So how does the sexual assault judge alone trial? How does that operate? And not to be confused with a jury trial. I want to focus that if you’ve elected to be tried by a judge alone, for example, in the Superior Court or you made an election in the Ontario Court of Justice.
So first of all, the beginning of day you’ll plead not guilty. You’ll be there with your lawyer and the crown. We will usually start off by calling the complainant, we call them the victim in the criminal justice system and they will testify examination-in-chief which means the crown will ask them who, what, where, when, why type questions, open ended questions which don’t suggest the answer. The defence will then cross examine them so Ill cross examine them, and my role as a defence counsel is to test their evidence to see if it’s credible and reliable to try and make inroads into that to show they’re not being accurate or truthful in their evidence. And that in a sexual assault trial, sometimes that cross examination can go on for full days, sometimes even longer. I mean, it’s a real art form to be able to do that
You’re confronting the witness with any inconsistencies between what they say today and their statement improbabilities motives to lie in a piece meal fashion, putting your client’s version of events and just generally trying to create a reasonable doubt. Again, it’s not a science but It’s an art form. It’s learned over many years and it takes a lot of planning and preparation, but also hands on skills and spontaneity, you have a plan. You’d have areas and topics a combination all mapped out. But sometimes the evidence will lead you to move away from that plan and you have to react.
But you’ve got to cover all of your areas and do it in an efficient manner with a view to showing reasonable doubt. The crown is then entitled to re-examine it to clarify any points that arose during cross examination. Typically, in a sexual assault matter, they might call a police officer who attended with the person. Then again examination-in-chief, cross examination, reexamination there may be other witnesses that what’s called narrative where maybe she disclosed it shortly after to someone who may call it again same process. I won’t repeat it but examination-in- chief cross examination, reexamination, any medical evidence, for example, of there may have been a sexual assault evidence kit taken at the hospital, examination by a nurse or a doctor, they may testify in your role against defence counsel to cross examine them about all the facts surrounding that. And typically, that’s how one of those trials proceeds. The Crown will eventually close their case, but those are some of the typical witnesses to be called. Maybe there was also a witness in another room that the crown called about what they heard or did not hear as well. And see these cases can play out over many days. Sometimes they’re involved trials, their complexes, a lot of facts that go over and the Judge will make evidentiary rulings the crown might object to your questioning that the judge has to make rulings on the spot on the evidence where others were legitimate questions, there’s really very tight evidence rules in Canada. Any Commonwealth Nation of course, it needs to be applied properly. There are proper questions and there are improper questions.
As a defence counsel, you have to know those rules and so does a Crown. I mean to watch two good lawyers who really know the law. Well, there’s minimal objections when you have an in-experienced lawyer, they don’t know the law well, and there’s objections all over the map and the trial doesn’t go so smoothly, at the end of the Crown’s case, the prosecutor closes the case. That’s my final witness, I’m closing my case for the crown.
As a defence counsel, now you need to make a decision in conjunction with your client about whether you’re going to call evidence the accused has a right to remain silent. In most sexual assault trials, the accused is called, invariably, there are situations where you might not do that, and I won’t get into in any depth but if you’ve really feel that you as a defence counsel have already created a significant reasonable doubt or reasonable doubts. You’ve made tremendous inroads, about the credibility and reliability of the complainant, you might choose not to call that witness, a defence you don’t need to necessarily that’s a tough decision to make because especially if your clients properly prepared, you prepared them for hours you know they’re going to do a good job and there’s risk in not calling them you know, there’s risk even if you if you think you’ve won the case, well, the Judge may not view it that way.
So in my practice, there’s been some rare cases where we made that decision and it’s my advice to the client, they he or she, I represent women charged with sexual assault to he or she makes that decision. We take a break to do that. But in most sexual assault trials that I do, and most experienced lawyers, the accused is called because we’ve prepared them properly. Again, same process. I examine my client in chief cross examination by the Crown reexamination. There may be other evidence we call like, for example, there may have been other witnesses in the home who didn’t hear anything opportunity, there was no opportunity for the crime, or recalling a private investigator about certain issues, lay out some room or photographs or things like that or acoustics within a house that you know, the victim said that she was crying out, well no one heard any. Acoustics are such that they would have just as an example.
So again, that I’m saying, you know the typical serious sexual assault case involving sexual intercourse, for example. You know, trials can take anywhere, I mean, it’s rare to finish these in five days I’ve seen five, seven, sometimes ten days. It’s a lot of evidence and it’s just it’s not like a TV where it wraps up in a couple of hours. It’s very involved. It’s there’s hundreds of hours of preparation there sleepless endless nights, and as a defence counsel you’re working through, I’m working through to two, three in the morning, some nights sometimes right through the night, that’s just the way it is. It’s a stressful business. And if you want to be successful, that’s what you have to do.
Now, if you’ve made the decision to call a defence, and then close your case, your honor, that completes the evidence for the defence and I’m closing my case at this time. Now the judge will call upon the defence to make closing submissions, so you will focus your submissions on the facts that create, that show reasonable doubt and those submissions can take, oh God I have been, you know, hour and a half, sometimes longer up to three hours really, sometimes but I tend to be sometimes even 45 minutes. I tend to be an hour to two hours in my submissions depending on the case. We’re presented case law as well. There’s cases, precedents, that have to be shown and argued.
The crown attorney will then make their submissions that may be shorter, maybe longer in mind depends on the case. And then I’m allowed to make reply submissions to issues that I couldn’t have anticipated during my argument but the crown rose now the judge has to make, we finish. We’ve now finished our five or seven or ten-day trial, and the judge has to make their judgment. Most judges, in fact, almost all really, if not all now, in this day and age, will always put that over to consider all the evidence review it and then make a decision and come back and make a judgment. You know, judgments can range from one to two hours about whether the accused is guilty or not guilty. So that in a nutshell , is a simplified version of how the trial process works for sexual assault Judge alone trial.