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By Senior Judge W. D. August
of the Provincial Court (Criminal Division) Judicial District of Peel
April 4th, 1981
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After accepting the honour of presenting this lecture, I immediately turned reminding you of the old adage - Stand up, Speak up and Shut up.
Most of what I have to say is applicable to summing up during a trial but is equally applicable to a preliminary hearing. However, because of the light onus placed on the Crown at a preliminary hearing to provide enough evidence to establish a prima facie case for committal; because any doubt a Judge has must be resolved in favour of the Crown; because credibility is not an issue; and because most Counsel often treat a preliminary hearing as a discovery, Judges usually are not concerned about final submissions from Counsel. There is the rare case when a Judge may call upon the Crown or the Defence to make submissions on the issue of whether the Crown has established a prima facie case.
Section 465. (1) (h) of the Criminal Code reads that a Justice may grant or refuse permission to the Prosecutor or his Counsel to address him in support of the charge, by way of opening or summing up or by way of reply upon any evidence that is given .on behalf of the accused.
Section 465. (1) (k) reads that a Justice may regulate the course of the inquiry in any way that appears to him to be desirable and that-is not inconsistent with this Act.
Upon reading sections 465. (1) (h) and (k) of the Criminal Code it would appear that a Judge may deny Defence Counsel the right to make final submissions during a preliminary hearing as he can with Counsel for the prosecution.
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It has been held that such a denial to an accused and his Counsel interferes with natural justice and any committal based on such a refusal will be quashed on review. (Regina v. Taillefer et al, 42 C.C.C. (2d) 282).
Summing up in a non-jury criminal trial is, generally speaking, similar to a summing up to a jury but there are such distinct differences that Counsel should approach and prepare differently for each summing up. Counsel's summing up to a jury is always secondary and subject to the Judge's charge, but in a non-jury trial the summing up is the culmination of Counsel's efforts to protect his client's rights. This is where the main difference lies.
In a jury summing up there may be some room for limited theatrical conduct by Counsel but such conduct should be avoided in a non-jury trial. Moderation in voice, in language, natural and appropriate gestures should be the hallmark of Counsel's conduct throughout a non-jury criminal trial.
In summing up you may have to say anything of importance to the jury at least three times but remember a Judge has the experience and knowledge which is absent in a jury, and when you have made your point with a Judge leave it alone and go onto something else.
Richard Harris, Q.C. in his book "Hints on Advocacy" (10th Edition) says, "That a summing up should not, like the end of a firecracker, be all bang nor like the finish of a rocket, all stars above one's head. What it should be is a common-sense and pleasant finish - attractive, impressive and as polished as may be. It should leave upon the mind of the Judge a pleasing recollection. It should be well constructed, appropriate and short".
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Since brevity appears so often as one of the guides for a proper summing up, I would like to comment on this topic. At the conclusion of some cases, it would be sufficient for Defence Counsel to say, "Your Honour, it's a very thin case" and then sit down convincingly victorious. In other cases it does not pay for Counsel to be too direct and concise, particularly if one is confronted with complex facts and issues. The case itself should dictate to Counsel how long the final argument, if any, will last and this right to sum up should not be exercised as a last unrehearsed attempt to say something because of the Judge's invitation to speak and for the purpose of impressing a client. Such conduct is clumsy and coarse at the best and if you, because of inadequate preparation, cannot reach the Judge with a carefully planned summation, whether it be short or lengthy, Counsel should rest upon the evidence and reserve his pathos for the wrath of his client.
Any Counsel who in the course of summing up makes his points clearly, concisely and gets a reputation for not wasting words and always being prepared, will find himself and his arguments very welcome before the Bench.
Generally speaking, a Judge in hearing a case is very anxious to do justice, they want everything to go smoothly and they do not wish to waste any time. You should prepare your summation within this framework so that you will guide the Judge to follow a path which you will paint, and if followed by the Judge will result in a successful conclusion for your client. Counsel should know the points he desires to make with complete and perfect thoroughness. Most cases are won or lost before ever Counsel goes into Court. It is the preliminary work and the mastery of the facts and the law that is of supreme importance and all of this must be brought into the service of persuasion - which must, beyond all other things, be orderly.
I am surprised that some Counsel commence a trial without having first looked at the Information or obtain a copy.
