The first appearance is not your trial date.
Generally speaking, the first day in the Ontario Court of Justice is not your trial date.
After a person is charged with a criminal offence, a person is either released by police unconditionally, released by police with conditions (an undertaking to a peace officer or officer in charge) or they are taken for a bail hearing where the person is released by the Court or held in custody. After this has taken place, an accused person is provided a date in Court, typically known as a “first appearance” court date.
Disclosure and retaining counsel.
On this initial appearance there are a key events that are likely to happen:
First, the Crown is expected to provide “disclosure” to the accused. “Disclosure” is the evidence the Crown and police have in their possession that they intend to rely upon to prosecute the case. This assists the accused and the accused’s lawyer in better understanding the case against them so that they make informed decisions about how to proceed with the case.
Second, the Crown may also provide a “crown screening form” so that an accused can understand how the Crown is treating the case. For example, are they proceeding by indictment or summary election, and what are they seeking for a sentence/disposition if the accused were to plead guilty.
Lastly, issues relating to retaining counsel are also queried by the Court. Is the person intending to seek the assistance of private counsel or represent themselves? The accused may also seek to apply for Legal Aid to assist them if they cannot afford private counsel.
Speak to a lawyer before doing anything.
Although unusual, and likely an unwise decision at this early stage, it is possible that a person could have their charges traversed before a judge on the first appearance in Court to plead guilty if they so wished.
However, seeking to plead guilty without the assistance of legal counsel to assist would be wildly irresponsible and ill-advised. Experienced criminal counsel will thoroughly review the disclosure, advise the client on the merits and weaknesses of the case, and to negotiate with the Crown to obtain the best possible resolution in the circumstances (often referred to as a “plea bargain”). All of this is essential before making a responsible decision on how to best approach criminal charges.
In Ontario, a person is not expected to enter a plea of “not-guilty” on the first appearance and is typically is not asked to do so until that individual is arraigned at the trial date. It is very easy to change a plea of not-guilty to guilty; the converse is very difficult.
Retaining counsel for the first appearance in Court.
Although having legal counsel retained on the first appearance is not necessary, it is strongly encouraged. The sooner an individual retains counsel to assist them, the easier and less overwhelming the entire process becomes.
For those that have counsel, the lawyer will almost always seek to adjourn the matter to complete all these steps diligently and to obtain materials (such as job, reference, or doctors letters) that may assist in mitigating the sentence against the individual who wishes to plead guilty.
Whether counsel is retained or not, in nearly all instances, a criminal matter is adjourned on the first appearance for several weeks so that the person charged may:
- Review disclosure, or obtain disclosure on the next occasion if not already provided,
- Retain and obtain advice from counsel,
- Apply for Legal Aid if necessary,
- Have their lawyer speak to the Crown Attorney about the case for the purpose of resolution or trial discussions, or,
- Any other purpose that the situation may require.
Lead Counsel Sean Robichaud explains the first day in criminal court in Ontario:
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