2. First Steps in your Criminal Case

If you have been charged with a criminal offence, you will almost certainly need to go to court. This can often be a difficult and stressful time. If you choose to represent yourself, it is important to access any supports available to help you deal with the emotions, and to understand the court process and prepare for your case. See Section 13: Resources for a list of available services in your region.

You should have received a document (such as a summons, or appearance notice or an “Information”) from the police or court informing you of the crime with which you are being charged and the date to appear in court for your first appearance. If you were arrested, you might be held in custody until you are brought before a judge and may seek bail. If you are granted bail, you will receive a document (an undertaking, or recognizance, or Release Order) informing you of any conditions you must follow while your charges are pending, and the date to appear in court for your next appearance. If you are not in custody and fail to attend court, a warrant for your arrest may be issued, so it is important that you show up for your first court appearance. If you do not, you are liable to be arrested and held in custody until your trial proceeds.  It is far more difficult to obtain your release if you have failed to attend court or breached a condition of your release.

If you are found guilty or plead guilty, you will, except in certain circumstances, have a criminal record and face consequences such as jail time, fines or community service. If you are not a Canadian citizen, this may also affect your immigration status. A criminal record may affect your future work, and your ability to travel outside of Canada. Additionally, if a driving offence, in (or outside) the court process, there may be a licence suspension, demerit points and insurance fee increases. There may be other consequences. Thus, in criminal cases, it is important to get good legal advice because the consequences of being found guilty could be very serious – a lawyer may be better able to help resolve a case in a way that may prevent receiving a criminal record or reduce jail-time or fines or reduce other potential consequences.

When you are accused on an offence, you are presumed to be innocent until proven guilty. It is the job of the Crown (lawyers acting on behalf of the government), to persuade a judge or jury that you are guilty beyond a reasonable doubt. You are also given an opportunity – but are not required - to present a defence. However, you do not need to prove that you are not guilty – the obligation of establishing guilt beyond a reasonable doubt in only on the Crown. If the Crown has not proven that you are guilty beyond a reasonable doubt, you will be found not guilty. If the Crown proves your guilt beyond a reasonable doubt, you will be found guilty. The judge or jury will make the decision about your guilt.

Type of offence

If you want to represent yourself, it is very important first to understand the charges against you. For a detailed look at how to understand the elements of the charge see Section 4.1. For now, it is important to know that you may be charged with an indictable offence, summary conviction offence or hybrid offence (where the Crown has a right to proceed as an indictable or summary conviction offence – see Glossary).

Your first appearance in court is often a brief procedural hearing. The purpose of the first appearance is to have you respond to the charges against you, and, possibly, to get more information (disclosure) about the charges against you. You will need to go to a specific courtroom or appearance room in the courthouse before a judge or judicial case manager. The Crown lawyer will also be present. You will likely receive documents called particulars or disclosure from the Crown. Disclosure (particulars) lists the charges against you, and what the Crown will rely on to prove you are guilty. If you have not received this information you should ask the Crown for it.

Questions that might be asked of you during your 1^st appearance:

1. Do you understand the charges against you?
2. Are you planning on getting a lawyer?
3. Are you ready to make a plea (guilty or not guilty) or do you need more time?
4. Have you been given disclosure from the Crown?

At your first appearance the charges against you may be read to you. If you do not understand the charge you can ask the judge to explain it.

Steps to follow on your first appearance

1. If you are not in custody, go to the courtroom listed on your summons, appearance notice or Information – if there is not one listed, ask the courthouse staff for help. If you are in custody, you will be taken to the courtroom.
2. If you are not in custody, let the clerk or sheriff know you have arrived (some courts have a sign-in procedure) and wait for your name to be called.
3. When your name is called you can walk up to the front of the court.
4. If you need an interpreter, let the court know.
5. Answer the questions asked of you. If you have already decided that you want to plead guilty you can do so now, but you may want to / perhaps should get legal advice before you do that. If you want to plead not guilty, you will have to set a preliminary inquiry date (where available) or trial date, almost always at a later time. If you need more time to decide, receive or review disclosure, set a preliminary inquiry or trial date, or to get advice, ask for an adjournment.
6. If the Crown hasn’t provided Disclosure (which is the information related to your case) ask the Court to direct the Crown to do so.

