What happens on the first day of Criminal Court in Ontario

Going to criminal court for the first time is confusing and intimidating. This article intends to clarify some of the basic procedures relating to criminal court in Ontario (particularly the Ontario Court of Justice) and what to expect on your first day. Before reading, it is important to temper your expectations on what happens.

First of all, it is not your trial date.

It is not a time to explain to the court “what happened” or how you are wrongly charged.

There is a time and place for that, but it is not the first appearance. In fact, rarely is a person even asked to plead guilty or not guilty at your first appearance. In the normal course, the first appearance is an administrative date for the accused to obtain basic information about their charges, how to retain a lawyer or apply for Legal Aid, and to understand how the prosecution perceives your case and what their initial intentions are with you.

As you read on, you will come to understand these procedures in greater detail and what you can expect on the first day of criminal court in Ontario.

what to expect on the first day of criminal court in ontario

Associate lawyer Thomas Surmanski explains in plain and simple language what to expect on the first day of criminal court in Ontario. 

Setting the Scene: The Courthouse

Let’s get started.

Let’s assume, for the sake of this article, that post-arrest, you were released from the police station, or subsequently granted bail, and are now attending at your first appearance.

Now, you are probably wondering: “How does this work?” You’ve never even been in court before. Sure, you took that one field trip to Ottawa and the Supreme Court in Grade 9 – but does that really count? Suddenly you find yourself wishing you paid more attention to criminal procedure on that field trip.

First apperance court in criminal cases in ontario

The documents you received from the officers, at the police station (or from bail court), say to attend at the courthouse at 9:00AM. You had the good sense to show up early at 8:30, in case you can’t find your courtroom or where you’re supposed to go. It was easy, since you woke up every hour and checked the alarm on your phone – gripped with fear that you may sleep through it. You open the main doors and security greets you with a request to come forward and empty your pockets into the plastic trays they provided. This inconvenience feels reminiscent of your last flight, but at least then you looked forward to the destination.

After digging all the change out of your pockets, and sheepishly placing everything into the coloured baskets you walk through the metal detector. Thankfully it doesn’t go off and you’re cleared to proceed. Looking down a long hallway, you see several signs for a variety of offices and departments interspersed between much larger bolder numerical signs.

Pulling the neatly folded papers from your pocket, you unfurl them and quickly scan them. Your eyes race across the page as you hope to match one of the numbers on the wall to the one in your hands. Eventually you’re able to – courtroom 505, that’s the one. You spot a duo of heavy wooden doors, each equipped with metal curved handles next to the mounted number on the wall. Instinctively, you give one a pull – it gives slightly, but both are locked. You quickly look at your phone to confirm the time and then over your shoulder feeling slightly confused and out of place. Thankfully, no one noticed you and your embarrassment subsides. You resign to sitting on one of the wooden benches mounted to the wall across the hall from the door and hoping no one recognizes you. You hastily occupy yourself by looking down at your phone, checking Twitter, and trying not to make eye contact with anyone else around you for the next ten to fifteen minutes. After some time passes, a middle-aged man with a conservative haircut wearing a dark suit catches your eye as he walks up to the same doors that you tried earlier.

They don’t open for him either, despite his brisk pace and clear-cut confidence. He knocks impatiently on the right-hand door and gazes through the small rectangular window, embedded in the door, in an attempt to catch the attention of someone inside the courtroom. Seconds later, you hear a loud lock throw open from the inside. He swings the door open wide and marches in. You then watch a handful of other people, of varying ages but all formally clothed, notice this development. They head through the door, shortly after him, while politely chatting and exchanging pleasantries and clichés among themselves.

Once this minor parade has ended, you rise from your wooden seat and pull on the handle once again – this time it opens. As you swing it open you’re immediately faced with another identical set of doors six feet ahead of you. You open one these ones as well and step forward through the threshold into a quiet solemn atmosphere. Suddenly, you’re standing in an aisle with wooden benches to both your right and your left and worn grey carpet beneath your feet. There’s three people in dark robes at elevated wooden desks facing you almost guarding what appears to be an empty office chair. At first thought you think you’re in a small church or throne room but you’re quickly reminded by the coat of arms high on the wall before you that you are in a court of law. You sit down on one of the empty uncomfortable wooden benches which immediately conjure up thoughts of Sunday mornings with your family at a place of worship.

As you absent-mindedly drift back to this simpler and more comforting time in your life you’re brashly stirred by a deep loud knock from outside the room emanating from a door situated in the far-right hand corner of the room.

“All rise!” commands one of the dark robed figures. As she walks into the room, she is followed by a middle-aged authoritative looking man with a stern look riding on his bespectacled face. As you quickly scamper to your feet, the man walks to the empty chair in the back of the room and bows before sitting upon it. Curiously, a number of the formally dressed characters in front of you, past a wooden railing and seated near a pair of desks, bow to him in response.

“Please be seated!” commands the figure a second time.

As you sit back down you’re gripped with a series of thoughts: How does this work? Who are these people? What do I say? Where do I go?

