What will happen at my trial

You sit in the public seating at the back of the courtroom, along with any witnesses that you bring. The prosecutor calls your name. You stand and go to the accused’s table (see Who are the people in court?). You introduce yourself to the court.

The judge asks you if you’re ready to begin the trial. You stand and say, ​“Yes, Your Honour.” The judge asks the prosecutor the same question. If you’re both ready, the trial begins. You can sit down.

Sometimes the prosecutor isn’t ready to start the trial. For example, maybe a key Crown witness didn’t come to court. The prosecutor may ask the judge to adjourn the trial. If this happens, you shouldn’t agree to an adjournment. Instead, ask the judge to dismiss the charges. The judge may or may not agree with you.

The prosecutor usually reminds the judge to make an exclusion of witness order. This means that all of the witnesses wait outside the courtroom. This is to make sure that witnesses won’t hear what other witnesses say (and maybe change their own story, even without realizing).

Tell your witnesses ahead of time about the exclusion order so that they’ll know what to expect. If you decide to testify as your own witness, the exclusion order doesn’t apply to you. As the accused, you have the right to remain in the courtroom to hear all the evidence.

If the prosecutor doesn’t ask for the exclusion order, you can ask for one by saying, ​“Your Honour, I ask for an exclusion order.” It’s usually a good idea to do this.

The prosecutor presents the Crown’s case. You may cross-examine each witness called by the prosecutor.

To convince the judge that you’re guilty, the prosecutor must prove that:

• you’re the person charged,
• you committed the offence,
• you intended to do it, and
• the offence took place within the court’s jurisdiction.

Remember that the prosecutor is counting on the evidence of the Crown’s witnesses to try to prove that you’re guilty.

The prosecutor might also use written evidence, such as a breathalyzer test certificate, a drug analysis certificate, or other documents. Before your trial, ask a lawyer if you can expect this kind of evidence and what, if anything, you should do about it.

Each witness for the prosecutor stands in the witness box and swears or affirms to tell the truth. Then the prosecutor asks them questions. Often, the main Crown witnesses are the complainant (the ​“victim”) and the police officer who handled the investigation.

Write down the main points each witness makes. Note anything that you want to question later when you get to ask the witness questions. 

Sometimes, the police don’t follow the rules and end up violating your Charter rights. For example, they might have taken your statement or collected a breath sample before they let you talk to a lawyer. Or they might have searched you without a legal reason to do so, or searched your house without a warrant. If this happened, you can object to the evidence that the police collected because they violated your rights.

The judge may decide to hold a mini-trial within the trial to deal with the issue. This is called a ​“voir-dire.” You may need to call witnesses or testify yourself at the voir-dire. It’s important to talk to a lawyer before the trial if you plan to say your Charter rights were violated, because you need to tell the prosecutor about it ahead of time. If the judge excludes (throws out) the evidence at the voir-dire, it’s as though the witness didn’t testify and the evidence doesn’t exist. No one can refer to the evidence.

As each Crown witness finishes giving evidence, you have a chance to ask them questions (cross-examine).

Whether you should cross-examine each witness depends on what evidence the witness gives when questioned by the prosecutor. You don’t have to cross-examine the Crown’s witnesses. In fact, if you agree with the witness, it’s best not to cross-examine. But if you think it’s going to help your case, you can cross-examine any Crown witness.

Here are some examples of when you might want to cross-examine a witness:

• If the witness said something you don’t agree with.
• If the witness didn’t mention something that you know would help your case.
• If the witness gave a different version of the events in a statement to a police officer or any other person.
• If you think the witness wasn’t sure of the facts or that the evidence given was weak.
• If you think the witness may have made a mistake.
• If the witness said things that are different from the information you have in the disclosure.

There are some important things to remember when you cross-examine:
• Think carefully about the questions you’ll ask. Make sure they’re related to what you’re charged with.
• Don’t argue — losing your temper or being rude to a witness won’t help your case.
• Tell your version of what happened to a witness who contradicts your version.

When you cross-examine a witness, how you word your questions is very important. When the prosecutor questions their own witness, the question can’t suggest what kind of answer the prosecutor would like. For example, the prosecutor must say, ​“At what time did you see the offence occur?” and not ​“You saw the offence take place at 9 a.m., didn’t you?” This is called a leading question and you can object if the Crown prosecutor uses one.

