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This article last updated October 30, 2008.
The trial is not held on your first court appearance. Often you will have to make several appearances before getting to trial. If you are not released by police, the first court appearance will be for a bail hearing. The first appearance if you are out of custody, or the second if you have had a bail hearing, is to set a date for trial.
However, you might not set a trial date on the first "set date" as you may require time to retain counsel or apply for Legal Aid. In addition, you will want to obtain disclosure prior to setting a trial date. Disclosure affects your decision on whether to plead guilty or not guilty. Disclosure generally must be completed before you can determine what defences can be raised at trial, what witnesses will be needed and the time required for trial.
For more information on release from custody, see: bail and release from custody.
It is best to attend court with a lawyer or someone from your lawyer's office. To reduce legal fees, many people attend court with a "set-date" letter from their lawyer. Attending court with a lawyer, however, will make your court appearance less stressful (your lawyer will do the talking, not you) and ensure you finish court earlier as lawyers' matters are dealt with first.
Also, a lawyer can take advantage of unexpected events. For example, if through an error, the charging document (information) is not in court, the Crown may have to take additional steps to have you appear in court on a later date. If it fails to do so within three months, the charge may be dismissed for want of prosecution. Unless your lawyer is there to spot the problem, the Crown may find a way to sidestep it.
The answer to this question depends partly on whether the charge is being prosecuted by summary conviction or indictment.
Prosecution by summary conviction is for less serious offences. Some very minor offences can be prosecuted only by summary conviction; the most serious offences, only by indictment. Many offences, however, including impaired driving, assault and theft under $5,000, are "hybrids" and can be prosecuted either way. (For more differences between summary conviction and indictable offences, see offence classification.)
In a summary conviction prosecution, someone can appear in court for you. A lawyer can appear for you as counsel; anyone else, such as a paralegal, can appear as your agent. A corporate accused must appear by counsel or agent. At trial, however, you generally must appear in person. However, the court can require you to appear even for a set-date appearance on a summary conviction matter.
If you are charged with a hybrid offence, it is considered indictable until the Crown decides how it will prosecute you. If the charge is indictable, you must personally attend court. However, if your lawyer attends, you may be spared attendance if the court issues a discretionary bench warrant. Designed to ensure your subsequent appearance, this is an arrest warrant that will not be executed unless you fail to attend on the next court date, or if it's extended, on a later one.
Under amendments to the Criminal Code effective July 23, 2002, a lawyer or articling student can appear for you on any charge, without your attendance, if you file with the court a "designation of counsel of record" signed by you and your lawyer.
Following your arrest for an indictable offence, police will fingerprint and photograph you. These records are added to the Canadian Police Information Centre (CPIC), a data-base maintained by the RCMP. If you are not found guilty of the offence, you can apply to have these records destroyed.
In many jurisdictions, your case must be "pretried" before a trial date is set. A pretrial may be held between your lawyer and Crown counsel (Crown pretrial) or by both lawyers and a judge (judicial pretrial). A pretrial is often used for plea negotiations. It is also used to canvass disclosure issues, narrow trial issues and to assess the time that will be required for trial.
Section 10(b) of the Canadian Charter of Rights and Freedoms says that "everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."
A lawyer is retained once he agrees to act for a person, whether he has received payment, a Legal Aid certificate or even no payment at all.
Once a lawyer appears in court and says he or she is counsel for the accused person, the lawyer is "on the record." The lawyer is then obligated to appear in court on behalf of the accused for preliminary inquiry or trial. The lawyer can withdraw and be removed from the record ("get off the record") only with the court's permission.
A lawyer cannot terminate the retainer except for good cause and upon notice. In Ontario, failure to pay your lawyer is sufficient cause for withdrawal.
By contrast, the client can terminate the relationship with the lawyer at will. Once fired (discharged), a defence lawyer no longer has a responsibility or a right to represent the accused. Once fired, the lawyer must still seek the court's permission to withdraw.
A lawyer must withdraw if his client insists he or she do something unethical or illegal or if the client has acted dishonorably in the proceedings. A lawyer must also withdraw if, for example, due to inexperience, he or she is not competent to represent the client.
