Facing a criminal charge must be one of life’s most anxiety-producing experiences. Understanding what to expect in terms of the process will help you manage the stress and uncertainty. This post outlines the typical “life cycle” of a criminal case.
The first steps following a criminal charge
First, there is the procedure for being charged, setting up your first appearance in court, and having conditions imposed that you will need to observe until your case is concluded. The police may give you these documents right away, or they may bring you to a police station and release you from there, or they may bring you to a court and you will have to apply for bail. (We will address arrest and bail in a future post.)
Your fingerprints and photographs will be collected. If this did not happen when you were at a police station, look at your documents for the date and place you are required to go to do this.
Your first court appearance
The first court appearance will be listed on your documents. Do not expect anything significant to happen right away. You do not need to bring your evidence or witnesses with you to this appearance. It is an administrative court, where many other people with charges will be present and no one will really know much about your case yet. You won’t have an opportunity to talk about your case. You just confirm to the court you are there and choose the next date, usually a month or so later, when you will return. This is called a “set date” (short for “a court appearance to set a date for trial.”) There will be several set dates before meaningful steps happen to move your case forward.
There is one important exception here. Your case might be screened for “diversion” (also known as “alternative measures” or “direct accountability.”) In a diversion program, you agree to take certain steps – like writing an apology letter, paying for any loss or damages, or attending counseling – and the criminal charge will be withdrawn. You can get more information about that option from court staff if it is offered to you. Sometimes there will be a list of names on the courtroom door of people who are eligible for diversion.
Preparing for your defence
If you are not offered diversion, preparing your defence should start right away, even though you can’t present it to the court yet. You should make notes while your memory is still fresh, collect witness contact information, and think about what other evidence might help you. Some things you need to act on right away. For example, surveillance recordings can be taped over or lost if they aren’t secured in a very short time frame. This is one reason to hire a lawyer very quickly. A lawyer can help you ensure that this evidence collection is done in a way that preserves it appropriately.
Set dates allow the court to monitor that your case is progressing. You will be asked if you have a lawyer yet and what arrangements are being made. The prosecutor will provide you with “disclosure” – this is all the evidence they would present at a trial to try to prove you are guilty. You have a right to see all of the police evidence against you. In general, you have no obligation to tell the prosecutors or police about your evidence.
The Crown pre-trial
A “Crown pre-trial” happens once you have all the disclosure. This is an opportunity for you or your lawyer to discuss the case with the prosecutor. (In Canada, we don’t have “District Attorneys”. Theoretically, it is the Queen who initiates all criminal charges and so the lawyers who prosecute on her behalf are called “Crown Attorneys” or “Crowns”.)
You can discuss whether there is some way to avoid having a trial, like participating in the diversion program or signing a peace bond (a peace bond is like a restraining order, and we’ll discuss those in a future post). If you want to enter a guilty plea, you can discuss what sentence the Crown will seek. You can discuss if the disclosure is complete or if there are additional materials you still need.
You or your lawyer might also choose to share some of the evidence you have collected to try to convince the Crown that the charges against you should be withdrawn. If not, this is the time to plan what a trial would look like. How many witnesses would the Crown call? What about the defence? What sorts of arguments will be made? The idea is to agree on how long a trial will take so the court knows how many hours or days to set aside in the schedule for your trial.
A judicial pre-trial may follow the Crown pre-trial. This is a meeting between you (or your lawyer), the Crown, and a judge. The purpose, again, is to see if a trial is really necessary and what it would look like. The judge is there to help the two sides reach agreements, but generally the judge does not have the authority in this meeting to make any rulings. So, the judge might try to persuade the Crown that the case against you looks very weak and they should withdraw, but the judge can’t toss it out.
Finally, you select your date for trial. You should know this may take many, many months. The Supreme Court of Canada has set a limit for most cases of 18 months, from the time of the charge until the end of the trial. The busy times for preparation are at the beginning and then again as the date for your trial gets close. There are often many months in between when all you are doing is waiting until your trial date happens.
Impact of COVID-19
The COVID-19 pandemic has changed many of these usual procedures. In many courts, people with a criminal charge are not expected to show up in person for each of their set dates any more. Time lines have stretched out, and many courts are not setting new trial dates even once everyone is ready to do that. No one knows yet what will happen to that 18-month rule if a case goes longer because of the pandemic.