The Courtroom Layout

COURTROOM LAYOUR FIRST APPEARANCE COURT

Seating in first appearance court

The physical layout of a courtroom is not unlike that of a church, and the courtroom incorporates several Christian overtones into the layout. The judge or Justice of the Peace (also known as a JP) sits at an elevated desk facing the body of the court called a dias. If you’re attending on a matter or just want to watch a trial or a hearing, you’re free to sit anywhere on those benches that you see once you first come in or the counsel tables.

The “Bar” (lawyers only please)

In most courtrooms there is a small fence which resembles an altar rail which separated the body of the court from where lawyers are sitting – this is known as the bar. Unless you’re instructed by your lawyer or the presiding judge or JP you should not cross this barrier. In some courtrooms, security will forcefully instruct you to return to your seat if you do. As an interesting aside, this is where the term passing the bar comes from. Lawyers can pass back and forth through the bar without issue, but the public is generally denied this privilege unless they are participating as witnesses in a trial. Similarly, this is also why lawyers are referred to as “members of the bar”.

Who is everyone in Court and what is their role?

The Crown

Past the bar, there are several actors. On the right is generally where the Crown prosecutor is seated. In some courtrooms, the Crown is accompanied by a clerk to hand them files or a federal crown who addresses specific matters, such as drug offences. The Crown is occasionally positioned on a different side, but the Crown is always on the same side as the witness box.

The Crown prosecutor (colloquially known as “the Crown”) is formally addressed as Mr. Crown or Mme. Crown. They act as a representative of the Attorney General’s office, the Canadian government, and by extension, the Queen. Upon understanding this, it becomes self-evident why they are referred to as Crown Attorneys or Crowns.

The Crown’s role is to prosecute, resolve, or withdraw charges which are in turn supported by evidence collected by the police.

Duty Counsel

Across the aisle from the Crown, on the left, is typically where duty counsel sits. Duty Counsel are lawyers who provide unrepresented persons with immediate legal advice before they retain a lawyer. They also sometimes conduct bail hearings and other introductory hearings. Duty Counsel cannot be retained as your lawyer and they cannot conduct your trial. However, they are a great resource to help you explain your options and to provide independent legal advice to you in their office between appearances. It is integral that you do not make any important legal decisions without a lawyer, and Duty Counsel can help you apply for Legal Aid or, if you’re ineligible for Legal Aid, provide some preliminary advice.

Duty Counsel are public employees, but they do not work for the Crown’s office. They’re there to help you if you need assistance before making a major decision in your case or to liaison with organizations like Elizabeth Fry or the John Howard Society. Be patient and kind when speaking to duty counsel, because lot of people often need their help and their resources are often stretched thin. They most often have an office in the courthouse which you can attend at before or after your appearance to chat and seek legal advice.

Defence Counsel

Past the bar, but behind the Crown and duty counsel desks, are often a line of chairs or benches. This is where defence counsel sit and wait for their matter to be called.

Defence counsel are privately retained lawyers who advocate solely for their clients and provide legal advice, research, strategy, and negotiate with the Crown. On short matters, the defence lawyers will often queue on these benches or chairs and wait for their respective turns to address their matters. During a motion, a trial, or long submissions, defence counsel will sit at the desk or table to the left of the Crown across the aisle. Defence counsel are occasionally positioned on a different side, but they are never on the same side as the witness box.

Should you hire a defence lawyer, this lawyer can appear on your behalf and in your absence by using a form called a “Designation of Counsel”. This is why you may see many lawyers standing up, without a client present, informing that they are here for a particular client and are seeking certain items or objectives.

You will also notice that defence lawyers are called before all unrepresented individuals (under the authority of the Barristers Act). This is among the many other reasons why it is prudent to hire a defence lawyer at the earliest opportunity if you are able to do so.

Clerks & Reporter

Past the Crown, Duty Counsel, and Defence, near the back of the room, there are two to three people in dark robes seated facing the body of the Court at a square set of desks. One of these people is usually a court reporter who ensures that the names of parties are spelled correctly, and all dialogue is recorded clearly for transcription purposes. The other person or persons sitting there are clerks. Their role is to assist the presiding judge or JP in managing files, filing paperwork, and keeping records of each matter.

Judge or Justice of the Peace

Seated alone, behind the clerks and reporter, is the judge or the JP. They are the presiding authority in the courtroom. Judges can preside over any matter, trial, or hearing whereas JPs are limited in their scope to more administrative matters, some bail hearings, scheduling appearances, and minor trials (such as driving offences). Judges wear a red sash and JPs wear a green sash.

Judges (red sash) are referred to as “Your Honour” and JP (green sash) are referred to as “Your Worship”.

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Now that you know everyone in Court, what happens from here when it starts?

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.

Check your court appearance online

Sorted by courthouse and last name

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.

Legal terminology and jargon you will hear in Court (i.e. “legalese”)

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.

How Should I Act in Court?

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.

My First Appearance is Done – Now What?

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.