Jury Trials in Murder Cases in Alberta

How an Alberta Murder Case Reaches a Jury Trial

First-Degree and Second-Degree Murder

In Canada, murder can be categorized into two main categories, namely first-degree murder and second-degree murder.

First degree murder usually includes cases of murder that were premeditated. Some murder cases can fall under the category of first degree murder based on the surrounding facts regardless of whether the prosecution bases its arguments on the element of premeditation.

Second-degree murder refers to murder that does not fall under the legal definition of first-degree murder. This distinction is critical as far as the issues that need to be proven by the prosecutor and the period of parole ineligibility after a conviction are concerned.

Manslaughter is another crime that is independent of murder. In some cases, it becomes pertinent where there is unlawful killing but no proof of the necessary mens rea to commit the crime of murder.A murder lawyer must examine more than whether the accused caused the death. The defence must assess intent, identity, causation, the reliability of witnesses and whether a lawful defence applies.

The Court Process Begins

Criminal cases generally begin in the Alberta Court of Justice. Early proceedings may include:

• A first court appearance

• Appointment or retention of defence counsel

• Disclosure requests

• Scheduling discussions

• Bail proceedings

• A preliminary inquiry, when requested and legally available

Murder is an offence within the exclusive jurisdiction of a superior court. The trial therefore proceeds in the Alberta Court of King’s Bench.

Because murder is normally tried by a judge and jury, the accused cannot simply choose a judge-alone trial. Proceeding without a jury requires the consent of both the accused and the Attorney General.

Bail in a Murder Case

Bail for a person charged with murder is decided by a judge of the Court of King’s Bench. The accused generally has the burden of showing why detention is not justified.

The bail hearing may address:

• Whether the accused is likely to attend court

• Whether detention is necessary to protect the public

• Whether release would undermine confidence in the administration of justice

• The accused’s background and criminal record

• The strength of the Crown’s case

• The proposed release plan

• Suitable sureties and supervision

• Restrictions on communication, travel and residence

A criminal defence lawyer must prepare a realistic release plan supported by reliable evidence. A weak proposal, unsuitable surety or breach of an existing order can reduce the likelihood of release.

Preliminary Inquiry

A preliminary inquiry may be requested in a murder case. Its purpose is not to decide whether the accused is guilty. The judge determines whether there is enough evidence to order the accused to stand trial.

The inquiry may also allow the defence to hear important Crown witnesses, identify inconsistencies and understand how parts of the prosecution’s case may be presented at trial.

A murder lawyer may use the preliminary inquiry to narrow the issues, preserve testimony and expose evidentiary weaknesses. However, the Crown may prefer to proceed by direct indictment in some cases, which can eliminate the preliminary inquiry and send the matter directly to trial.

Preparing the Defence Before Trial

Reviewing Crown Disclosure

The Crown must provide relevant evidence in its possession, subject to lawful limits and privilege. Disclosure in a murder prosecution can be extensive and may include:

• Police occurrence reports

• Officer notes

• Witness statements

• Recorded interviews

• Emergency-call recordings

• Surveillance footage

• Photographs

• Medical reports

• Autopsy and pathology evidence

• DNA analysis

• Fingerprint evidence

• Digital-device extractions

• Text messages and emails

• Location and cellular data

• Search-warrant materials

• Expert reports

A criminal defence lawyer may also retain independent experts to review the Crown’s conclusions. Depending on the issues, the defence may need assistance from a forensic pathologist, toxicologist, DNA specialist, digital-forensics expert, psychologist or other qualified professional.

Developing the Defence Position

The defence strategy depends on the facts. Possible issues may include:

• The accused was not responsible for the death.

• The Crown cannot prove identity beyond a reasonable doubt.

• The accused did not have the intent required for murder.

• The evidence supports manslaughter rather than murder.

• The accused acted in self-defence.

• A statement to police was involuntary or obtained in breach of Charter rights.

• Evidence was obtained through an unlawful search or seizure.

• A Crown witness is unreliable or has a motive to lie.

• Expert evidence is incomplete, overstated or scientifically unsupported.

• The accused was not criminally responsible because of a mental disorder.

Raising a defence does not necessarily mean the accused must prove what happened. The Crown continues to carry the burden of proving every essential element of the offence beyond a reasonable doubt, subject to limited legal exceptions.

Pre-Trial Applications

Many legal issues are decided before the jury hears the evidence. These applications help determine what information may be presented at trial.

Common applications may involve:

• The admissibility of statements made by the accused

• Alleged violations of Charter rights

• The legality of searches and seizures

• Access to additional disclosure

• The admissibility of expert evidence

• The use of prior statements

• Restrictions on prejudicial evidence

• Separate trials for co-accused persons

• Changes of venue

• Publication bans

• Evidence relating to third parties

Some applications are heard through a voir dire, which is a hearing within the trial but outside the jury’s presence. The trial judge hears evidence and decides the legal issue before the jury proceedings continue.

An experienced murder lawyer must identify these issues early. Evidence excluded through a successful application can substantially change the prosecution’s case.

Jury Selection and Presentation of Evidence

Selecting the Jury

A criminal jury normally consists of 12 jurors. In a long or complex trial, additional jurors may initially be selected to account for the possibility that a juror will be unable to continue. Only the required number of jurors ultimately deliberate on the verdict.

