JURISDICTION AND PROCEDURE PROVINCIAL COURT
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Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court
ACKNOWLEDGMENT
The original paper was prepared for the Bar Admission Course By The Honourable Judge B. D. Henning of the Provincial Court of Saskatchewan (Regina). The paper was reviewed and updated, with permission, in March of 2002, 2003 and 2004, By The Honourable Judge C. A. Snell of the Provincial Court of Saskatchewan (Regina)
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Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court
TABLE OF CONTENTS
I.
INTRODUCTION ......................................................................................... 1
II.
JURISDICTION OF THE PROVINCIAL COURT...................................... 1
III.
CLASSIFICATION OF OFFENCES ............................................................ 3
IV.
THE ACCUSED'S ELECTION OF MODE OF TRIAL ............................... 5
V.
PRE-ELECTION CONSIDERATIONS AND DISCLOSURE .................... 6
VI.
TRIAL PREPARATION ...............................................................................12
SCHEDULES: SCHEDULE A - CLASSIFICATION OF OFFENCES ............................................ A - 1
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Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court
I.
1
INTRODUCTION
The Provincial Court is the court in which most lawyers have their initial trial experience, both civil and criminal, and is also the court in which all lawyers engaged in criminal work, and to a lesser extent, in family law work, continue to appear regularly. The approach of this paper will be to emphasize the practical and actual operation of the court and the considerations that lawyers should have in conducting this practice. Knowledge of procedure can assist you in the very first interview with the client in coming to an assessment of his or her problem. The more understanding and knowledge that any lawyer has of an area, the better they will be able to assess their client’s case and to advise their client of an appropriate course of action based on the concrete realities of both the case and the workings of the justice system. What is theoretically possible and may be mounted as a legal argument may fall well short of what is likely to be accepted or effective in court. A realistic appraisal of a client’s case is ultimately much more useful to the client than a highly technical one based on theory alone. This is not to suggest that a thorough academic understanding of the law is not necessary. However, the additional dimension of practical experience that allows one to relate a particular client’s problem to the letter of the law is one of the most valuable skills that a practicing lawyer will ever develop. It is our hope that we will give you some assistance in this practical area.
II.
JURISDICTION OF THE PROVINCIAL COURT
In Canada the power to appoint judges of the superior, district and county courts is vested in the Governor-General-in-Council under the Constitution Act, 1867. In addition, however, the maintenance and organization of other courts as well as the general administration of justice is granted to the provinces. These provisions have resulted in there being one court system in each province with one superior trial court appointed by the federal government, and one inferior court of summary jurisdiction appointed by the province. An exception is Nunavut where a single trial
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court system, with the judges appointed by the federal government, has been created. This is in contrast to the American situation where the states as well as the federal government each have a power to appoint superior courts with the result that parallel federal and state court systems developed, with some overlapping jurisdiction. Just how far the provincial powers extended with respect to jurisdiction of provincial courts was not known in the early days of Canada’s Constitutional Law. However, in Reference Re Authority to Perform Functions Vested by the Adoption Act, the Childrens’ Protection Act, the Children of Unmarried Parents’ Act, the Deserted Wives and Childrens’ Maintenance Act of Ontario, [1938] S.C.R 398 there was a reference to determine the constitutional validity of certain legislation the subject of which was either entirely new or which related to subjects previously dealt with by superior and county courts. Chief Justice Duff concluded that although the matters being added to the jurisdiction of provincially appointed courts may have been previously dealt with in federally appointed courts, it was open for the province to give a provincially appointed court any inferior jurisdiction that they chose. The only limitation was that a province cannot usurp the authority vested exclusively in the federal government by appointing judges who are doing the work of section 96 judges, which would in essence amount to the creation of a new superior court. It was also established early in our constitutional development that the Dominion government could add to the jurisdiction of provincially appointed courts without the need for consent or enabling legislation by a province. See Re Vancini (1904), 34 S.C.R. 621. As a result there was no controversy when provincial courts were granted jurisdiction to deal with indictable offences upon the election of the person charged. This contributed to the elimination of county and district courts with their jurisdiction being divided between the superior courts (Queen’s Bench in Saskatchewan) and provincial courts. In the more recent Provincial Judges Reference in the Supreme Court of Canada [1998] 2 S.C.R. 443, which combined cases brought in a number of provinces, the Court determined that provincially-appointed courts had the same need for institutional independence as federally-appointed courts.
