9. Trial

[Note that there are jury trials and judge alone trials (the latter most frequent). Section 8 deals specifically with jury trials, while this section deals with both in general. This section focuses on some matters not unique to jury trials. Where you have a jury trial you should consider both together, but when you have a judge alone trial this section will be what you need to consider.]

9.1 Pre-Trial

You may be asked to attend a pre-trial conference. The main purpose of the pre-trial conference is to clarify the issues in the trial and to discuss how the trial will proceed. The judge will also explain to you what is expected at trial, and may suggest additional resources to assist you.

Here are some topics that may be covered at your pre-trial conference (these and some other topics may be included in a written pre-trial conference form set out in the Criminal Rules in your jurisdiction):

The judge’s role to assist but not provide legal advice.
The advantages of having a lawyer represent you.
The elements of the charges (making sure you understand them).
The consequences if you are found guilty.
Whether there has been full disclosure.
Whether there are issues that need to be decided in a voir dire (e.g. about the admissibility of certain evidence).
Review of the witnesses expected to be called.

If you have any issues or questions about the trial you should ask them at your pre-trial conference.

9.2 Overview and Summary of Steps in the Trial

Your trial might be from half a day to multiple days in length, depending on how complex the issues are and how many witnesses will give evidence. The trial is where the Crown will try to prove your guilt beyond a reasonable doubt and you may try to disprove or raise a reasonable doubt about the Crown’s case, and / or present your own defence.

You should take notes about everything that happens during the trial. This will help you to remember what the judge said, what Crown has said and what the witnesses have said. This will also help you prepare the questions you want to ask witnesses and with the argument you are going to make at the end of the trial.

If you cannot hear what is said or if you cannot see something that a witness is referring to, you should let the judge know. It is very important that you are able to hear everything that everyone says, and see everything that a witness may be describing in an exhibit.

Steps in the trial:

Preliminary matters: The trial begins with the Judge dealing with certain preliminary matters, including: arraigning you (the clerk asking you whether you plead guilty or not guilty), exclusion of witnesses (until they are called), publication bans, any preliminary motions or applications, etc.
Judge’s opening instructions to the jury: When it is a jury trial.
Crown’s opening statement: The trial begins with the Crown explaining the background to the charges and the evidence that they expect to call. What the Crown says in the opening statement is not evidence. You must not interrupt their opening statement even if you disagree with some parts of it. Keep a note of anything you disagree with so that you remember to address it in some way (e.g. in cross-examination of a Crown witness, or through your own opening statement (if you call evidence) or evidence or the evidence of a witness you call). If you do not know how to address it, ask the judge for guidance.
Crown’s evidence / witnesses: After the opening statement, the Crown will call witnesses to give evidence, and present documents. Once the Crown is done asking their questions you may cross-examine the witness and ask them your questions, but you are not required to do so – and there is no obligation to do so. This is a very strategic decision. If you decide to cross-examine a Crown witness, the Crown may be allowed to re-examine their witness to clarify any answers in cross-examination that were left unclear. The Crown then calls their next witness and the questioning process repeats until all the Crown’s witnesses have testified, and the Crown has “closed its case” (stated that it is not calling any more evidence). At the end of the Crown’s case, if the Crown has missed providing any evidence on an essential element of the offence, you can bring an application before the judge for a directed verdict of acquittal – see Section 9.8.
Accused’s decision as to whether to call evidence: Following the Crown’s evidence and close of the Crown’s case, you will have to decide if you are going to call evidence. Again, remember there is no requirement that you present evidence or call witnesses – this is a very strategic decision on which legal advice would be helpful. If you don’t call evidence the case will move to the argument stage.
Accused’s opening statement: If you decide to testify or to call evidence, you may – but are not required to – give an opening statement. Your opening statement should outline the evidence that you expect you and your witnesses (if any) will give when they testify. You are not required to give an opening statement, but you may if you wish. However, before you make this decision, you should remember three things. First, anything you say in your opening statement is not evidence and cannot be treated as evidence. Second, you do not need to reveal the nature of any defence before you start to call your witnesses. Third, generally (alibi witnesses are an exception), you do not need to identify your witnesses, before you call them.
Accused’s witnesses: After you have made an opening statement (if you wish to), then you can call your witnesses one at a time to give evidence. If you choose to give evidence yourself, you would normally be the first witness. You don’t need to ask yourself questions but can state your evidence in narrative form – statements of what you want to tell the court about the facts of the case that you know. For any other witnesses you call, you will ask them questions first. The Crown is entitled to cross-examine each of your witnesses – including, you, if you testify. You may then be allowed to ask more questions of each witness in re-examination, but only if you ask about things that were new, and not part of your first examination but came out of the Crown’s cross-examination of your witness.
Closing arguments of accused and crown: You and the Crown will make closing arguments that summarize your evidence and the law. This is when you can present a legal argument and refer to any case law. If you testify yourself and / or call any witness(es), you will make your closing argument first. If you did not call any witnesses or testify, the Crown will make their closing argument first.
Judge’s closing instructions to the jury (if there is a jury): This is sometimes called the judge’s charge to the jury.
Verdict: The judge or jury will make their decision to find you either guilty or not guilty. If found guilty, the judge will declare you convicted, and your sentence (punishment) will be determined at a sentencing hearing. This can be done right after the trial or at a later date. If you need time to prepare you should ask for a later date.
Sentencing: This is when you have been found guilty. In jury trials, for some offences, the jury may be asked for a recommendation on sentence. Once the jury is dismissed, the judge will ask the clerk to record a conviction on each offence for which you have been found guilty (there may be exceptions to this with multiple findings of guilt). Then, the Crown and you will make arguments about the appropriate punishment, which the Judge will determine.

