YOU’VE been CHARGED with a

What YOU

NEED to KNOW

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This booklet is intended to provide general information only. If you require specific legal advice, please consult the appropriate legislation or contact a lawyer.

SECTION 1 You have been charged. Now what? 2 Kinds of offences 2 Your first court appearance 2 SECTION 2 Duty counsel 3 SECTION 3 If you don’t have a lawyer for the trial 4 SECTION 4 How do you get a lawyer? 4 SECTION 5 Legal Aid 4 SECTION 6 Other services 5 Student Legal Services of Edmonton 5 Student Legal Assistance of Calgary 5 Calgary Legal Guidance 5 Dial–a–Law 5 Elizabeth Fry Societies 5 Native Counselling Services of Alberta 5 SECTION 7 Where will the trial be? 6 SECTION 8 Pleading guilty 6 SECTION 9 Getting ready for trial when you have pled not guilty. 7 What if you or your witnesses do not speak English? 7 Find out what there is against you 7 Preparing your defence 7 Bring your witnesses to court 7 SECTION 10 What happens in court? 8 SECTION 11 Sentencing 9 1 YOU’VE BEEN CHARGED NOW WHAT?

If you are charged and are not YOUR FIRST COURT kept in custody, you will be given APPEARANCE a document (appearance notice, All criminal charges start out in promise to appear, summons to attend or recognizance). This the Provincial Court in front of a document will tell you when and Provincial Court . This is known where you have to appear in as the “first appearance.” You court. In addition, you may be should arrive at the proper required to go to the police courtroom at least 15 minutes station to be photographed and before the scheduled time. It will fingerprinted. If you do not likely be a docket court which means appear in court or report to the that there are a number of matters police station when you are that the court will be dealing with supposed to, you can be charged on that day. with the Criminal Code offence of “failing to appear” and a warrant When you get to the courtroom, may be issued for your . look at the docket list (which is usually posted outside of the courtroom) to see whether your name KINDS OF OFFENCES is correct and the charges are Criminal charges are handled in properly set out. If your name is one of three ways: missing, go to the Provincial Court a) summary conviction offences Criminal Division and speak to a b) indictable offences clerk. c ) dual or hybrid offences Once in the courtroom and when Summary conviction offences are the clerk calls your name, go to the sometimes considered to be less front and stand in front of the serious than indictable offences and judge. The charge against you will carry a lesser penalty. Trials for be read out. summary offences are heard in the Provincial Court. If you are charged with an indictable offence you have the right to have your trial either before Indictable offences are usually the a Provincial Court judge or a Court of most serious offences and have Queen’s Bench justice with or without greater penalties. A dual or hybrid a unless it is an offence for offence means that the Crown which the Provincial Court has can choose whether to absolute jurisdiction. When you prosecute by way of summary decide which court will hear your conviction or depending trial, you are on the circumstances of the case. You may be able to have someone else appear for you if you are charged with a summary conviction offence, but you must appear in court if you are charged with an indictable offence.

2 “making an election.” If you elect to time to talk to one. If the judge allows have the trial in the Court of Queen’s you to reserve your plea, you will be Bench, there will be a preliminary given another date to return to court. hearing scheduled. You may also be able to reserve your election if you don’t have a lawyer. A takes place in front of a Provincial Court If you plead not guilty, a trial will judge. It is held to see whether be scheduled. If you plead guilty, there is enough evidence to justify several things will happen next. sending the case to trial. If there is Please see section eight for not enough evidence, the judge information on pleading guilty. discharges you. If there is enough evidence, the judge will order you to If you speak French, you are stand trial in the Court of Queen’s entitled to be tried before a French Bench and a trial date is set. speaking judge. If you would like your trial in French, you must apply If you are not charged with an to the court before: offence where you may make an a) your trial date is set (if you election, the judge may ask if you do not have an election), understand the charge. Then you b) your election (if you elect trial will be asked if you plead guilty or in the Provincial Court), or not guilty. You may also ask the c) your committal for trial (if you judge if you can “reserve” your plea. elect, or are deemed to elect, trial If you do not have a lawyer, in the Court of Queen’s Bench). reserving your plea will give you