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After being retained, this is the first step in preparing for the final summation. Make a careful note as to what the Crown is required to prove - in other words, what are the elements of the offence. If there are exceptions to the charge, you must decide if the onus is on the Crown or the accused to prove these exceptions. If the onus is on the accused, does he only to have to raise a reasonable doubt or must he go further to discharge that burden upon him by a preponderance of evidence or a balance of probabilities.
Then you should consider from the nature of the charge, the witnesses the Crown will be calling and classify these witnesses into categories such as children, accomplices, spouses and independent witnesses. If corroboration is a requirement, you should carefully note this in your book.
During the course of a trial, visual and documentary evidence is often introduced by the Crown and the Defence. Often Defence Counsel has knowledge of these and other notices which have been served on the accused prior to trial, and preparation for argument on this evidence during the summing up can have an early start. If reference will be made to such documents, photographs, charts, etcetera during final argument, it is essential that Counsel obtain this evidence from the Court Clerk and place it in front of the Judge so that his attention is focused on the evidence as reference is made to it.
With all these matters in hand prior to commencing the trial, Counsel has sufficient information to lay an evidential and legal basis for argument during the final summation.
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To utilize any part of your summing up by summarizing or quoting y verbatim the evidence of each witness is an irksome exercise and a complete waste of valuable time. This may be necessary in a jury address, but is absolutely unnecessary in a non-jury trial. The Judge is making careful notes of all the evidence and at the end of the trial the Judge is alert as to what has been said by each witness. In your attack on evidential weakness in your opponent's case, Counsel is required to make reference to the evidence, but such reference will be to specific portions of a witness' evidence and any reference to any evidence must be accurate for inaccuracy by Counsel has a dire effect on Counsel's credibility.
Credibility of witnesses is a very common issue in the course of many criminal trials. Therefore, it is necessary for Counsel to deal with this issue in the final submissions. Rarely can Counsel prepare for it prior to trial and all preparation must be done by Counsel during the trial as the witnesses testify. The best preparation is to be aware of what the Judge is looking for as each witness testifies, and I refer you to White v. The King, 89 C.C.C. 148, wherein the Supreme Court of Canada sets out the many factors that go to the credibility of a witness.
As each witness testifies you should make notes as to their demeanor, their gestures, their composure and other pertinent observations you have made and heard, such as major inconsistencies but not minor or irrelevant inconsistencies in their evidence.
Minute criticism will often impair the force of the point you intend to make and will produce friction and retard instead of advancing your argument and, at times, will remind the Judge that minor inconsistencies in a witness' testimony proves his credibility because it adds the flavour of unrehearsed testimony.
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Counsel should always be cognizant of the fact that a Judge cannot act arbitrarily and reject uncontradicted testimony without stating reasons. (Regina v. Gunn Wing, (1930) I 53 C.C.C. 378). Set these reasons out for the Court and you may find success because the Judge adopts these reasons in rejecting certain evidence.
These are your tools to persuade a Judge in your final arguments to accept or reject the evidence of a witness, but under no circumstances should Counsel express a personal opinion as to the credibility of a witness.
Counsel should never use a summing up for the propogation of political views or personal opinions as to matters such as possible verdicts or what sort of a person the accused is. The Judge is not interested in opinions or what you think. The Court is only interested in what you submit based on the evidence and the law applicable to your case.
When attempting to persuade a Judge to place little or no weight on a witness' evidence, do not capriciously or without reason accuse the witness of committing perjury, nor should you assail the character of a witness. This type of denunciation is unfair to the witness and usually results in invoking the Judge's sympathy for the witness.
If perjury is suspected, Counsel has a responsibility both to his client and the Court to bring it out, because no one should be convicted or acquitted on perjured evidence. Once Counsel discovers it, he should denounce it sharply but with moderation during his final argument.
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Often, Counsel will cross-examine police officers regarding a confession they had obtained from the accused and suggest to the police witnesses that threats and physical violence had been used in order to elicit the confession, which allegations are denied by the police. But subsequently, the accused does not offer himself as a witness nor are any defence witnesses called regarding any such police misconduct.
First, this type of defence tactic will probably be subject to a scathing criticism by the Court and, secondly, Counsel should never continue this tactic during the final submissions to the Court (Rex. v. O'Neill and Ackers, (1950) 34 Cr. App. R. 108; Regina v. Bencardino and DeCarlo, 15 C.C.C. (2d) 342).
