Perhaps the most unfamiliar aspect of the criminal process is what happens between bail and trial. This process is what I call ‘in the court system’ or, ‘the court process’. Not even this aspect of the criminal justice system was taught in law school. It is a process even more unfamiliar with the public.
Leading off from my previous article regarding investigation, arrest, and bail, the next step is periodic court appearances to update the court on the progress and status of your case, and negotiating with the Prosecutor on possible resolution. These are called set date appearances. What does that mean? Let us unpack it.
What is set-date court
Consider for example that you had a bail hearing and the Justice released you from custody. After the Justice gives the decision regarding your release, your lawyer then adjourns your matter a couple weeks to appear in a courtroom, called set-date court, or remand court. Why do we do this? This is because the court needs a written record/transcript of what happens from beginning to the end of your charges. The court needs a detailed account of every step taken in the case. From your first set-date court appearance, to the very end, there is a court reporter inside the court transcribing every word spoken in court.
These court appearances are important because the written record can have an impact on your rights and what happens with your case. This will become clearer as I explain these court appearances.
1st and 2nd set date court appearances
If you have a lawyer, you do not need to worry about attending this appearance. Depending on the type of offence, your lawyer may appear on your behalf without a written and signed retainer, called a designation, if the offence you are charged with is a summary type offence. If you’re charged with an indictable offence, you must appear in court unless you have signed a designation, which allows your lawyer to appear in court on your behalf without your attendance.
In the courtroom is the Justice of the Peace, a court reporter, 1-2 clerks, and the Crown Attorney (prosecutor). Your lawyer will sign up your matter to be spoken to and the Crown Attorney will call your matter. The clerks will get your Information. The information is a piece of paper prepared by an officer that sets out the charges against you and acts as the formal document before the court that list(s) your charge(s). Every time you appear in court, the clerk will write a brief summary of what happened in court and when the matter was adjourned to on the information.
Generally, your lawyer will state their name for the record (for the court reporter), and what matter they are speaking to. At the first set-date court appearance, your lawyer will ask and make the following questions, and requests:
- If the offence you have been charged with is a hybrid offence (an offence where the Crown can elect to proceed by indictment or by summary), has the Crown elected? If yes, what is the election? If no, can they elect now, and if not, for what reason?
- Is your disclosure ready? If not, when will it be ready?
- If the disclosure is ready, your lawyer will likely adjourn the matter to appear in court a month later, allowing him to:
- review all the disclosure and organize the file
- do legal research to understand the strength of the case against you,
- conduct a Crown Pre-Trial (CPT) meeting with the assigned Crown prosecutor in the case.
The importance of election, disclosure, and a Crown Pretrial meeting
Your lawyer asks for election for a few reasons:
- if the Crown chooses to elect by indictment, you are required to appear in court for every appearance, or you risk being charged and arrested for a failure to appear in court. The only way to avoid this is to meet your lawyer and sign a designation, which he will file in court.
- If the Crown chooses to elect by indictment, the types of plea/resolution deals that can be offered by the Crown drastically change. As such, an election of indictment may alter resolution discussions with the Crown.
What is disclosure, and why is it important:
- Disclosure is used interchangeably with evidence and the process of the Crown Attorney disclosing all the evidence in their possession to your lawyer. In other words, disclosure is evidence. Evidence will often comprise of a handful to hundreds (even thousands) of documents of evidence in your case. This includes the information, pictures (crime scene, clothing, injuries etc), police notes, witness statements, forensic reports, warrants, video of alleged offence, interviews, and other miscellaneous documents. You have a constitutional right to your disclosure. Your matter cannot proceed until you have disclosure. Your lawyer needs to know the case against you before making any decision on how to proceed, and what angles to take in negotiations with the Crown.
What is a Crown Pretrial meeting, and why is it important:
- A Crown Pretrial meeting is a meeting between your defence lawyer and the assigned Crown prosecutor in your case. Many things are discussed during a CPT:
- The Crown’s opinion on the strength and/or weakness of the case
- your background and circumstances
- is resolution possible
- what the Crown would offer you if you plead guilty to the offence
- what conditions you and your lawyer would accept for a guilty plea
- Is a withdrawal of the charges possible (peace bond, conditional/absolute discharge, withdrawal or stay)
- Does the matter require a Judicial Pre-Trial
- Rough estimate of the trial length if it got to that stage
- After the CPT, your lawyer will meet with you and discuss the following:
- Explain the evidence and what it means
- In their opinion, the strength of the case against you, and an educated opinion on your chances at trial
- The deal the Crown prosecutor offered you if you plead guilty or resolved the case without going to trial
- In their opinion, whether resolution or a trial is a better route, depending on:
- the strength of the case
- Whether or not you have a criminal record and the effects of a conviction by plea or guilty verdict would have on your life
- Whether or not you are in custody
- The financial hurdles involved in trial (the possibility of using experts or a lengthy trial estimation)
- Get your instructions on what to do next
Resolution
Resolution can happen anytime during a case. You can plead guilty the first day you appear in court, and you can plead guilty in the middle of a trial 1 year later. For the purposes of the article, let’s assume you have decided to resolve your case. You can do this in a multitude of ways. For example, after the CPT your lawyer advises that if you plead guilty, the Crown will agree to a sentence where the charges are dropped, but you have to follow certain conditions for a year– a conditional discharge. You will have no convictions registered against you, but you’ll have to follow probation for one year.
