The Crown attorney is responsible for deciding whether to proceed with charges against an accused person. He or she is required to prosecute cases fairly and treat all parties in the case, including victims, witnesses and the accused, in a fair manner. He or she must also consider the public interest in making a decision. The Crown attorney must answer two very important questions:

Is there a reasonable likelihood of conviction?
Is it in the public interest to proceed?

If the answer to both of these questions is yes, the Crown attorney will prosecute. If the answer to either or both of these questions is no, the Crown attorney will not prosecute. In this way, the Crown attorney exercises prosecutorial discretion. Another element of this discretion is that the Crown attorney may decide that it is not beneficial to proceed with all the charges against the accused. In that case, some of the charges may be dropped.

The arraignment is the scheduled appearance at which the accused pleads guilty or not guilty.

If the accused pleads guilty, they are admitting to and accepting responsibility for the crime. A trial will not be held. The next step is for the judge to decide the appropriate sentence.

When the accused pleads not guilty, a trial date is set. Both Crown and defence counsel will estimate the amount of time they believe is required for the trial.

For certain indictable offences (Section 554) the accused may have the option of having their trial either in the Provincial Court of B.C. or B.C. Supreme Court. If the accused chooses Supreme Court, they may also have the choice of being tried by a judge alone or a judge sitting with a jury.

When the accused chooses to have a trial in B.C. Supreme Court, the next step is a preliminary hearing (sometimes called the preliminary inquiry). The preliminary hearing is for the court to decide if there is enough evidence to convict the accused. Crown counsel will present their evidence to a Provincial Court judge. The accused or their defence counsel will have an opportunity to cross-examine witnesses. If there is not enough evidence, the charges against the accused will be dismissed.

If the judge decides there is sufficient evidence, they will order that a trial be held.

Once in the Supreme Court the accused will once again be arraigned. If they plead "not guilty" and it is a jury trial, jury selection will begin.

The Trial begins with the judge explaining to the jury their role.

The judge then asks the 12 jurors to select a foreperson who will represent them and communicate with the judge.

The foreperson will also lead the other jurors through their deliberations and, at the trial’s conclusion, will inform the court of their verdict.

Section 11(d) of the Canadian Charter of Human Rights states that everyone is “assumed innocent until proven guilty”

This means that the "burden of proof" is placed clearly on the crown.

Burden of Proof : The crown has the obligation to prove the guilt of the accused; it is not up to the accused to demonstrate innocence.

The crown goes first in the trial because it has this burden of proof.

The jury is not meant to consider the opening statement as evidence. The crown will introduce evidence only after its opening statement is complete.

The trial begins with the prosecutor presenting the evidence against the accused. This is done by calling witnesses and introducing materials as evidence to support the charges. Each witness called for by the Crown is asked questions by the Crown attorney. This is called direct examination or examination-in-chief. The defence is then given an opportunity to question the prosecutor's witness and present evidence favouring the accused. This is called cross-examination.

After cross-examination, the prosecutor may question the witness again. This is called a redirect examination. During redirect examination, the prosecutor may only question the witness about matters brought up by the defence during cross-examination, if the witness's evidence needs to be clarified, or if a new issue has been raised by the prosecutor that could not have been known about before the trial.

This process is then repeated with each of the crown's witnesses.

Once the crown's case has been presented through all of the witnesses they are calling, a motion for dismissal can occur.

if the crown has not presented a compelling case beyond a reasonable doubt. The defence counsel can ask for a motion of dismissal.

If the judge agrees, a directed verdict of not guilty will be entered and the jury will be withdrawn from the case.

If this does not occur the trial continues.

Once the Crown has presented all its evidence, the defence presents its case.

The defence may not present any evidence at all.

If the defence chooses to present evidence, witnesses are called.

The Crown can cross-examine the defence witnesses and the defence may redirect after the prosecutor's cross-examination based on the evidence.

If the defence calls witnesses it will be trying to establish reasonable doubt.

The accused cannot be compelled to be a witness at their own trial.
(S.11 c of the Charter)

The judge may permit the crown to present further evidence at the close of the defence's case.

The evidence is limited only to matters that were raised in the defence's evidence.

If the Crown's new evidence could have been reasonably anticipated as being relevant during the Crown's case then it should have been called then and should not be permitted to be called in rebuttal.

A surrebuttal is a response or contradiction by the defence to the crown's rebuttal.