In quoting law, two of the worst addictions of some Counsel is that Counsel Quotes none or few cases with and without citations, while others quote a lengthy string of cases and quotations from supposedly relevant authorities all properly acknowledged hoping that the weight alone of these authorities will sufficiently impress the Judge to have the charge dismissed.
When you are quoting law make sure it is applicable to the evidence and the issues before the Court and you can only achieve this through careful preparation. Your research should inform you if a case you are quoting is under appeal or has been confirmed or reversed on appeal.
When you quote cases, it is advisable to have the case in front of you and if. you intend to read from the headnote make sure that the headnote is accurate, because you must remember that a headnote is one person's summarized interpretation of the case and the headnote carries no weight in itself. It is always better to quote the original words of the Judge from the case itself.
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It may not always be practicable for Counsel to obtain photocopies of cases being cited. However, if you are able to provide the Court with such copies I can assure you that this practice will be appreciated and is most helpful to the Judge.
If you intend to refer to cases set out in Martin's Annual Criminal Code, again you must satisfy yourself that the summary of the case as set out in Martin's is accurate.
Where you plan to argue a complex legal point, you should always give notice to your opponent of the area of your argument. Because a person's liberty is in issue, there is no room for surprises in a criminal trial, either on the Crown or the Defence side. Failure to give this notice will ( invariably cause your opponent to ask for an adjournment and in most cases such a request is not unreasonable, and an adjournment can only cost Counsel and his client unnecessary time and money. Further, the Judge may be looking favourably in your direction after hearing all the evidence. There is always the chance that this favouritism can evaporate after a lengthy adjournment.
Mr. Justice Schroeder in his lecture, Some Ethical Problems - in Criminal Law, 1963 Law Society of Upper Canada - Special Lectures "Arrest and Interrogation", had this to say about quoting law: "What about misrepresenting the law to the Court? It is an ethical obligation resting upon every advocate to take no undue advantage of the Court, and deliberate misrepresentation of the law can be just as serious in its consequences as a deliberate perversion of the facts. It is improper for Counsel to mislead or inveigle the Court into wrong judgments in order to gain a victory for the client in the particular cause.
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So much for deliberate misrepresentation of the law, but what if Counsel has found a previous decision which is unknown to his opponent and to the presiding Judge and which is adverse to the client's interest and not capable of distinction? This poses a question of genuine nicety, especially in a criminal case. The advocate who gives priority to his duty to the Court will win the Court's approbation and esteem, but he risks the loss of his client. It is a difficult decision to make. A distinguished member of the English Bar was once asked this question, 'What would you do if you were defending a man on a capital charge, and you were aware of a decision dead in point which has escaped the notice of counsel for the prosecution and of the Judge at the trial, but which, if disclosed, would inevitably put the rope 'round your client's neck?' Counsel, looking significantly at the questioner, answered only this, 'I would rather not be placed in such a position'. The better opinion is that it is Counsel's duty, when he knows of a previous decision which is adverse to his client's interest, to act in the interest of justice by bringing such a case to the attention of the Court and to make the best of the situation by attempting to distinguish it."
When quoting cases to the Court you should distinguish between those cases which the Court must follow, those cases which the Court is not bound to follow, and therefore Counsel should be prepared to persuade the Judge to consider those authorities not binding on the Court hoping that they will have a strong persuasive influence on the Court.
The principle of stare decisis should be well entrenched Counsel's mind when quoting authorities to the Court.
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Briefly, our Court is not bound to follow English or American decisions and the decisions of any Court in any other Province. All decisions of the Supreme Court of Canada and all the Courts that sit on appeal or review any decision of the Provincial Court in the Province of Ontario are binding on us.
If in the course of your preparation you find only one authority from another Judge of equal jurisdiction on a point of law which you will argue, and this authority is against you - remember that you may have difficulty in having the Judge overrule the decision of his brother Judge because Courts of equal jurisdiction should always follow their previous decisions. However, the law on this issue is not settled but unsettled. (Resina v. Kartna, Mr. Justice Hughes, S.C.O.. unreported June 14, 1979; Regina v. Groves, 37 C.C.C. (2d) 429; Regina v. Northern Electric Co. Ltd., (1955) 3 D.L.R. 449)
The only exception is that if a Judge disagrees with a previous decision made by another Judge of equal jurisdiction and the liberty of the subject is in issue, the Judge is not bound to follow the other decision (Regina v. McInnis (1974) 13 C.C.C. (2d) 471; Regina v. Govedarov (1974) 16 C.C.C. (2d) 238).