Once the deal is agreed to, your lawyer sets a date for sentencing. The Crown and your lawyer will advise the judge that it is a joint position. Although judges are not required to follow a joint position, standard practice is that they do. Once you are sentenced, your matter is finished. Your charges are dismissed, and you no longer have to appear in court.
Judicial Pre-Trial (JPT)
During a CPT, the assigned Crown will advise your lawyer whether a JPT is needed or not. This depends on a few factors, including the complexity of the case, whether it is a hybrid, summary, or indictable offence. There will always be a JPT for Indictable offences, and JPTs are often scheduled for summary offences as well. A JPT is like a CPT. The only differences are that:
- A judge sits in on the meeting, and provides their opinion on the case, the length of trial required, and whether they would accept the Crown’s position on sentence.
- The Crown and your lawyer go more in depth on the evidence in the case, and how strong the Crown’s case is. They discuss whether your lawyer will admit anything into evidence on consent instead of making the Crown present the evidence at trial and argue for its admission. Both parties will go more in depth on resolution discussions. Exact trial estimates are given, the amount of witnesses for each party are confirmed, and both parties should advise whether they expect to file any applications before the beginning of trial.
Final set-date court appearance: trial, resolution, or preliminary inquiry
You have received your disclosure, your lawyer has met and negotiated with the Crown prosecutor, and your lawyer has met with a Judge and Crown for a judicial pre-trial meeting. Now you must make your final set-date court appearance and decide if you are RESOLVING or going to TRIAL.
After the JPT, you and lawyer must meet and discuss the case. Including the strength of the case, the final offer the Crown has made if you decide to resolve, the effects on resolution (if a guilty plea with a conviction – how does that affect your life/career), the cost of going to trial, how long you may wait until trial comes, and your chances at trial. Your lawyer cannot act without your final instructions.
You have instructed your lawyer you do not like the Crown’s offer for resolution, and you want to fight the charges at trial. You lawyer will go to your 3rd and final set-date court appearance and schedule a trial with the court. If you are in-custody, you can get a trial fairly quick so long as your charges are not serious (first degree murder type of serious). Expect a trial date within a couple of months. If you are out-of-custody expect a trial date between a couple months, to over a year, depending on the length of trial.
Ideally, you only appear in set-date court 3 times, to get disclosure, to confirm the CPT/JPT, and the third date to either resolve or set trial dates. However, this rarely happens. Often there are many court appearances - upwards of 10. The reasons include:
- delay in providing disclosure
- delay in you and your lawyer meeting to get your instructions
- unforeseen hurdles obtaining information (e.g. medical records)
- scheduling conflicts
- a change of circumstance that requires another CPT or JPT
After your trial date is set, your matter leaves the ‘court process’ phase of proceedings, and moves into the final stage, the trial phase.
The Preliminary Inquiry
In some rare cases, your matter will have the option to have a preliminary inquiry before a trial is scheduled and conducted. What is a preliminary inquiry, and who qualifies for it? A preliminary inquiry is almost always beneficial for all parties. I will discuss this in more depth in the next article.
Simply put, a preliminary inquiry is a mini-trial to determine whether the Crown prosecutor has enough evidence to bring you to trial. This ‘mini’ trial is not about proving you guilty or not guilty. It is simply for the Crown to put forth their evidence in front of a judge, for your lawyer to challenge that evidence, and for the judge to determine if there is enough evidence to go to trial.
In order to qualify for a prelim, you must be charged with an indictable or hybrid offence (and the crown elects to proceed by indictment), the charge against you must be punishable by at least 14 years, and you must elect to have your trial in superior court.
As you can see, the criminal process is cumbersome and complex. Trying to navigate through it without a lawyer is naïve and dangerous. Contact me now if you’re in need of a Criminal Defence Lawyer.
The next article will discuss the Trial and Preliminary Inquiry phase.