Updated November 2016
This How-To Brief outlines the steps to take when preparing for and conducting a Crown pre-trial.
1Obtain the disclosure
- The Crown has a constitutional obligation to provide disclosure. Since the obligation falls on the Crown, many jurisdictions do not require an initial request for disclosure. Instead, the Crown simply provides the disclosure in set-date court. Familiarize yourself with the local practice. If the jurisdiction in which the case is being heard requires an initial disclosure request, make one in writing as soon as you are retained. Even if the jurisdiction does not require a written request for disclosure, it may be prudent to send one in order to better protect the record for future issues that may arise, such as arguments under the Canadian Charter of Rights and Freedoms.
2Conduct an initial review of the disclosure
- Conduct an initial review of the disclosure to determine what disclosure is missing and what other disclosure is required.
- When requesting further disclosure, always assess whether the disclosure is necessary, whether it has the potential to harm the client's case and is already within the ability of the client to obtain without bringing it to the attention of the Crown.
- While reviewing the disclosure, organize it to enable easy access its component parts (for example, flag the record of arrest, synopsis, witness statements and individual police witness notes).
3Request missing and further disclosure
- While conducting the initial disclosure review, prepare a letter to the Crown requesting missing and further disclosure. Include requests for material that may be relevant to the credibility of witnesses, Charter and other pre-trial motions, and possible defences. In the preamble of your letter, indicate the next court date and courtroom number to enable to the Crown to locate the file and respond to the disclosure request.
- If the client is in custody and there is sufficient disclosure to conduct a meaningful pre-trial or if your client is in custody and there has been a delay in obtaining disclosure, schedule a Crown pre-trial immediately.
4Obtain the missing and further disclosure
- After making the request for the missing and further disclosure, follow up with written requests until the Crown provides all of the disclosure.
5Schedule the Crown pre-trial
- Generally Crown pre-trials are scheduled by calling the Crown's office and scheduling a telephone appointment. Some jurisdictions also make provisions for pre-trials to be conducted on the day of a client's court appearance, with a Crown designated for that purpose. Familiarize yourself with the practice of the jurisdiction in which the case is being heard.
6Review and assess the Crown's evidence
- Assess the strength of the Crown's case.
- Identify the legal issues.
- Identify motions available to the defence and assess their viability.
- Identify motions available to the Crown (such as similar-fact or hearsay motions).
- Identify possible defences that are apparent within the disclosure and assess their viability.
- Conduct any research necessary to make a preliminary assessment of the viability of the motions and defences.
- Assess the weakness of the apparent defences.
- Consider whether or not expert witnesses may be required for consultation or testimony.
- Determine whether any further disclosure is required based on your assessment of the case.
- Estimate the time the hearing will take if the matter is not resolved by way of a guilty plea.
- Consider which witnesses may be necessary for trial and whether an undertaking by the Crown to produce those witnesses might be available.
7Meet with the client
- Review the case with the client before conducting the pre-trial.
- Inform the client of the strengths and weaknesses of the Crown's case.
- Inform the client that admissions he or she makes to you may impose strict limitations on the conduct of the defence (see r. 4.01(1) of the Rules of Professional Conduct).
- Discuss any defences that are apparent on the face of the disclosure.
- If there are no defences apparent of the face of the disclosure, determine whether the client has information that provides a defence.
- Discuss with the client all options for proceeding and outline the pros and cons of each.
- Recommend a course of action to the client.
- Obtain written instructions.
If the client gives instructions to explore a resolution of the charges,
- ensure that a guilty plea is appropriate – that the client can admit facts that make out the offence
- explain the ramifications of a plea
- obtain information from the client about his or her background, if you have not already done so
- obtain all information that casts a sympathetic light on the client
- obtain information that explains why the offence was committed
- request material from the client that will assist in placing the client in a favourable light
- identify and document portions of the disclosure that mitigate the offence
- If the client wishes to proceed to trial, obtain contact information from the client for possible defence witnesses.
8Conduct the pre-trial
- Ensure that you have a system for recording the items discussed at the pre-trial. If possible, create a form to ensure a consistent practice.
- Record the date of the pre-trial.
- Record the name of the Crown with whom you conducted the pre-trial.
- Record the charges to which the pre-trial relates to avoid confusion if the client has other charges.
- Where the charges give rise to a Crown election, confirm if they will be electing to proceed summarily or by indictment.
- Discuss and record any missing or further disclosure requests.
- Discuss and record which Crown and defence motions will be argued.
- Where the matter will proceed by way of preliminary hearing, discuss and record what witnesses will be called.
- Where the matter will proceed by way of trial, determine and record what witnesses the Crown intends to call. As a general rule, the defence is not required to disclose whether defence witnesses will be called or who they may be. Keep in mind, however, that disclosure must be made at some point of certain types of defence witnesses such as alibi witnesses and expert witnesses.
- Discuss and record the mutually agreed upon time estimate
- Determine whether that estimate requires a judicial pre-trial before a date may be set for the matter.
- Discuss and record any admissions or concessions either side is prepared to make.
- Even where the client has given instructions to proceed by way of trial, record any resolution offer made by the Crown. There is a professional obligation to relay any such offer to the client.
- Where the client has given instructions to resolve the charges, discuss resolution with the Crown and provide information about mitigating factors. Record the Crown's sentencing position for both a joint sentencing submission and an open sentencing submission.
9Follow up with the Crown
- Where the Crown has made concessions, document these in writing in a letter to the Crown.
- Where there are outstanding disclosure issues, request the missing items in a letter to the Crown.
10Discuss the outcome of the pre-trial with the client
- Where the Crown has provided a resolution offer, provide this information to the client. Explain the offer to the client, discuss all of the options, make a recommendation and obtain written instructions.
- Where the client has provided instructions to proceed by way of a hearing, inform the client of the pre-trial discussions and confirm the client's instructions in writing.
Statutes and Rules