Because organizations cannot appear personally in court, the Code provides in subsection 556(1) that an organization, which includes a corporation, may appear by counsel or agent, and, if it fails to do so, and it is proved that a summons was served properly on the organization, the Judge may either conduct an ex parte trial or a preliminary inquiry depending on the nature of the charge.
Continue reading “Organizations: Failure to Appear or Attend”
If an accused fails to appear for his/her jury trial, subsection 598(1) of the Code provides that the accused loses the right to be tried by a Judge and jury. At a subsequent trial date the accused (if and when he/she re-appears) may be required to proceed on the basis of a trial before a Judge sitting without a jury unless the accused satisfies the court that there was a legitimate excuse for his/her earlier non-appearance, or, the Attorney General requires that the trial proceed before a jury pursuant to section 598.
Continue reading “Failure to Appear”
The initial appearance or “arraignment” may be before a Justice or a provincial court Judge. The purpose of the arraignment is to formally present the allegations to the accused. The accused is usually called forward, the charge or charges are read to him and he is asked if he is prepared to enter a plea to the charge(s). Before a jury is empaneled, or in the case of a trial by Judge alone, before the case may begin, an accused must be arraigned.
Continue reading “Arraignments and Appearances”
The Federal government enacts criminal law in Canada. The Criminal Code contains many of the offences in Canada, ranging from traditional crimes such as murder, assault and robbery to newer crimes such as Internet luring.
Continue reading “Criminal Law is Federal”
Subsection 482(1) of the Code authorizes every Superior Court to make rules not inconsistent with a Federal statute. Subsection 482(2) provides a similar power to Provincial courts, subject to the approval of the Lt. Governor-in-Council of the Province. Sections 169 and 170 of the Courts of Justice Act create the Criminal Rules Committee and a procedure for enacting rules related to criminal proceedings. These are the rules permitted by section 482 of the Code. The Rules of the Ontario Court of Justice in Criminal Proceedings apply to all trials in the Ontario Court of Justice, often referred to as the Provincial Court.
Continue reading “Criminal Procedure: The Rules of the Game”
Ineffective trial counsel may unnecessarily complicate the facts of a trial by attempting to focus on every minute detail. Effective trial counsel, instead, understand the overall case in a way that permits counsel to focus on only the most important facts. This amounts to seeing the proverbial forest, despite its number of trees. The big picture is, in fact, the overall picture. It requires the development of an overall theory of one’s case. It amounts to your client’s story. Reduced to its most basic element, trial advocacy is the ability to effectively tell your client’s story. The story should lead to the ability to say at the end of the trial, “If you accept this version of events, then you must decide in our favour.” When the story is complete, when all the evidence has been heard, the end result should be victory. Continue reading “Game Plan: The Theory of Your Case”
Television programs and movies portraying trial lawyers at work invariably focus on the most entertaining aspect of trial advocacy. They condense into one or two hours the work of the trial lawyer before a Judge or a Judge and jury confronting a witness or presenting an interesting, witty, insightful argument. They tend to focus much less attention on the tedious and demanding preparation required to conduct a skillful crossexamination or a persuasive argument. But, the foundation of every effective cross-examination or oral presentation is thorough preparation- preparation that includes thinking and re-thinking the best methods and best words to use for the specific case.
Offences are classified by statute either as indictable or summary conviction, or offences that may be prosecuted either by indictment or summary conviction at the election of the prosecutor. Our laws also include offences that are classified as strict liability offences or absolute liability offences. Most provincial offences are classified as strict or absolute liability offences.
Continue reading “Classification of Offences”
If the accused, other than an organization, is charged with an indictable offence, the accused must appear personally in accordance with section 650. This section provides the court with the power to permit the accused to be absent from the proceedings during various times. Except for a specific order, however, the accused is expected to be present. Provision is also made in subsection (1.1) for appearance by counsel or via closed circuit television or similar means. An accused may appoint counsel to represent the accused for any proceedings under the Code by filing a designation with the court. Provided a designation is filed the accused may appear by the designated counsel without being present for any part of the proceedings, other than:
a. a part during which oral evidence of a witness is taken,
b. a part during which jurors are being selected, and
c. an application for a writ of habeas corpus.
Continue reading “Summary of Procedural Points”
The Court of Appeal for Ontario has held that trial judges have the power to manage a criminal trial.1 Two years later the Supreme Court of Canada wrote, “for our Justice system to operate, trial judges must have some ability to control the course of proceedings before them.”2 These comments may be part of an ever-increasing sense of frustration, if not despair, festering within the psyche of trial judges throughout this country.
Continue reading “A View from the Bench”
