Month: March 2024

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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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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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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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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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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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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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.

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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”.

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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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