2 DUTY COUNSEL

If you don’t already have a lawyer speak to and speak to your to help you, a lawyer known as duty release. Duty counsel cannot counsel is available to help in docket represent you at trial. If your matter is court free of charge. Duty counsel set for trial, it is up to you to find a can speak to the Crown prosecutor lawyer. for you, set a trial date, reserve (postpone) your plea for a later date, enter a guilty plea,

3 3 IF YOU DON’T HAVE A LAWYER

If you would like to have a lawyer he or she will also need time to ask for the trial or preliminary inquiry, for an adjournment. If you do not you should make sure that you have a lawyer on the day that is set, arrange for one well before the day of the judge may not grant you an the trial or preliminary inquiry because adjournment to get one and will a lawyer needs time to prepare your expect you to represent yourself. case. If your lawyer is not available on the day your matter is scheduled,

4 HOW DO YOU GET A LAWYER?

Search the internet and call a who deal with criminal law. You can lawyer who practices criminal law. meet with each lawyer to receive 30 Or, call the Lawyer Referral Service minutes of free advice and discuss (www.lawsociety.ab.ca/public/lawyer_r your situation. If you want that eferral.aspx) and ask for the name lawyer to represent you, it will cost of a lawyer who practices criminal more. Discuss fees. You may also law. The phone number for the want to talk to other people to see if Lawyer Referral Service is 1-800- they can recommend someone or 661-1095. You will be given the check for advertisements.in local names of up to three lawyers newspapers or other publications.

Call Legal Aid or visit www.legalaid.ab.ca (see section five) if you cannot afford a lawyer.

5 LEGAL AID

If you cannot afford a lawyer, call Legal Aid is not free. You will be the nearest Legal Aid office (call the asked to pay back the cost when you toll free RITE line at 310-0000 to are able to. ask for the nearest Legal Aid office) to see if they can help you. They will When you apply to Legal Aid, you set up an interview. If you are being must give financial information so held in a remand facility, a that they can determine whether you correctional institute or a hospital, are eligible. Your eligibility depends contact Legal Aid by phone or ask both on your financial situation and the facility to set up an interview. on the type of legal problem that Legal Aid staff make regular visits to you have. these facilities. If Legal Aid cannot assist you, they can suggest other agencies or services that may be able to help.

4 6 OTHER SERVICES

STUDENT LEGAL SERVICES DIAL-A-LAW OF EDMONTON www.clg.ab.ca/programs-services/dial-a-law www.slsedmonton.com Dial-a-Law is a service you phone to Student Legal Services of Edmonton listen to pre-recorded tapes can give legal information and may containing general legal information assist low-income people in including information about criminal Provincial Court with a number of matters. Written copies of the tapes criminal charges: breach of can also be mailed on request. The probation, , certain phone number is 1-800-332-1091 driving offences including impaired or in Calgary, (403) 234-9022. driving and more. Their hours of operation change during the school ELIZABETH FRY SOCIETIES term. You can phone them at (780) 492-2226 for further information. Elizabeth Fry societies work with, and on behalf of, women involved with the justice system, particularly STUDENT LEGAL women in conflict with the law. The ASSISTANCE OF CALGARY Edmonton and Calgary Elizabeth Fry societies have court workers who http://slacalgary.ca/ provide information to both men Student Legal Assistance is an and women on court procedure, association of law students at the plea options and directions. They University of Calgary. They provide also provide referrals to duty year round legal assistance and counsel and other community and representation in Provincial Court to legal resources. They can be people charged with less serious reached at (780) 422-4775 in criminal offences who are unable to Edmonton and at (403) 294-0737 afford legal services. If Student in Calgary. Legal Assistance agrees to help, you will be charged a $30 fee. Their NATIVE COUNSELLING phone number is (403) 220-6637. SERVICES OF ALBERTA CALGARY LEGAL GUIDANCE www.ncsa.ca/programs/help- http://clg.ab.ca/ with-court Calgary Legal Guidance is a non- Native Counselling works to ensure profit organization. Staff lawyers that Native people receive fair and and law students help people who equitable treatment in the justice are charged with less serious system. Their Native Court worker offences. Staff accept or reject Program provides Aboriginal people applications for assistance on a with information about court case-by-case basis. You can call procedures, their rights and them at (403) 234-9266. responsibilities under the law, and advocacy, support and referrals to Legal Aid and other resources. Court workers also may attend court with their clients.