Potential jurors are selected from a jury panel. The court may excuse individuals who cannot serve because of hardship, illness or another valid reason.

The defence and Crown may challenge a potential juror for cause when there is a legitimate concern about impartiality or another legally recognized issue. Questions may be permitted to determine whether the person can decide the case fairly.

Traditional peremptory challenges, which allowed a party to reject a juror without providing a reason, are no longer available in Canadian criminal trials.

Jury selection is not about finding jurors who favour one side. The objective is to select jurors who can consider the evidence impartially, follow the judge’s instructions and decide the case without prejudice.

The Crown Presents Its Case

The Crown presents evidence first because it carries the burden of proof. Crown counsel may begin with an opening statement outlining the allegations and the evidence expected to be called.

Each Crown witness is questioned through examination-in-chief. The criminal defence lawyer may then cross-examine the witness. Cross-examination may test:

• The witness’s opportunity to observe events

• Memory and perception

• Previous inconsistent statements

• Bias or personal interest

• Motive to fabricate evidence

• Communication with other witnesses

• Assumptions and gaps in the account

• The reliability of identification evidence

  
  

Forensic and Expert Evidence

Expert evidence may play a major role in a murder trial. Experts can assist the jury with subjects outside ordinary knowledge, but their opinions are not automatically accepted as correct.

A murder lawyer may challenge:

• The expert’s qualifications

• The reliability of the testing method

• The quality of the samples

• Contamination or handling concerns

• Assumptions used in forming the opinion

• Alternative explanations

• Whether the expert went beyond their area of expertise

• Differences between the written report and trial testimony

The jury must assess expert evidence together with the rest of the case. Scientific language does not remove the Crown’s obligation to prove guilt beyond a reasonable doubt.

The Defence Case

Once the Crown has concluded its case, the defence makes a choice about whether to introduce any evidence. Defence can introduce witnesses, expert witnesses or even the accused; however, there is no general duty on defence to produce a case.

In certain cases, the best approach might be to make use of flaws in the Crown’s evidence. In other cases, defence evidence could be required in order to prove the necessity of self-defence, dispute a conclusion made by forensics or provide information that cannot be gained via cross-examination.

If the accused chooses to testify, Crown will cross-examine him or her. This factor needs to be taken into consideration when making the decision.

Closing Arguments, Verdict and Sentencing

Final Submissions and Jury Instructions

After all evidence has been presented, Crown and defence counsel make closing arguments. The defence may explain why the Crown has failed to prove one or more elements of murder or why the evidence supports a different verdict.

The trial judge then instructs the jury on the law. These instructions may cover:

• The presumption of innocence

• The meaning of reasonable doubt

• The elements of first-degree murder

• The elements of second-degree murder

• Included offences such as manslaughter

• The legal requirements of any defence raised

• The proper use of expert evidence

• The assessment of witness credibility

• Evidence that must be used for a limited purpose

• The possible verdicts

The judge decides legal questions, while the jury decides factual questions and the final verdict. A criminal defence lawyer must review the proposed instructions and identify any legal error, omission or wording that could unfairly affect the accused.

Jury Deliberations

The jury deliberates privately. Jurors review the evidence, apply the judge’s instructions and attempt to reach a unanimous verdict.

Possible outcomes may include:

• Not guilty

• Guilty of first-degree murder

• Guilty of second-degree murder

• Guilty of manslaughter or another available included offence

If the jurors cannot agree after reasonable deliberation, the judge may declare a mistrial and discharge the jury. The Crown may then seek a new trial before another jury.

An acquittal means the accused is found not guilty of the charge. The Crown may appeal an acquittal only on a question of law; it cannot simply request a second trial because it disagrees with the jury’s assessment of the facts.

Sentencing After a Murder Conviction

Both first-degree and second-degree murder carry mandatory life imprisonment.

For first-degree murder, parole eligibility generally begins after 25 years. For second-degree murder, the judge sets the parole-ineligibility period within the range established by law, based on the circumstances of the offence and the offender.

Parole eligibility does not guarantee release. It only determines when the person may first apply to the Parole Board of Canada. A life sentence continues for the person’s lifetime even if parole is eventually granted.

The court may also impose ancillary orders affecting matters such as weapons possession, DNA samples and contact with specified individuals.

Appeals

A person convicted after a jury trial may appeal based on grounds such as:

• An error in the judge’s legal instructions

• The improper admission or exclusion of evidence

• An unreasonable verdict

• Procedural unfairness

• Ineffective assistance of counsel

• A Charter violation

• A sentencing error

An appeal is not a second trial. The Alberta Court of Appeal reviews the record to determine whether a legal or reviewable factual error affected the result.

Strict deadlines apply. A murder lawyer should review the trial record promptly, identify possible grounds and preserve the accused’s appeal rights.

A murder prosecution requires detailed preparation at every stage. A qualified criminal defence lawyer can review the evidence, challenge unlawful police conduct, retain appropriate experts, cross-examine Crown witnesses and present the defence clearly to the jury. Legal advice should be obtained as soon as an investigation or charge begins, rather than waiting until the trial date approaches.