It is a fundamental element of the fair and proper operation of the Canadian criminal justice system that if you are accused of a crime, you have the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information. “All relevant information”, in this context, generally means that there is a reasonable possibility that the information will be useful to you as the accused in answering the charges and making a defence. Usually, in a criminal case, disclosure will include at least the following:

• the information / indictment: the document that states the charges made against you;
• the police narrative: a summary of what the police say happened;
• statements of all witnesses who have been interviewed by the police;
• statements or transcripts / video or statements you made to the police, if any;
• police notes;
• photos and / or video, if any; and
• any other materials relevant to the case.

Sometimes disclosure will not be available at your first appearance. In that situation, the matter will need to be adjourned (rescheduled to a later date) in order for disclosure to be provided to you. Sometimes partial disclosure will be made at the first appearance, and there will be subsequent disclosure made as it becomes available. You have a right to request further disclosure of specific things if you believe the police are in possession of additional relevant materials, or if further relevant materials could be available to the police through investigation. The Crown lawyer in court may tell you how you can collect the rest of your disclosure. You can also call or attend the Crown office to request or pick up further disclosure.

You will be asked to plead not guilty or guilty. You should consider carefully how you will plead. Only make a plea after you understand all the consequences of your plea. If you have not had a chance to review your disclosure and have not had any legal advice a judge will be unlikely to accept a guilty plea from you. Before accepting a guilty plea, the judge will want to know that you have reviewed the disclosure, had an opportunity to receive legal advice, and are aware of the Crown’s position about what sentence the Crown seeks.

Remember that it is always possible to change your plea from not guilty to guilty. However, once you plead guilty, you may not be able to change your plea to not guilty. If you have entered a guilty plea but have not been sentenced, you can ask the judge to let you withdraw your guilty plea. However, your request may be refused. After sentencing, the only way to change your guilty plea is through an appeal, and the requirements for having a guilty plea set aside are very strict. 

You do not need to give any explanation of why you are pleading a certain way. You have the right to plead not guilty. If you plead not guilty, there will be a trial. Before you decide to plead guilty, be sure to know what the punishment might be. You should also consider other consequences such as immigration status, loss of a license for motor vehicle offences, insurance implications, future employment and travel outside of Canada. Additionally, some crimes have a minimum sentence. For example, robbery with a firearm has a minimum sentence of 4 years in prison, this means if you plead guilty to robbery with a firearm, you will be sentenced to 4 years or more regardless of your circumstances.

All offences have a maximum sentence (except the offence of contempt of court). You should find out what the maximum sentence is for the offence(s) with which you are charged, because the maximum sentence indicates how serious the offence is considered to be, relative to other types of offences. 

Some offences have a minimum sentence, you can look it up in the Criminal Code of Canada (which is available online and at court libraries) or speak to a lawyer. You can also ask the judge about the sentencing maximums or any minimums.

After you have been given your disclosure and had time to review it, you will be asked if you have decided how you want to plead. If you are not ready to make a plea at this time, tell the court why you need more time before you plead. If you refuse to plead guilty or not guilty, the court will decide that you have pled not guilty and there will be a trial.

Pleading guilty

If you plead guilty, you admit that you committed the offence described in the charge against you. You also give up your right to a trial. The court will record that you plead guilty, which may mean that you will have a criminal record. Having a criminal record can affect some of your rights and your future. If you are not a Canadian citizen, you may be deported from Canada.

Before you plead guilty make sure:

1. You are doing so voluntarily and not as a result of a threat or promise.
2. You understand that you are admitting to all the elements (essential parts) of the offence – see Section 4.1.
3. You understand the consequences:
   • Know what sentence the Crown is asking for if you plead guilty.
   • Know what the maximum sentence is, and find out if there is a minimum sentence.
   • Understand the impact a criminal record may have (e.g. travel limitations, work restrictions, immigration, etc.).
4. Get legal advice, if possible. Even if you are unable to have a lawyer represent you, having one meeting with a lawyer to get their advice can significantly help you with your case. To learn more about how to get legal advice, see Section 1.5 Legal Assistance.
5. You understand that the court is not bound by any agreement made between you and the Crown about what your sentence should be (e.g. a joint submission).

