Trial

A trial is the formal process where the Court will decide whether the prosecutor proves beyond a reasonable doubt that the accused committed the offence charged. A trial occurs in a courtroom.

Preliminary Hearing

A preliminary hearing is a hearing held by the Court to decide whether there is enough evidence to send the case to trial. Preliminary hearings are only held for indictable offences.

At the preliminary hearing, the prosecutor presents the most important parts of the evidence against the accused. The prosecutor may call witnesses to give evidence.

The Court will dismiss the charge if it finds that there is not enough evidence to send the case to trial. The Court commits the accused person to trial if there is enough evidence to support a trial, and if the accused pleads not guilty, the Court sets a trial date.

The Trial

In the Courtroom

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At trial, the prosecutor and the defence lawyer call witnesses and present evidence and arguments to support their case. The prosecutor goes first. The defence lawyer follows. Even if there has been a preliminary hearing, witnesses still need to testify at trial and may be cross-examined on what they say at the trial or what they said at the preliminary inquiry. Cross-examination is a way to test the truth of something a witness has testified about.

An accused person has the right to remain silent. They do not have to give evidence at trial. If an accused person chooses to give evidence, he or she may be cross-examined by the prosecutor and must answer questions.

After all witnesses have been called, both the prosecutor and the defence lawyer present their closing arguments. If the prosecutor can prove the accused person's guilt beyond a reasonable doubt based on the evidence, the accused will be found guilty. If the accused's guilt cannot be proved beyond a reasonable doubt, they will be acquitted, or found not guilty.

Getting help to testify

Giving evidence as a witness can be difficult and frightening. The victim has the right to ask for help when testifying in court. This means that the Court may allow the victim to give testimony using testimonial aids. The victim could ask to:

  • testify through a closed-circuit television so that the victim is outside the courtroom;
  • testify from behind a screen or other device so that the victim cannot see the accused; or
  • have a support person sit close to the victim when he or she testifies.

The Court can also:

  • allow the victim to use a false name to protect the victim's identity; and
  • keep some or all members of the public out of the courtroom while the victim testifies or for the duration of the trial.

The prosecutor can apply to the Court, on the victim's behalf, for an order that gives the victim help to testify. Victims are also allowed to make an application to the Court on their own. The Court may order this if it thinks the victim or witness needs it so they can give their evidence honestly and completely, or if it would be in the interests of justice.

Self-represented accused

Victims of crime have the right to request that reasonable measures be taken to protect them from intimidation or retaliation, including from the accused. This can happen when the accused acts as their own lawyer in court and can then cross-examine the victim as a witness.

In this case, the Court must take the victim's safety into account and consider whether the victim needs to be protected. It can appoint a lawyer to cross-examine the victim instead. Child victims and adult victims of certain offences, such as criminal harassment, are automatically entitled to this protection, but for others, the Court must consider a variety of things, including the safety of the witness.

Publication Bans

Victims of crime have the right to ask to protect their identity from the public using a publication ban.

A publication ban prevents anyone from broadcasting the identity of, or anything that could identify, victims and witnesses in all court cases. These include preliminary hearings. Publication bans protect the privacy of victims and witnesses. Without these bans, victims and witnesses may be too scared to be able to provide complete and honest evidence to the Court.

If requested, publication bans must be ordered for all victims under the age of 18, for victims of sexual offences, and for witnesses of sexual offences under the age of 18.

Criminal trials are usually open to the public. Even if the public is allowed to be in court, a publication ban prevents anyone from broadcasting the identity of victims and witnesses in all court proceedings, including preliminary hearings.

A prosecutor must explain to the Court why the publication ban is needed. The Court must decide whether there is enough evidence to justify the ban.

Third party records in sexual offence cases

Third Party Records: How a court decides if the accused can have a third party record

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Occasionally, victims may be involved in an application by the defence lawyer for access to specific documents called "third party records". A third-party record contains personal information about the victim or another witness, such as a note, file, medical record, or even a text message.

The defence lawyer can use a third-party record to try to defend the accused. For example, if the victim told a therapist about a sexual assault, the defence lawyer might ask the victim about the therapist's notes to try to show that the victim's conversation with the therapist is different from his or her statement to police.

The prosecutor can use a third-party record during the trial to support their case. For example, hospital records that describe the victim's injuries from the incident may be important to the prosecutor's case.

The Court must think about many things when deciding if the accused will get the third-party record, or if it will apply limits to how much the accused can see, or when the accused can use the records. The Court must take into account things like:

  • the victim's right to have their safety and privacy considered in the criminal justice system;
  • the accused's right to defend themselves; and
  • society's interest in having victims report sexual offences.

If the victim doesn't want the accused to get the record, he or she can:

  • tell the prosecutor why they do not want the accused to get the record to help the prosecutor make appropriate arguments about its release; or
  • go to the hearings and make submissions. This means that the victim tells the Court why he or she doesn't want the accused to get the record. The victim can do this with or without a lawyer.

