Step 1: First few appearances in Court
If the Crown or the Police are seeking to detain you: Bail Hearings
Once you have been charged by a member from the Calgary Police Service (CPS, the Royal Canadian Mounted Police (RCMP), the Ontario Provincial Police, the police officer has the discretion to: (a) hold you for the purposes of a show cause hearing to be held before of Justice of the Peace (‘JP’) or a Provincial Court Judge (‘PCJ’); or (b) to release you under certain terms and conditions (for more information concerning Judicial Interim Release – Getting Bail, see our practice area/resource
page for more information). It is important to note that regardless of whether or not your held for bail or released from the Police District Office, you will be required to attend the time affixed by the Court. If you’ve been held by the police and brought to court for your bail hearing, this would often be considered your ‘first appearance,
’ which is described below in greater detail.
If released by the Crown Prosecutor or the Police
When you’re charged by the police and released, you will likely received a Promise to Appear (i.e. Form 11), specifying the dates for your fingering printing, and your first appearance in court. Once you have this document, you can retain a lawyer to attend court with you or even to attend your court appearances on your behalf. If you retain a lawyer, your counsel will or ought to make all of your oral representations to the Court. They will also make specific requests and demands to the Crown concerning your constitutional right of disclosure (the case against you). In most courthouses in Alberta and Ontario, the Court will give priority to the cases where a barrister is present in court before calling any cases involving unrepresented persons. This could mean that you will have to wait until your matter is called by the Court court, which, at times can usurp the entire morning or day. While this may appear unfair at first instance, it is simply to accommodate counsel who may have other competing matters in other court rooms in differing court houses. It is critical that you maintain your composure, be patient, and strike of degree of professionalism despite your perceived unfairness. Most accused persons retain lawyers prior to their first appearance in court. In most cases, a lawyer can appear as your agent or file a “Designation of Counsel
”. At the time of writing, most of these Forms are available online on each Court’s website etc. Most accused persons find this convenient as their attendance in court often disrupts an entire day of your busy schedules (school, work, etc). In our view, there are other strategic reasons why a properly instructed counsel ought to appear on your behalf.
What will happen at my First Appearance?
The first appearance is often referred to as an administrative appearance. It is NOT
your trial. The police officer who arrested you or the witness(es) involved in your matter will NOT likely be there on the first appearance. In Ontario, the Officer in Charge (“OIC”) may attend and consult with the Crown Prosecutor in attendance at that time. While there are tactical decisions that may be made at the first appearance, the main purpose of the first appearance is to request collect disclosure (i.e. the details of the allegations against you), if it is available. Simply put, disclosure ought to constitute any and all evidence (or allegations) that the Crown Prosecutor intends to use against you at your trial. Again, the Crown Prosecutor, must provide your Disclosure (well) in advance of your trial as per their constitutional obligations under Section 7 of the Canadian Charter of Rights and Freedoms
”). However, the case law emanating from section 7 of he Charter
requires the accused person to be reasonably diligent in pursuing disclosure. Disclosure packages come in varying ranges based on the charges against you. It may include police notes (handwritten and typed), other witness (civilian) statements, surveillance videos, photographs, police communication logs results from the Intoxilyzer 8000c, or any other type of evidence that relates to your case. It is also important to assess whether or not any matters that relate to third party disclosure ought to be identified, and if timely applications and motions in Court, prior to trial, will likely need to be made. The complexity of the allegations will usually indicate how quickly disclosure will be forwarded to your lawyer or yourself. Serious or more complex charges will mandate longer disclosure periods. Accordingly, disclosure may not be available at your first appearance. In such cases, the matter would be adjourned, in the ordinary course, for about two
(2) to three
(3) weeks to facilitate the disclosure process. In Calgary and Ontario, the disclosure obligation of the Crown is triggered by filing a request in writing. Thus, it is important to file this request as soon as possible. The diligence you demonstrate in such matters may also be critical in the Court’s assessment of delay in the event that you or our counsel decide to submit an application (if meritorious) under section 11(b) of the Charter
for a stay of proceedings, if the delay in the Crown providing disclosure had occasioned the delay (See our recent blog on this issue that discusses the Jordan and Cody cases from the Supreme Court of Canada and contains the relevant links to the applicable governing cases)
Again, the Crown must disclose ALL relevant materials to you, regardless of whether they assist the Crown’s case or not. Accordingly, if there is evidence that is demonstrative of your innocence, the Crown must disclose that evidence to you or your lawyer.
In the manner in which you obtain disclosure is very important. It will tell your lawyer almost everything they need to know when assessing the Crown’s case against you and how to articulate litigation strategy when mounting a defense against the Crown. Often disclosure may have partially provided or your lawyer may be of the view that there are additional items that are in the possession of the police that have not been provided to the Crown. A further, albeit written, request must be made to request any further items that you think might be in existence that could prove your innocence.
To retain our offices to collect disclosure, appear in court and provide you with an opinion about the merits of your case, call 403-585-1960 or 1-888-695-2211.