If defence presented witnesses at the trial they present their closing statement first. If not, Crown counsel closes first.

The crown will attempt to show that the defendant’s guilt has been demonstrated beyond a reasonable doubt. The defence will try to highlight otherwise.

If the judge is sitting alone, they decide if the accused is found guilty or not guilty. The judge might decide at the end of the trial or may make the decision later. The judge can deliver their decision orally or in writing.

In a jury trial there will be a charge to the Jury:

The judge will advise the jurors on how to consider the evidence and how to return a verdict in accordance with the law. The judge has to be very careful when making a charge. If the charge is deficient it is the most common basis for a successful appeal.

the jurors will now go to a separate room and discuss the case until they all agree about whether the accused is guilty or not guilty. The jury may ask the judge for more information about legal issues.

Reasons for not guilty verdicts:

If the jury believes the accused or does not know who to believe they must acquit, or if there is reasonable doubt.

Both the Crown and Defence have the right to ask each jury member to stand and confirm his or her agreement with the verdict at the end of the trial, as the verdict must be unanimous.

If the jurors cannot agree after a reasonable time The jury is said to be a "hung jury" and the judge will declare a mistrial and a new trial will take place.

Hung Jury:
The jury cannot reach a unanimous verdict.

This graphic can be found in the text on page 275.

Note that in a non-jury trial all of the purple boxes would be removed and at the end of the trial the judge would deliberate and return the verdict.

The decision of the judge or jury is final. However, that decision may be appealed.

An appeal is when either the accused person and their defence counsel or the Crown counsel formally request a change to the decision believing an error was made in some important aspect of the trial.

It is possible to appeal the conviction or acquittal, the sentence or both. An appeal takes the case to a higher level of court to decide if there has been a significant error. The appeals court has the authority to (1) Affirm the lower court's decision. (2) Reverse the lower court's decision (3) Order a new trial.

In criminal cases, an appeal has to be filed within 30 days of the sentencing decision.

Appellant: files the appeal
Respondent: the party that responds to the appeal

Leading Questions are questions which suggest the answer.

You are not allowed to ask questions like: “You saw George grab the pipe swing it around and club Sam 14 times before Sam fell to the ground…. Right?”

The question would have to be reworded: “What did you see George do to Sam?”

Hearsay" is simply what was told to a witness by another person, or what the witness heard someone else say. Evidence is not admissible through the mouth of one witness, to show
what a third party said, for the purpose of proving the truth of what that third party said.

Opinion statements:
witnesses cannot provide opinion statements unless they are experts.

Example: Any witness can give evidence that a person is overweight by looking at them but only an expert such as a doctor can say that they were in poor health.

Immaterial Questions:
Questions that have no connection with the case at hand.

A witness could be asked about their personal hygiene. Something which should have no bearing on the case.

Non-Responsive Answers:
Responses which don’t answer the questions asked.

If a witness does not answer a question with a response that appropriately answers it. Counsel can ask the judge to direct the witness to answer the question properly.

Character Evidence:
Evidence used to establish the likelihood the accused would commit the crime based on the type of person they are.

Generally, the crown is not allowed to attack the character of the accused. This is to guard against the jury assuming since the accused has a bad character they must be guilty of this crime.

If the defence decides to present evidence of the defendant’s good character this opens the gates for the crown to rebut it by presenting contradictory evidence.

Crown counsel can, however, present evidence of the defendant’s past convictions to test the defendant's credibility as to whether they are telling the truth.

DIRECT EVIDENCE:
Something you actually see taking place.

Example:
You catch a person breaking into a grocery store.

CIRCUMSTANTIAL EVIDENCE:
Any item of evidence other than the testimony of an eye witness to a material fact, from which an inference may be drawn.

Example:
the vehicle of the accused was seen in the area of the crime at the time of the offence.

Wiretapping and bugging are two of the most common methods of electronic surveillance.

Generally, any evidence obtained by wiretapping or bugging is admissible in court if the interception is authorized beforehand by a judge.

A trial within a trial to determine whether a particular piece of evidence, such as a confession of the accused to the police, is admissible in evidence. In a jury trial, the jury will be excluded during a voir dire, while, if the judge is sitting alone, the judge must not consider any evidence heard at the voir dire if it is ruled inadmissible.

The expression is derived from vrai dire (to speak the truth)