Many of our clients decide to elect by judge and jury and it’s important that we fully explain court process, how the jury trial proceeds.  Step by step, here’s how I explain it to them in a nutshell. Well first of all, there’s pre-trial applications, which are held before the jury trial, to try to narrow issues for the trial, to exclude evidence, it could be anything, it could be Charter applications, to throw drugs, it could be voluntariness, voir dires, search and seizure, a right to counsel, all sorts of thing, that’s not heard, by the jury but it’s heard with a judge alone, and you might book that time, you know, one, two, three, months, before the jury trial happens, and you might have three days of these types of hearings. Where the judge is making decisions about how, what evidence will the jury hear or not hear effectively, and the judge, and the Crown I should say, can bring pre-trial applications as well, introducing certain things that they want to introduce, or excluding certain things that they don’t want defence counsel to introduce or vice versa. So the pre-trial applications are made and the judge makes final rulings on all of those, so we now know how the jury trial is going to proceed we know, what evidence we are allowed to call, we’ll know what evidence is excluded, we’ll know what evidence that the jury should not hear. So jury selection takes place then you know, as I said, one, two, three months after pre-trial applications. We have a jury selection, and by the way, there’s no more challenges now, without cause, you will have to accept the twelve jurors that come before you unless you have a challenge for cause, there’s no peremptory challenges, its where you can say “I don’t like that juror, stand aside” or “I don’t like….” we use to have twelve of those, but no more. You have to take the first twelve jurors that are in front of you on that day. Now what happens then, is that the judge will give opening remarks, to the jury, pattern opening remarks, which they will receive about how the jury trial will proceed, then the judge will call upon the crown, to give an opening jury address, and then the crown will basically outline the facts of the case, for the jury, what witnesses they are going to call, and what they hope to prove, beyond a reasonable doubt on the case. They might touch very briefly , they might not, but very little law is discussed during the open statements, mostly concentrating on the facts, the defence counsel then has to make a decision, to ask leave of the court or not, to make an opening address, at that point, now if you are absolutely or one hundred percent certain, that you are going to call evidence, you may wish to make an opening statement at that point, but if you have not made that decision, or you don’t know what that decision is, and often times you don’t, because you want to wait to see how the trial proceeds, you want to defer that opening statement, because if you make an opening statement to say that you are going to call evidence, well you pretty much have to call evidence, don’t you. You know, you’ve made certain promises to the jury, and then you are stuck with it, you are going to have to call the evidence. So now the trial proceeds, the trial will proceed in the same manner that I describe in the other video, for judge alone trial, in other words, Crown calls the witnesses, examination in chief, cross examination, re-examination. All the witnesses are called in that matter. Except for the fact if there is an objection made on the record by the defence counsel or Crown, to evidence, the ruling on that is, often, not always, made in the absence of the jury, so the judge will ask the jury to leave, he’ll make a ruling, he or she, and then we know the parameters of that ruling, whether we are allowed to ask that question or not. So that can happen several times through the course of the trial. But we try to anticipate that all in advance, as part of the pre-trial applications, we try and get this straight, you know, you don’t want the jury scurrying in and out all day long and wasting time. So at the end of the Crown’s case, say they call five witnesses, it might be fifty, let’s say they call five, the Crown will then say, “your Honour, I have completed the case for the Crown”. Now the defence counsel will have to make several decisions, the first decision to say, is this, “should I ask for a directed verdict?” in other words, this case is so weak, that it shouldn’t even go to the jury, the judge should remove from the jury because the Crown has not called enough evidence, to satisfy even the lowest level of a test, and that test is fairly simply, I have mentioned that in another video, is there some evidence, upon which a jury, or a judge alone, probably instructed could convict. You will see how low that test is, and often that test, you are not going to get a directed verdict but it does occasionally happen, sometimes cases fall apart, I mean the case goes away and the jury doesn’t have to make a decision, and the judge says “directed verdict, go home, case dismissed”.  Okay, let’s assume there’s no directed verdict, we didn’t’ even make that motion for a directed verdict, now the defence counsel with his client, his or her client, will say, “should I call evidence?”, “Is there enough reasonable doubt, right now, on the Crown’s case, the Crown has the burden, do I need to call evidence, very important decision, in some cases you are not going to call evidence, in some cases, you can’t make that decision in advance, except on the rarest of cases, and you want to keep an open mind about that decision anyway, and ultimately, it’s the client’s decision, before the trial, during the trial, and at that moment, if you decide to call evidence, it proceeds the same way as I described in another video about judge alone, jury procedure, examination in chief, cross examination, you complete calling all of your defence witnesses, now because you called evidence, so then, you then, “I’m closing my case, for the defence your Honour,”  “Mr. Kruse you have the pleasure of addressing the jury, you have to go first. So I stand up and address the jury, give my final closing submissions, about the law, and about the evidence, why my client should be found not guilty. The Crown, after I say my one, two, three, hour, depending on how complex the trial is, closing submissions, in a minor case, it might be an hour, or a murder case it might be three or four hours frankly, or maybe longer sometimes. I try and keep it minimal though, you don’t want to start boring the jury, I find after an hour or two it’s pretty difficult to pay attention so, simplicity and keeping things, I shouldn’t say simplicity, but keeping things, on point, and clear, is the key, having winning, closing address. Crown does the same thing, and now the judge is in a position to give the charge to the jury. Now the charge is document setting out all of the law, summarizing all of the facts of the case and how they are supposed to do their deliberations, how they are supposed to approach things, describe a reasonable doubt, describing the law, describing, I mean it’s a document that can be a hundred page long, it can be complicated.  Fortunately, they get a copy of that, the judge reads that in open court, and the jury which may take several hours, two hours sometimes. It depends on the judge.  Some judges are more complex, some judges keep it very more on point, by the way, the judge, Crown counsel and defence counsel, have vetted that in advance. The judge gives us a copy of that in advance, if I have a critique of it, we have a discussions in court about it and try to have a meeting of the minds about what should or should not go into that document. Once the jury has all of their instructions, the closing charge to the jury. They go do their deliberations, and they are instructed that , you know in order to be a verdict, there has to be twelve unanimous, in other words, there’s twelve, guilty, or twelve not guilty.  Anything but unanimous, would lead to a mistrial, so if you can’t make a decision say after a day or two, and they indicate to the judge, that we can’t make a decision, and the judge is what they call, the legal term., exhorted the jury, they go back and try again, or is there any hope, “there’s no hope your Honour, there’s no hope, please let us out of here, we’ve been here two days”. There’s going to be a mistrial, depending on how many mistrials, if there’s a first mistrial, there’s likely to be another trial, but if you have mistrial after mistrial, at some point, especially on a more minor case that the crown’s going to give up, it’s rare, very rare in Canada to have a third trial after a second mistrial.  Anyway, that’s the procedure, on jury trials, in Canada.