Outside each courtroom is a list of all the matters which are to be addressed that day in that court. This is called a docket. You can confirm that you are in the proper courtroom by finding your name on the docket. Similarly, you can check online the night before and the day of to confirm what courtroom your matter is in and what it is scheduled for. It is of note that youth matters will not be listed online and the docket will often use initials.
Defence counsel, paralegals, and articling students take precedent over the public when calling matters. Most courts have a sign-up sheet near the front of the room in the vicinity the Crown table. Defence counsel will write the name of their client with the page number and line number and the Crown will go down the list in order. Some courtrooms use a more traditional (see: inefficient) process further to the Barristers Act which calls matters based on seniority. While this process sounds respectful in theory, it is slow and tedious as lawyers are hesitant to assume seniority, deferen to their colleagues, and reluctant to direct attention to the age of some lawyers who may be attempting to hide their years. This leads to unnecessary delays and confusion but is thankfully uncommon in most courtrooms.
Once all the counsel matters have been called, Duty Counsel will address any matters which they have been sent instructions on (from lawyers who are caught between two competing appearances) and then the Crown will call the names of unrepresented people from the body of the court.
If it is your first appearance in court, since your arrest, then you will be provided with the Crown’s case against you. This is called disclosure. The Crown has an obligation enshrined by R. v. Stinchcombe to provide you a with copy of any evidence they have. This includes police officers’ notes, a synopsis, allegations of the offence etc. It is common for disclosure to be provided on a DVD with some papers such as a synopsis and Crown brief (which will outline what sentence the Crown is seeking) to the accused. There are some items which typically won’t be provided to the accused, but you can view them in the Crown’s office. This includes, but is not limited to, some complainant statements or witness statements. If you have retained a lawyer, however, everything available will be disclosed to them once they sign an undertaking (a legal promise) not to distribute the items in question. It is important that all the disclosure is rarely prepared at once at your first appearance. Rather, it often trickles in piecemeal as the Crown is able to review it.
Once your matter is called by the Crown and you, or your lawyer, addresses it, it is then recessed for a few weeks. There are for a variety of reasons for this – for example you (or your lawyer) may want to:
- Discuss the matter and provide your lawyer with instructions,
- Review disclosure,
- Wait for the Crown to produce missing disclosure,
- Set up a meeting with the Crown to discuss your case and negotiate a possible resolution or guilty plea (this is also called a Crown Pre-Trial or “CPT”), or
- Set up a meeting with the Crown and a judge to discuss your case and negotiate a possible resolution or discuss the parameters of a trial: time, days, Charter motions before the trial, other motions, missing disclosure, etc. (this is also called a Judicial Pre-Trial or “JPT”).
This postponing of your matter before the court is called an adjournment. Once a date is decided, you (or your lawyer) will appear back in Court on that day to provide an update to the Court and what the next steps are. If you’re appearing without a lawyer, the clerk will often provide you with a reminder slip that has the date, time, and place of your next appearance.
Among the other terms mentioned above, there are several expressions or terms which you may hear while in court. Some of these include:
- My friend or My learned friend: This is a term which lawyers refer to each other by. The latter is used when the recipient is senior in experience to the speaker or the speaker is attempting to be flattering.
- Court’s indulgence: This is equivalent to asking for a moment’s pause. It is often said when a lawyer needs to consult a calendar or notes to respond to a question.
- To be spoken to: This describes a matter which is returning for another administrative appearance to update the court on where the matter is going, how it is progressing, and what is preventing it from being resolved by a plea, withdrawal, or trial.
- May I please be excused?: This is an (outdated) formality that is sometimes espoused by some counsel. Once they have concluded all their matters a lawyer may ask a judge or JP if they may be excused and leave the courtroom.
- Waive 11(b): If there is unnecessary delay on the part of the Defence, they may be asked to waive their client’s right to a speedy trial (s. 11(b) of the Charter) for the period of time. An example of this would be if the accused is on vacation and the matter cannot progress until their return. While the Crown and the Court may be prepared to continue, the Defence may ask for a further delay and be asked to waive s. 11(b) to this end
- Designation of Counsel or “designation on file”: While an unrepresented accused is required to attend for every scheduled appearance in court, you can sign a one-page document authorizing your lawyer to appear without you called a Designation of Counsel. This is attached to your physical file in court and is confirmed every time that your lawyer appears on your behalf. When the clerk finds the designation, he or she will often announce to the judge or JP “designation on file” to confirm that one has indeed been properly filed.
- Bench warrant with discretion: If you don’t have a Designation filed, the judge or JP has the choice to file a bench warrant for your arrest or a bench warrant with discretion. The bench warrant with discretion is less serious and is at the discretion of the judge. The latter of these two is more common and is generally rescinded upon you appearing at the next appearance.
Among the parallels between court and church is the dictated behaviour. When the judge or JP enters or leaves the room the clerk will ask that everyone stand up by loudly asking – “Please rise!” At this time, you are to stand up and when the judge or JP bows after arriving at his or her chair, you are to bow. Similarly, when you enter or leave the courtroom, while court is in session, it is customary to bow to the judge or JP as well. Food and drink are not allowed in court and it is not uncommon for the bench or clerks to openly point out this faux pas in front of everyone and ask you to leave. To avoid this embarrassment, it is also suggested that you not use your cellphone or chew gum in the courtroom either.
Your first appearance is over and you walk out of the courtroom with your disclosure in your hand. The ceremonial energy of the courtroom is shattered as you walk into the loud hallway. Your muscles tense for a split second as the cold reality dawns on you. You have no legal education (apart from fourteen combined seasons of Rake, Suits, and Better Call Saul). How are you going to negotiate with the Crown to withdraw these charges? What if the Crown is obstinate and you have to set a trial date?
“I can’t adjourn this until I die” you think to yourself. “What about my job? How can I work with a criminal record? What if I go to jail?”
First appearances are easy – litigation is hard. The road to resolution is filled with traps and opportunities, but no black and white answers. The odds of success of responding to any charge are much higher with the insight and guidance of experienced counsel. No matter what the charge is, it is strongly suggested that you retain competent legal counsel.
The lawyers in our firm offer experienced legal representation for any criminal charges from Theft Under $5000 through Sexual Assault all the way up to First Degree Murder. You can reach us 24 hours a day by calling (416) 999-9389 or complete a consultation form here.