If you are not in custody pending your trial, you will sit at the counsel table opposite the Crown’s table.

If you are in custody, you will have to ask the judge to sit at the counsel table. The judge will decide whether you will be permitted to sit at counsel table during the trial or whether you must stay in the prisoner’s box.

You are encouraged to take notes of the trial proceedings.

If at any time you have difficulty hearing or seeing any of the proceedings, advise the trial judge immediately. This includes anything that is said, shown or described during the trial proceedings.

At the commencement of the trial, the trial judge will provide preliminary instructions to the jury. It is very important that you pay very close attention to what the trial judge says to the jury as it will review some of the procedure and law that applies generally to jury trials and to your trial.

When a trial begins, quite often one side or the other asks the trial judge to make an order that any person who is going to be a witness remain outside the courtroom until it is their turn to give evidence. When requested, this order is usually granted. Sometimes, an exception may be made for a person such as the officer in charge to assist the Crown. You may ask for an exemption for someone you want in the courtroom, but you will have to explain why they need to remain in the courtroom during the evidence before they testify.

After the trial judge has completed the preliminary instructions to the jury, the trial judge will ask the Crown to explain the background to these charges and the evidence that the Crown hopes to call. This is called an opening statement.

What the Crown says in their opening statement is not evidence. You must not interrupt the Crown’s opening statement even if you disagree with some parts of it. You can raise any concerns about the Crown’s opening statement with the trial judge after the Crown has completed the opening statement and the jury has been excused.

After the Crown’s opening statement, the Crown will call witnesses to give evidence, some of whom may produce documents or objects that may be marked as exhibits.

The Crown will examine each of their witnesses. In general, the Crown is not allowed to ask leading questions to their witnesses. A leading question is a question that suggests its own answer, like “you have a blue car, don’t you?” A non-leading question would be something like “what colour is your car?”

Once the Crown has finished the examination of a witness, you may cross-examine that witness. During cross-examination, you are allowed to ask leading and non-leading questions. You don’t have to cross-examine a witness if you don’t want to.

The purpose of cross-examination is to challenge what the witness has said, to ask about details that the witness has forgotten or didn’t mention, and to raise doubts about what the witness said under the Crown’s examination. This challenges the credibility and reliability of a witness’ evidence. You may also use cross-examination to get the witness to admit facts that are favourable to your case. You can put your defence or your intended evidence to the Crown’s witness in the form of a question.

The witness’ answers are evidence, and either side may use that evidence if they wish, not just the side who asked the question. Therefore, you should consider, before asking a question, whether the answer to your question could hurt your position.

Cross-examination is not the time to make a speech or argue with a witness. You cannot give evidence or argue your case while you are cross-examining a witness.

During your cross-examination of the Crown’s witnesses, you may want to pay special attention to things like:

• The witness’ attitude and behaviour in the witness box;
• The witness’ ability to see or hear the things about which he or she testified;
• The witness’ ability to give an accurate account of what he or she 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 seemed to answer questions in an honest and candid manner, or whether the witness seemed to be argumentative or tried to avoid answering questions;
• Whether the witness’ evidence was neutral and unbiased, or whether it was slanted in favour of one side or the other; and
• Whether the witness said something different on an earlier occasion.

You should know that if you or one of your witnesses is going to say something different than a Crown witness you should cross-examine the Crown’s witness on your version of events. If you fail to do so, it may make your suggested version of the events less compelling because the witness was not given a chance to provide their explanation of the events. But remember, your questions are not evidence for the jury to consider. Only the answers are evidence that the jury or the trial judge can consider.

After you have finished cross-examining the witness, the Crown will have an opportunity to ask further questions as a re-examination, but only about things that were not part of the Crown’s first examination and that came out of your cross-examination.

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

If you make an objection, the trial judge will listen to your reasons why the question was improper or why the evidence should not be admitted. The trial judge will then ask the Crown to explain why the question was proper or why the evidence should be admitted. The trial judge will decide the admissibility of the question, or the evidence, and the trial will continue. Sometimes, the witness is excused while the Crown and you provide the trial judge with your reasons for the objection.

When objections are made in a jury trial the trial judge may excuse the jury while submissions are made. This is done so that the jury is not influenced by hearing evidence that may not be admissible in the trial.

Once the trial judge has made a decision, it is final, and you must accept it. You have the right to appeal the decision at the end of the case.

