The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses your first appearance in the adult Criminal Division of Provincial Court.
When you are charged with an offence, you must appear in Court according to the document you received from the police. The document could be a summons, a Court appearance, a promise to appear or some other undertaking. The document will specify the time and place to appear in Court. The document may also specify the date and time to appear for fingerprints and photographs at a police station. You must appear at the police identification unit and in Court and on the required dates and times. Failure to appear on either date will result in further criminal charge – failing to appear – which may lead to a warrant for your arrest being issued.
If you are charged with a criminal offence, you may represent yourself or hire a lawyer. A criminal record could affect your ability to travel or your employment; therefore you are strongly advised to consult with a lawyer before going to Court.
First Court Appearance All criminal charges start out in the Provincial Court, either in front of a Provincial Court Judge or a Justice of the Peace. This is known as the “first appearance.” You should arrive at the proper courtroom (or at the counter if your appearance is at the Case Management Office or “CMO”) at least 15 minutes before the scheduled time. If you are in a courtroom, it will most likely be a docket court which means that there are a number of matters that the court will be dealing with on that day.
When you get to the Courtroom, look at the docket list (which is usually posted outside of the Courtroom) to see whether your name is there. If your name is missing, go to the Provincial Court Clerks, Criminal Division and speak to a clerk.
If your matter is at CMO, you will attend at a series of glass windows. Behind the windows are Justices of the Peace. Justices of the Peace can read your charges to you as well as your election, if you have one. They can set a trial date for you or adjourn your matter. They cannot deal with guilty pleas. If you wish to plead guilty at your first appearance at CMO, your matter will be sent into a Courtroom. When you get to CMO, stand in the line-up and wait for a Justice of the Peace to call you up to the window. Give them your name and they will find your file and tell you what your options are that day.
If you are in a Courtroom, have a seat and wait for until the clerk calls your name. Persons with lawyers are usually called first, and then the names of those without lawyers are called in alphabetical order – sometimes the clerk will ask if anyone without a lawyer wants to speak to their matter instead of calling names alphabetically. If you are ready to speak to your matter, put your hand up. When your name is called enter the “accused’s box”. Speak up so that the Judge can hear you. If you appear without a lawyer, the Judge may ask you if you have one or if you would like time to get one. If at any time in Court you feel that you need legal advice, ask the Judge to give you time to speak with Duty Counsel.
First Court Appearance is usually to simply adjourn your matter to a future date and time that is acceptable to both you and the Crown Prosecutor. The Judge will not hear the facts of your case on your first appearance (except if you wish to enter a guilty plea) and you will not have the opportunity to tell your side of the story or call any witnesses at the first appearance. You are able to “reserve your plea” allowing you time to seek legal advice before you decide whether you want to plead guilty or plead not guilty and set a trial date. Be prepared to tell the Judge what steps you have taken or are planning to take to retain the services of a lawyer, or other legal services such as Legal Aid, Student Legal Assistance or Calgary Legal Guidance. You can usually reserve your plea and adjourn your matter more than once if you need more time to get a lawyer, as long as you are taking steps to find a lawyer or get legal advice. There is a limit on how many times a Judge will allow you to adjourn your matter before they will make you take the next step with or without a lawyer. You can always ask to speak to Duty Counsel for any Court appearance – they offer free legal advice and can speak to the Crown or the Court on your behalf on the day of your appearance.
Kinds of Offences What happens next depends upon what offence you are charged with. There are typically three kinds of offences:
- Summary conviction offences
- Indictable offences, and
- Dual or Hybrid offences.
You may be able to have someone else appear for you if you are charged with a summary conviction offence, but you must appear in Court yourself if you are charged with an indictable or hybrid offence.
Summary Conviction If the offence is not very serious, you will be prosecuted by summary conviction. Your trial and possibly sentencing will be before a Judge sitting alone without a jury or any pre-trial formalities. Summary offences carry a lesser penalty. At your first appearance or on a later date you will be asked to enter a plea of guilty or not guilty.
- If you plead not guilty, a trial date will be set to be heard in Provincial Court. There are no juries or preliminary inquiries in Provincial Court trials.
- If you plead guilty, the Crown Prosecutor will tell the Judge the particulars of the offence you are charged with. The Judge may immediately sentence you, or may adjourn the matter to allow time to hear submissions as to sentence and to consider the matter.
- On a summary conviction offence, you may appear in Court either in person, or have an agent appear for you after your first appearance.
Indictable Offences Indictable offences are usually the most serious offences and have greater penalties. If you are charged with an indictable offence, you will have the choice to have your trial before a Provincial Court Judge or a Court of Queen’s Bench Justice with or without a jury, unless it is an offence for which the Provincial Court has absolute jurisdiction. You should speak to a lawyer before your first appearance in Court when you are charged with an indictable offence. The Criminal Code of Canada sets out the offences that must be tried in the Provincial Court or in the Court of Queen’s Bench. For example, the most serious crimes such as murder are heard only in the Court of Queen’s Bench.
If you are charged with an indictable offence, you must make an election by choosing whether you want a trial before a Provincial Court Judge or a Court of Queen’s Bench Judge with or without a jury.
- If you elect to be tried by a Provincial Court Judge the Judge will ask you to enter a plea. If you plead not guilty, a trial date will be set. If you plead guilty, the Judge may allow you to speak to sentence or adjourn the sentencing to a later date.
- If you elect to be tried in the Court of Queen’s Bench, the Court will set a date for the preliminary inquiry or a preliminary hearing which is held in Provincial Court to see whether there is enough evidence to order you to stand trial on your charge(s). If there is not enough evidence, the Judge discharges you. If there is enough evidence, the Judge will order you to stand trial in the Court of Queen’s Bench and a trial date will be set at a later date. You will not be required to enter a plea until the day of your trial.
- You cannot make different elections for each offence you are charged with on one Court document or Information.
If you refuse to make an election, then the Judge will set a date for a preliminary inquiry and you are deemed to have elected trial by Judge and jury. Where you are deemed to have made an election by Judge and jury, you may change your election before the trial. Unless and until you do so, the prosecution will continue as if you made this election.
If you are co-accused in an offence, you may all enter the same election; however, if you disagree on the election, the default election will be the highest election made by any one co-accused. For example, if you elect Provincial Court and a co-accused elects Judge and jury, all of you will be tried by Judge and jury.
You may change your election if you have the Crown’s consent or if you change to Judge alone at least 15 days before the trial date, or if you change from a Provincial Court Judge to a Court of Queen’s Bench Judge alone, or Judge and jury within 14 days of the date set for trial.
Hybrid Offences These are offences that can be either summary conviction or indictable. The Crown Prosecutor makes the decision whether to proceed by summary conviction or by indictment based on the seriousness of the circumstances surrounding the offence and your criminal record. Although it is always up to the Crown to make the election, Duty Counsel or your lawyer may be able to influence the Crown’s decision on whether to proceed by summary conviction or indictment.
When you come to Court, you should dress and behave in a manner that shows respect for the Judge and the Court. Speak politely, wear clean clothes and be well‑groomed. If you appear without a lawyer and require legal assistance, ask to speak to Duty Counsel. The legal assistance they can provide will depend upon your particular circumstances. Generally, Duty Counsel cannot conduct trials or follow up on your matter after a Court appearance. You may also ask for assistance in Court from other Court workers such as Native Counselling Services.