The pre-trial phase of a criminal proceeding will lead to either a resolution without trial, scheduling a trial date which will complete the matter at a later date, or setting a Preliminary Inquiry date as the next step in more serious ‘Indictable’ cases.

Resolution without trial can occur in a variety of ways but most commonly the Crown withdraws the charge (either outright or though ‘diversion’ or by ‘peace bond’), or the accused person enters a guilty plea. A guilty plea can be entered with or without a ‘plea bargain’ but usually involves some kind of consideration from the Crown such as accepting a plea to a different or lesser charge and/or a joint recommendation for penalty which Judges almost always follow. The system is designed to encourage guilty pleas and this manner of resolution can be usually be effected quickly (please see also below).

The process for setting a Trial date (as described in Pre-trial) also applies to scheduling more serious ‘Indictable’ cases which are destined for trial but first go though a Preliminary Inquiry in the lower court. This is a hearing to determine if there is sufficient evidence to send the matter to the higher court for a full trial. The Preliminary Inquiry is also an excellent means of preparation for the defence, one that should be take advantage of in cases where it is available (in cases where the Crown proceeds by Indictment rather than Summary Conviction).

Trial and Preliminary Inquiry dates are usually set for a date that is several months or more after the completion of the pre-trial phase. In straightforward trial matters the delay should not be more than 8 months but often is. In more complex cases (involving lengthy investigations and/or multiple accused persons), it can take significantly longer. Whether or not a case can be dismissed for ‘unreasonable delay’ requires a very particular analysis based on numerous conditions which vary significantly from case to case.^[1] This is another example of a legal right which would appear very difficult to rely upon at all without the assistance of an experienced criminal lawyer, in terms of adhering to onerous Court’s rules as well as substantive law.

Unless instructed otherwise from the outset, I presume that all matters should be set for trial. I believe, admittedly without a strict scientific basis, that my clients plead guilty less often than the systemic norm which is over 90% of cases. This is not to compare my self to other lawyers. Many people plead guilty without the advice or assistance of a lawyer in the first place and some do so against the advice of a lawyer. In any event, when and whether to plead guilty is something about which reasonable lawyers might disagree. For example, some lawyers may reasonably ascribe a higher value than I do to the prospect of a Judge giving the accused credit for an early guilty plea as an expression of remorse.

In my experience it is often more useful to put the Crown to its heavy burden of proving the charge(s) beyond a reasonable doubt, even if the prospect of an outright acquittal is not obvious during the pre-trial phase. This is known as the defence of “prove it”, a position through which I have seen significant success over the years.

Guilty pleas are usually taken without a trial of the facts affecting penalty. The system encourages them to take place in crowded courtrooms based upon the factual claims set out in police documents. These are read out by the Crown who usually assumes the police information to be correct, and the defence lawyer can make ‘clarifying’ comments. But in my experience the actual evidence often cannot support the police claims fully, even if technically capable of proving guilt, and ‘clarifying’ comments may not be sufficient. Thus even if an accused goes to trial instead of pleading guilty and gets convicted on a “prove it” defence, the facts upon which the sentencing proceeds may be less serious than those which the Court would have heard in the first place. This will often outweigh any ‘credit’ the accused might have been given for an early guilty plea.

Some believe that the Crown offers better ‘deals’ at earlier stages of the prosecution and to be sure the Crown vigorously asserts that view, even on the pre-printed ‘screening forms’ handed out to unrepresented accused people who may thus be scared into believing that if they do not plead guilty right away things can only get worse for them. Sometimes that may be the case. Whether it is can only be answered by an experienced criminal lawyer.

There can be serious benefits to letting the case move towards a hearing date when the Crown will actually have to prove something. Crown counsel have heavy caseloads and it may only be when they are closer to a hearing date that their preparation allows them to appreciate the weakness in their case. At that point a plea bargain can still be reached and it is often a much better one than the Crown would have agreed to at the pre-trial phase when it was assumed that all the police documents were true and correct.

Some cases are won simply by virtue of insisting upon setting a trial date with nothing more than the “prove it” defence in mind. The Crown may be unable to produce a necessary witness; a witness may simply not say what they were expected to; any number of legal technicalities may thwart the prosecution. The crown’s last minute assessment of the prospect of conviction weighed against its caseload and other imperatives may cause the Crown to withdraw a charge in favour of the accused agreeing to a Peace Bond without admitting guilt, or some less formal disposition.

When cases are set for trial, they can still be won and in any event can still be resolved by way of plea bargain if that is ultimately best. But once a guilty plea is entered, the right to put the Crown to its burden has been forever waived. Thus my affection for the motto ‘my clients plead not guilty’.

---