Documents and objects that are admissible as evidence are often entered as exhibits during the trial. As documents or objects are marked as “exhibits”, they will be given a number by the Court Registrar who is responsible for keeping track of all exhibits. If you request them, you will be given copies of all documents that are made exhibits and an exhibit list, which will be updated as the trial proceeds. The objects may be looked at but must remain in the possession and control of the Registrar.

In very general terms, a document or an object is admissible if it is relevant to the case and is properly proven by whoever wants to admit it or on agreement between you and Crown counsel.

Ordinarily, any document or object you or Crown counsel want to enter into evidence must be identified by a witness. For example, if a picture is to be introduced into evidence a witness must be able to identify what is in the picture and testify that the picture is accurate.

Again, if you object to documents or objects presented by a Crown witness, you must stand and advise the trial judge that you have an objection. Similarly, the Crown may object to the admissibility of some or all of your documents or objects.

If there are documents or objects that you wish to present as evidence either through a Crown witness or as part of your case, you should bring the original document or the object with you to the trial.

If you and the Crown agree on certain facts, then you can advise the Court about this agreement and no evidence will be required to prove those facts. The agreed upon facts will form part of the evidence.

At the end of the Crown’s case, you may ask the trial judge to decide that you should be acquitted of some or all the charges on the basis that the Crown failed to introduce any evidence upon which a reasonable jury, properly instructed, could find you guilty. This is called a directed verdict of acquittal.

If you ask the trial judge for a directed verdict of acquittal, the trial judge will ask you to explain why an acquittal should be directed. The trial judge will then ask the Crown to respond to your motion. The trial judge will then make a decision.

If the trial judge directs an acquittal, the trial judge will withdraw some or all the charges from the jury or dismiss the charges if the trial is a judge alone trial.

If the trial judge decides not to direct an 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.

Once the Crown has completed calling its evidence and any motion for a directed verdict has been heard (if dismissed), you have the following options:

• You have the right to call no defense or call any evidence. For example, you may decide that it is in your best interests not to call any witnesses because no other evidence exists which is favorable to your case or because you believe the Crown has not proven the offences beyond a reasonable doubt; or
• You may decide to call witnesses, including yourself, as part of your case.

Following the Crown’s completion of calling its evidence, if you decide to testify or call evidence, you may give an opening statement. Your opening statement should outline the evidence that your witnesses will give. You are not required to give an opening statement, but you can if you wish.

Before making this decision, you should remember three things:

1. Anything you tell the jury in your opening statement is not evidence and cannot be treated as evidence by the jury or by the trial judge in a judge alone trial.
2. You are not obliged to reveal your defence before you start to call your witnesses.
3. You are not obliged to identify your witnesses before you begin to call them.

You have the right to remain silent. The onus is on the Crown to prove each of the essential elements of the charges beyond a reasonable doubt.

If you do not testify or call other evidence, neither the Crown nor the trial judge may mention your decision not to testify in addressing the jury. Similarly, the jury cannot be asked to draw a negative conclusion based on your decision not to call a defence. In a judge alone trial, the trial judge also cannot draw any negative conclusions from your decision.

Whether in a jury trial or judge alone trial, if you do not testify or call witnesses, then the verdict will be based on the evidence introduced by the Crown alone.

If you testify, you may wish to be your first witness. While not required as a matter of law, by doing so you avoid any suggestion by Crown counsel that you waited until you heard what other witnesses said before deciding what your evidence would be.

If you decide to testify you will be asked to affirm or take an oath that you will tell the truth, and then you will give your statement of the facts regarding what happened in this case. You cannot use this time to make arguments. Because you are representing yourself, no one will be asking you questions during your examination-in-chief. You must rely on your memory rather than reading a prepared statement of evidence. However, you may prepare an outline or a chronology to assist you while you are in the witness box, to ensure that you cover all the points you wish to cover in your evidence. You will need to ask the trial judge for permission to use such a document. The Crown counsel and the trial judge will review any document you wish to use to assist you in testifying and the trial judge will decide if you will be permitted to use the document to help you testify. If you need to look at any other document to remember details, you must also first ask the trial judge for permission to do so.

If there are any documents you wish to make exhibits, you will need to identify the document(s) during your testimony and ask that the document(s) be marked as an exhibit.

When you are done, you will be cross-examined by the Crown.

