif ferent document—an indict-

ment—is prepared.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 trial, or any charge founded on the

facts disclosed at the preliminary inquiry.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 inquiry,

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

for which the accused is disch arged. Rather, that power is intended to

allow the preferment of charges for other offences that are disclosed at

the preliminary inquiry.4 It does not follow, however, that a prosecutor

can never lay an indictment concerni ng offences for which an accused

has been 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 g iven the

opportunity to request a preliminary inquir y, when the preliminary

inquiry has been commenced but not concluded,5 or when the accused

was discharged following the preliminary i nquiry. This power also ap-

plies where a committal for tria l has been quashed,6 or where a trial

judge has specif‌ically decl ined to order an accused to stand tri al on a

charge not laid but disclosed in the evidence at the preliminary.7 As it

is a special power, in effect overridi ng procedures the accused would

otherwise b e entitled to benef‌it 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 It does not violate the Charter, provided

that the accused receives f ull disclosure and nothing el se in the cir-

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.

4 R. v. Tapaquon, [1993] 4 S.C.R. 535.

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

7 R. v. McKibbon, [1984] 1 S.C.R. 131.

8 Section 577(b) also permits dire ct indictments in private pro secutions where a

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

9 R. v. Balderstone (1983), 8 C.C.C. (3d) 532 (Man. C.A.), leave to appeal to S.C.C.

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 PROCEDURE

330

cumstances makes the action an abuse of process.10 Indeed, the power

is seen as havi ng potentially benef‌icial effects, such a s protecting an ac-

cused’s right to a trial w ithin a reasonable time, protecting t he physic-

al or psychological health of witne sses, preservi ng Crown evidence,

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

Once it is preferred, the indictment provides a f resh starting point

upon which the future proceedings are ba sed, 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

therefore 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, it is the

starting point for the tr ial and sets out the case the accused has to

meet. The rules set out in Parts XVI and XX of the Criminal Code th at

govern compelling appearance and jur y trials al so apply to summary

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

tions, so the requirements for inform ations and indictments can be

discussed together. The Supreme Court has stres sed 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 recent cases has been to consider-

ably downplay the signif‌icance of the tech nical requirements for these

documents or any failures to comply with t hose requirements.

2) Joinder and Severance of Charges

Although many rules sur rounding indictments were origin ally de-

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

10 R. v. Ertel (1987), 58 C.R. (3d) 252 (Ont. C.A.), leave to appea l to S.C.C. refuse d

(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. S.J.L., 2009 SCC 14 [S.J.L.]. The Court refers at para. 38 to ten r easons often

cited in support of d irect indictments, acknow ledging that some are vaguel y

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

cludes in S.J.L . that direct in dictments are available i n the case of young persons

in the relati vely few cases where they can b e prosecuted by way of indictment.

12 R. v. Chabot, [1980] 2 S.C.R. 985. See also R. v. Regan, [2002] 1 S.C.R. 297 where

a 5–4 major ity of the Court were of the view t hat the direct indictme nt in that

case acted to “clea nse” any concerns about loss of object ivity at an earlier stage.

Since the attorne y general personally neede d to consent, it was reasonable to

conclude that a fre sh, careful, and objective rev iew of the case must have take n

place.

13 R. v. G.R., [2005] 2 S.C.R. 371 at para. 2.