However, when you cross-examine them, you can express your question to try to get the answer you want. For example, you could say, ​“It was dark at 10 p.m. on August 19, wasn’t it?” Leading questions are allowed in cross-examination.

But be careful to use cross-examination only to point out weak spots. You don’t want to get witnesses to repeat evidence that hurts your case, that they’re sure of. 

In some cases, the judge won’t allow an accused to cross-examine a witness who is the alleged victim. If this happens, the court will appoint a lawyer to cross-examine that witness at no financial cost to you, the accused. 

The disclosure tells you the basic facts that the prosecutor will use in court. Think about the offence you’re charged with. Who was there? What could each person see or hear?

Review the prosecutor’s list of witnesses or make a list of possible witnesses and write down what they each saw and did at the time of the offence. Don’t forget police officers. If they were involved, the prosecutor will certainly use them as Crown witnesses.

Think about what each witness could say about the offence and make notes. Now think of questions that you can ask to point out any weak areas in the evidence. Be careful. Lawyers often say that asking too many questions in cross-examination is dangerous.

You may ask the Crown prosecutor to provide the criminal record of a Crown witness if it’s relevant to your defence (for example, if it relates to their lack of credibility as a witness). Make sure to do this before your trial.

The prosecutor must try to prove to the judge that you’re guilty beyond a reasonable doubt. If the judge has a reasonable doubt, you’ll be found not guilty. You want to ask cross-examination questions that make the judge doubt the prosecutor’s witnesses.

Remember: When you cross-examine the Crown witnesses, you can ask leading questions that suggest the answer you want.

So far in the trial, the judge has heard the prosecutor’s side, and you’ve had a chance to cross-examine the Crown witnesses. Now you present the defence case with your own witnesses if you have them, any documents you have, and with your own testimony, if you want to. (You’re now called ​“the defence.”). You don’t have to testify as your own witness and give evidence; ask a lawyer whether you should do this. 
A document usually has to be presented to court by a witness to confirm that it’s real. When you finish presenting your defence, the prosecutor has a chance to cross-examine your witnesses.

You may be able to use information from the Defending Yourself series to help you prepare your defence.

You have to decide whether to testify. You should make this decision with the help of a lawyer before the trial. Remember that you have a right to remain silent and can’t be made to testify — it’s up to the prosecutor to try to prove that you’re guilty. If the case against you isn’t strong, there may be no need for you to give evidence. Remember that if you decide to testify as your own witness, you must speak under oath. This means you must tell the truth; lying in court is a criminal offence. Make sure you discuss this with a lawyer because sometimes testifying can hurt your case.

• It’s your only chance to explain what happened. You may be the only witness who saw what happened.
• You may have seen something no one else saw or could see.
• You may know facts no one else knows.
• You can explain why you said or did something.
• You can show that you couldn’t have committed the offence you’re charged with. (This is called ​“alibi” evidence. You must tell Crown counsel about this evidence before your trial. If you plan to give alibi evidence at your trial, speak to a lawyer first.)
• What you say happened may be totally different from the version of events that the prosecutor’s witnesses tell.

• The prosecutor can cross-examine you.
• The prosecutor will point out any weak spots in your evidence.
• If you have a criminal record, the prosecutor can ask you questions about it. (If you don’t testify, the prosecutor can’t ask you if you have a criminal record or mention it during the trial.)
• The prosecutor may ask you about things you don’t want to talk about, and you’ll have to answer.

Get legal advice about testifying, especially if you have a criminal record.

You may want to call your own witnesses. If you do, you must question them without leading questions, which means your questions can’t suggest that you want a particular answer (see also Can I question the Crown’s witnesses? above). For example, you can ask, ​“Were you with anyone on the night of August 19?” but you can’t ask, ​“We were together on August 19, weren’t we?” You can ask, ​“How fast was I driving?” but not, ​“I wasn’t driving over 50 kilometres per hour, was I?”

The prosecutor can cross-examine each witness after you’ve finished your questions. The prosecutor will try to show weak spots or points that your witnesses aren’t sure of, just as you did with the Crown witnesses.

Before the trial date, talk to your witnesses separately about what happened and what you’ll ask in court. Explain that while under oath, they must answer your questions truthfully and that you can’t suggest what they should say.

Your witness must have actually seen or heard what happened. A witness can’t just say what other people said. The court is interested only in facts, not the beliefs or opinions of the witness. A witness must have witnessed something and be prepared to give evidence, under oath, in court.

