- The First Appearance
- The Preliminary Inquiry
- The Trial
If you’re accessing this website, you’re probably not doing it in police or pre-trial custody. So presumably, you have been arrested and released on an Appearance Notice, Promise to Appear, Undertaking to Appear or Recognizance. You may also have received a Summons either by mail or personal service. Any of these documents should include the date of your first, or next court appearance. If we are acting for you, we will be in attendance on that date. If you have other commitments and prefer not to appear in person, we can arrange that you be excused from personally attending. On that date, the matter will be adjourned again, probably for a couple of weeks in order to secure and review disclosure and prepare for an arraignment hearing. If you haven’t had the chance to retain counsel and are appearing unrepresented on your first appearance, just ask the judge for a two week adjournment to do so. On a first appearance, such a request will always be granted.
The Arraignment Hearing is the hearing at which you are usually called upon to indicate whether you will be pleading guilty or not guilty. If you are pleading not guilty, time estimates will be given by Crown and Defence and a date for trial will be set. In the case of a more serious offence, called an Indictable Offence, you will also be called upon to indicate whether you wish to have a trial in Provincial Court or Supreme Court and if in Supreme Court, whether you wish to have a jury. If you wish to have a trial in Supreme Court, with or without a jury, for some offences, you may have a Preliminary Inquiry in Provincial Court. Should you choose that option, a date for a Focus Hearing, to determine the issues to be canvassed and witnesses required at the Preliminary Hearing, will be scheduled.
Generally, I refuse to proceed with an Arraignment Hearing until the Crown has responded to all the correspondence I have sent it respecting disclosure. If the Crown is refusing to make certain disclosure, I can then set down an application for disclosure at the time of the Arraignment Hearing. If the Arraignment Hearing and therefore the trial gets delayed because of the Crown’s failure to respond in a timely way to those requests, this delay may trigger a violation of your right to be tried within a reasonable time under the Charter of Rights. If so, a judge may ultimately dismiss the charge on that basis.
A Preliminary Inquiry is a hearing at which the Crown calls evidence and a judge determines if there is enough evidence to commit you for trial. The test the judge applies to the evidence is whether a jury, acting reasonably could — not would — convict you. The judge at this hearing does not “weigh” the evidence. For example he or she does not consider whether a witness is telling the truth or whether the evidence is inconsistent with other evidence. This only becomes relevant at trial, where a judge or jury must decide whether the weight of the evidence proves the case beyond a reasonable doubt.
The Preliminary Inquiry can be an important defence tool in that the defence has some latitude to cross-examine and nail down witnesses’ evidence, lay the groundwork for defences and applications at trial and determine which of the possible defences is likely to succeed and which are not. It also helps reveal weaknesses in the Crown’s case which can assist substantially in plea negotiations if a plea is being considered.
One common misconception people have is that cases are always won or lost at trial. In fact, that is rarely so. There are countless strategic steps that a good lawyer takes on your behalf from the start, not just in preparing your defence, but in laying a foundation for it. A good lawyer focuses on undermining the Crown’s case and improving your “leverage” from the very beginning, with a view to ultimately securing a stay of proceedings (dropping the charges) or “an offer you can’t refuse” (an advantageous plea bargain). If the case does go to trial, the idea is that you have preserved issues, evidence and therefore defences through careful attention to detail every step of the way. As Sun Tzu, the ancient Chinese military strategist observed, “the battle is won before it begins”.
That said, many cases do go to trial. This will occur where your objectives can’t be met by anything other than an outright acquittal and you are willing to risk the many uncertainties inherent in going to trial. As to my general approach, while I do not limit the number of defences I will lead, I feel most optimistic when I have three “obstacles to conviction” to place in the Crown’s path. It’s my experience that when you have three good defences, one of them will usually work. Defences might arise on the merits of the case, might be based on the Charter of Rights, or simply be more “technical” in nature. All cases are different.
Advancing a Charter defence will usually require asking the judge to declare what’s called a voir dire, a “trial within a trial”. Even if your testimony would not assist the defence on the main trial, you can be called as a witness on the voir dire to give evidence on the “trial within a trial” about the alleged Charter breach.
Depending upon the ruling on the Charter application, the case may continue to a determination on the merits. Assuming one or more of the defences is successful, you will be acquitted and have no criminal record at the conclusion of the proceedings. If all of the defences were rejected and were actually convicted of an offence, the case would proceed to the sentencing stage.
Where any sort of plea bargain is struck, or in those rare cases that I take a case to trial and lose, I will adjourn all but the simplest of cases for sentencing on a separate day. This is because if you are convicted, one battle is over, but another is just beginning. And that battle requires preparation. Ever wondered why people seem to get different sentences for the same offence? That’s because sentencing is what lawyers and judges call “an individualized process”. Depending on the seriousness of the offence and any criminal record you may have, a person’s personal circumstances are usually the single, most important issue on sentencing. It’s also critical to show the judge what sentences other judges have imposed in similar situations. This approach entailis presenting you in the best possible light. Written materials (be it references or expert reports) that place the offence in the context of your life as a whole are extremely important. As is placing a comprehensive brief of legal authorities before the court that can show the judge that what the defence is seeking is consistent in practice, or at least in principle, with what some other judges have done. As with everything else in the practice of law, preparation is the key.
The statement above is not legal advice. It is simply intended to give a very general understanding of criminal procedure and some of the possible issues and defences that might be arise at various stages of a criminal prosecution. For formal legal advice, click here.