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The end result of these developments is that the great majority of all criminal matters are dealt with in the Provincial Court including the trial of indictable matters that were once dealt with in the Court of Queen’s Bench. There is, however, overlapping jurisdiction between the courts and in many cases the accused has a right of election as to how to be tried. The options are to go directly to trial in the Provincial Court or elect to have a preliminary hearing and then a trial before a Queen’s Bench judge sitting alone or sitting with a jury. We will discuss the technical aspects of the election and the considerations behind the exercise of the election.
III.
CLASSIFICATION OF OFFENCES
In order to understand elections one must be aware of the distinction between summary and indictable offences. A summary offence is punishable upon conviction by a sentence of not more than six months or a fine of two thousand dollars or both, unless the statute provides otherwise (section 787 of the Criminal Code). Driving offences, for example, are punishable by minimum sentences that are an exception to the general penalty section. Recently there has been a development in the classification of offences to increase the summary conviction maximum of dual procedure offences. The offences of assault causing bodily harm, unlawfully causing bodily harm, threatening, forcible confinement, sexual assault and breach of probation all carry a maximum jail term of 18 months when prosecuted by summary conviction. There has also been a gradual increase in the number of dual procedure offences. Offences which previously were strictly indictable such as forgery, uttering, being unlawfully in a dwelling house and break and entry of business premises have all been made dual procedure offences. In a summary offence there is no right to elect to have a preliminary hearing and then a trial; the accused must proceed directly to trial, and hence the term summary procedure. An indictable offence may be punishable by up to life imprisonment or some other lesser maximum penalty and in addition to pay a fine under section 734 of the Code, which is not limited to any specific amount.
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Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court
Jurisdiction of the Provincial Court and the court where the trial is conducted does not, however, depend on the penalty but on the categorization of the offences as summary, indictable or “dual”, meaning that it may be prosecuted by either procedure at the discretion of the Crown. The exercise of this Crown discretion, which places an accused person in jeopardy of much more serious penalties, has been upheld and found not to contravene any right under the Charter of Rights and Freedoms. One of the first things you will consider in assessing your client’s case, or in reviewing a file for prosecution, is to determine if the Crown election has been made and whether the case is proceeding summarily or by indictment, as that will determine the maximum penalty that your client is subject to upon conviction. When a dual offence is elected by the Crown to proceed by indictment, the accused will then have a right to elect the mode of trial unless it is an offence exempted from election by the accused by section 553 of the Criminal Code. The jurisdiction of the Provincial Court is absolute, that is, it does not depend on either the election of the Crown or of the accused with respect to all offences that are prosecuted only by summary conviction (in which case neither party has an election), and some indictable offences set out in section 553 of the Criminal Code which are therefore not electable as to mode of trial by the accused but electable as to procedure and penalty by the Crown. The list of absolute jurisdiction offences includes the property offences of theft, possession, false pretences, etc. where the value is under $5,000. In addition, it includes many of the gambling offences, breach of recognizance under section 811 of the Criminal Code, breach of probation, and a few offences under the Controlled Drugs and Substances Act. The list of absolute offences has been gradually increasing over the years. Where previously the maximum penalty for offences within this classification was two years when prosecuted by indictment, now the Controlled Drugs and Substance Act offences are included and they carry a maximum penalty of five years less a day. This is to avoid breaching the Charter right to a jury trial if the accused faces a penalty of five years or more. Breach of probation has an interesting sentence structure. As indicated earlier, the maximum on summary conviction is 18 months. The maximum on indictment is two years.
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To summarize, the Provincial Court has absolute jurisdiction over all summary offences, the indictable offences listed above, and nearly all other indictable offences upon the election of the accused. The jurisdiction over the majority of indictable offences comes from the court’s status as a “court of criminal jurisdiction”. However, to further confuse you there is a category of offence that is indictable but which cannot be tried upon election in the Provincial Court. These are very serious offences that were formerly capital offences and could only be tried before a jury and are exempted from the jurisdiction of a “court of criminal jurisdiction”. Section 469 of the Criminal Code lists the offences that can only be tried in the superior court. However, this list contains a number of offences which never arise, such as alarming Her Majesty and privacy. Murder is the only offence included in this section which is charged with any frequency.
IV.
