Patrick J Ducharme

Before the 2019 amendments, counsel for the accused would present a written legal argument to the assigned trial Judge providing materials and evidentiary support alleging a need that each potential juror be questioned as to their possible bias against the accused that could make them unlikely or unable to render a fair verdict. These applications are usually based upon adverse pretrial publicity in the community where the accused is to be tried.
Continue reading “Challenges for Cause”

Previously jury trials in Canada required trial judges to remain above the fray, assisting the jury only to the extent that they provided a jury selected by the lawyers an independent and impartial assessment of the facts and how the law should be applied to the facts of the case. Trial judges were there, at least in part, to assist the jury in carrying out their responsibilities to make an appropriate decision based upon applicable law.
Continue reading “Judge’s New Role in Jury Trials”

As of September 19, 2019, peremptory challenges have been eliminated. Now, the process of selecting jurors is almost entirely controlled by the trial Judge. What was once the exclusive domain of the trial lawyers to accept or reject potential jurors is now performed by the trial Judge.
Continue reading “How Will the Jury Be Selected?”

The 2019 amendments to the Code brought sweeping changes to Canada’s laws concerning: when an accused may elect to be tried by a jury, and, if allowed to have a jury trial, how a jury is selected. Jury trials only take place in the Superior Court of a Province or Territory. When an accused is permitted to elect trial by jury it necessarily means that accused is entitled to have a preliminary inquiry in the Provincial court.
Continue reading “When Is a Jury Trial Available”

Generally the lawyer producing a witness is not allowed to impeach his or her witness’s credit by general evidence of bad character–unless the witness, in the opinion of the court, proves adverse.

The meaning of the word “adverse” has generally been interpreted by our courts as not limited to “hostility” but includes a witness who, although not hostile, is unfavourable in the sense of assuming by the witness’s testimony a position opposite to that of the party who has called the witness to testify.

Continue reading “Adverse Witnesses: and Section 9 Canada Evidence Act”

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.
Continue reading “Leading Questions”

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.
Continue reading “Questioning Witnesses”

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.
Continue reading “Order Excluding Witnesses”

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.
Continue reading “Order of Presentation of Evidence”