The Trial Process
There are basically ten steps in the trial process.
- Arrest and Charge
- Bail Hearing
- First appearance / Obtaining disclosure
- Crown resolution meeting
- Judicial pre-trial
- Preliminary inquiry
First Appearance and Obtaining Disclosure
Once bail or release has been resolved, the next step is your first appearance in court. The police or the bail court will set the date for your first appearance. Do not miss it. Failure to appear is a jailable criminal offence.
The first appearance and all appearances until your preliminary inquiry or trial are referred to as either Adjournment Court
Appearances or Remand Court Appearances. Your lawyer will tell you if you need to appear for these dates. If you do not have a lawyer, you absolutely must appear.
The purpose of your first appearance is to obtain disclosure of all the evidence which will be used against you. Disclosure simply means that the crown is required to supply you with copies of all or most of the evidence and related material which they plan to use against you at your trial.
If you do not have a lawyer, you should attend at the Crown's office and fill out a disclosure request form.
Items you would typically find in disclosure include:
- Police officers' notes
- Statements from officers
- Statements from witnesses
- Videos or audio recordings
- Crown Disposition Statement:
This is a written statement of what sentence or disposition the crown will be seeking. Jail, Fine, Probation, or what ever.
Disclosure is almost never complete at the first appearance. Further disclosure requests are usually required. The disclosure process can often take weeks or months.
Any missing disclosure material must be supplied when the crown obtains it or it cannot be used against you.
While disclosure is being obtained, the Court will order you or your lawyer to attend periodically, usually about every 4 weeks, and provide updates. Usually your lawyer will not hold a resolution meeting with the Crown until most or all of the disclosure is supplied.
The Court wants to know why there is no trial date set yet and to ensure that the matter is moving forward.
When sufficient disclosure has been received a date can be set for a resolution meeting.
Crown Resolution Meeting
The Court requires that a resolution meeting be held prior to setting a date for trial.
This is usually held by telephone between the crown and your lawyer. The main purpose of the resolution meeting is to attempt a settlement. It is meant to be a frank, confidential discussion between counsel about the strengths and weaknesses of each others' cases and whether or not a resolution is possible.
Crowns will usually not meet directly with accused. There is no duty counsel for this stage. If you do not have a lawyer, a resolution meeting is unlikely to happen.
In theory, the Crown who holds the resolution meeting is not the Crown who is prosecuting.
The meeting will cover these topics:
- The expected length of the trial
- What witnesses the crown intends to call at trial
- Whether there is further disclosure outstanding
- Whether there are any charter issues or special motions to be brought prior to the trial.
- What the crown will be looking for in terms of sentence if there is an early guilty plea
- What they would be looking for if the matter goes to trial.
If you insist on your right to a trial and are convicted, you will almost certainly get a stiffer sentence than had you just pleaded guilty before trial. You are penalized for asserting your constitutional rights. Not fair, not right, but that is the way the courts and the crowns operate.
The Courts may require a Judicial Pre-Trial.
The judicial pretrial is similar to a crown resolution meeting, but held before a judge. The same issues are discussed and the case evaluated by an experienced judge.
The judicial pretrial judge will not be the trial judge.
The case will be evaluated in the judge's chambers and off the record. Accused persons are not permitted to attend.
The judge will offer an opinion as to how they would rule and the likely sentence, if the case is tried as presented.
The Crown at the judicial pretrial will often make their best offer for a sentence if there is a guilty plea.
The judge hearing the judicial pretrial can receive the guilty plea that same day and there will be no doubt as to sentence.
Judicial input sometimes assists in more realistic assessments. The judge may also influence the parties to reach a resolution agreement or realize that no resolution is possible before trial.
The preliminary inquiry was originally intended to force the Crown to prove to a judge that it had sufficient grounds to proceed to trial.
Today the test for whether or not a matter will proceed to trial is so low, it can be met in virtually every case. Therefore, the preliminary inquiry
is now mainly a "discovery" exercise for the defence.
Understand this: Police records and files on you will never be erased. Records of every contact with you, every complaint by a neighbour,
arrest, charge, acquittal, stay, discharge, diversion and conviction are kept permanently by the police regardless of the outcome.