Updated: Feb 6, 2020
Clients are understandably anxious about their first criminal court appearance. Many have never stepped into a courtroom before. Naturally, they don’t know what to expect.
In this short, practical guide I explain what “first appearance” court is like: the purpose it serves, what you should and should not expect, and the things you can do to prepare.
As usual, the views offered in this blog are general in nature and are not a substitute for case-specific legal advice. Real legal advice requires in-depth knowledge of your case, as well as the specific courthouse/room you are being asked to attend.
Your first appearance is not a trial.
Your first criminal court appearance will almost certainly be in a “set date” court. As the name suggests, set date courts are very much calendar, or “date”-oriented. The lawyers, defendants, and judges inside the courtroom are constantly discussing future dates: dates for a case to return; dates for a plea; dates for a trial, etc.
Set date courts are not designed to test evidence or make determinations about an accused person’s guilt or innocence. Unlike a trial or a plea court, set date courts are largely administrative in nature. By this I mean:
You WILL NOT be called upon to enter a plea of guilty or not guilty;
You WILL NOT be asked to produce any witnesses, evidence, or “your side of the story”; and
Unless they make a personal decision to show up, you SHOULD NOT expect to see any of the witnesses or complainants in your case.
The criminal court process is long and complex. “Set date” court is the very starting point of that process.
What to expect from the Judge or Justice of the Peace at your first court appearance.
The judge or justice of the peace at your first criminal court appearance will not ask about your guilt or innocence. Instead, their role is to ensure that your case is progressing in a meaningful way. Usually, this involves:
Determining if you have a lawyer – and if you don’t, whether you intend on retaining one;
Determining if the Crown has provided you with “disclosure” – a term we use to describe the evidence in your case;
Determining the status of your case more generally; and
Deciding on a date for you to return – one that allows enough time for you and the Crown to move your case forward, for example by retaining a criminal defence lawyer (usually 3-5 weeks).
The majority of simple criminal cases in Ontario will spend anywhere from 2-6 months in the “set date” court stream. Particularly complex cases can spend years here. If you already have a criminal defence lawyer, he or she will be using this time to review the evidence in your case, hold important discussions with the prosecutor, and perform other critical tasks.
If you don’t have a criminal defence lawyer, expect to provide an update each time you appear in “set date” court. “Have you hired a lawyer yet?” “Has the Crown provided you with disclosure?” "How does the Crown wish to proceed?" "Have you decided whether to enter a plea or proceed to trial?” As time goes by, the presiding judge or justice of the peace may weigh in with increasing sharpness.
The nuts and bolts: what to expect at your first criminal court appearance.
Whether you have a lawyer or not, your basic tasks at a first appearance court are to retrieve your disclosure, answer whatever basic questions the court may have (e.g. “Do you have a lawyer?”, “Did they give you a date to return?”) and select a new date to return. There are a few exceptions to this basic rule, but you’ll want to consult with an experienced criminal defence lawyer to see if they apply.
If you don't have a criminal defence lawyer...
If you don’t have a lawyer, arrive early. Depending on the courthouse, expect to be there for some time.
First thing’s first: find out where the Legal Aid Office is and, once there, ask to speak with Duty Counsel.
Duty Counsel is a government-funded lawyer who assists clients who are unrepresented or Legal-Aid funded. From time to time they will also assist individuals who have private lawyers who cannot make it to court that day.
Duty Counsel will provide you with guidance for the day. Be patient, as they are usually very busy. When it is your turn, they will ask you some basic questions and jot down the details. They may also provide you with some quick “summary” advice – that is, advice based on a very limited snapshot of your case.
Back in court, listen carefully for your name. When you hear it called, you will join duty counsel in front of the judge or justice of the peace. That’s where you will achieve the three goals we set out: retrieving your disclosure, if it’s available; answering whatever basic questions the Court may have (usually through Duty Counsel); and, together with the Court and the Crown, selecting a new date to return – typically in 3-5 weeks.
Once complete, record your return date and keep your disclosure safe, tidy and unruffled. Your disclosure is the key to your case. Your criminal defence lawyer will need it to advance your case.
If you do have a criminal defence lawyer...
If you already have a lawyer, you can expect your first criminal court appearance to go much more smoothly and quickly.
The golden rule still applies: be early or on time. If you cannot be on time, make sure that your criminal lawyer knows this ahead of time.
Once in court, your lawyer will handle the work of your set date appearance. As I described in the section above, this will involve calling your name; inviting you to appear in front of the judge or justice of the peace; answering whatever basic questions the judge or justice of the peace ay have; retrieving your disclosure if it’s available; and selecting a return date that matches your lawyer’s schedule.
If your lawyer is not present, don’t worry. Although it is preferable to have a lawyer present, set date court is filled with defendants making their first criminal court appearance alone. It is expected. And although your lawyer may want to raise important issues at the set date court stage, this rarely ever happens at a first appearance. There will be many future opportunities to clear the air.
If your criminal lawyer is not personally present, they may have sent an “agent” to speak on your behalf. If not, Duty Counsel may have instructions from your criminal lawyer in the form of a letter or a fax. In most cases, either of these alternatives is perfectly adequate for a first appearance. Remember: a first appearance is largely administrative in nature. It is NOT a trial and you will NOT be asked sensitive questions about your case.
If you are unsure about whether your lawyer will be present, speak to them in advance for clarification. In my own practise, my clients always know what to expect before attending every court appearance.