Subsection 650(3) provides that an accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. This section is often used in combination with applications alleging a breach of the accused’s rights under sections 7 and 11(d) of the Charter.
The Test of Relevancy
The Crown must prove the three elements of every crime, the identity of the actor, the act, and the actor’s intent to commit the crime. Each of these elements is important for another reason. Any evidence presented by either side must be relevant. The easiest way to determine what is relevant in a criminal trial is to ask this question: is the evidence that I would like to present to the court relevant to at least one of these three elements of a crime? If so, the evidence that a lawyer wishes to present to the court is admissible as relevant.
Relevant, admissible evidence relates to proving or disproving the act(s) alleged, the identity of the perpetrator and the intent of the person who committed the act.
Presumption of Innocence
The presumption of innocence means that the accused does not have to testify, present evidence, or, prove anything. If the prosecution fails to prove guilt beyond a reasonable doubt the accused must be found not guilty. The innocence of the accused remains unless and until the prosecutor satisfies the court beyond a reasonable doubt that the accused is guilty.
The presumption of innocence has been defined as a test requiring proof much closer to absolute certainty than probability. The presumption of innocence lies at the very heart of our criminal law and is protected expressly by section 11 (d) of the Charter, and, at least inferentially, by section 7 that protects the right to life liberty and the security of the person.
Proof Beyond a Reasonable Doubt
The legal requirement of proof beyond a reasonable doubt is an important part of the criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or lack of evidence. The prosecution is not required to prove anything with absolute certainty.
If, at the end of the case, the trial Judge or the jury, based on all the evidence, are sure that the accused committed the offence they should find him guilty since they would then be satisfied of his guilt beyond a reasonable doubt.
The concept of proof beyond a reasonable doubt and the presumption of innocence are inextricably connected. Most Judges will instruct the jury that the term, “beyond a reasonable doubt” means that even if they believe the accused is “probably guilty” or “likely guilty” that is not sufficient. In those circumstances they would give the accused the benefit of the doubt and find him not guilty because the prosecution has failed to satisfy them that the accused is guilty beyond a reasonable doubt.
When Credibility of the Accused is the Issue
The accused is not required by law to testify at his own trial. He cannot be forced to testify. When he does so, however, special rules apply, particularly in assessing his credibility. When the credibility of the accused is considered, the trial Judge or jury is required to apply the test of reasonable doubt to this issue. It should be considered in the following manner:
1. If they (the Judge or jury) believe the evidence of the accused, they must acquit.
2. If they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit.
3. Even if they are not left in reasonable doubt by the evidence of the accused, they still must ask whether they are convinced beyond a reasonable doubt of the guilt of the accused based on the balance of the evidence that is accepted.
Continue reading “When Credibility of the Accused is the Issue”
Fundamental Principles of Canadian Criminal Law
In every criminal trial the accused is presumed innocent and remains innocent until proven guilty beyond a reasonable doubt. Every alleged crime can be defined by its specific elements. Each essential element of a crime must be proven beyond a reasonable doubt. Except in rare instances, it is generally the prosecutor’s obligation to prove each essential element of a crime beyond a reasonable doubt to secure a conviction. Failure to do so will result in an acquittal. The formal finding of an acquittal is a verdict of “not guilty.”
In every case the prosecutor must prove at least three things:
Continue reading “Fundamental Principles of Canadian Criminal Law”
Introduction to Canadian Criminal Procedure
You have to learn the rules of the game.
And then you have to play better than anyone else.
– Albert Einstein
To be successful as a trial lawyer, two things are of paramount importance:
1. having a clear understanding of the complicated, constantly-evolving legal procedures, as dictated by legislators and court precedence; and
2. developing an effective strategy within those rules.
This book is all about number one, learning the rules of the game, including all possible exceptions. As for number two, see my book “Criminal Trial Strategies” to learn the art of advocacy, the art of telling the client’s story.
Continue reading “Introduction to Canadian Criminal Procedure”
Closing Addresses
Closing addresses are of utmost importance for counsel to be successful in jury trials. This is the one and only opportunity counsel is permitted to bring all the evidence together in an effort to persuade the jury to view the case favourably to the side that counsel represents. Over the years I have come to know the best closing addresses are brief. Ideally, a closing address should be under 30 minutes, no matter how lengthy the trial that preceded it. Long-winded persons are generally found to be boring. The maxim holds true, especially true, for lawyers delivering a closing address.
Continue reading “Closing Addresses”
Avoid These Mistakes in Opening Addresses
Avoid These Mistakes in Opening Addresses:
1. Do not tell a jury that the evidence you intend to call will be presented in a disjointed or disorganized manner. It is unwise to begin an opening jury address with what appears to the jury to be an apology. The essence of a good opening address is to bring meaning to the evidence that is going to be presented. Suggesting, even inferentially, that the evidence to be presented is, in some way, incomprehensible because of its manner of presentation is contrary to good strategy. Instead, make every effort to describe the evidence in a manner that makes it sound comprehensible, cohesive and supportive of what the jury will anticipate will be your final argument. To do otherwise is to, at least subliminally, suggest to the jury that your side is partially defeated before you even begin to call evidence. Even if the jury members do not come to the conclusion that you are, in effect, apologizing for the manner of presentation of evidence, they will undoubtedly consider your opening address uninteresting. The opening address needs to be interesting. It should not have the appearance of an “apology.” Instead, it should suggest that you are about to present answers to your opponent’s case, and, the answers will provide the jury with reasons to reject your opponent’s case. In short, everything in the opening address should have a positive note. No apologies!
Continue reading “Avoid These Mistakes in Opening Addresses”
What to Include in Opening Addresses
What should be said to the jury in opening addresses? From experience, the answer is simple. Counsel should stand before the jury, look at each one of them, and tell them what you expect the evidence will be.
Generally, counsel should avoid using the names of witnesses, since their names at this stage, will be meaningless to the jury. You may make an exception for a vital, pivotal witness whose name deserves to be mentioned because of the importance of that particular witness’s testimony.
Continue reading “What to Include in Opening Addresses”