9.3 Opening Statements

Opening statements allow the judge and jury to understand what will happen at trial. Both the Crown and you (if you are presenting evidence) will be given the opportunity to make an opening statement. The Crown will start and explain what you are charged with. They may also give some background information and explain what witnesses they will call and what they expect them to say. Anything said during the opening is not evidence and cannot be used as a reason for the verdict.

If you decide you will be calling witnesses or testifying you can make an opening statement at the end of the Crown’s case. It would be a chance to outline what you expect to say and what your witnesses are expected to say. However, you do not need to make an opening statement and do not need to reveal your defence.

9.4 Witnesses at Trial

Calling witnesses

If you decide to call witnesses, you will need to tell the court clerk the name of the person you wish to call. The clerk will call the witness to come into the courtroom. The witness will then go into the witness box and take an oath or affirm to tell the truth, and you can begin your direct examination (or examination-in-chief) – questioning. The Crown will have the opportunity to cross-examine your witnesses. The judge may ask questions of the witnesses every now and then. Those questions will simply be to clarify the evidence that the witness has given or to fill in gaps. You cannot discuss a witness’ evidence with them during a break in their evidence during the trial.

Questioning witnesses

Before your trial you will want to think about questions to ask the witnesses. There are three ways to question witnesses:

Direct Examination;
Cross Examination; and
Re-examination.

Direct examination (or Examination in Chief)

The questions you ask your witness and the questions the Crown asks of their witnesses are called direct examination or examination in chief. For a direct examination you may only ask open questions (questions that do not suggest answers and that allow for explanations). Open questions usually begin with words like who, what, why, where, how, tell me about, or describe.

The opposite of an open question is a leading question. Leading questions, as the name indicates, leads the witness to a particular answer. They are usually answered with a yes or no. Leading questions allow you to control what the witness talks about and often helps you get the witness to give a specific answer. This is why you are not allowed to ask your own witnesses leading questions. Open questions usually call for longer answers and do not restrict the witness to saying yes or no.

Here are some examples to show you the difference:

Open Question: “what colour is your car?”
Leading Question: “you own a green car, correct?”
Open Question: “at what time did you get home?”
Leading Question: “you got home at ten o’clock, didn’t you?”

When you are asking your witnesses questions, simply ask them to describe the facts as they remember them.

