Practice Direction: Procedure for Scheduling of Criminal Trials and Preliminary Inquiries

1) Procedure for Selecting Trial and Preliminary Dates

The setting of all criminal trial and preliminary inquiry dates may be done remotely using a combination of an online form (the Trial / Preliminary Inquiry Scheduling Form) and a trial scheduling conference with the Trial Coordinator’s office.

Note: At the direction of the Regional Senior Judge, an alternative procedure for setting trial dates may be adopted locally. Any such local procedure will serve as a supplementary alternative to the procedure set out in this notice. Counsel may continue using the procedure set out in this notice to set a trial or preliminary inquiry in any court location across the province, even where an alternative procedure has been introduced locally.

a. Completion and submission of the online form

Defence counsel will complete the Trial / Preliminary Inquiry Scheduling Form and submit it to the Trial Coordinator’s office electronically, following the instructions on the form.

Defence counsel must also send a copy of the Scheduling Form to the appropriate Crown’s office by email. If the matter is being prosecuted by an agent of the Public Prosecution Service of Canada, counsel should also copy the agent, if known.

b. Trial scheduling conferences

After the Scheduling Form is received by the Trial Coordinator’s office, a trial scheduling conference will be held with the Crown, defence counsel and the Trial Coordinator attending. A properly-instructed agent may attend the trial scheduling conference on behalf of the Crown or defence counsel.

The trial scheduling conference may be conducted remotely by video conference or teleconference. Counsel will receive conference details after the Trial Scheduling Form is submitted to the Trial Coordinator’s office.

The purpose of the scheduling conference is to review and confirm the content of the Trial Scheduling Form and to canvass available dates so that the Trial Coordinator can assign a trial / preliminary inquiry date.

Counsel attending the trial scheduling conference must be fully briefed on all matters that may affect the scheduling of the hearing, including

• the time estimate for the trial
• the available dates for counsel and witnesses (including police witnesses)
• whether all or any portion of the hearing is proposed to be conducted by videoconference or audioconference; and
• any other matters that may affect the scheduling of the trial (interpreters, child friendly room, pre-trial and trial applications, etc.)

The Trial Coordinator will record the selected trial / preliminary inquiry date, and all other dates canvassed, on the Trial / Preliminary Inquiry Scheduling Form. The Trial Coordinator may also record a trial confirmation date on the form, which will be assigned in accordance with local protocols and procedures.

The Trial Coordinator will email the completed form to the Crown, defence counsel and the court clerk. The court clerk must ensure that the form is available to the Court at the accused person’s next court appearance.

c. Election re Mode of Trial

If an accused person has not made their election regarding mode of trial, the defence is encouraged to have the accused make their election by written submission in accordance with s. 536.2 of the Criminal Code. A written Notice of Election prepared by the Ministry of the Attorney General’s Court Services Division that may be completed and filed with the Court is available on the Ontario Court of Justice website. The Notice of Election may be signed electronically and may be filed with the Court by attaching it when the Trial / Preliminary Inquiry Scheduling Form is submitted.

If an accused person is entitled to an election but has not yet made their election, the accused person will be required to be present by remote appearance at their next court date to be put to their election, unless otherwise directed by a judicial officer.

d. Self-represented accused persons

Note that, in accordance with the Court’s Judicial Criminal Pre-trial Best Practices, a judicial pre-trial is generally required before a self-represented accused person can schedule a trial date. The procedure for setting the trial date may be discussed at the judicial pre-trial.

Where a judicial pre-trial has been held but the procedure for setting the trial date was not discussed, the procedure for setting the trial date will be determined by the judicial officer presiding at the accused person’s next court appearance. The Crown or self-represented accused person should indicate at the court appearance that they wish to set a trial or preliminary inquiry date, so that the procedure for setting a date may be canvassed on the record.

Accused persons who are out of custody and who are able to do so may complete and submit the online Trial / Preliminary Inquiry Scheduling Form to start the trial-setting process. If an accused person is unable to complete the online Trial / Preliminary Inquiry Scheduling Form, the Crown may be asked to complete and submit the form.

2) Setting Trial Dates and Preliminary Inquiry Dates at the Next Court Appearance

The trial / preliminary inquiry date will be formally set at the accused person’s next court appearance following the trial scheduling conference, based on the date set out in the Trial / Preliminary Inquiry Scheduling Form, unless counsel objects and the presiding judicial, after hearing the submissions of counsel, directs otherwise.

The Trial / Preliminary Inquiry Scheduling Form will be attached to the Information and will be part of the court record, unless the presiding judicial officer directs otherwise.

Where the accused person is self-represented, or the trial or preliminary inquiry is being set on a “with or without counsel” basis, the accused person must attend the court appearance at which the trial date is set.

Unless otherwise directed by a judicial officer, counsel and an accused person may appear virtually (by Zoom) or in person for the court appearance to set a trial or preliminary inquiry date, in accordance with the Criminal Case Management Appearances Practice Direction.

a. Setting the Trial Date in the Absence of the Accused Person where Represented by Counsel

Where the accused person is out of custody and the accused person is represented by counsel who is retained to conduct the trial or preliminary inquiry, the trial / preliminary inquiry date can be set at the accused person’s next court appearance without the accused person personally attending. The trial will be set, and the matter will be adjourned based on the Trial / Preliminary Inquiry Scheduling Form and the matter adjourned to the trial confirmation date or the trial/preliminary inquiry date (as applicable) without the accused person personally attending, in accordance with rule 4.5 of the Criminal Rules of the Ontario Court of Justice.

If defence counsel chooses to do so, they may attend at the next court appearance to set the trial date before the presiding judicial officer. If either counsel or party intends to speak to the trial date on the next court date, counsel must notify the other party / counsel in advance so that both counsel are present and prepared to address the matter.

*Note re previous versions. This practice direction was originally issued on July 27, 2021 entitled, “Notice to the Profession and the Public regarding the Scheduling of Criminal Trials and Preliminary Inquiries”. Previous versions of the practice direction are available on the Archives page of the Ontario Court of Justice website.