If you have a criminal record, you may not want the jury to know about any of your prior convictions. Before you testify, you can ask the trial judge to order that the Crown not cross-examine you about all or part of your criminal record. The trial judge will hear from you and the Crown and decide whether your criminal record can be referred to and/or to what extent it can. After the trial judges decides on this issue, you will be asked whether you would like to testify.

Once your evidence as a witness has been completed, you can no longer give evidence unless you request an opportunity to give further evidence and the trial judge permits you to do so. Otherwise, you will be restricted to making submissions based on the evidence presented at trial.

You may also call anyone as a witness that has relevant information to give that will help your case or challenge the Crown’s case.

You can ask anyone to come to court and give evidence in your defence. But you should realize that witnesses frequently have other commitments during the day. You should plan their attendance well in advance.

Remind your witnesses to bring with them any documents or other exhibits they have relating to your case, especially if you plan on entering the exhibit into evidence when your witness testifies.

If an order excluding witnesses has been made in this trial, your witnesses must remain outside of the courtroom until it is their time to testify. You cannot tell them what was said in court in their absence. You should also tell each of your witnesses that they should not discuss their evidence with your other witnesses who have yet to testify.

When it is time for your witness to testify, he or she will go into the witness box and take an oath or affirm to tell the truth.

You will examine your witness first. You cannot ask your witnesses leading questions. The Crown is entitled to cross-examine each of your witnesses. You can then ask more questions of each witness as a re-examination, but only about things that weren’t part of your first examination and new matters that arose because of the Crown’s cross-examination.

Whenever you ask a witness a question, you should allow the witness to finish their answer before asking the next question. A recording is made of everything that is said during the trial. If two people talk at the same time, it makes it very difficult to understand who said what on the recording.

If you are concerned that any of your witnesses will not attend Court, you should arrange a subpoena, which is a formal summons to Court to testify. The procedure is outlined in sections 698 and 699 of the Criminal Code. You will need to fill out Form 16. Be sure to include a reference that the witnesses bring any documents you wish the witness to have during their evidence.

Once you complete the form, you will need to take it to the Trial Coordinator’s Office, to have it sworn before a local Registrar. You must then “serve” the subpoena on the witness by arranging to have a copy of the subpoena given to the witness by one of the methods set out in the subpoena form. You should do this well in advance of your trial so that the witness has ample time to make arrangements to be present when needed. The trial judge is not likely to delay your trial if you failed to subpoena your witnesses in time unless there are exceptional circumstances.

If a witness fails to attend at trial or to remain in attendance in accordance with the requirement of a subpoena, they could be arrested once a warrant is issued by the Court. You will have to prove to the judge that the witness was properly summonsed and should ensure that you have such proof available if necessary.

If you have reason to believe that a witness who has been served with a subpoena will not attend Court when required to do so, you should raise the matter with the trial judge as soon as possible.

If a witness is out of province, you can require him or her to come to court by issuing a summons. You should advise the pre-trial judge that you intend to summons an out of province witnesses and ask the trial judge for more information on the procedure. You may also inquire, with the judge, on the possibility of the witness providing their testimony remotely over a video link.

The trial judge also has the right to ask questions of any witness, whether called by the Crown or the Defence. The trial judge will usually only do so to clarify things that the witness has said.

If you decide to call witnesses, after you are finished calling your witnesses, the Crown may ask more persons to give evidence to address the things that your witnesses have said. This is called reply evidence. Such evidence is strictly limited to replying to what was raised by you and may not include evidence that should have initially been part of the Crown’s case. If you are concerned that the Crown’s proposed evidence should have been introduced as part of the Crown’s case and is not proper reply evidence, then you can object to the introduction of this evidence.

If the Crown is permitted to call reply evidence, the Crown will examine each of their witnesses. You may then cross-examine them and, when you’re done, the Crown may re-examine them.

At the end of a jury trial, the trial judge will provide final instructions to the jury which will review the evidence heard during the trial and explain the law that relates to the evidence. The trial judge will ask you, while the jury is out of the courtroom, about the things you want to be included in the final instructions.

The trial judge may provide you with a draft copy of the final instructions. You should review it carefully as it provides you with what the trial judge considers to be the appropriate legal instructions to the jury. If you disagree with anything included in the draft final instructions or believe that other matters should be included, it is important for you to tell the trial judge at this conference.