THE ACCUSED’S ELECTION OF MODE OF TRIAL
The procedure for election by an accused is set out in section 536 of the Criminal Code. The sections concerning the preliminary inquiry are to be amended by Bill C-15A, now S.C. 2002, C. 13. This was to be effective July 23, 2003, then it was delayed to December 1, 2003 and now it is delayed until June 1, 2004. The reason for the delay is that the amendments to Bill C-15A inadvertently removed the rights to have a preliminary inquiry in murder charges, so an amending Bill has to be proclaimed at the same time as those amendments are proclaimed. The amending Bill, C-32, could not be passed due to the federal election. Readers should check after June 1, 2004 to determine if the Bill was passed or if it has been delayed again. You can check the status of federal legislation on the internet at www.parl.gc.ca. The new legislation requires the Crown or the accused to state that a preliminary inquiry is requested; it will no longer occur automatically upon the accused’s election to be tried in the
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Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court
superior court. If either party does request the preliminary inquiry then there will be one, but a hearing will be held to narrow the issues and the witnesses required to testify, so it will no longer be a full “dress rehearsal” of the evidence to be presented at trial. In the Criminal Code there are detailed provisions that relate to re-election of the mode of trial. The rules are strict, particularly where the accused has elected a mode of trial where he or she may request a preliminary hearing and it has been held. The Crown will have to consent to the re-election, although as a practical matter that consent is usually given. Generally it is possible to elect down but not up, that is, one can elect trial by a judge sitting alone (Queen’s Bench) or a Provincial Court Judge after election for trial by jury, but not “up” to jury trial. These provisions are at section 561 of the Criminal Code and following. The foregoing is a technical overview of the trial options that your client will have regarding the mode of trial. Before you can exercise those rights, you must consider your client’s case in some detail.
V.
PRE-ELECTION CONSIDERATIONS AND DISCLOSURE
Prior to election, a defence lawyer must evaluate the case and determine whether the case is a suitable one for a trial. In the initial interview your client may well deny guilt and intend to defend him or herself at a trial. It is, of course, the right of any citizen to have a trial on any charge regardless of their guilt or innocence. However, to proceed with a trial without a critical examination of the issues and strengths of the case will not always produce the best result for your client. Clients will at times have to be made more realistic about their case and this will take technical knowledge of the law as well as diplomacy and candor.
For those who prosecute, this evaluation will take a somewhat different form. The police investigators and the “victims” are not your “clients” although they will at times have an interest in a case that is nearly as personal as that of the accused. Your role is not to represent a client’s interest in the same way as a defence counsel. Crown counsel has a duty that is independent of
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the investigators. The policy in Saskatchewan is not to proceed with a case unless there is a reasonable likelihood of conviction, not just that there is some evidence on each essential element of the offence. The Crown has a higher duty than defence. The Crown has a duty to the accused and to society to exercise his or her authority in a fair manner as a quasi- Minister of Justice. Both counsel for the Crown and defence are precluded from knowingly becoming part of an attempt to mislead the court by presenting evidence or argument that is false. Accordingly, when you first interview your client, you must take a thorough history of the case from him or her, and do not be blind to any obvious inconsistencies or weaknesses in the case. Some counsel take the view that it is not for them to weigh the case and if a client wishes to defend the matter, and instructs them to do so, it is incumbent upon the lawyer to proceed without critical evaluation of the case. This is not always likely to produce the best result for your client or, in the long run, enhance your professional reputation. Regardless of your own evaluation of the case, the matter may go to trial, but you and your client should be realistic about what you hope to achieve by going to trial. Where there are obvious difficulties in a case you will have to be direct in discussing with your client how these difficulties may be overcome and discuss the evidence that will be presented realistically. The evaluation of a case has become much easier since the case of R. v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1, 9 C.R. (4th) 277 (7:0), which has been much elaborated upon since 1991. This case established the right to disclosure of all relevant information regarding a case whether or not it is intended to be introduced into evidence by the Crown. This was based upon the Charter right to a fair trial and the right to make full answer and defence. The case ended trials based upon “ambush” or surprise as a tactic. A current debate in criminal law is how far defence disclosure should be required. Bill C-15A, mentioned earlier, contained a defence disclosure provision regarding expert witnesses. Defence counsel are now required to give the Crown 30 days notice of the intention to call an expert witness and the general area of expertise. However, they will not be required to disclose a copy of the expert’s report until the end of the case for the Crown. (See section 657.3 of the Criminal Code.)