The information is a sworn document that sets out the charge or charges against the accused. Anyone may lay an information by attending before a justice of the peace and describing the alleged criminal conduct. The informant must sign the information under oath.
An indictment is a written accusation generally signed by Crown counsel in the name of the Queen alleging that the accused committed an indictable offence. It is unsworn. The indictment is the document used if the case progresses beyond the Ontario Court of Justice (lower court or court of first instance) to trial in the Superior Court of Justice.
Proceeding by way of indictment refers to the choice a prosecutor has on a Crown option or hybrid offence, where the choice is between proceeding by way of indictment or by way of summary conviction. It does not refer to the document known as the indictment, which is prepared only if the case proceeds to the Superior Court of Justice.
For an explanation of the distinction between proceedings by summary conviction and indictment, see: summary conviction or indictable?
A count in an indictment or information is a charge, any number of which may be included in a single information or indictment.
A charge screening-form is filled in by Crown counsel before or shortly after the first court appearance of an accused. Generally it sets out the charges the Crown will be proceeding on and often shows the penalty the Crown will seek on a guilty plea or after a trial. The form shows how seriously the Crown views the charges.
The form is required in making application for Legal Aid. You may be denied Legal Aid if the form shows that the Crown will not be seeking incarceration upon conviction. Thus, for example, you are unlikely to receive Legal Aid if you are facing your first charge of impaired driving as the form will likely indicate that the Crown will seek only a fine if you are found guilty. However, you may still qualify for Legal Aid if your livelihood depends on possession of a valid driver's licence.
The position set out on the form is based on preliminary information and could change. For example, in an assault or threatening case, the Crown may indicate that the charge is not amenable to resolution by a peace bond. A lawyer, however, may be able to persuade the Crown otherwise and get the charge withdrawn.
The election (summary conviction or indictment) which is marked on the charge-screening form for hybrid offences is subject to change. When the prosecutor makes an election formally, it is done in court and recorded on the information.
Guarantee you'll be acquitted or receive a particular sentence.
While a lawyer can assess your trial prospects, the verdict is determined only by the trier of fact, that is, the judge or jury.
Your sentence is determined by the judge. While your lawyer and the Crown Attorney may agree on an appropriate sentence and present it to the court as a joint submission, the judge may decide it is too light. If this occurs, the judge may "jump" the joint submission and impose a more severe punishment.
Your lawyer and Crown counsel may be able to meet with a judge in chambers prior to plea to determine whether the judge will go along with a proposed plea bargain. Or a judge may indicate in a pretrial that he or she will go along with a certain sentence.
Plea-bargain or permit you to plead guilty before conducting the level of investigation expected in preparation for trial.
A lawyer should first determine if a guilty plea is warranted. This determination depends, among other things, on whether the Crown can prove the charge by admissible evidence.
Book two trials in different courts on the same day.
By scheduling two cases for trial in different courts on a given date, a defence counsel risks leaving one client without a lawyer. In addition the court, the Crown and witnesses may be inconvenienced. If intentional, "double-booking" may be contempt of court.
Fail to keep you informed of developments in the case and reasons for crucial decisions.
Fail to obtain a copy of the information early on in your case.
A lawyer should obtain a copy of the information (charging document) before trial or preliminary hearing to understand the parameters of your charge and scan for defects that could benefit your case.
Discusses your case with friends, family or other clients.
A lawyer has a duty of confidentiality. He or she should never reveal any information about a client to anyone, unless authorized by the client or required by law. The obligation continues indefinitely, even after the lawyer has stopped acting for the client.
The obligation extends to information a lawyer receives in a consultation before the lawyer has been retained. A lawyer should not even disclose having been consulted or retained by a particular person unless required by the nature of the case.
While police can lawfully ask you whatever they wish, you do not have to answer. Even if you have not done anything wrong, your answers could come back to haunt you. If police are investigating an offence and ask you questions, it may be best to politely decline to answer particularly if you are a suspect.
It is almost always best not to go or say anything. You have a right to remain silent. If you do make a statement to police, signed or oral, the Crown may be able to use it in evidence against you. If you've been arrested or detained police must tell you that you can immediately contact a lawyer. If you say you want to do so, police must hold off further questioning until you've spoken with one. A lawyer will likely tell you not to answer police questions. But once you've spoken to a lawyer, police may question you further.