5 7 WHERE WILL THE TRIAL BE?

Your appearance notice (the The Crown prosecutor can usually document that you receive be found sitting at one of the tables indicating your first appearance) in the front of the courtroom. If you contains the address for the are late or do not attend, the court courthouse. The written notice you may issue a warrant for your arrest receive when your trial date is set and you can be charged with the contains the time and location of the criminal offence of failing to appear. trial. Arrive at least 15 minutes early and, if you are not represented by a lawyer, let the Crown prosecutor know you are there.

PLEADING GUILTY 8

If you entered a plea of not guilty If you have a criminal record, the at your first appearance and you Crown prosecutor should show you want to change it to guilty at the a copy of the record before showing trial date, you must ask the judge if it to the judge. Make sure it is your you can change your plea to guilty. criminal record and that there aren’t If you know before the trial date that any mistakes in it. If there are, tell you want to plead guilty, you should the judge. call the Crown prosecutor as soon as possible. Telling the Crown Before the judge sentences you, prosecutor before the trial date you will be given a chance to tell gives time to cancel the witnesses the judge something about and saves everyone inconvenience. yourself, the offence and any special circumstances that might affect the Once the guilty plea is entered, sentence. The judge may ask you the Crown prosecutor will tell the questions such as how old you are, judge about the offence, often whether you are married, whether reading from the police report. you have a job, how many children Make sure the facts the Crown you have and whether they live with prosecutor presents are correct you. You may want the judge to since you will have to agree to these know how much income you have facts. If you do not agree with and your plans for the future. something that is said, you will have Remember, always be absolutely a chance to tell the judge why you honest with the judge and all those disagree. You cannot plead guilty involved in the criminal justice unless you agree that you system. committed the offence. If you disagree with many of the facts, you For sentencing, skip to section 11. should think about pleading not guilty and taking the matter to trial.

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9 WHEN YOU HAVE PLED NOT GUILTY

WHAT IF YOU OR YOUR PREPARING YOUR DEFENCE WITNESSES DO NOT You are innocent until proven SPEAK ENGLISH? guilty beyond a reasonable doubt. You should indicate to the judge It is up to the Crown to prove your that you need an interpreter at the guilt. The Crown prosecutor must prove: time the trial date is set, or if you are making an election, at the time the a) the offence was committed, election is made. The court will b) the offence was intended, provide an interpreter. c) that you are the guilty party, and d) the time, date and place of the As indicated earlier, if you speak offence. French, you can ask to be tried before a judge who also speaks During the trial, the Crown will French. Remember, you must make present evidence to the judge to the application before: establish these things. You have a a) your trial date is set (if you do right to remain silent. You will be not have an election), given a chance to ask questions of b) your election (if you elect trial in the Crown’s witnesses. You will also the Provincial Court), or have a chance to call your own c) your committal for trial (if you witnesses to give evidence. You elect or are deemed to elect trial may want to get some assistance in the Court of Queen’s Bench). from a lawyer to help you prepare your legal argument.

FIND OUT WHAT EVIDENCE BRING YOUR WITNESSES THERE IS AGAINST YOU TO COURT You can ask the Crown prosecutor’s office for “disclosure.” Your witnesses must be physically Disclosure means you can have present in court. You can subpoena copies of all the evidence in your (compel) a witness to come to court case, such as witness statements, if they are unwilling or if they need a police reports and the police officer’s subpoena to get time off work. You notes. The process to get this may pick up copies of subpoena information may vary across the forms at the clerk’s office. Fill out province. In most cases, you will be one subpoena for each witness and asked to fill out a form which asks ask the clerk to have it authorized by for your name, date of birth, the a justice of the peace. The justice of charges against you, the court date, the peace may ask you questions courtroom and your signature. The about the subpoena. Once it has Crown prosecutor’s office will have this been authorized, have the police or a information ready for you in about private document service company seven to ten days. You will be serve the subpoena You should contacted when it is ready and you allow enough time for the can go to the Crown Prosecutor’s subpoena to be served (at least two office with picture identification to weeks) and there will be a fee for pick it up. service.