The trial judge may also provide you with a draft summary of the evidence. You should review the summary of the evidence very carefully. While it is the trial judge’s summary of the evidence, if there are any mistakes as to the trial judge’s recollection of the evidence, you should raise any areas you think the trial judge may have made a mistake.

At the end of the trial, Crown counsel and you may make submissions to the trial judge in a judge alone trial or as part of your closing address to the jury in a jury trial.

Submissions are your observations and comments about the Crown’s case and your case. Submissions may also include argument about legal issues. You can refer to the evidence that has been given, including the exhibits, when you make your submissions, but you cannot give any evidence when you are making submissions. The time for providing evidence is over.

The purpose of your address to the jury, in a judge and trial, is to outline your defence, to review the evidence that supports your defence, and to point out the weaknesses in the evidence led by the Crown. You must not refer to anything that has not been presented as evidence in court. Accuracy with respect to the evidence is very important.

If there are any erroneous references to the evidence, by either you or the Crown in the closing addresses, the trial judge might address the jury and correct the error(s). You should try to avoid this situation by being careful and accurate with your references to the evidence.

You may also raise any questions or concerns you have regarding what the Crown has said in its closing address as incorrectly referring to evidence, being improper or not permitted by law.

If, during the trial, you testified or asked any other witnesses to testify, you will give your address to the jury first. If you did not call any defence evidence, the Crown will go first, and you will address the jury last.

The trial judge will give the final instructions to the jury after you and the Crown have finished your addresses to the jury. During the trial judge’s final jury instructions, the trial judge will tell the jury about the law it must apply and review some of, but not all, the evidence.

The jury will then leave the courtroom to consider the evidence and the law and make its decision.

You must not interrupt the trial judge’s charge/final instructions to the jury. The trial judge will give you an opportunity, after the jury has left, to object to anything that was said in the final jury instructions. If the trial judge agrees with any of your objections, or those that the Crown might have, the trial judge will recall the jury and clarify the final jury instructions.

The jury’s job is to determine the facts and then, based on the trial judge’s explanation of the law, decide whether the Crown has proven you guilty beyond a reasonable doubt of the offences.

The jury must be unanimous in deciding that you are guilty or not guilty of each charge. If the jury cannot reach a unanimous decision on any charge, the trial judge will have to declare a mistrial on that count and there may be a new trial on that charge at some future time.

Character evidence is evidence about your personal characteristics, psychological state or background which would tend to show a likelihood of behaving (or not) in a particular manner.

If you introduce evidence that you did not commit the offence, that is not character evidence. However, if you suggest that you are not the type of person who would commit the offence that is character evidence.

You may introduce evidence regarding your good character. However, if you do so, this will permit the Crown to introduce evidence to confront your good character evidence and call evidence of your bad character, such as your criminal record.

If you do not place your character in issue, the Crown may not lead evidence about your bad character or, should you testify, cross-examine you about your bad character.

If you cross-examine a Crown witness suggesting you are a person of good character, this may also put your character in issue and permit the Crown to lead evidence of bad character or cross-examine you on your bad character should you testify. The Crown can also bring an application to lead character evidence as part of their case.

The court is generally open to the public. In some very limited situations, the public can be excluded from the courtroom. More frequently in some cases, the court can be requested to ban the publication of certain information such as the names of the accused, complainant, or witnesses.

If this applies to your case, you may raise the issue with the trial judge and the trial judge will provide you with more information on this issue.

A voir dire is a trial within a trial. It is a hearing held, without the presence of the jury, to determine whether an issue of fact or law will be admissible. For example, a voir dire will be required when the Crown seeks to use a statement that you made to the police or evidence the police seized during its investigation. Most of the time a voir dire will be heard before the actual trial starts.

The Crown or you may call witnesses on the voir dire, but the evidence of those witnesses is not evidence at the trial. You may cross-examine any witness the Crown calls and in turn, they may be re-examined by the Crown. During the voir dire you will be able to call witnesses or testify yourself. If you do testify or call witnesses, you and your witnesses will be subject to cross-examination by the Crown.

You should be aware that, if you testify on a voir dire, and eventually decide to testify at the trial, you may be cross-examined on your evidence at the voir dire, if it is different from the evidence you give at the trial.

After hearing all the evidence during the voir dire, the trial judge will make a decision about whether the evidence is admissible in the trial. The trial judge will then ask the jury to come back in and the trial will continue.