When making your submissions never fall into the trap of . turning your submissions into evidence. Some examples are:
1) "I should like to point out, Your Honour, that witness John Jones is not a reliable witness. He testified that it was raining at seven
p.m. on July the 20th. I remember that day very well and it was a sunny, warm day and it did not rain."
2) Counsel may wish to cross-examine a witness as to a statement the witness made to Counsel. If the witness denies making the
statement, Counsel is stuck with the denial and it is wrong for Counsel in his final submissions to contradict the denial on the
grounds that Counsel heard the witness make the statement and in this way attempt to persuade the Judge to place little weight on
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If Counsel wishes to give evidence to contradict a witness, Counsel is entitled to do so but many problems can arise. The Judge
may have to declare a mistrial or adjourn the trial so that the accused may get other legal counsel.
In Regina v. Baxter, 33 C.R.N.S. 22, the Ontario Court of Appeal stated that the evidence of Counsel would, in strict law, appear to be admissible, although the Courts discourage the practice of Counsel giving evidence.
Upon closing your case and during your summation, if Counsel finds himself in a situation wherein he is giving evidence as part of the submissions, Counsel should stop immediately and consider making an application to the Court to permit the accused to reopen his defence and call a witness or witnesses to substantiate the point Counsel is attempting to make in summing up. (Regina v. Stafford, 27 C.C.C. (2d) 520; Regina v. Lessard, 33 C.R.N.S. 16).
At the conclusion of all the evidence, a Judge's mind is often focused on some very obvious omission or procedure in the accused's defence which requires some comment from Defence Counsel during the summation, and without such comment appears extremely damaging to the accused's defence. Surprisingly, some Counsel merely close their eyes and hope that the Judge made no note of these omissions and procedures.
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I will deal with some of the more important or common omissions and procedures which Counsel must deal with in summing up.
Defence Counsel, on occasion, elects not to put the accused into the witness box during the trial and relies on section 4(5) of The Canada Evidence Act in his final submissions to the Court. This section protects an accused who does not testify and states that this Act shall not be made the subject of comment by the Judge or by the Crown Attorney.
However, decisions such as Regina v. Binder, 92 C.C.C. 20; Regina v. Bouchard, (1970) 5 C.C.C. 95 have held that this rule only applies to jury trials.
Even if trial is by jury, the Supreme Court of Canada in Vezeau v. The Queen, 28 C.C.C. (2d) 28, held that notwithstanding section 4(5) of The Canada Evidence Act, this subsection does not authorize a trial Judge to direct a jury that they cannot draw their own conclusion from the fact that the accused did not testify. It is open to the jury to draw an adverse inference.
In Regina v. Jarrett, 25 C.C.C. (2d) 24l, the Nova Scotia Court of Appeal acknowledged an accused's right to. remain silent and to rely upon the presumption of innocence and that the Crown had to prove his guilt beyond a reasonable doubt. At the trial the jury convicted the accused who did not testify. The Court of Appeal found that because there was sufficient evidence which inculpatated (sic) him, the Appeal Court may well consider the accused's failure to testify as a factor in disposing of the appeal.
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In Steinberg y. The King, (1931) 56 C.C.C. 9, the Supreme Court of Canada said: "The accused gave no evidence; and, while this cannot be commented upon to the jury, it is a factor which must be considered by the Appellate Court. His failure to testify does not prove his guilt, but when the Court is by the statute required to dismiss an appeal unless it is satisfied that there was a miscarriage of justice, the failure of the accused to explain in any way facts which place a very heavy onus upon him cannot be ignored".
The accused's right to silence is being whittled away and when Counsel makes the decision not to call the accused to testify he must keep these authorities in mind.
Defence Counsel can expect the Crown to comment on the accused's silence and to ask the Court to draw a conclusion unfavourable to the accused.
Having decided not to call your client and the Crown having commented on this act, how should this be dealt with in your summing up? This is a complex problem. Unless the Crown has failed to prove the case because of a technicality which requires no defence in reply, the Judge may question the fact why the accused did not testify and will be looking for reasons. As Counsel you will muster all your skills to persuade the Judge that the accused is not, because of guilt, hiding from the Judge and the Crown but that he did not take advantage of the opportunity, afforded him by law and go into the witness box because of valid reasons.
