One of the key steps in any criminal trial in Canada is that you are required to have a crown pre-trial. Now, what is a crown pre-trial?
Well first of all, it is also known as a resolution meeting or a crown resolution meeting. A crown resolution meeting takes place after you have already met with your client, you have received and reviewed disclosure and provided your client with your legal opinion and received instructions from your client. Your client might instruct you to negotiate the best possible resolution or your client might say, well look, we are heading to trial. Or they might be on the fence depending on what the crown’s position is regarding the type or length of sentence they are seeking. A crown pre-trial is consists of a meeting between defence counsel and the crown where both parties are essentially reviewing most aspects of the file and the client’s background. Defence counsel receives the crown’s position after he or she has informed the crown regarding the client’s background (i.e. what type of person they are) and reviewing the strengths and weaknesses of the case with the crown. It’s kind of a fulsome discussion about all aspects of the case, in the discretion of defence counsel.
If defence counsel is trying to negotiate a lenient sentence, they will try and negotiate a joint submission where the crown and defence can hopefully agree to a lenient sentence involving, for example, no jail. Your client might be happy with that, or the crown might say, “No, we are asking for 3 years in jail.” Defence counsel might then say, “Well, I think only 1 year in jail is warranted Mr. Crown.” In this situation, you may be heading to trial if there is a viable defence, as there may be no utility in pleading guilty and possibly facing a lengthy jail term. Alternatively, if there is no viable defence, you may decide to have a judicial pre-trial and following same, plead guilty in front of a judge based on open sentencing submissions where the crown seeks 3 years in jail and the defence argues for a 1-year jail term.
The judge will have to make a decision about how long the jail term will be. In another sentencing case, the crown might be seeking a jail term and the defence is advocating for no jail term and the judge will have to make an appropriate decision between the two competing lines of argument. The other thing that happens at a crown pre-trial, especially if you are heading to trial, is that you have a fulsome discussion about the trial issues. We are trying to manage court time in the province, so the crown and defence have to figure out the number of witnesses who are being called by the crown, the basic factual and legal issues and how many witnesses are being called by the defence. We are trying to effectively manage court time at a crown pre-trial, so we try to estimate the number of trial days or weeks the matter will take, before we set the trial date. If there is a Charter application (i.e. a constitutional challenge to exclude certain evidence at trial), we should disclose that during the crown pre-trial. This is a requirement, that should be disclosed to the crown, if not at the crown pre-trial stage, during the next stage which is called a juridical pre-trial.
So we have a discussion about that, where the level of detail to be disclosed will be in the strategic discretion of defence counsel. For example, maybe defence counsel can convince the crown to withdraw the charge if there is a good Charter issue. In this case, defence counsel might go into great detail about why the charge should not proceed. These meetings can go on and on in complex cases. Sometimes defence counsel needs many meetings with the crown, which evolve over months and especially if you get new disclosure from the crown, that might strengthen or weaken the defence case.
So the bottom line is that a crown pre-trial involves a fulsome discussion between defence counsel and the crown, with the level of detail regarding any Charter applications or defences to be disclosed in the strategic discretion of defence counsel. The thing that defence counsel should not do at a crown pretrial, if there is a good substantive or technical defence that is not so obvious (for example many D.U.I, charges have hidden technical defences) or “hidden” within the police notes, is that you don’t necessarily want to disclose that to the crown because you do not want the police to have a chance to correct their error before the trial. So sometimes, you kind of have to “wait in the weeds” as the saying goes. In such a case, defence counsel will stay as silent as possible and will simply say something like, “This is a prove it trial; it’s going to be a one-day trial, two-day trial or three-day trial.” Defence counsel then hopes that the crown does not even look at the file very carefully and generally they don’t at that stage. For example, on a minor case, the crown has maybe looked at the file for an hour or two when you have examined it for 10 hours and found a hidden or obscure technical defence. So that is what happens at a crown pre-trial. Again, further crown pre-trials might take place for many subsequent meetings after the first meeting. In many cases, you might need just one meeting and head to a guilty after the initial crown pre-trial.
The next step after the crown pre-trial is to get further instructions from your client and you either set the matter for a guilty plea and sentencing, have another crown pre-trial or schedule a judicial pre-trial. I will talk about judicial pre-trials in another one of my videos.