Accused found not criminally responsible

Mental illness can affect a criminal trial in a number of ways. Two ways in which it can arise include:

  • if there are questions about whether an accused is fit to stand trial; and
  • if there are questions about whether the accused was not criminally responsible for the criminal conduct.

Unfit to Stand Trial

"Unfit to Stand Trial" is a term that refers to the state of mind of the accused at the time of trial. In determining whether or not an accused persons is unfit to stand trial, the Court will consider if the accused person is able to:

  • understand the purpose of the trial;
  • understand the potential consequences of the trial; or
  • meaningfully instruct their lawyer.

If the accused is found unfit to stand trial, he or she will not be tried for the alleged (unproven) offence at that time. Instead, a provincial Review Board will supervise the accused person until they become fit to stand trial. Most people become fit to stand trial fairly quickly, though in some cases, a person may remain unfit for a long time or even permanently.

The Court must review the evidence of the case against the accused every two years to ensure there is still enough evidence against them to justify holding a trial. If there is not enough evidence, the Court will acquit the accused person.

Not Criminally Responsible on Account of Mental Disorder

Criminal responsibility refers to the state of mind of the accused at the time of the offence. If the Court finds that, at the time of the offence, a mental disorder made the accused unable to appreciate the nature and the consequences of their actions or that their actions were wrong, the accused will be found "not criminally responsible on account of mental disorder" (NCR). This is a special verdict which acknowledges that the accused committed the illegal act, but recognizes that the state cannot hold a person accountable for actions that they did not have the capacity to understand. Statistically, very few individuals are found to be NCR.

What Happens After a Verdict of Unfit to Stand trial or NCR?

After a verdict of not criminally responsible on account of mental disorder or a verdict of unfit to stand trial, the Court refers the matter to a provincial Review Board. The Review Board holds hearings to determine how best to manage and supervise the particular accused person. In making decisions about the accused person (known as dispositions) the Review Board must consider four factors:

  1. the safety of the public - which is the most important consideration;
  2. the mental condition of the accused;
  3. the reintegration of the accused back into society; and
  4. the other needs of the accused.

In the case of an accused person found unfit to stand trial the Review Board has two choices it can make based on these four factors. It can order that the accused:

  • be detained in a hospital; or
  • be allowed to live in the community if they follow certain conditions.

If an unfit accused is not a danger to society and not likely to ever become fit to stand trial (for example, because they have a permanent brain disability), the Court may, if they feel it is appropriate, order a stay of proceedings and the unfit accused will be released.

In the case of an NCR accused person, the Review Board must first decide if the accused person might be a threat to the safety of the public such that the accused person poses a real risk of serious harm to any witness, victim, or member of the public.

If the Review Board is not satisfied that the accused poses such a risk, then the accused receives an absolute discharge, meaning they are released without any restrictions. If the Review Board finds that the accused is a threat to the public, it can order that the accused:

  • be detained in a hospital; or
  • be allowed to live in the community if they follow certain conditions.

Except in rare circumstances, the Review Board reviews the disposition of each accused person every year to determine if the level of supervision and control are still appropriate. Once a person is absolutely discharged, their cases are no longer reviewed.

High-Risk NCR Accused

At any time before an NCR accused is absolutely discharged, a prosecutor may ask the Court to find that an NCR accused person poses an elevated risk to the public. If the Court does this, the NCR accused person is found to be a high-risk NCR accused person and the Review Board must order the accused be detained in the hospital. They may only be allowed to leave the hospital:

  • for medical reasons; or
  • because their treatment requires it and only with an escort and a plan to ensure there is no risk to public safety.

The Court can decide that an accused is high-risk if:

  1. he or she committed a serious personal injury offence when they were 18 years old or older and is very likely to use violence that could endanger another person; or
  2. the original offence was of such a brutal nature to show that there is a risk of grave harm to another person.

Only the Court can make and remove this designation.

Victims of accused persons found Unfit to Stand Trial or Not Criminally Responsible

Victims can ask to be told about the hearings of a Review Board. Victims can also attend Review Board hearings (unless the Review Board decides to close a hearing to the public). When making a disposition, the Court and Review Board must consider whether the accused should be ordered:

  • not to contact any victim (or other person), directly or indirectly; or
  • not to go to a specific place (such as near a victim's workplace).

These conditions can cover all kinds of contact, from letters, text, and email messages to phone calls from, or on behalf of, the accused. If the accused violates a condition, victims should contact the police.

Hearings usually take place at a hospital, a Review Board office or a courthouse.

Victim Impact Statement

Victims of NCR accused persons may submit a victim impact statement (VIS) to the Review Board. The VIS describes the harm or loss the victim suffered as a result of the offence. Victims will be allowed to read their statement aloud if they wish unless the Review Board believes that it would interfere with the proper administration of justice. Victims may file a VIS at each hearing, and the Review Board will consider it.

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