Mr. Arthur E. Maloney, Q.C. and Mr. Justice G.A. Martin at one time had opposite views on this complex problem. Mr. Maloney in an article "Addressing the Jury in Criminal Cases" Canadian Bar Review, Vol. 35, April 1957, favoured dealing directly with the accused's silence.
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Mr. Justice Martin in a lecture (1959 Special Lecture Series) favoured making no reference to this fact except if the Crown put in a statement made by the accused which contained his defence. Then Counsel can say that since the accused has given his explanation in his statement, there is nothing more he can say.
Either advertently or inadvertently, Counsel in calling the defence witnesses will call the accused as a witness after all the other defence witnesses have testified. A Judge may conclude that the accused chose to hear the evidence of other defence witnesses so that he can trim his evidence to fit the other evidence.
In England the general rule of practice in criminal cases is that the accused person gives evidence before the witnesses he proposes to call to testify.
Save and except when an accused calls alibi evidence (Regina v. Archer; (1972) 26 C.R.N.S. 225; Regina v. Sparre, 27 C.C.C. (2d) 495) the rule in Ontario is opposite and the Ontario Court of Appeal in Regina v. Angelantoni, 28 C.C.C. (2d) 179, held that a trial Judge in a criminal case can neither direct the calling of the accused nor the order in which the accused will testify and that it was an error to give such a direction. The British Columbia Court of Appeal in Regina v. Smuk, 3 C.C.C. (2d) 457, made a similar finding on the same issue but further held that the Court in-assessing the accused's credibility can include as one of the multiple considerations, the fact that the accused did not testify until after he had called all of his witnesses.
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Therefore, Counsel must during final argument give reasons why the accused was not called as the first witness and why the Judge should not use this fact against the accused in assessing the accused's credibility.
Often a Judge hears evidence that the accused at all relevant times was accompanied by another person. At the conclusion of all the evidence this person is not called as a defence witness and the absence of this witness weighs heavily against the accused. The accused is under no obligation to call any witnesses but if he fails to call a particular witness who, in the mind of the Judge, should have testified, the Judge is entitled to take this into account. (Regina v. Bryant and Dickson, (1946) 31 Cr. App. R. 146). There may be valid reasons why the witness was absent and it is therefore essential to explain these reasons when Counsel presents final argument. If it appears to Counsel that the Judge is not impressed with these reasons and that he may find against the accused because of the absence of a witness, I suggest that you make application to reopen the defence to allow you to call the witness.
It is always a difficult decision for Counsel when considering if an accused or witness with a criminal record should testify. If such an accused or witness is called upon to testify, Counsel must be prepared to deal with the adverse appearance your opponent will inevitably cast upon the witness in the final submissions. Counsel should review and prepare to quote the numerous cases which have held that proof of previous convictions, either by admission or by contradiction, is not proof that the accused committed the offence with which he is being tried, and that it only goes to the accused's credibility and be prepared to make submissions based on this law. (Regina v. Fuchtor (1946) 185 C.C.C. 283; Regina v. Bodnarchuk, (1949) 94 C.C.C. 279; Regina v. Gaich, (1956) 116 C.C.C. 34; Regina v. Wyman, (1958) 122 C.C.C. 65); R. V. Dillman 7C.R. (3d) 378.
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As to a previous criminal record of a witness, Counsel in final argument should refer to the decision of the Ontario Court of Appeal in Regina v. Brown, 38 C.C.C. (2d) 339, wherein the Court disagreed with a direction to a jury that "a man who has a record should have his evidence carefully scrutinized and you should consider his evidence carefully before deciding to accept it". The Court set out guidelines as to how a criminal record is to be used in weighing the credibility of a witness.
It is common that at the opening of a trial a Judge will make an order for the exclusion of all witnesses at the request of Counsel. But if a prospective witness, not-with-standing this order, remains in Court until he is called, you can expect that this fact will not go unnoticed by your opponent in Counsel submissions to the Court.
This fact will be foremost in the Judge's mind and Counsel who called the witness must explain this disobedience of the order in final argument. Depending on the seriousness of this disobedience, a Judge may even render such witness liable to prosecution for contempt.