Generally, it is best to meet with a lawyer before you co-operate with police. You should fully discuss the benefits and consequences of co-operation.
If you do speak to the police, don't lie. Lying to police could lead to criminal charges of public mischief, obstruct police or obstruct justice; a false alibi could become evidence of consciousness of guilt. The risk of speaking to police is that even an honest, but mistaken statement, can be later used at your trial as a prior inconsistent statement to attack your credibility. If you have an alibi, do not tell police at the time of your arrest; your lawyer should investigate your alibi before it is disclosed.
Do not take part in such tests. The results are not admissible at trial. Police know this but use these tests to get you to confess. Unlike the test results, your statements may be used in evidence.
If in the course of investigation by police you suffer an injury, it is important to have it viewed by a doctor as soon as possible. Try and get photos.
Questioning of employees by employer or police
Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are "communicate for the purpose of obtaining the sexual services of a prostitute," "cause disturbance," and "harassing telephone calls."
Unless a different penalty is specified, summary conviction offences are punishable by a fine of up to $5,000 or six months' jail or both.
You cannot be fingerprinted for a summary conviction offence. Also if you are convicted of a summary conviction offence as an adult, you are eligible for a pardon three years from the time you complete your sentence (e.g., payment of fine or restitution, completion of probation). Following conviction of an indictable offence, you must wait five years before pardon eligibility.
An indictable offence is more serious than a summary conviction offence. Conviction of an indictable offence exposes you to greater penalties.
If you are prosecuted by indictment, you are entitled to trial by jury for most offences. You do not have the right to trial by jury if you are tried by indictment for offences such as Drive Disqualified (i.e., driving while prohibited as a result of a conviction for impaired driving), Theft Under $5,000, Fraud Under $5,000, or Mischief Under $5,000.
Many offences can be prosecuted either by summary conviction or indictment. The Crown chooses or elects the mode of prosecution. Such offences are referred to as "hybrid" (or "Crown option" or "dual procedure"). Hybrid offences include impaired driving, assault and theft under $5,000. Hybrid offences are considered indictable until the Crown makes its election.
A criminal conviction or even a discharge - where you're found guilty but not convicted - could restrict your ability to travel abroad. Some countries, including the United States, could refuse you entry.
If you are a visitor to Canada, for example, on a student visa or temporary work permit, any criminal conviction could result in your deportation. A landed immigrant convicted of a crime might have to wait several more years before being allowed to apply for citizenship. If the crime is serious, even a landed immigrant may be deported.
A criminal record could prevent you from obtaining a licence to work in a chosen field. Many professional and vocational bodies require that their members be of "good character" and may reject applicants convicted of certain crimes. For example, the Architects Act of Ontario provides that an aspiring architect could be denied a licence if his or her past conduct "affords grounds for belief that the applicant will not engage in the practice of architecture in accordance with the law and with honesty and integrity."
A conviction, or even a finding of guilt, involving theft, fraud or other crime of dishonesty could bar you from work in an industry where you have access to other people's money or property such as banking, retailing, transportation, or cleaning.
A conviction for a crime involving violence or threats could result in your being refused a firearms acquisition certificate (FAC) or licence for the use of a firearm, such as a hunting licence.
Canadian Criminal Records Information Services (http://www.rcmp.ca/crimrec/crimrec_e.htm, maintained by the RCMP).
For impact on immigration to Canada, see the Immigration and Refugee Protection Act (http://laws.justice.gc.ca/en/I-2.5/index.html), section 36 in particular.
For impact of criminal conviction on entry to the United States, see: Practice Guide/Pleas for Noncitizens (http://kinghall.ucdavis.edu/PDFs/cl_guide.pdf, prepared by the Immigration Law Clinic at the UC Davis School of Law). The guide is in PDF format; you will need Adobe Acrobat Reader (http://www.adobe.com/products/acrobat/readermain.html) to view it.
See also the U.S. Code; Title 8 - Aliens and Nationality; Chapter 12 - Aliens and Immigration; Section 1182 - Inadmissible Aliens (http://makeashorterlink.com/?X5C225B1).
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