If you plead guilty, you will need to go to a sentencing hearing. Your sentencing hearing might be the same day as your guilty plea or set for a different day. This is where the judge will decide about what sentence (e.g. jail time, or fine, or other penalties / restrictions) you will be given. At the sentencing hearing you can present your argument, highlighting any circumstances favourable to you that should be considered by the judge. To learn more about sentencing hearings and how to prepare for them, see Section 10. If you are not ready to proceed with your presentation, you should ask the court to adjourn the sentencing hearing to a later date so that you can prepare.

Pleading not guilty

If you plead not guilty, you will have a trial. At the trial the Crown will need to prove the charge(s) against you, beyond a reasonable doubt. You will also have an opportunity to present a defence (if you wish) or call into question the Crown case – i.e. raise issues that may create a reasonable doubt. However, before you have a trial you will likely need to attend an arraignment / scheduling hearing to determine the particulars of the process leading up to and at your trial, which will be dependent on the processes in your jurisdiction.

The arraignment / scheduling hearing is a hearing at court before either a judge or judicial case manager. Here are some common issues that might be dealt with at the arraignment hearing:

• If there is any remaining disclosure needed from the Crown.
• How you are going to plead (if you have not done so yet).
• Whether you wish to have the trial in French or English.
• Whether an interpreter for another language will be needed in the trial.
• The number of witnesses the Crown expects to call and whether you anticipate calling any defence witnesses (generally, you do not have to tell the Crown about your witnesses, but there are exceptions such as if your witness is an expert or will support you alibi).
• The time estimate of the Crown’s and Defence case.
• Setting a date for your trial and often a pre-trial conference date.

Sometimes these issues are dealt with at a pre-trial conference instead of at an arraignment hearing.  For more information on pre-trial conferences, see Section 9.1 Pre-Trial.

Election

At your arraignment you may also have the opportunity to make an election. Generally, only indictable offences, or hybrid offences (here the Crown has an election on how to proceed) that are moving forward as indictable offences, have election options. Summary offences (and some “absolute jurisdiction” cases) will be heard in Provincial / Territorial court as a judge alone (no jury) trials. An election gives you the ability to choose the type of trial you wish to have.

• Provincial / Territorial Court (judge alone, no jury);
• Superior trial court judge alone without a jury (in some jurisdictions this may not be an option); or
• Superior trial court with a jury.

For these offences, you will need to decide at which court you will have your trial. You will also need to decide if you want a jury (where available) or judge (where available) to decide your case. To learn more about jury trials see Section 8 Jury.

Sometimes cases are dealt with through alternative measures (also known as “diversion”). Instead of going to trial, you report to a probation office and follow a program set out for you. If you complete the program, you will not face criminal penalties or get a criminal record. Most often, after completing alternative measures, the Crown will enter a stay of proceedings and not continue the criminal prosecution against you.

You may be eligible for alternative measures if:

• the charge against you is minor (especially if it is your first offence);
• you admit guilt, take responsibility for your actions and express remorse; and
• you are aware of your rights and willingly agree to participate in the alternative measures.

You are not eligible for alternative measures if you want to plead not guilty.

If the Crown agrees to recommend you for alternative measures and the probation office accepts you, you will need to successfully carry out the conditions of an alternative measures agreement. This may include community service work, writing an essay or letter of apology, or counselling. You must go to all your court appearances until you are told you no longer have to come back. If you do not successfully finish your alternative measures program, the Crown can restart the case against you. To apply for alternative measures, you may need to write a letter of application for diversion. Your letter should include the following:

• Write that the letter is without prejudice (this means they cannot use it in court against you)
• Describe the offence
• Admit to all the essential elements (see Section 4.1) of the charge
• Your background (such as your age, education, family situation)
• The effect a criminal record would have on you
• Your feelings of remorse for your actions

Fill out the Alternative Measure Worksheet.

Download the Worksheet

You may wish to share this worksheet with the Crown when applying for alternative measures.

Personal history:

Health:

Other information:

Why did you commit the offence?

Do you regret your actions?

What was your mental / physical state when the offence was committed?

List anything else about what happened that would help determine whether you should be considered for diversion