Dos and Don’ts of direct examination

Dos	Don’ts
Start by asking background questions (e.g. How do you know the parties?). Let the witness finish answering before you ask the next question (do not interrupt). Keep your questions simple and clear. Organize your questions according to chronology or issue. Be precise with questions.	Ask leading questions: questions that suggest the answer. Ask long questions. Ask complex or confusing questions. Ask two questions at the same time (it will be unclear which one the witness is answering). Be too broad. Ask them to give their opinions, unless they are an expert witness.

Once you have finished examining your witness the Crown will be allowed to cross examine them.

Cross-examination

Once the Crown has finished questioning a witness they have called, you may (but are not required to) question that witness. Asking questions of another party’s witness is called cross-examination. When cross-examining a witness, you are allowed to ask leading questions. Leading questions are questions that suggest the answer, such as “you have a blue car, don’t you?” or “you work at ABC Plumbing, correct?”.

You must also be careful that your questions are actually questions and not statements made by you. Save your arguments for your closing statement, not during cross-examination.

During cross-examination, you are allowed to try to put the witness in a bad light. You can ask questions that challenge their credibility and the accuracy of their testimony.

The witnesses called by the Crown have probably given statements to the police. You can use these statements and any transcripts (for example, preliminary inquiry evidence) when you cross-examine a witness who made a statement.

If the witness said something different in the statement than in his or her evidence at trial, you can cross-examine the witness about his or her earlier statement. If the witness said something favourable about your case in an earlier statement, you can ask about that too. You could read the earlier statement to the witness, ask if he or she recalls saying it, and then ask if it was true.

Cross-examination allows you to:

Challenge or test the truthfulness or reliability of their evidence.
Get more details about their evidence.
Get evidence that supports your case. You will want to get the witness to agree to facts you present.
Discredit the witness. This approach is used so the judge or jury might minimize or disregard evidence or comments that do not support your case. You can do this by bringing into question their memory or their truthfulness; show that they may be biased or that they are inconsistent with their story.
Cross-examination may help you to get useful information, enhance your position, bring out facts that the witness has not explained, and introduce facts that weaken the witness’ evidence or the Crown’s position.
Cross-examination may help you show whether the witness is truthful, sincere, and credible.

If you intend to challenge or contradict the evidence of a witness, you must confront them with the evidence you intend to present so they have an opportunity to respond to it. Otherwise, you may not be allowed to contradict them (called the rule in Brown v. Dunn). This means you must put your version of events to the witness (e.g. is true that you told the police something different when they first contacted you?), if you want to submit later in your evidence and / or closing argument that your version is the accurate one.

The results of cross-examination may help you to determine whether you will call evidence. When you are cross-examining, it may be helpful to think about:

the attitude and behaviour of the witness in the witness box;
the ability and opportunity that the witness had to observe the things they testify about;
the ability of the witness to give an accurate account of what they saw and heard;
whether the witness has any reason to be biased or prejudiced, or has an interest in the outcome of the case;
whether the witness attempted to answer questions in a forthright manner, or whether they were argumentative or evasive; and
whether the testimony given by the witness was impartial and objective or whether it was slanted.

Dos and Don’ts of Cross Examination

Dos	Don’ts
May ask leading questions. In your questioning, move from general to specific. Be clear and brief. Use simple language. Listen to the answers given and note important ones. Treat the witness with respect. Ask only one question at a time. Be precise with questions. Ask questions that discredit their testimony, if it is not consistent with the position you are putting forward.	Argue with the witness. Repeat a question asked during direct examination that may hurt your case. Ask them to give their opinions, unless they are an expert witness. Comment about their answer; you can do this during your closing statement.

Objecting to questions

The judge can disallow any question that is unnecessarily rude or is irrelevant. The questioner will be stopped if they are unnecessarily harassing or embarrassing a witness.

Either party can object to a question the other party is asking of the witness. They will need to explain to the judge why they are objecting. The judge will then decide whether to allow the question or not.

At any time during the Crown’s examination of their witnesses, you can object to the questions that they ask or the answers the witnesses provide. You can also object to the introduction of exhibits, including any documents or other evidence that was seized from you or from other persons.