Remember: You can’t ask your own witnesses leading questions. Each witness must give their own version of what happened, and this shouldn’t be memorized.

If you have any doubt that your witnesses will show up on the trial day, you have the right to order them to come to court. Go to the sheriff’s office at the courthouse at least three weeks before the trial. Ask for subpoenas to give to your witnesses. A subpoena orders them to come to court at a specific time on the date of your trial. Many employers require their employees to have a subpoena before they’re allowed to leave work to go to court.

Tell your witnesses that they’ll be cross-examined by the prosecutor. Warn them that the prosecutor may confuse them or make them angry. Make sure they understand that this isn’t personal, and that they should just stay calm, take their time, and answer truthfully. Remember to tell your witnesses that they’ll be asked to leave the courtroom while the evidence of other witnesses is heard (see 3. Judge makes an exclusion order above).

Make a list of your defence witnesses (just as you did for the Crown witnesses). What does each of your witnesses know? What can each of them tell the judge? Plan how to ask your questions. (Remember that you can’t suggest the answers that you want to hear.)

Remember that the victim or ​“complainant” can’t be your witness. But you or a court-appointed lawyer can cross-examine them after they testify. There’s usually a court order that you can’t communicate with the victim before the trial. If there’s an order and you do contact them, you’ll likely be arrested and charged with breach of bail.

Yes, you can use original documents as evidence. They should be common items such as government documents or business receipts. You may want to use a birth certificate, for example, or a receipt from a restaurant or store if a witness introduces the document. Ask a lawyer what written evidence might be useful and how you can use it in court. For some documents, you’ll need a witness to testify that it’s real before the court will accept it.

When you’ve finished your case, both you and the prosecutor have a chance to say some final things to the judge (submissions). This is where you argue why you should be acquitted.
As the defence, if you decided to call witnesses (or use any documents) in your case, you’ll give your submission first. If not, the Crown prosecutor will go first.

Here’s what you need to do in your submission:

• Sum up all the points in your favour.
• Keep it brief.
• Don’t bring up any new information. You can only speak about the evidence that was presented in court.
• Point out the weaknesses in the prosecutor’s case, or if they failed to prove any of the required elements of the offence (see Checklist: At your trial — When the Crown presents its case). Remind the judge of any evidence the Crown witnesses seemed unsure about. Remind the judge if the Crown witnesses didn’t agree with each other or contradicted themselves.
• Tell the judge why what your own witnesses said was more believable.

This is your last chance to show that the prosecutor hasn’t proven that you’re guilty beyond a reasonable doubt.

The prosecutor then makes their submission. They’ll try to show the judge that you’re guilty beyond a reasonable doubt.

When you prepare your submission, think about what you’ll tell the judge to show that you’re not guilty. Write down the main points that you want to talk about in your submission. In court, remember to add any points that come up during the prosecutor’s case.

The judge considers all the evidence presented by both sides and then decides if you’re guilty or not guilty. Sometimes the court adjourns for a few minutes or days before the judge gives the decision.

• If the judge says that you’re not guilty, you’re free to go.
• If the judge says that you’re guilty, you’ve been convicted. The judge will then sentence you or adjourn the case to a later day to sentence you. This may happen if the Crown prosecutor, the judge, or you want a pre-sentence report. This report will provide more information about you, the accused.

You have the right to appeal your conviction. The appeal process has deadlines you have to meet, so speak to a lawyer immediately.

Before you’re sentenced, you have a chance to speak. This part of the trial is called speaking to sentence. You and the Crown prosecutor will speak about what each of you thinks the sentence should be. When you speak to sentence, you tell the court anything about yourself and the offence that might convince the judge to give you a lighter sentence. This should include background information about yourself, such as:

• how old you are,
• where you live,
• your work experience, and
• anything else that shows your good character.

It makes sense to prepare to speak to sentence in case the judge decides that you’re guilty. No matter how confident you are of winning your case, prepare what you would say if you were convicted and faced with sentencing.

If you’re found guilty, you may be sentenced right after the trial. Be sure to read Speaking to the Judge Before You’re Sentenced so that you’ll know what to say if your trial reaches this point.

If you’re convicted, you can ask for an adjournment to have the sentencing later that day or on another day. The judge doesn’t have to give you an adjournment — so be ready to speak to sentence on the day of your trial.

Don’t be discouraged, and don’t plead guilty just to avoid a trial. Preparing your own trial is a lot of work, but you can do it and it’s worth doing.