The prosecution and the defence each have a chance to present evidence. The prosecution goes first. The prosecution has to prove the charge(s). The defence is not required to prove innocence. The defence is not required to prove anything except in rare specific instances clearly spelled out in the Code. Because accused persons are not required to prove their innocence they are not obliged to testify or to present evidence. Instead, the prosecutor is required to prove each essential element of an offence beyond a reasonable doubt.
After the prosecutor delivers her opening address to the jury, the prosecutor will call witnesses. The prosecutor may also file documents or items of evidence as exhibits. Facts that are admitted pursuant to section 655 of the Criminal Code by the defence may also be considered part of the prosecutor’s case. Such an admission disposes of the necessity of proof of that which is admitted by the defence.
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Law of Evidence
The law of procedure is closely linked to the law of evidence. Subsection 723(5) of the Code, for example, provides that hearsay evidence is admissible at sentencing proceedings. In order to know the differences in the procedure from trial to sentencing, it is necessary to know the rules of evidence in order to correctly apply the rules of procedure. At trial, hearsay evidence is generally not admissible and at sentencing hearsay evidence is admissible. There are three main sources of the rules of evidence. The primary source is the common law. Judges “make” or pronounce much of the law of evidence. Statutes create some of the rules of evidence. For example, some of the rules concerning the competence of certain persons to be witnesses and the admissibility of some classes of evidence such as business records can be found in the Canada Evidence Act. Lastly, evidentiary rules are impacted by Charter decisions. The laws of evidence relate to the information a court will receive and consider in making its decisions.
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