The trial is not held on your first court appearance. Often you will have to make several appearances before getting to trial. If you are not released by police, the first court appearance will be for a bail hearing. The first appearance if you are out of custody, or the second if you have had a bail hearing, is to set a date for trial.
For more information on release from custody, see: bail and release from custody.
It is best to have your lawyer or someone from your lawyer’s office attend court for you. While paying a lawyer to attend court is more expensive than going yourself, the cost is justified. A lawyer can take advantage of unexpected events. For example, if through an error, the charging document (information) is not in court, the Crown may have to take additional steps to have you appear in court on a later date. If it fails to do so within three months, the charge may be dismissed for want of prosecution. Unless your lawyer is there to spot the problem, the Crown may find a way to fix it.
In addition, it may be important that your lawyer attend court in order to say things on the court record that may help your case. If disclosure is not being provided, your lawyer can lay the groundwork for an application alleging a breach of your speedy trial right by telling the court that the delay is concerning because you are anxious to move the case forward.
Also, having a lawyer or someone from his office attend court for set-date appearances will save you stress.
At a criminal trial, as opposed to a “set date” or other appearance, you must appear in person. However, even where a designation has been filed or the Crown has elected to proceed by summary conviction, the court can require you to attend in person for any appearance.
However, you might not set a trial date on the first “set date” as you may require time to retain counsel or apply for Legal Aid. In addition, you need to obtain disclosure before setting a trial date. Disclosure affects your decision on whether to plead guilty or not guilty. Disclosure generally must be completed before you can determine what defences can be raised, what witnesses will be needed and the time required for trial.
In most cases, your lawyer can attend court in your place or have another lawyer, articling student, or paralegal do so. You may have to sign a form called a “designation of counsel” authorizing your lawyer to handle your court appearances. The designation must be filed with the court. If you were released by police on a Promise to Appear or Appearance Notice, you can avoid going to court even on a first appearance if your lawyer files a signed designation.
Where the charge is being prosecuted by summary conviction, no designation is required. A lawyer, articling student or paralegal can appear for you
Prosecution by summary conviction is for less serious offences. Some very minor offences can be prosecuted only by summary conviction; the most serious offences, only by indictment. Many offences, however, including impaired driving, assault and theft under $5,000, are “hybrids” and can be prosecuted either way. (For more differences between summary conviction and indictable offences, see offence classification.)
If you are charged with a hybrid offence, it is considered indictable until the Crown decides (elects) how it will prosecute you. If the charge is indictable, either because it can be prosecuted only by indictment or because the Crown has not yet made its election, you must personally attend court unless a designation is on file. If your lawyer attends without a designation, or if through an oversight no one attends and a designation is on file, the court could issue a “discretionary bench warrant.” Designed to ensure your subsequent appearance, this is an arrest warrant that will not be executed unless you fail to attend on the next court date, or if it’s extended, on a later one.
Following your arrest for an indictable offence, police will fingerprint and photograph you. These records are added to the Canadian Police Information Centre (CPIC), a data-base maintained by the RCMP. If you are not found guilty of the offence, you can apply to have these records destroyed.
In many jurisdictions, your case must be “pretried” before a trial date is set. A pretrial may be held between your lawyer and Crown counsel (Crown pretrial) or by both lawyers and a judge (judicial pretrial). A pretrial is often used for plea negotiations. It is also used to canvass disclosure issues, narrow trial issues and to assess the time that will be required for trial.