The Trial Process

• Author: Steve Coughlan
• Pages: 483-560

483

CHAPTER 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 trial, including opening statements, exam-

ination of witnesses, closing arguments, and charging of the jury. We

will then consider the rules surrounding jury deliberations and finally

conclude with a discussion of the various 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 against that person. Initially,

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

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

information is the relevant document, whereas when the accused is

1 Criminal Code, ss 504 & 505.

CRIMINAL PROCEDURE

484

tried in a superior court, a different document — an indictment — is

prepared.2 Conceptually, the transition from provincial court to

superior court is by means of a preliminary 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-

liminary inquiry is routinely held, and that that preliminary inquiry

considers the sufficiency of the entire case against the accused and

decides whether the accused should stand trial 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 trial, 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 inquiry — 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 the case has not

been accurate for some time. Amendments to the Code in 2004 meant

that preliminary inquiries were limited 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 limit 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.

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

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 s485

ability of a rule permitting an indictment based on the facts disclosed,

because not very many “extraneous” facts are likely to be disclosed.

Further, the primary 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 assumption that

there normally will be such a proceeding. That assumption too is no

longer correct. The amendments in 2004 made preliminary inquiries

only available on request (typically of the accused). The amendments in

2019 limited preliminary inquiries to offences punishable by fourteen

years or more imprisonment, which is a small 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 inquiry

was requested or was available, the prosecutor can prefer an indictment

in respect of a charge set out in an information or informations.

In a sense, given the current limited availability of preliminary

inquiries, th is power in section 574(1.1) to prefer an indictment without

a preliminary 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 inquiry justice’s decision.

Section 577 allows for “direct indictments,” which is a special power

that in effect overrides procedures that the accused would otherwise

be entitled to benefit from; that is, it permits the prosecutor to prefer

an indictment if the preliminary inquiry has been commenced but not

concluded,7 or even if the accused wa s discharged following the prelim-

inary inquiry. This power also applies where a committal for trial has

been quashed,8 or where a trial judge has specifically declined to order

an accused to stand trial on a charge not laid but disclosed in the evi-

dence at the preliminary 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 indictment normally over-

rides what would otherwise 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).

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