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This article last updated December 23, 2012.
Now you're charged, what's next?
Is my first court appearance for trial?
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.
Should I bring my lawyer on a set-date appearance?
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.
Must I attend court personally? Can my lawyer go instead?
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.
Fingerprinting
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.
Pre-trials
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.
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.
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