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After an initial interview a lawyer must obtain disclosure from the Crown and compare that to the version of the facts that the client has provided. If there are obvious difficulties and inconsistencies the client should be advised of the same and be invited to resolve any inconsistencies or conflicts. The reasons for doing this are obvious. If the outcome is not likely to be in your client’s favour and this is not clearly communicated to your client, he or she will feel misled and may accuse you of holding out that you could accomplish things that you are not capable of doing. Further, when the time comes for the court to impose sentence, the end result may be worse than if there had been a frank admission of guilt. The first consideration then will be whether the charge should be defended at all or whether a timely guilty plea, perhaps with some reduction of the original charge is warranted. Discussions should take place between the Crown and the defence at an early date to determine if an agreement or resolution of the case is possible. Occasionally there may be a pre-trial or prepreliminary hearing conference with a judge, who is not going to be the one hearing the case, to address issues that may assist in the most efficient use of court time. Such a meeting can be very useful as part of pre-trial preparation to clarify issues and eliminate the need for strict proof of issues not in contention. The issues in respect to entering a plea of guilty and speaking to sentence will be dealt with elsewhere. However if the case is one where there are sufficient issues to take to trial, you will have to consider how to proceed. If the accused states he or she was not there, or in the alternative, was there and did not do it, and maintains that story in the face of strong evidence to the contrary, a trial may still proceed if that is his or her decision. However, it should be based on a realistic evaluation of the case. Many cases will turn on the important issues of identification, colour of right, intent, etc., that need to be tried and a trial is necessary to explore them fully. If the matter is a summary conviction charge, or an indictable offence within the absolute jurisdiction of the Provincial Court you have, of course, no election and you must prepare for trial in the Provincial Court after obtaining disclosure from the Crown. However, where you do
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have a choice of election there are special considerations that must be weighed in determining this election. Because detailed disclosure of the Crown case is now standard, the preliminary hearing is no longer the only reliable way in which to evaluate the case against you. The preliminary hearing still will give you the advantage of seeing the witnesses that will be called and evaluating their credibility. In cases where the evidence of a main witness comprises most of the evidence against your client, you may wish to have the preliminary hearing, and following a hearing a new evaluation of the case will be made. Many times the evidence is sufficiently strong to make a trial a risky proposition, and a guilty plea may result. (The reason it may be risky is that conviction after graphic evidence of a complainant who is put through the ordeal of a trial may remove your client’s credibility for remorse, candor, etc., and place him or her in a worse light for sentencing than might have been possible with a guilty plea.) At other times the evidence at the preliminary hearing may disclose weaknesses not otherwise apparent, such as shaky identification, exaggeration by witnesses, etc. The advantages of a preliminary hearing must be weighed against the possible disadvantages, namely, cost, delay and the possibility that technical weaknesses in the Crown’s case and of witnesses evidence may strengthen when the second opportunity to testify occurs. A witness who changes his or her story loses credibility, but the questions that bring doubt about the witnesses’ ability to observe or recall may in fact have the effect of making the witness more aware of the need to bolster his or her evidence with better-framed answers. Generally speaking, witnesses do not become any weaker the second time around. Through questioning the defence will also disclose their theories and perspective on particular issues which the Crown will be in a position to review with the witnesses and prepare the Crown case better. Once a witness has identified a person in the courtroom at a preliminary hearing it is unlikely that evidence will ever be weakened at the trial. You should also keep in mind that if you feel that a main part of your defence will be based on an alleged breach of the Charter of Rights no remedy can be granted at the preliminary hearing stage (see Mills v. R., (1986) 26 C.C.C. (3d) 481 (S.C.C.) and R. v. Hynes, [2001] 3 S.C.R. 263) and a trial will be necessary to have the issue determined.
