There is a knock on the door and the person standing there is asking for you. You say yes, may I help you, and they give you a piece of paper. It should be a yellow piece of paper, and in the past, it was, but after COVID, maybe not.
You have now been served with a “Summons To Appear” (STA).
A STA may be delivered by any number of people such as, Police, by-law officer, building inspector, conservation officer, process server, MNRF, MOE, MOT, MOH and so on.
The important part is that it is a STA on some date and time, at some address and a courtroom number. It will also state that you have been charged with an offence under a Provincial Act, the section of the act, what the actual charge is and the date of the alleged offence.
If it is not a Provincial Act, then it is a Federal Act such as the Criminal Code. This article will deal only with Provincial Acts.
What do you do next? At this point you have options. Appear in court as yourself, which is called self-represented, by a Lawyer, a Paralegal, or an Agent. Regardless of what you do, you must appear or make sure that someone will appear on your behalf. If you or no one else shows up, then a “Bench Warrant” for your Arrest will be issued on a charge of “Fail To Appear”. No matter how you feel about the charge, … be there!
If you hire a Lawyer or Paralegal for representation, they will know the process. If that is the case, then this article is complete.
However, I am writing this for educational purposes and for the public to understand the process of the Justice system. I am writing this for the benefit of a self-represented accused.
You are the accused, that is your new title. I am also writing this in the context of an offence committed under a Provincial Act and a “Part III” offence. The “Provincial Offences Act” (POA) is the legislation that governs how a Part III offence is processed in the courts. The POA also has a Part I and a Part II section, however we are dealing only with Part III.
As part of your education, you must have access to E-Laws Ontario. This is a website managed by the Ontario Government that contains the Acts and Regulations for Ontario. You must become familiar with this site. It also contains the Legislation that you have been charged under. In addition to E-Laws, there is the CanLII website which is free access to Case Law and other areas of law for your reference.
Canadian Legal Information Institute | CanLII
The date of your “First Appearance”, is not the beginning of your journey. Before you appear in court you want to obtain “Disclosure” from the Prosecutor. Disclosure contains the “Evidence” that will be used against you in your case. The sooner you obtain disclosure the sooner you can formulate a defence strategy or decide to plead guilty and negotiate a penalty for the offence.
To obtain disclosure you must ask for it. It is your right to have it, but it is your responsibility to ask for it. You can wait until your first appearance and ask for it then. By doing so you have put it “on the record” that you have “requested disclosure”. The alternative is to contact the office of the prosecutor and make a request or an application for disclosure.
There are several ways to do so. The County where you live manages Provincial Offences. Call the main number and ask for the Office of the Prosecutor or ask for the website address where the form asking for disclosure can be filled out and submitted. Be patient when working your way through the bureaucracy. You will eventually get to where you need to be.
I strongly recommend that you obtain a logbook, diary, notepad etc. You must write everything down. Every person you speak to, date, time, place, address, email, phone number, content of the call etc. Do not try to rely on your memory.
I recommend that you do not wait for your first appearance to ask for disclosure. By asking for it as soon as possible, at your first appearance you can put it on the record that you have requested disclosure, but you have not received it. The prosecution will speak to why it is not available. Your case will then be put over to another date giving time for the prosecution to obtain disclosure for you. In the interim, you may receive it by email, especially if you filled out the request for disclosure form at the County website.
Whatever time court begins, show up at least 30 minutes before. Look for the prosecutor who will be the person with a stack of files standing at the table to the right of where the judge sits. Tell them your name so they know you are in court. For a first appearance, you are not going to enter a plea. On the tables in front of the judge you will find the docket sheets. They are in alphabetical order. Scan down to find your name. To the left of your name, you will find your docket number(s).
If you are able, use ZOOM for your appearance, obtain the link from the court or it may have been sent to you. There are options to use either video or audio. I recommend that you use the video option. You will need a good internet link and a webcam. If you have a smart phone, you can use it. Make sure you have a full charge on the battery. Download the Zoom software and do a test of video and audio before court. At the bottom of the main Zoom website, you can find the Test Zoom link.
Log into the court Zoom link and wait until you are allowed into the courtroom. Ask for the court clerk and identify yourself. The “Virtual” Zoom appearance is not that different in procedure than in person. After speaking to the clerk, stay muted until your case is called.
When court is in session, the cases are usually called first for lawyers, paralegals, agents, and self represented. However, this may not occur as the clerk, trial co-ordinator and available staff may change what cases are called in what order. So, if you are a self rep, use this time to watch the proceedings. It is an opportunity to see how the court operates.
Finally, you hear your name called. Walk up to the front and stand on the left. This is for Defendants. Speak your name for the record when asked. If the presiding Justice is wearing a Green Sash address them as Your Worship and if the sash is red, it is Your Honour.
The Justice will ask if you have legal representation to which your will say no, I am self-represented. The Justice may suggest that you obtain legal representation. There will be the discussion for disclosure as to whether you have received it or not. Finally, a date to return to court.
Some of the issues you are facing next is whether you have received “Full Disclosure”. If you feel you have not, then write to the prosecutor and request what is missing. The prosecutor may say no, you have all that is necessary. In which case you may require a “Motion” to obtain the disclosure you feel is missing.
If you are going to trial, you will need to set a date for trial. If the trial will be more than 2 to 4 hours, a “Judicial Pre-trial” may be required. Each court will determine if a JPT is required based on the complexity and estimated length of the trial.
If after having received disclosure, you wish to plead guilty, contact the prosecutor and negotiate a penalty. Be negotiable but not overly agreeable. Factors to consider when negotiating a penalty is if this is your first offence. Do you have reasons for what happen that are reasonable, possibly beyond your control. You have financial difficulties, Family issues etc. You do not have to accept what is offered to you the first time.
If you cannot negotiate a reasonable penalty, then at the next appearance put it on the record that you want to plead guilty, but you can not obtain an acceptable penalty from the prosecutor. Depending on your local court, the Justice may hear the facts that day, or set it over for taking your guilty plea and hearing your argument for a penalty you feel is reasonable.
The next article will be Disclosure and the Judicial Pre-trial.
Editor’s Note: This article is one of a series of articles written for the OLA ENews. For a list of the other articles, go to the OLA website and type Docket into the search box.