It is not required for a person who is accused of the crime to personally testify for him or herself, and no one has the right to force an accused person to testify. An accused has the right to remain silent and force the Crown to meet its burden to prove the case beyond a reasonable doubt. However, there are many factual and legal circumstances when the best chance of the case’s success may be for the accused to actually testify. In many criminal trials, the best strategy is to not call the accused, as a reasonable doubt has already been created by the defence lawyer through their skilled cross-examination of the Crown witnesses. Every case is different and a competent, fully prepared, and experienced criminal lawyer is in the best position to assist the defendant in making a decision as to whether they should testify. The defendant’s decision to testify is one of the most important strategic decisions that is made at any trial and often the key to winning or losing a case. 

Clean and neat business attire that does not bring attention to itself is what you need to wear to present a good image to the judge or jury in the courtroom. Unfortunately, there are some people that judge us based on what we wear and our appearance. This is not fair, but it is a fact. Hats are not allowed in the courtroom, except for religious headdress. It is not advisable to wear clothes that may offend people. For both men and women, we recommend wearing a business-type suit. Denim is not advisable. 

What does the accused person do at the actual trial?

The trial is the last step of the judicial process and will determine the guilt or innocence of the accused. The trial itself is conducted by the Crown and defence counsel with the judge presiding over the proceedings. In some trials, the accused will testify and in other cases, the better strategy is often for the defence not to elect to call any evidence. The accused needs to be carefully prepared to testify by their lawyer over many hours. In all cases, the accused should pay careful attention to the evidence as it is being called during the trial to be able to engage in meaningful discussions with their lawyer during breaks and after court to discuss the facts as they unfold. Other than carefully listening to the evidence, continuing to consult with their lawyer, and possibly testifying in their defence, the accused’s role in the trial is limited. The accused has little control over whether they will win or lose their trial. In other words, the key to winning a criminal trial is hiring a good lawyer with a proven track record.

In some counties with a lesser population (i.e. where the courts are less busy), a trial might be set in the Ontario Court of Justice in as little as four to eight months after the first appearance. However, in most jurisdictions trials are scheduled eight to 12 months or longer after the first court appearances due to various factors, including the fact that trial courts are very tied up with previously scheduled trials. The reasons for the delays in getting a matter to trial in Ontario are due to many factors. There may be a delay in getting full disclosure from the police, or there may be conflicts in schedules between the officers and different court commitments. Lastly, courts are always busy and there may be no judges available. For cases that are less serious (i.e. summary conviction matters which are tried in the Ontario Court of Justice), for example, a trial date may not be available for 12 months or more. For serious indictable matters such as a more aggravated sexual assault, aggravated assault, or murder, etc., if the accused elects to have a preliminary hearing in the Ontario Court of Justice and to be tried in the Superior Court of Justice, a trial date may not be set for two to two-and-a-half years from the date of the first appearance. In recent years, the government has attempted to put in place proactive steps to lessen the delays in our Canadian court system with mixed results. Sometimes cases get thrown out (i.e. stayed) under s.11(b) of the Charter if enough trial delay occurs. Under s.11(b) of the Charter, an accused has the right to be tried within a reasonable time. The Supreme Court of Canada has recently set new guidelines defining what is a reasonable time in R. v. Jordan. 

Usually, a month or two before the actual trial date, the defence lawyer and the Crown attorney will be required to appear before the court to confirm the trial will be proceeding and discuss other matters such as confirming the number of witnesses and the original estimate of the duration of the trial is accurate. This Court will often enquire if the matter is resolvable without the necessity of a trial. Sometimes the parties are able to work out a plea bargain or a guilty plea to lesser charges to avoid the risk of proceeding to trial, depending on the accused’s wishes and instructions. 

