A trial involves complicated rules of evidence and procedure. This section only touches on the most basic procedural points. Criminal trials are very complicated and the consequences of a criminal conviction can be very serious, especially if a person does not have Canadian citizenship. Therefore, accused persons are strongly encouraged to seek legal advice for their particular situation and to obtain their own lawyer who can represent them at their trial.
What Court Will Hear My Trial?
If an accused person is charged with a summary conviction offence, they will have their trial in the Provincial Court of Alberta. If the person is charged with an indictable offence, they can choose how they wish for their trial to proceed—this is called an “election.” People charged with indictable offences have the right to a preliminary inquiry, which is held in Provincial Court and where the Crown calls some of their witnesses and allows the defence the opportunity to cross-examine them. A person is not convicted or acquitted at the end of a preliminary inquiry—rather, the Judge simply decides whether or not the Crown has enough evidence to proceed to a trial against the accused. The test for whether or not there is enough evidence is very easy to meet and the vast majority of accused persons who have a preliminary inquiry have their matter proceed to a trial. If a trial is ordered to proceed after a preliminary inquiry, then it is held in the Court of Queen’s Bench and the accused person gets to choose if he or she wants their case decided by a Judge alone or by a Judge and Jury. However, accused persons charged with indictable offences also have the option to not have a preliminary inquiry and instead go directly to trial. If they choose not to have a preliminary inquiry (called “waiving” the preliminary inquiry), then they may have their trial in Provincial Court or they may still choose to have their trial in the Court of Queen’s Bench with a Judge only, or with a Judge and Jury. The decision of whether to have a preliminary inquiry, whether to have a Provincial Court trial, or whether to have a trial in Queen’s Bench with a Judge or Judge and Jury is an important decision and one that should be made in consultation with a lawyer.
The trial begins with the Prosecutor calling evidence, usually in the form of witnesses. Each witness must be sworn in or affirmed. The Prosecutor questions each witness as to his or her involvement in the case. This is called “examination-in-chief ” or “direct examination.” In direct examination, the questions can only relate to facts (what the witness actually saw, felt, heard, etc.). A witness cannot usually be asked for an opinion unless the witness is a qualified expert or the opinion concerns something common to everyday experience, for example, an opinion as to speed or distance. The questions must also be phrased in a way that the witness tells the story and is not led to a yes or no answer by the lawyer. Another restriction on the types of questions that can be asked is the “hearsay rule.” This rule states that a witness cannot be asked what he or she was told by a third person outside of court. Confessions by the accused, however, is one of the many exceptions to this rule. In addition to the testimony of witnesses, the Crown Prosecutor can also enter relevant evidence such as photos and weapons, called “real evidence.” A third kind of evidence is “certificate evidence,” which is common in, for example, impaired driving or drug charges. The rules surrounding this sort of evidence are very strict and complex. When the Crown Prosecutor finishes questioning a witness, the defence can then “cross-examine” that witness. In crossexamination, the questions can be leading (meaning that the witness will generally be able to answer the question by simply saying “yes” or “no”), and almost any question that tests the accuracy or the credibility of a witness is allowed, as long as it is relevant and not vexatious or repetitive.
After the prosecution presents all of its evidence, it closes its case. At that point, the defence can elect to either call defence evidence, or call no evidence. If the defence does call witnesses, it is restricted to essentially the same kinds of questions as the prosecution was in direct examination with no leading questions. When the defence has finished questioning, the prosecution can then cross-examine. This process continues until the defence rests its case. When the evidence has been presented, each side sums up its case, reviewing the evidence and referring to applicable law. If the defence calls no evidence, then the prosecution sums up first. If defence evidence is called, then the defence sums up first. The Judge then reaches a decision as to guilt or innocence. If someone is found guilty, they are convicted; if someone is found not guilty, they are acquitted. In order to convict an accused person, the Judge must be satisfied beyond a reasonable doubt that the Crown proved that the accused was guilty as charged. If the Judge acquits an accused, she is then free to go. This means she does not have a criminal record and that any bail conditions she may have been on since her arrest are no longer in force. If the Judge convicts the accused, then the matter will proceed to sentencing. This may happen on the same day a person is convicted or it may happen at a later date. Sometimes, the Judge wants more information about the convicted person and may order that they meet with a psychologist or a probation officer, who will provide reports to the Judge about the convicted person.The Judge ultimately decides on the appropriate sentence after hearing from each side (the Crown and the defence) as to what they feel is an appropriate sentence. While the Judge must listen to and consider what the lawyers say, the ultimate decision asto what sentence should be imposed is the Judge’s decision alone.9