Author: Patrick Ducharme

The value of an opening address to the jury cannot be overstated. An opening address is even more valuable to trial counsel. Its value is almost too good to be true. It provides an opportunity to state the theory of one’s case clearly, concisely and without interruption. Although counsel in making opening statement is prohibited from argument, only the naïve would fail to recognize that it still provides an ideal opportunity for persuasion.
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There are also specified offences that must be tried in a Superior
Court of Criminal Jurisdiction.1 The regular mode of trial in this jurisdiction is, by virtue of the combined effect of sections 468 and 471, by way of jury. However, section 473 provides for an election or re-election to trial by a Superior Court Judge alone, that is, without a jury, but only with the consent of the Attorney General. Section 473 provides that “notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a Judge of a superior court of criminal jurisdiction.
Continue reading “Superior Court of Criminal Jurisdiction: Section 469”

Section 553 of the Code provides an extensive list of offences that are in the absolute jurisdiction of a Provincial Court Judge. If an accused is charged with one of these offences the accused is not entitled to a trial by jury. The accused is not permitted to have a trial in the Superior Court. The accused is not permitted to make any other selection for his trial. A Provincial Court Judge refers to a Judge appointed or authorized to act by or pursuant to an Act of the legislature of a Province or Territory by whatever title that person may be designated, who has the power and authority of two or more Justices of the Peace and includes the lawful deputy of that person.
Continue reading “Absolute Jurisdiction Offences: Section 553”

Two jurors are selected from the jury panel and are initially selected to listen to the answers to the questions posed by the presiding Judge. Then, the triers of the issue are asked to decide if the juror under scrutiny should be excused for potential bias, or, should remain on the jury because the potential juror is not, in their opinion, biased. The two jurors are sworn on their oath, to properly try the issue. They must agree on their decision. If they cannot agree, the potential juror is not allowed to serve on the jury.
Continue reading “The Challenge for Cause Hearing”

Before the 2019 amendments, counsel for the accused would present a written legal argument to the assigned trial Judge providing materials and evidentiary support alleging a need that each potential juror be questioned as to their possible bias against the accused that could make them unlikely or unable to render a fair verdict. These applications are usually based upon adverse pretrial publicity in the community where the accused is to be tried.
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Previously jury trials in Canada required trial judges to remain above the fray, assisting the jury only to the extent that they provided a jury selected by the lawyers an independent and impartial assessment of the facts and how the law should be applied to the facts of the case. Trial judges were there, at least in part, to assist the jury in carrying out their responsibilities to make an appropriate decision based upon applicable law.
Continue reading “Judge’s New Role in Jury Trials”

As of September 19, 2019, peremptory challenges have been eliminated. Now, the process of selecting jurors is almost entirely controlled by the trial Judge. What was once the exclusive domain of the trial lawyers to accept or reject potential jurors is now performed by the trial Judge.
Continue reading “How Will the Jury Be Selected?”

The 2019 amendments to the Code brought sweeping changes to Canada’s laws concerning: when an accused may elect to be tried by a jury, and, if allowed to have a jury trial, how a jury is selected. Jury trials only take place in the Superior Court of a Province or Territory. When an accused is permitted to elect trial by jury it necessarily means that accused is entitled to have a preliminary inquiry in the Provincial court.
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Generally the lawyer producing a witness is not allowed to impeach his or her witness’s credit by general evidence of bad character–unless the witness, in the opinion of the court, proves adverse.

The meaning of the word “adverse” has generally been interpreted by our courts as not limited to “hostility” but includes a witness who, although not hostile, is unfavourable in the sense of assuming by the witness’s testimony a position opposite to that of the party who has called the witness to testify.

Continue reading “Adverse Witnesses: and Section 9 Canada Evidence Act”

It is generally, with few exceptions, improper to ask leading questions of witnesses called by the lawyer asking the questions. An improper leading question is one that suggests the answer to the witness who is testifying. Another form of prohibited leading questions, less common, but just as inappropriate, is for the questioner to ask his witness to assume a fact or a set of circumstances that is inaccurate or not accepted as valid by the opposition, or, is a matter of controversy between the two sides.
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