QUICK TAKEAWAY
Court Appearances Before Trial: The trial process begins a short time after you have been charged with an offence. Depending on the charge you are facing, your first court appearance might occur in a bail hearing, officially known as judicial interim release. You may be required to attend several court appearances before your trial begins and the process can take months. Your right to a timely trial is entrenched in the Canadian Charter of Rights and Freedoms. Delays are inevitable and sometimes unavoidable, however the Supreme Court of Canada established rules for an accused's right to be tried within a reasonable time. Provincial trials must be completed within 18 months while those held in superior court have a 30-month timeline. In that time, you may be expected to attend court for your first appearance, a preliminary hearing and an arraignment hearing before you face trial.
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What is a First Appearance?
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 to represent you at this stage although it is recommended, unless you decide to plead guilty. It is prudent to seek legal advice before making this decision.
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.
What Happens if I Plead Guilty?
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.
What is a Preliminary Hearing?
If you have been charged with an indictable offenceIndictable offences are more-serious criminal offences 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 standard that must be exceeded to find someone guilty. The judge only has to be convinced there is sufficient evidence to move the case forward.
What is an Arraignment?
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 be asked how you “elect” or choose to be tried. Indictable offences are for serious crimes and you can elect to be tried by judge alone or judge and jury. Summary convictionUsed for lesser offences crimes cover less serious crimes and are handled by judge alone.
What Happens at my Trial?
The length of the trial will depend on the complexity of the case, the number of witnesses involved and the evidenceAnything that supports a position 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 request a directed verdict if you believe the prosecution has failed to prove your guilt.
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.
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Glossary of Legal Terms
Evidence
Evidence, which can include testimony, documents, expert statements or photographs, can be introduced by either side to support that a position is either true or not true. Any evidence introduced must be relevant to the case at hand.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Plea bargaining
Plea bargaining is the negotiation between the prosecution and the defence whereby the defendant pleads guilty to a lesser offence.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
