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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Adverse Witnesses: and Section 9 Canada Evidence Act
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.
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Leading Questions
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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Questioning Witnesses
Whenever a lawyer questions her own witness, we refer to these questions as “examination in chief.” In examination in chief the lawyer posing the questions is not entitled to ask questions that are leading except in limited circumstances. The questioner may lead a witness in matters that are introductory in nature or concerning matters that are not contentious.
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Order Excluding Witnesses
At the beginning of a trial a Judge usually orders all prospective witnesses excluded from the courtroom until each witness is called to testify in the order chosen by the prosecutor or counsel. If the presiding Judge fails to order the exclusion of witnesses prior to their testimony, counsel will usually ask the Judge to make such an order. Along with the order excluding witnesses from the courtroom until they testify, the court usually directs the witnesses prior to their exclusion not to communicate with other prospective witnesses while waiting to provide their evidence. While these directions are discretionary, trial judges invariably follow this procedure. The procedure seeks to ensure that a witness is not influenced by the evidence or information of another witness.
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Order of Presentation of Evidence
The order of presentation of evidence at a trial does not vary based on whether it is a trial before a jury or a Judge sitting alone. It remains the same. It is as follows:
1. Each side has a chance to present its case. The prosecution goes first. This makes sense because it is the obligation of the prosecutor to prove any criminal charge beyond a reasonable doubt. The accused is presumed to be innocent. As such, the accused is not required to prove his innocence. The accused is never required to testify or even to present evidence. The prosecution is required to call evidence in order to prove the charge or charges beyond a reasonable doubt. This never changes.
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Superior Court or Provincial Court
Every Judge alone trial will be conducted either before a Superior Court Judge or a provincial Judge. Section 561 provides these options as distinct from a trial by jury. If the accused has been committed to trial following a preliminary inquiry and has chosen to be tried by a Judge sitting without a jury, the trial will take place before a Superior Court Judge sitting alone, that is, without a jury.
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Opening Statements
Most judges sitting without a jury appreciate counsel providing them with an opening statement of the case. An opening statement to a Judge is similar to an opening statement to the jury in this respect– it should avoid argument(s) on the law. An opening statement to a Judge simply provides counsel with an opportunity to advise on the evidence that is contested and the evidence that will be called to meet the opposition’s evidence. The opening statement should be concise and logical. It should outline, if not precisely define, the contested issues. It should also explain the legal theory or basis of counsel’s case.
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Trial by Judge without a Jury
A Judge rarely performs his functions adequately unless the case before him is adequately presented.
The Considerations of selecting a Judge Alone Trial In Superior Court
The most significant difference between jury trials and Judge alone trials is that judges generally do not remain passive. They ask questions. They comment. Jurors, in contrast, are there to watch and listen. Some judges may permit jurors to raise their hand and occasionally ask questions, but this practice is rare in Canada. Most often jurors do not speak or interrupt the proceedings.
Additionally, jurors are not expected to know anything about the case except that which unfolds during the calling of the evidence. Judges often have pretrial conferences, or, notes from other justices who have conducted pretrial conferences on the nature of the evidence and the likely legal issues that will arise. The jurors are not expected to know principles of law. They are told they are only to concern themselves with findings of fact. They do not intrude upon the trial.
Change of Venue
As a general rule, since crime is considered local, a trial must take place in the county or territorial division where the offence took place. However, a court before which an accused is or may be indicted, may, at any time before or after an indictment is found, on either the application of the prosecutor or the accused, order that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried if “it appears expedient to the ends of Justice or a competent authority has directed the jury is not to be summoned at the time appointed in a territorial division where a trial would otherwise by law be held”.