When making your submission to the Court on this issue remember that such witness, if called by either the Crown or Defence, must be given the opportunity to testify although in certain circumstances the trial Judge may exclude his evidence, but the weight, if any, to be given to his evidence is for the Judge to decide (Dobberthien and Her Majesty The Queen, (1975) 2 S.C.R. 560).
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Most witnesses who disobey this order do so unintentionally but the matter of weight to be attached to this evidence is extremely important and Counsel cannot ignore this problem and has an onerous task to persuade the Judge to accept such evidence.
Can a Judge deny the accused or his Counselor Counsel for the Crown to make submissions at the conclusion of the evidence in a trial? Such refusal will usually result in a new trial and to deny this to an accused or his Counsel is a failure to permit full answer and defence and amounts to a denial of natural justice. (Regina v. Bartlett, 97 C.C.C. 100)
If an accused is not represented by Counsel not only must the Judge upon the request of the accused permit him to make final submissions, but even in the absence of such a request the Judge must invite the accused to make final submissions. (Aucoin v. Her Majesty The Queen, (1979) 1 S.C.R. 554).
If a Judge inadvertently found the accused guilty without calling on the accused and his Counsel for submissions and then much to his dismay realized his mistake and called upon the accused or his Counsel for submissions, is this a failure to permit full answer and defence? In Rex v. Kovacevic, 99 C.C.C. 258, an accused and his Counsel declined such an invitation and sought to overturn the conviction. The motion to quash was dismissed and Mr. Justice Ferguson asserted that the Court is not to be held ransom to all of the whims of petulant Counsel. His Lordship stated: "One must assume, I think, when the Magistrate or the Judge withdraws his judgment, however inadvertently rendered, offering to hear argument, that he will keep an open mind and will be prepared to change his previously expressed opinion if the argument put forward by Counsel convinces him that he should do so". (Also refer to Regina v. Pestell, 31 C.C.C. (2d) 436 and Regina v. Gallant, unreported, October 10, 1980, P.E.I. S.C.)
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Although Defence Counsel may be relieved that the Judge does not call upon him for final submissions and then after hearing from the Crown finds the accused not guilty and dismisses the charge, Counsel should not always be overwhelmed by this success. Stanley A. Cohen in his article "Controlling the Trial Process" 36 C.R.N.S. 15, points out the long-term prejudice to the accused which may result if the Crown appeals the acquittal and a conviction is substituted on appeal. (Regina v. Gowing and Johnson, (1971) 12 C.R.N.S. 139).
It is not unusual for the Court Reporter not to transcribe Counsel's final submissions. I have read many reported decisions of Appellate Courts wherein the Court regrettably notes the absence of Counsel's submissions or, if transcribed, quote from these submissions. Because the law protects an accused and his Counsel's right to make final submissions, it is obvious that the law recognizes the importance of such submissions and because of its importance if you find that the Court Reporter is not recording your final submissions, you should make application to the Judge for these submissions to be recorded.
Section 578 of the Criminal Code sets out the order that the Crown and the accused or his Counsel may address the jury upon the conclusion of all the evidence. The Criminal Code does not have a specific section, such as 578, as to what order the Crown and the accused or his Counsel may make final argument to the Judge in a non-jury trial.
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Although it may appear that Judges as a usual custom and within their own discretion follow the same procedure as in jury trials, in my opinion this is not based on custom or judicial discretion but is governed by the Criminal Code.
Section 502 is found in Part XVI of the Criminal Code which deals with indictable offences - trial without jury, and provides the application of Part XVII of the Criminal Code insofar as this Part is not inconsistent to Part XVI of the Criminal Code mutatis mutandis.
Section 578 which deals with the summing up by the prosecutor and the accused to a jury, is in Part XVII of the Criminal Code.
There is nothing in the way of inconsistency in Part XVII of the Criminal Code to prevent the full application of section 502 to have section 578 apply to Part XVI, which is trial without jury. Therefore, a Judge should follow section 578 of the Criminal Code as to the order that Counsel submit their final argument in a non-jury trial of an indictible (sic) offence. (Regina v. Prentice, (1965) 4 C.C.C. 118) If the accused calls a defence, his Counsel is called upon first to make final submissions followed by the Crown. If the accused does not call a defence, the Crown is called upon first followed by Defence Counsel.
If pursuant to section 578, Defence Counsel addresses the jury first and the Crown addresses the jury last, Defence Counsel is not given the right to reply by way of an address to the jury.