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If an accused is in custody the option of a direct summary trial may be much more attractive than remaining in custody until a preliminary hearing and a subsequent trial can be held. However, if the stakes are high enough some accused persons will opt for a longer trial process as it is normal (upon conviction) to take time in custody into account in passing sentence, often as a two to one credit basis. In addition to the considerations to opt for a preliminary hearing, rather than a direct summary trial, there are special considerations that apply when considering a case for a jury trial. The overwhelming majority of cases where a preliminary hearing has been held are followed by a trial by a Queen’s Bench Judge alone, or by re-election to the Provincial Court for a guilty plea, or less often, for trial. The majority of criminal jury trials are for murder or for sexual assault where the credibility of the complainant will be weighed against that of the accused. Even this latter category of cases has declined in number compared to some years ago quite possibly because the rules of evidence with respect to attacking the credibility of complainants has been changed, and sensibilities of the public have also been altered. It is generally accepted that where a case involves a defence founded principally upon legal arguments and interpretation of documentary evidence it is more desirable to place the matter before a judge sitting alone. Such an interpretation presupposes that juries will have difficulty understanding the evidence and certainly there is some risk of this happening, but it also presupposes that what a jury does not understand fully they may be inclined to resolve in favour of the Crown. This, of course, is not something that can ever be answered clearly. However, certainly as a lawyer your job would be made easier in trying to explain a legally complex matter to a judge rather than to a jury. It is also commonly accepted that where the Crown’s case is based upon facts that may be unclear, the defence has an advantage because it will be necessary for the Crown to convince all twelve jurors that the evidence is reliable beyond a reasonable doubt. This will generally apply even if the case is one that the average person would find somewhat sordid and distasteful.
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However, it should be kept in mind that juries are made up of ordinary middle-class citizens for the most part, and they will assess testimony based upon their own experience and perception of the world. Strained interpretations of facts that are contrary to common sense are not accepted. Trials of any sort are very formal and somewhat artificial situations. The trier of fact knows nothing about the accused, and is to put aside personal considerations and address only the facts and issues that are disclosed in court. Nonetheless whether one is dealing with a judge or a jury, it is impossible to set aside entirely human nature. The trier of fact can conscientiously set aside considerations of race or ethnic origin, but personal circumstances and mode of life are something that will be evaluated regardless of any other characteristics the person may have, insofar as they may be disclosed in court. Some criminal matters are more abhorrent to the general public than are others. Cases involving violence and particularly sexual violence and drugs tend to be matters that the public feels more strongly about than property offences. In selecting a mode of trial some consideration should be given to both the accused and the victim and who is likely to be in a position with respect to which the trier will be inherently sympathetic. For these reasons it is necessary to do a frank and realistic appraisal of your client and how they would present to a jury in respect to the matter tried. Lawyers sometimes feel that the appearance and impression that an accused person can make on a jury can be altered by altering appearance. This may be true to some extent, but generally a person’s demeanor, attitudes and quality of speech cannot be altered to a significant degree. It takes a certain intuition or perception in order to make a conclusion in this area. The decision whether to opt for a jury trial, apart from the practical considerations of cost and delay, is complex and involves the weighing of subtle factors. No automatic decision should be made either for or against such an election.
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VI.
Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court
TRIAL PREPARATION
The scope of this paper is to give some practical advice for preparation and conduct of a summary trial of the type that you might be likely to conduct in the next several years in the Provincial Court. Some aspects of preparation have already been discussed. Disclosure will have provided you with the witness statements and the police findings. Your client will have provided an explanation that may be entirely factual, or may involve consideration of legal issues. Defences will arise from the facts, which come from the evidence disclosed to you. You will recognize legal issues that flow from the factual issue. A pre-trial conference of the sort referred to already may be of assistance in reducing the amount of evidence, or the time required to present that evidence, without compromising the positions of either the Crown or the defence. Legal research in Canada is relatively easy compared to a generation ago when English textbooks were still routinely used due to the shortage of good Canadian works. In evaluating the legal issues there are a number of easy-to-use textbooks in the field of criminal law. A partial list is as follows: Canadian Criminal Procedure
Roger Salhany
Canada Law Book
Canadian Criminal Evidence
P.K. McWilliams
Canada Law Book
Criminal Pleadings and Practice in Canada
E.G. Ewaschuk
Canada Law Book
Criminal Law, Evidence, Practice and Procedure
John L. Gibson
Carswell
The Defence Lawyer’s Trial Book
Joseph F. Kemke
Butterworths
These texts will allow you to develop a brief with respect to legal issues. However, it must always be kept in mind that legal issues are based upon the facts as found by the court, and so a realistic appraisal of the evidence must be made. Good legal arguments can only be effective if there is a strong factual base for them.
