Patrick J Ducharme

There is no limit on the number of counts that may be joined together in the same indictment or information, except in the case of murder. Section 589 of the Code provides that no count may be joined to a murder charge unless it arose out of the same transaction. Otherwise, provided the various counts have at least some connection in time and place, they may be tried together. It is important to note that joining the counts together does not make the evidence of one count admissible on any other count, unless the evidence meets the standard of similar fact evidence. Indeed, a trial Judge now has the discretion to permit the joinder of offences together even if the offences are a mixture of indictable and summary conviction offences. Summary conviction offences should not be joined with indictable offences unless the trial of the indictable offence is to take place in Provincial Court.

Joinder and severance relate both to the counts and to the accused. In other words, the court is given discretion to join or sever counts or to join or sever accused persons. In some instances a separate trial is preferable. For example, where a joint trial would deprive one accused of the benefit of the evidence of his co-accused , the court may order separate trials. On a joint trial one accused does not have the power to force the other accused to take the witness stand, even if the evidence of that co-accused would be beneficial. But on a separate trial the co-accused may be subpoenaed to testify, thereby ensuring the benefit. In fact, it has been held to be inappropriate for a trial Judge to refuse an application for severance by concluding that the co-accused’s evidence would not be credible.

In any event the general principle is that jointly charged accused will be jointly tried. The onus therefore is upon the applicant to demonstrate that it is in “the interests of Justice” to sever either the accused or the counts in an indictment. The Crown has a duty not to overload an indictment with unnecessary counts or particulars. An accused is entitled to a manageable and fair trial that will be understandable to members of the jury. Thus, the trial Judge, exercising her power to sever, will often solve an overloaded indictment.

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An accused who believes an indictment does not provide sufficient detail to allow him/her to know the charge against him/her, may move for particulars under section 587 of the Code. The applicant must convince the court that particulars are “necessary for a fair trial”.
Particulars are intended to supplement an indictment that is not sufficiently informative to ensure a fair trial. Particulars may be ordered by a trial Judge, but not by a Justice presiding at a preliminary inquiry. Particulars ordered on essential elements of the offence pursuant to section 587 become part of the charge itself and must be proved by the Crown.1 In the Ontario Court of Justice the procedure for the service and filing of a motion for particulars is contained in Rule 29.
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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.

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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.
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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.
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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.
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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.
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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.

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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.
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