When you are charged with an offence, you must appear in Court as per the document you receive from the police. The document could be a Release Order, a Summons, an Appearance Notice, a Promise to Appear, a Recognizance, or some other undertaking. Most importantly, the document will specify the time and place that your appearance is required in Court. The document may also specify the date and time you must appear for fingerprints and photographs at a police station. You must appear at both the police identification unit and in Court on the required dates and times. Failure to appear on either date will result in a further criminal charge (Failing to Appear) – which may cause the judge to issue a warrant for your arrest. If you miss both your fingerprinting scheduled date and your court date, two separate criminal charges could be brought against you for failing to appear.
If you are charged with a criminal offence, you may represent yourself or hire a lawyer. A criminal record could affect many aspects of your life, including your ability to travel or your employment. Depending on the crime that you are charged with, there may be additional consequences if your found guilty. The consequences include prohibiting you from driving or registering your name with the police under the Sexual Offenders Information Registration Act. Therefore, it is advisable for you to contact a lawyer before appearing in court.
Most criminal charges start in Provincial Court, either in front of a Provincial Court Judge in a courtroom or a Justice of the Peace at the Case Management Office (“CMO”). This is known as the “first appearance”. You should make sure you know the courtroom where your appearance is or if your appearance is at the Case Management Office, ask at the counter. Arrive at least 15 minutes early before the scheduled time. Your matter will be on the court’s list for that day together with other cases.
When appearing in court, make sure you dress and behave in a manner that shows respect for the judge and the court in general. Wear clean clothes, look neat and speak politely. If you do not have a lawyer by the date of your first appearance, ask for a Duty Counsel at the courthouse. The Duty Counsel will provide you with assistance based on your situation. In general, a Duty Counsel cannot represent you at court trial or follow up on your matter after a Court appearance. Other court workers such as the Native Counselling Services are also available to assist you.
When you arrive at the courthouse, do the following:
Note: Justices of Peace do not deal with “guilty pleas”. If you appear at the Case Management Office and wish to plead guilty at your first appearance, your matter will be sent before a judge in a courtroom.
A disclosure package is prepared by the Crown Prosecutor’s office. It contains the potential evidence that could be called at your trial, including the evidence that the Crown can rely on to try to prove its case against you. This would include police notes and reports about your case, any statements provided to police by you and other witnesses, and photographs and video evidence. It is strongly suggested that you ask for, receive, and review all the evidence against you in the disclosure package before you make any decision to plead guilty. It is your right to know what case the Crown Prosecutor has against you.
If your matter is in a courtroom:
Please note that first court appearance is:
It is important to keep in mind that court appearances held “on the record.” It is strongly encouraged that you do not say anything about the charges against you during your first appearance. This is to help protect your right to defend yourself at trail. During your first appearance, you should only discuss your matter in confidence with a duty counsel or a lawyer whom you are considering hiring.
What happens next depends upon what offence you are charged with. There are typically three kinds of 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. Most offences start off as hybrid offences, which means you should be prepared to personally attend your first court appearance unless you have hired a lawyer. A Judge may order you to appear personally on any matter at any time.
If the offence is a less serious one, you will be prosecuted by summary conviction. Your trial or guilty plea will be before a Judge in provincial court. Summary offences carry a lesser maximum penalty. On a summary conviction offence, you may appear in Court either in person, or have an agent appear for you after your first appearance. It is encouraged that you ask duty counsel whether you can have someone else appear on your behalf at your next appearance. When in doubt, appear yourself, as the consequences of not appearing when you are required to do so are severe.
At your first appearance or on a later date you will be asked to enter a plea of “guilty” or “not guilty”.
Indictable offences are more serious offences and have greater potential penalties. If you are charged with an indictable offence, you will have to choose whether to have trial either before a Provincial Court Judge or before a Justice of the Court of Queen’s Bench. You will also choose to have a trial with a jury or without a jury. Unless in situations where the law states that the court will make this choice if the court has absolute jurisdictions over the offence. 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 choose to have your trial for indictable offence heard before 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, you may have the right to a preliminary inquiry in the Provincial Court depending on what offence you are charged with. The judge will ask whether you want to have a preliminary inquiry. Not all indictable offences provide the option to have a preliminary inquiry. If you are charged with an offence that enables you to choose to have a preliminary inquiry, and you choose to have one, the Court will set date for the preliminary inquiry or a preliminary hearing. This preliminary inquiry 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 be given a date for another first appearance, but this time in the Court of Queen’s Bench. At that appearance, you will schedule a trial date in the Court of Queen’s Bench. You will not be required to enter a plea until the day of your trial. If you choose to not have a preliminary inquiry, your matter will move directly to the Court of Queen’s Bench where you can schedule your trial or a date for a guilty plea.
Note: If charged with more than one offence on the same court document, you cannot make different elections for each offence you are charged with.
Secondly, if you are charged with an indictable offence, you must make an “election” by choosing whether you want a trial before a with jury or without a jury. 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 along with others in an offence, everyone accused in that offence can 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 at any time if you have the Crown’s written consent. Without the Crown’s consent, your options to re-elect are more limited, especially if you have elected to be tried in the Court of Queen’s Bench.
If you have elected to be tried in the Provincial Court, you may re-elect to be tried in the Court of Queen’s Bench without the Crown’s consent up to 60 days before the first day of your trial, or after that only with the Crown’s written consent.
You cannot re-elect to be tried in the provincial court after you have elected to be tried in the Court of Queen’s Bench without the written consent of the crown. If you elected to be tried in the Court of Queen’s Bench with a preliminary inquiry, and you want to change from a trial by judge alone to a trial with a jury or vice versa, you can do so without the consent of the Crown any time before your preliminary inquiry, or up to 60 days after your preliminary inquiry. Likewise, if you elected to be tried in the Court of Queen’s Bench without a preliminary inquiry, or the offence that you are charged with does not entitle you to a preliminary inquiry, you can re-elect to be tried by judge alone or with a jury up to 60 days before your trial date.
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.