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You will therefore review the Crown’s case very thoroughly, and look at witness statements for inconsistencies. You will examine the relationship of the witnesses to your client and to each other and see where their interests and connections lie. The witnesses’ ability to observe and recall in the circumstances must be evaluated. You will also need to review the evidence that you will present equally critically. In doing so you will have to be careful how you and your client prepare your witnesses as they may well be asked what was said to them in preparing their testimony, and solicitor/client privilege will not extend to what your client or his or her friends and relatives have said to the witnesses. If documents are to be used, you will have to comply with the Canada Evidence Act in adducing them and notice may be required under section 28 of the Act. In the age of computers documents are no longer only paper objects. Where there is a huge volume of documents electronic disclosure and filing of documents may occur. Once you have considered the law initially and the evidence, there may be issues flowing from that which require special treatment. You may have a client who is jointly charged and whose defence is antagonistic to the co-accused, or evidence with respect to a co-accused that would be highly prejudicial to your client. You may wish to consider an application for severance. There may also be issues under the Charter that you wish to deal with prior to trial. There are usually difficulties in making an application for relief under the Charter as a preliminary matter because the evidence will not be heard, and the factual basis of the application not yet established. However there are times when the facts on which the Charter application would be based can be admitted by the Crown and it is in the interests of all parties to have an early ruling on an issue. There may be issues of disclosure that are not yet resolved. You may consider that there are documents missing, or it may come to light that privilege of some type is being claimed. In that circumstance you may apply to the court for an order for disclosure. All of these applications should be brought before the trial judge and therefore once a judge hears these matters he or she becomes seized with the trial.
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In the Provincial Court there are no rules for the bringing of such applications; however, Practice Directives are being considered and are in use as a pilot project in Regina. The Constitutional Questions Act requires notice be given to both the federal and provincial Attorneys General when the constitutionality of a law is to be questioned. Notice is also required if a remedy under the Charter will be requested, but no notice is required if the remedy sought is the exclusion of evidence. The best practice would be to follow the procedure set out in the Practice Directives being used in Regina. By the time that you are to go to trial, you will have a well-developed plan to put forward the defence theory of the case. You will wish to advance the defence theory by cross-examining the Crown witnesses. The most common mistake of inexperienced lawyers is to re-examine the Crown witnesses in chief, rather than asking the questions that would test and probe the quality of the evidence of the witness with the result that same evidence is canvassed and reinforced. There are excellent books on cross-examination techniques. One that is somewhat old now, but which is still very readable and relevant: Cross Examination -- The Art of the Advocate by Roger E. Salhany, Butterworths 1988. The cross-examination can only be effective if you have in your mind the facts and issues that need to be questioned, and are able to actively think and assess the evidence as it is being given. An outline of what you hope to achieve with the witness is necessary, but a word-for-word script will not be effective. You should enlist your client to take notes if he or she is capable and confer with your client during the trial for assistance in case you have overlooked points that must be questioned. Do not, however, be afraid to use your own judgement because some of the advice you get from your client may not be helpful. Before you present your evidence you will wish to consider whether the Crown has adduced evidence on each essential ingredient of the charge(s). If there is a total absence of evidence on an essential point you will be entitled to a non-suit without calling evidence. The majority of such applications are not successful, it must be admitted, however some are and counsel will be alert to the possibility of such an occurrence.
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When you present your evidence you will not be allowed to assist your witness with leading questions, but you can certainly use detailed questions to direct your witnesses. When you are presenting evidence, a detailed script of questions for your witness of the sort you should not use in cross-examination, is a good thing.
At the close of the defence evidence argument will follow. The rule ordinarily applied is for the party who has led evidence last to proceed first with argument. A short adjournment may given if required for counsel to organize his or her oral arguments. The first party to present argument will have a right of reply, although courts are often generous in allowing reply so that at times argument resembles a legal debate that goes on until counsel have exhausted their wits. After that, written briefs may be filed if the court is prepared to adjourn the matter to consider them. Usually if legal issues have arisen that have not been anticipated the case will be adjourned to another day for argument, and counsel will usually have the choice to present written or oral arguments. Your arguments will hopefully be your last step in the conduct of the case although there may be the additional steps of speaking to sentence and drafting an appeal that will be dealt with elsewhere.
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SCHEDULES
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Saskatchewan: Bar Admission Program Criminal Procedure - Jurisdiction and Procedure Provincial Court Schedule A - Classification of Offences
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A-1