Common reasons for objecting include:

leading question where only an open question is appropriate;
multiple questions before allowing the witness to answer;
irrelevant line of questioning;
argumentative question;
repetitive question;
vague or ambiguous question;
hearsay answer;
the question calls for a speculative answer; and
opinion – asking someone to provide an opinion when they are not an expert.

If you want to object to a particular question that the other party is asking, simply stand up to let the judge know that you object. Be sure to explain why you object. The judge will listen to your reasons why the question was improper or why the evidence should not be admitted. The Crown can then explain why the question was proper or why the evidence should be admitted. The judge will then decide to allow the evidence or not.

If your trial is a jury trial, the judge may ask the jury to leave the courtroom while the judge hears more from you and the Crown about the objection, and decides whether the question or answer will be allowed.

Re-examining witnesses

Once your cross-examination is complete, the Crown can re-examine their witness. This re-examination (or redirect examination) is very restricted. They cannot ask about new things that were not raised before. They can only ask questions that clarify the witness’s evidence in cross-examination. Similarly, you may re-examine your own witnesses, but you may only ask non-leading questions. However, if something entirely new was revealed in cross-examination, you may be allowed to ask questions about that topic. You may, however, have to explain how you did not anticipate the new evidence.

Once re-examination is completed, that is the end of that witness’ testimony.

Fill out the Witness Worksheet if you plan to call witnesses at your trial.

9.5 Witness Worksheet

Download the Worksheet

Fill in each column.

Witness

Points you want them to get across

Document(s) you are putting to them

9.6 Voir Dire or Pre-Trial Application

A voir dire is a separate hearing before or within a trial to deal with the admissibility of evidence. If there is a jury, the jury will be asked to leave while the voir dire is held. Efforts are usually made to identify in advance issues that may need to be the subject of a voir dire, and often the voir dire will be held in front of a case management judge (s. 551.1 of Criminal Code) before the trial starts so that it does not interrupt the trial.

Examples of evidence that might be the subject of a voir dire include admissibility of:

Statements of the accused.
Hearsay evidence.
Evidence obtained in a search that might have violated the Charter.

The judge may hear evidence to determine whether the evidence should be allowed. Depending on the issue, you may call witnesses, or testify yourself in the voir dire. If you decide to testify or call witnesses, you and they may be cross-examined by the Crown. If you testify, the Crown can (with some restrictions) ask you about the offences with which you are charged but what you say cannot be used in the trial. The jury will not hear about your evidence and the other evidence given in the voir dire unless it is repeated during the trial. The Crown may also call witnesses that you will be able to cross-examine.

If the Crown intends to use some of the statements you made during the investigation relating to the charge as evidence, they must prove, beyond a reasonable doubt, that you gave those statements voluntarily. The judge will then hear evidence to determine whether your statements during the investigation were made voluntarily, and without breaching any of your rights under the Charter.

You should review your rights under the Charter (see below) and determine if you think there have been any Charter rights violations in the course of the investigation, in the course of your arrest, or during any searches of your person or belongings that resulted in evidence that the Crown is seeking to rely on. Getting legal advice on any potential Charter violations is extremely important. You may want to raise these issues in a voir dire and seek to exclude evidence from your trial. If important evidence is excluded, the Crown may no longer be able to prove their case against you beyond a reasonable doubt.

9.7 Charter Application

The Charter of Rights and Freedoms (the “Charter”), is part of Canada’s Constitution and applies to the activities of Canadian governments, including to those of the police. The Charter affects all aspects of criminal law in Canada and guarantees a number of rights and freedoms that are designed to protect those who are under criminal investigation, those charged and tried under criminal law, and those who are punished for a crime.

You have a number of rights, including the right to be secure against unreasonable searches or seizures, the right to not be arbitrarily detained or imprisoned, the right to retain and instruct counsel without delay upon arrest, and the right to be tried within a reasonable time. Charter rights, however, are not absolute, as they can be limited if the limitation is demonstrably justified in a free and democratic society. There is significant case law which analyses what counts as a Charter breach and what remedies are appropriate if a breach occurs. It is highly recommended that you have a defence lawyer review your case, as they can advise you of potential breaches. See the Charter for a full list of rights and freedoms.

