Court Appearances Before Trial

After you are arrested you will be given a notice stating what day and what time you must appear in court. The trial process begins when the prosecutor, you and/or your lawyer appear in court for the first time. This is not your trial date although you must attend the hearing. Failing to do so will result in a warrant being issued for your arrest. If this happens you will face an additional charge of failing to appear, which is a Criminal Code offence that can result in a jail sentence. There are certain charges that allow a lawyer to stand in for you at the hearing.

The first appearance is largely administrative and typically takes place at provincial court. It can be presided over by a justice of the peace or a judge. It is here that you will find out more details about your case and the options available to you. Dates will be set for future appearances.

The facts of the case will not be read out and you will not be given the opportunity to tell your side of the story. The charges against you will be read out and if you don't understand them you can ask for an explanation. The main purpose of this hearing, besides setting a date for your next appearance, is to ensure your case is progressing fairly and equitably. It is also an opportunity to receive disclosure from the Crown attorney, which is information about the evidence against you.

You do not have to retain a lawyer at this stage. A lawyer or duty counsel can explain the process and your options, especially if you are considering a guilty plea.

The first appearance is an opportunity to tell the court how you intend to plead – guilty or not guilty. However, you can ask for an adjournment to consider the evidence against you.

It is not uncommon for the prosecution to offer to recommend a lighter sentence for a crime in return for a guilty plea. This is known as plea bargainingThe negotiation between the prosecution and the defence, a practice that is accepted by the court because it saves the time and expense of a criminal trial. If you plead guilty, you accept responsibility for your part in the crime and a judge will decide an appropriate sentence. Often, the court will take recommendations from the defence and the Crown in consideration when imposing a penalty. However, the judge can ignore those recommendations when handing down a sentence.

If you have been charged with an indictable offenceA more serious type of Canadian criminal offence. carrying a sentence of 14 years in prison or more and you elect for a trial at the Superior Court of Justice, you or the Crown can request a preliminary hearing. A preliminary hearing is much like a trial. The prosecution must prove there is enough evidence to justify a trial. However, unlike a criminal trial, the Crown does not have to prove guilt beyond a reasonable doubtThe high standard the Crown must meet to prove guilt.. The judge only has to be convinced there is sufficient evidence to move the case forward.

An arraignment is the hearing where you plead guilty or not guilty to the offence you are facing. You are asked to confirm your name and the charges will be read out before you are asked how you plead. You can be arraigned at your first appearance or any subsequent appearance, or at the start of your trial. For a jury trial, you must be arraigned in front of the jurors. 

The arraignment lets the court know if you intend to plead guilty or whether the case will proceed to trial. If you elect to plead guilty, you will be asked if you are making the plea voluntarily; if you understand you are admitting to the essential elements of the offence; if you understand the nature and consequences of your plea; and if you understand that the judge is not bound by any agreement you have with the prosecution.

Depending on the charge, you will generally be asked how you "elect" or choose to be tried. For most indictable (serious) offences, you have three options: trial by a provincial court judge without a jury, trial by a superior court judge without a jury, or trial by a superior court judge and jury. A small number of the most serious indictable offences, such as murder and treason, must be tried in superior court and carry no election. Summary convictionLess-serious criminal offences offences cover less serious crimes and are tried by a provincial court judge alone, with no election.

The length of the trial will depend on the complexity of the case, the number of witnesses involved and the evidenceInformation presented in court to prove or disprove facts. presented.

The Crown presents their case first and you (if you are self-represented) will have the opportunity to cross examine any prosecution witnesses. At the conclusion of the Crown's case, you can mount a defence or bring a no-evidence motion (sometimes called a directed verdict of acquittal), asking the judge to acquit you because the Crown has not put forward enough evidence for a reasonable jury to return a guilty verdict.

If you present a defence, the Crown has the right to cross examine your witnesses.

The trial ends with both sides making closing arguments. The case then goes to the jury, if applicable, or the judge takes the evidence into consideration before making a ruling.