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WHAT HAPPENS IN COURT? 10

The rules around trial procedure Once all of the evidence is are too complicated to explain in entered and all witnesses have detail in this booklet. However, been called by the Crown this is an outline of what happens. prosecutor, you will have an opportunity to put forward a The Crown prosecutor calls defence (something you do not witnesses first. You or the Crown have to do). If you choose to put prosecutor can ask the judge for an forward a defence, you do it order for exclusion of witnesses so through your witnesses and your that the other witnesses must leave own testimony. Remember, you the courtroom while one is are not required to call any testifying. This will reduce the evidence or to testify yourself. chances that witnesses will be Further, the Crown prosecutor will influenced by each other’s evidence. be given the chance to cross- After the Crown is finished asking a examine you if you take the stand witness questions, you will have a and can cross-examine any of chance to ask questions. This is your witnesses. If you do decide called cross-examination. to testify and you have a criminal record, the Crown prosecutor can The Crown prosecutor may also ask you about it. If you do not have documents, photographs or give evidence, the Crown can other items for the judge to see. only mention your record if and This could include things like a when the judge finds you guilty. breathalyzer test certificate. This is introduced by a witness and the After hearing each side’s case, Crown will ask the judge to have the the judge will ask for argument. item introduced as an exhibit. If you called witnesses, you will go first. If you did not call witnesses, the Crown prosecutor will go first. After you have finished your cross- Argument gives both sides a chance examination of a witness, the to persuade the judge. The judge will Crown is able to ask further then decide whether to find you questions that have come up for the guilty or not guilty. If you are found first time through your questions. not guilty, you are free to go. This is known as “redirect.”

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11 SENTENCING

If you are found guilty, see section information about you. If that 11 on sentencing for details about happens, you will not be sentenced what may happen to you. until the judge has had a chance to Depending on the offence, your review the assessment. A probation sentence could include a money officer prepares the pre-sentence fine, probation, imprisonment or a report. The probation officer may combination of these. In some interview you, your family, your situations, the judge will order you employer or anyone else who to pay restitution to the person who can provide relevant information. has suffered as a result of your acts. This process usually takes a number If you are sentenced to jail for less of weeks. than two years, the judge has the option of letting you serve your time If the offence is serious or your in the community. There will be criminal record is lengthy, you conditions on this which must should be prepared to be taken be followed carefully. In exceptional from the courtroom directly to jail. circumstances, if the judge is convinced that a criminal record will VICTIM SURCHARGE seriously and unfairly affect your ON OFFENDERS future plans, you may be granted a discharge, either conditional or If you are found guilty, you will be absolute. This means that technically charged a victim surcharge. A victim you are not convicted, but a record surcharge is an additional penalty is kept of your discharge. The imposed at the time of sentencing. conditions in a conditional discharge It is collected by the provincial are contained in a probation order government and used to provide and if they are not followed, the programs, services and assistance discharge can be revoked and the to victims of crime. conviction entered. The victim surcharge is automatic unless you can prove undue If you do not have enough money hardship. The surcharge amount is to pay a fine, tell the judge that you 30% of any fine imposed. If no fine will need time to pay. The judge may is imposed, it is $100 where the give you a “fine order.” If you can’t offence is punishable by summary pay your fine by the due date, you conviction and $200 where the can go to the clerk’s office and apply offence is punishable by indictment. for an extension. This must be done The judge has the discretion to before the date the fine is due to be increase the amount of the paid. You may also be able to work surcharge. off your fine through community service. VICTIM IMPACT STATEMENTS

The judge can also ask for a A victim impact statement is a pre-sentence report to get more written statement prepared by the victim and considered by the judge at the time of sentencing. It allows victims to participate in the proceedings by describing the the impact of the crime on them and their families.

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