Published On: Oct 17,2016
Once you have been charged by a member from the Calgary Police Service (CPS) or the Royal Canadian Mounted Police (RCMP), 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.’
When you’re charged by the police and released, you will likely received a Promise to Appear, specifying the dates of your fingering printing and your first appearance in court. Once you have this document, depending on you retainer agreement, you can retain a lawyer to attend court with you or even to attend your court appearances on your behalf. Your counsel will make all of your oral representations to the Court and make specific requests to the Crown concerning your constitutional right of disclosure (the case against you). In most courthouses in Alberta, the Court will give priority to the cases where a barrister is present in court before calling any cases involving unrepresented persons. 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”. Most accused persons find this convenient as their attendance in court often disrupts an entire day of your busy schedules (school, work, etc).
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. 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 (the “Charter”). 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, results from the Intoxilyzer 5000c, or any other type of evidence that relates to your case.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, 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.
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.