The material below is a very general and simplified overview of the Charter and the procedure for a Charter application. Specific procedure will vary in different jurisdictions and you should seek legal advice on your criminal matter. See Section 13: Resources to find legal help in your area.

To argue that your Charter rights were violated, you make a Charter application to the Court. You need to give notice to the Crown, before the trial, of your application. In some cases, the judge may decide to not hear the application if it is clear the application lacks merit or if there was insufficient notice. Sometimes a case management judge (s. 551.1 of the Criminal Code) is appointed to hear your Charter application before the trial begins – check the criminal rules in your jurisdiction. The onus to prove a Charter breach is on the party that made the application. The trial judge, or a case management judge, not the jury (if there is one), will hear the Charter application in a voir dire where both sides will present evidence and make arguments.

There are number of remedies available depending on the nature of the Charter breach. Often, the evidence obtained through that violation will be excluded from the trial. However, if the judge finds that the exclusion of the evidence would bring the administration of justice into disrepute, they may still allow the evidence into the trial. In cases of serious Charter violations, the judge may stay the charges against you, meaning the prosecution against you will be stopped.

9.8 Directed Verdict of Acquittal

At the end of the Crown’s case, you may ask the judge to decide that you be found not guilty of some or all of the charges on the basis that the Crown failed to prove an essential element of the offence. This is called a non-suit or a directed verdict of acquittal.

You will need to explain why a directed verdict of acquittal should be granted. The judge will decide whether your application will be granted. If the judge grants your application, the trial will come to an end and you will be acquitted. If the judge decides not to grant a directed verdict of acquittal on all or some of the charges, the trial will continue. You will then have to decide whether you will call evidence, by testifying yourself or by calling other witnesses to give evidence.

9.9 Closing Arguments

You and the Crown will make closing arguments that recap your view of the facts and the law. If you, as the accused, have called evidence, you will make your closing arguments first.

The closing argument is the time to describe what decisions you wish the judge / jury to make and why they should make them, based on the evidence presented at the trial. If there is legislation or case law that supports your position, you should explain how the law applies.

In making your closing arguments you may only refer to evidence that has already been given during this trial. You cannot testify again. You cannot refer to any documents or talk about anything not already seen or heard in the trial. If you are going to rely on any cases or statutes, you must have copies available for the Crown, the judge, and the jury (if there is a jury).

It is a good idea to submit your closing statement in written form. Ask the judge if you would be allowed to submit your written closing statement to the judge or jury so they can follow along as you present it. A judge does not need to receive your written closing statement, so ask to see if they will. If they do agree to receive it, make sure all key elements of your legal argument are included.

Once closing arguments have been made, the judge or jury may then retire to consider a verdict.

Fill out the Closing Argument Worksheet to help prepare.

9.10 Closing Statement Worksheet

Download the Worksheet

Fill out this worksheet to help prepare for giving a closing statement. You might need to leave blanks to be filled out during the trial as evidence is brought forward.

Theory of the Case: Briefly state the reasons why the Crown has not proven the case against you beyond a reasonable doubt

Credibility or Reliability Issues of Witnesses (supported by evidence presented at trial)

Relevant Facts (supported by evidence presented at trial)

Supporting Case law

Additional Comments (address arguments made by the Crown, if they argue before you)

9.11 Verdict

Once all the closing arguments are made, the judge or jury will be given time to decide whether you are guilty or not guilty. This decision is called the verdict.

If you have a jury, they will be excused so they can deliberate together and reach a verdict. Once they have come to a unanimous decision, they will be asked to return to the courtroom to give the verdict. If you have a judge alone, they may give a verdict right after trial or at a later date if they need time to consider the evidence and laws.

If you receive a verdict of guilty you will need to have a sentencing hearing. This hearing will determine your punishment.