The only evidence a witness can give is about the things he or she personally saw, heard or did. If a witness tries to give evidence about what someone else saw or heard, that evidence is normally not admitted. This is called hearsay. Hearsay also includes what someone else has said in a document unless that person is in court and can confirm what he or she wrote.

There are some special circumstances when hearsay evidence can be admitted. For example, any statements you may have made to a witness, that witness can testify that you made those statements. Another example are business records, like bank statements and income tax returns, which can also be admitted by certain witnesses.

Hearsay evidence can also be admitted if the trial judge decides that the evidence is necessary and reliable. “Necessary” often means that the person who saw, heard or did the thing is not available to the court. “Reliable” means that the hearsay evidence can be trusted because of the circumstances in which it was made. For example, the statement may have been video-taped or made under oath.

Hearsay evidence of what someone else told a witness may also be admissible from the witness who heard the statement to prove that the statement was made by the person, but not for the truth of the statement. For example, if a witness at trial heard someone else say that they were going to hurt the accused person, that evidence could be admissible solely for the purpose of proving that this statement was made. This could be important if, for example, you take the position that you heard this statement and as a result certain things happened or were done because the statement was made.

If there is hearsay evidence that you wish to lead, you should alert the trial judge so that the trial judge can decide as to whether it will be admissible.

The Crown may ask to admit a statement that you made to the police. The Crown must satisfy the trial judge, beyond a reasonable doubt, that the statement was made by you and that you made it voluntarily. This is dealt with by way of a pre-trial application.

“Voluntary” means that the police did not threaten you into making the statement or promise that things would go better if you made the statement. The Crown must prove that you knew what you were saying when you made the statement and made the statement of your own free will because that is what you wanted to do.

The Court will hold a voir dire to talk about the statement and whether it should be allowed into evidence. For example, you may wish to ask questions about whether the police told you of your right to speak to a lawyer and the availability of legal aid counsel to establish that the police breached your Charter rights before asking you questions.

The witnesses called by the Crown often have given statements to the police and/or testified at the preliminary hearing. You can use these statements and any transcripts when you cross-examine a witness who made a statement.

If the witness said something different in their earlier statement than what their evidence is at trial, you can cross-examine the witness about their earlier statement. If the witness said something favourable about your case in an earlier statement, you can ask about that as well.

To refer to these earlier statements, first you must ask them if they recall providing the earlier statement, then you can read the earlier statement to the witness, ask if they recall saying it, and then ask if it was true. If the witness cannot remember the question or the answer, a special procedure applies, and the trial judge will provide you with information about this procedure to admit the earlier statement if necessary.

If the witness says it was true, the earlier statement will be assumed to be true.

If the witness says it is not true, the earlier statement may be used only to suggest the lack of truthfulness and believability of the witness (i.e., the fact that the witness has said two different things). This is called impeaching a witness.

You may call experts to testify in your trial if the judge rules the evidence is admissible. Usually, experts are called to testify about technical, scientific, medical and psychological matters. An expert’s evidence is needed to understand matters that are outside of common knowledge.

An expert witness, unlike an ordinary witness, is allowed to give their opinion, provided it is within their established expertise. Experts cannot offer opinions outside of their area of expertise.

There are four points that must be met for the introduction of expert evidence:

1. it must be relevant;
2. it must be necessary to assist the jury/trial judge;
3. it cannot go against an exclusionary rule; and
4. the expert must be properly qualified.

If there is an issue whether the expert is permitted to testify, the trial judge will consider whether expert evidence should be permitted in the absence of the jury and make a decision.

A Crown expert cannot testify at trial unless the person calling the expert has served the other person with a report signed by the expert in advance of trial in accordance with the provisions of the Criminal Code. A Defence expert report must be served at the end of the Crown’s case and before you call any evidence.

The report should set out the expert’s name, address, qualifications and describe what the expert will say at trial. The report must state the expert’s findings, opinions, and conclusions, as well as the documents, calculations and data they used in reaching their opinions or conclusions.

An expert may be examined and cross-examined at trial about the factual basis for their opinions, including any discussions between the expert and the person who hired the expert.

While the entire proceeding will be recorded, there will not be daily transcripts available for you to review. If you want to order transcripts of the trial proceeding, speak to the Court Reporter when the court is recessed and obtain information for ordering the transcripts.