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It would appear therefore that in a non-jury trial of an indictible offence, following section 578 of the Code, Defence Counsel has no right of reply to the Crown's final argument if the Crown argues last. I do not subscribe to this view and although a finality must be brought to the proceedings, a Judge presiding at a non-jury trial who denies an accused or his Counsel a right to reply to the Crown's argument may be depriving the accused his right to make full answer and defence pursuant to section 577 of the Code.
In summary conviction matters, Part XXIV of the Criminal Code has no section which either directly or indirectly sets out a procedure as to the order of Counsel's final submissions. Without such direction a Court does have an inherent jurisdiction to control its own process and proceedings as set out in Regina v. Keating, 11 C.C.C. (2d) 133, but this, of course, is limited in a manner set out by the Supreme Court of Canada in Doyle v. The Queen, 29 C.C.C. (2d) 177. Therefore, in summary conviction proceedings the order of final argument is within the discretion of the Judge and it makes no difference if the accused did or did not call a defence, and if the accused or his Counsel is called upon to argue first, then the accused or his Counsel has the right to reply to the. Crown's argument because under Part XXIV, section 737 of the Code, the accused is entitled to make full answer and defence.
Where several persons are jointly charged, the order in which each accused or his Counsel shall be called to make final submissions is generally subject to the discretion of the Judge. It is preferable that Counsel agree amongst themselves as to what order they will make submissions to the Court. If Counsel cannot agree, the Court will generally call on the accused in the order in which they are named in the Information. Some Judges will not subscribe to the rule of the order in the Information on the grounds that they will not be guided by a rule based on the caprice of the person who draws the Information, and prefer to call upon Counsel for final argument as the Judge directs.
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If there is a difference in the degree of criminality with respect to the charge, some Judges prefer to call upon the lesser before the greater or vice versa, according to the seriousness of the implication of each accused.
Some Counsel prefer to be called last and regard this as a tactical advantage. A Crown Attorney told me that any time he is called first to make submissions, he regards this is a "kiss of death" because inevitably the charge is dismissed.
If Defence Counsel is called upon first to make final submissions and these submissions have merit raising valid questions about the Crown's case, Counsel probably will gain an important advantage in that the Judge may then put your position to the Crown and may even be lured into a dissertation with the Crown on the points you have raised.
I have yet to hear a good reason for one Counsel to interrupt the other Counsel during final argument. Such conduct is very apt to arouse the hostility of the Bench and should always be avoided. Even if your opponent is quoting the facts and the law incorrectly, you should remain silent and make objections upon the conclusion of the argument.
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Counsel should never hesitate at the conclusion of all the evidence in a lengthy or complicated trial to request the Court to recess for a brief period so that Counsel can make last minute preparations for the final argument. This is not an unreasonable request.
Some Counsel appear to be confused as to the procedure to be followed if Counsel brings a motion for non-suit at the conclusion of the Crown's case.
Counsel cannot be denied this right but this motion should be brought not as a usual course of procedure but upon careful consideration of the Crown's evidence. At this stage of the proceedings the Court is only concerned if there is or there is not any evidence upon which a conviction could be recorded and not to pass upon the merits of that evidence. Your submissions to the Court on your motion must be tailored to fit this legal requirement and you should not waste the Court’s time with dealing with the merits of the Crown's evidence.
If you insist on dealing with the merits of the evidence at this stage of the proceedings, the Judge will require you to make an election to call or not call evidence for the defence. If you elect to call evidence, then the passing upon the merits of the evidence is to be done when the evidence as a whole is before the Court and the Judge will not be interested in hearing your submission on the merits.
However, if you elect to call no evidence, then you are entitled to make those submissions you ordinarily would make in your final argument to the Court including the merits of the Crown's case. (Regina v. McConnery, (1970) 3 O.R. 427; Regina v. Harry, 21 C.C.C. (2d) 93; Regina v. Snyder, 16 C.C.C. (2d) 331; Regina v. Paul, 27 C.C.C. (2d) 1).
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Finally, you should include in your final submissions a reference based on the evidence and the law to a possible verdict. These are:
1) Guilty or not guilty as charged;
2) Not guilty by reason of insanity;
3) Not guilty as charged but guilty of an included offence, and
4) Not guilty as charged but guilty of an attempt.
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