The Trial Process
| Author | Steve Coughlan |
| Pages | 483-560 |
483
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 Criminal Code, ss 504 & 505.
CRIMIN AL PROCEDURE
484
tried in a superior court, a d ifferent document — an indictment — is
prepared.2 Conceptually, the transition from provincia l court to
superior court is by means of a preli minary inquiry in the provincial
court, following which the accused would (or on rare occasions would
not) proceed to trial in the superior court: see Chapter 9. The Code pro-
visions have therefore been str uctured around the assumption that the
indictment is prepared following the preliminary inquiry, that a pre-
liminar y inquiry is routinely held, and th at that preliminar y inquiry
considers the sufficiency of the ent ire case against the accused and
decides whether the accused should stand tr ial or not.
For that reason the Code provides, for example, that the indictment
can include not only the charge on which the person was ordered to
stand tria l, but also any charge founded on the facts disclosed at the
preliminary inquiry.3 That rule — that an indictment can be preferred
on a charge where the facts making it out are disclosed at the prelim-
inary inqui ry — does not allow a prosecutor to prefer an indictment
on the very charge for which the accused is discharged. Rather, that
power is intended to allow the preferment of charges for other offences
that are disclosed at the preliminary inquiry.4 Nonetheless, the Crown
can lay an indictment concerning the offence for which an accused has
been discharged: section 577 of the Criminal Code, discussed below,
permits exactly that, although it requires the personal consent in writ-
ing of the attorney general or deputy attorney general.5
In fact, however, the assumption that a prelimin ary inquiry is a rela-
tively wide-ranging inquiry into all the facts related to t he case has not
been accurate for some time. Amendments to the Code in 2004 meant
that prelimina ry inquiries were lim ited to the specific issues about
which the parties (most likely the accused) requested evidence be led.
Amendments in 2019 gave the judge the ability to unilaterally li mit the
inquiry to particular issues.6 Both of those rules limit the likely applic-
2 Section 566(1). Note that the power in sect ion 577 to proceed by di rect indict-
ment means th at there could be occasions when a n indictment is the first
charge document prepared.
3 Section 574.
5 See the discu ssion in Chapter 3, Section B(1)(a) concerning c onsent of the
attorney general.
6 See s 537(1.01), added by Bill C-75, An Act to amend the Criminal Co de, the Youth
Criminal Justice Act and o ther Acts and to make conseque ntial amendment s to other
Acts, Royal Assent Ju ne 21, 2019. That Bill also limited pre liminary inqui ries
to offences puni shable by fourteen years’ impri sonment or more, which means
that they w ill be much less common to begin w ith.
The Trial Proces s 485
ability of a rule permitting an indictment based on the fact s disclosed,
because not very many “extr aneous” facts are likely to be disclosed.
Further, the primar y rule around indictments in section 574(1)
talks about what the prosecutor can do in relation to the charges and
evidence at the preliminary inquiry, which reflects an a ssumption that
there normally wi ll be such a proceeding. That assumption too is no
longer correct. The amendments in 2004 made preliminary inquir ies
only available on request (typically of the accused). The amendments in
2019 limited preliminary inqui ries to offences punishable by fourteen
years or more imprisonment, which is a sm all subset of all indictable
offences. Accordingly there is a need for a separate power to prefer indict-
ments, which is found in section 574(1.1): when no preliminary inqui ry
was requested or was available, the prosecutor can prefer an indictment
in respect of a charge set out in an inform ation or informations.
In a sense, given the cur rent limited availability of prelim inary
inquiries, th is power in section 574(1.1) to prefer an indictment without
a preliminar y inquiry should be regarded as the norm. At one point,
however, to do so was seen as a discretionar y and unusual step, provided
for in section 577. That prosecutorial power continues to play a relevant
role, because it allows the Crown in some circ umstances to override the
accused’s choice or the preliminary i nquiry justice’s decision.
Section 577 allows for “direct indictments,” which is a special power
that in effect overrides procedures that the accused would otherw ise
be entitled to benefit from; that is, it permits the prosecutor to prefer
an indictment if the prelim inary inquir y has been commenced but not
concluded,7 or even if the accused wa s discharged following the prelim-
inary inqui ry. This power also applies where a committal for trial has
been qua shed,8 or where a trial judge has specifically declined to order
an accused to stand tr ial on a charge not laid but disclosed in t he evi-
dence at the preliminar y inquiry.9 The section also says that the power
can be used “even if the accused has not been given the opportunity
to request a preliminar y inquiry,” but that language pre-dates the 2019
amendments which removed the right to request a preli minary inquiry
from the accused for the great majority of offences: the interplay
between that old wording and the new ru le might need to be sorted out.
This is particularly so because, since a direct indict ment normally over-
rides what would otherwi se be the accused’s entitlements, it can only
7 Courts had a lready held that the power wa s available in this situ ation, 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).
8 R v Charlie (1998), 126 CCC (3d) 513 (BCCA).
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