Both parties must have copies of the disclosure and all other materials pertaining to the case. For example, if the Crown has a document that can help the accused person’s defence, it is obliged by law to hand it over to the defence counsel. If all materials for the case are sufficient, defence counsel will meet with the Crown and some or all aspects of the case will be discussed at the discretion of the defence lawyer. The Crown and defence counsel will often discuss the respective strengths and weaknesses of their case during this meeting. They will further discuss whether the case is resolvable (i.e. by way of a withdrawal of charges or by a negotiated guilty plea, including pleading guilty to lesser charges). Finally, the Crown and defence counsel will review the pertinent details of the trial such as its possible length, the anticipated factual and legal issues, any pre-trial applications or Charter applications which need to be brought and the names of the witnesses the Crown will be calling at the trial. In many cases, the Crown and defence will meet on multiple occasions to have ongoing discussions. 

There are times where the court will order you to attend a particular court appearance such as your trial. If you do not retain a lawyer, you will be required to attend all court appearances. If you are represented by counsel, your counsel will be able to attend most court appearances on your behalf pursuant to a document you will sign called a designation. It is important that if you are self-represented or if you have been ordered to attend court, that you personally appear in court on the scheduled court date. Failure to cooperate and appear in court will result in a warrant for your arrest for failure to appear, which is a criminal offence under the Criminal Code.

Don’t make this mistake. Write down in your planner when your scheduled court appearance is and always make sure to never be late, because failure to be present during the whole proceeding may result in you being arrested and being sentenced to a jail term. 

The disclosure is a packet of documents that contain things and documents pertinent to an accused person’s case. It may contain the following things:

  1. Police notes
  2. Statements from witnesses
  3. Video statements given by the accused person or the witnesses while inside the police station
  4. Transcripts or summaries of calls made to 911

The Crown attorney is required to provide full disclosure of all relevant documents and other evidence to the defence. Canadian law requires that a copy of these documents is given to the accused person’s lawyer for a review of the case in order to make a full answer and defence. The disclosure is then carefully reviewed by defence counsel to determine the strengths and weaknesses of the accused person’s case. 

Contrary to what many people may think, the first appearance is not the actual trial. Rather, it is just a brief appearance by the accused or his lawyer to confirm representation and to indicate to the court whether defence counsel has received disclosure of the Crown’s case, i.e. the witness statements and police reports. The Crown attorney’s office will typically provide defence counsel with the initial disclosure package on or before the first appearance. There is often missing disclosure in the initial package which defence counsel will require the Crown to provide. In most counties in Ontario, if an accused has retained a lawyer and signed a document called a designation, the accused is not required to personally appear at the first appearance as their lawyer will attend on their behalf. The first appearance is usually held inside a small courtroom and before a justice of peace.

There are many more court appearances before a trial can be scheduled in order for your lawyer to receive all of the disclosure, provide you with ongoing legal advice regarding the facts and law, meetings between defence counsel and the Crown to discuss the case (this is called a resolution meeting or Crown pre-trial) and a meeting with defence counsel, the prosecutor and a judge (i.e. a judicial pre-trial) to discuss all aspects of the case. 

How does the trial schedule work?

A person is either arrested or served a document ordering his appearance in court. If he is served the document, it must delineate the alleged charge, as well as the date, time and location of the Initial Court Appearance. The accused will be required to be photographed and have fingerprints taken before the first appearance or at the time of their arrest.

After the first appearance, further court appearances are scheduled. If the accused intends to plead not guilty, then usually a judicial pre-trial is conducted. A judicial pre-trial consists of a meeting, usually in the judges’ chambers (i.e. office) to fully discuss all aspects of the case, including discussing the factual and legal issues involved, whether the case is resolveable, and to manage court time. The actual trial is finally scheduled following the judicial pre-trial. In the Ontario Court of Justice, trials usually take place many months after the first appearance. For more serious indictable criminal charges such as sexual assault, aggravated assault, or murder, the preliminary hearing also takes place many months after the first court appearance, if the accused elects to have a preliminary hearing in the Ontario Court of Justice. The matter will then proceed to assignment court in the Superior Court of Justice where the trial is eventually set many months down the road.

A month or two before the trial, a confirmation hearing is usually scheduled to make sure that the trial is going to proceed as initially planned.

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