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As criminal defence lawyers, we have been appearing in Toronto courts and courts in the Greater Toronto Area for so long that proper court etiquette has become second nature to us. However, many of our clients are appearing in court for the first time and are understandably nervous about the process. Criminal defence lawyers are often asked a lot of questions about court protocol by accused individuals as they prepare to appear in court. Behaviour that passes as polite in ordinary life is often considered inappropriate in the courtroom. It is best to think of the courtroom as a formal environment rather like a classroom, Church, Temple, or Mosque, with its own rules of etiquette. The following list of rules is like an orientation guide to courtroom etiquette which can help make that first day in court much less intimidating.
When you are arrested, the police will provide you with a promise to appear notice. Your promise to appear will list the courthouse, courtroom, date and time of your first expected court appearance. It is very important that you attend your first court date. Judges in and around Toronto prefer to avoid unnecessary delay and look favorably upon defendants who show initiative in expediting the legal process from court appearance to court appearance. More importantly, if neither you nor your lawyer show up for your first appearance, the judge will issue a warrant for your arrest on a charge of “failure to appear in court” and you will likely be arrested.
The time stated on your promise to appear indicates the time that the court opens to hear your matter and the matters of other individuals scheduled during the same block of time as you. When you arrive at the courtroom there will be a list (usually hanging outside the door of the courtroom) called a “docket”. The docket will list all of the people that have been told to appear in that courtroom at that time on that day. When court begins the Crown Attorney will introduce themselves and will begin to read names off of the docket one-by-one. There is no way to know for certain when your name will be called so it is important to arrive on time but be prepared to wait for your name to be called.
The first step to proceeding with your matter is to “retain counsel” — which is a formal way of saying “hire a lawyer”. This is the first and most important obligation on you, the defendant, throughout the trial process. As said before, the court looks favourably on individuals who show initiative in proceeding with their matters. The best way to show initiative from the get-go is to retain counsel as soon as possible. Generally, it will impress a judge if you have retained counsel by your first or second appearance. If you delay too much in retaining counsel, this may prejudice your case down the road.
Every courtroom will have a number of benches at the back which are open for public seating. There is also special seating at the front reserved for lawyers and officers of the court. Usually there will be a short wooden barrier or some other sort of divider between the public seating and the reserved seating. Be sure to sit in the public seating and avoid entering the front area of the courtroom until your name is called. Sometimes there is not enough room in the public benches for all the people appearing in court that day. In that case, it is best to wait just outside the doors to the courtroom and you will be paged over the intercom or an officer will call you in when it is your turn. If there is room in the courtroom it is important to sit inside. If there is room inside, the court will assume that you are either sitting in the courtroom or you have chosen not to appear in court that day. The clerk of the court may not go out of their way to call your name, so if you do not hear your name called, a warrant may be issued for your arrest on a “failure to appear in court” charge.
When the judge or justice of the peace presiding over the court that day enters or exits the courtroom, the clerk (who sits right in front of the judge) will say “everybody please rise” — when this happens it is polite to stand up until the clerk tells everyone to “please be seated”.
When court begins, the clerk will usually remind everyone to turn off their cell phones — make sure that you do. Not only is it disrespectful if your cell phone to ring in court, but many courtrooms have special recording devices and cell phones can interfere with their ability to record the proceedings. That’s why it is important to turn your phone completely off; don’t just switch it to silent mode. Sometimes, if the Justice of the Peace is in an anxious mood, they may direct a court officer to confiscate a cell phone that has caused a distraction in the court.
It is important to remain as quiet as possible while you are waiting for your name to be called. Make sure that you pay attention and listen for your name so that you do not miss your appearance.
When your name is called you will go stand at the front and address the court. It is very important to be polite and avoid arguing with the judge or justice of the peace. This is not the time to challenge the accusation or express your defence.
It is important to be polite and respectful when you address the court. It is also helpful — though not necessary — to use and understand some common legal language.
The proceeding will be presided over by either a judge or justice of the peace. To determine which you are appearing before look at his or her sash — if it’s red you are appearing before a judge and should address him/her as “Your Honour”; if it’s green you are appearing before a justice of the peace and should address him/her as “Your Worship”. It is likely that on a first appearance at a Toronto court house you will appear before a justice of the peace.
Generally speaking, if you are appearing in court for the first time, you will want to put the matter on hold for a couple of weeks until you are able to retain a lawyer. In legal vocabulary, putting a matter on hold so that you can return to court to address it in the future is called “adjourning the matter” or “remanding the matter”. When you address the court you will ask to adjourn or remand the matter to a specific date to give you an opportunity to “retain counsel”. This is also known as “holding the matter over” to a specific date. You probably want to aim for a date about a month after the day of your first appearance. This should give you an adequate opportunity to find a lawyer before you return to court. Usually on a first appearance you will have no problem remanding the matter in order to find a lawyer. (For tips on how to choose a lawyer see our blog “How Do I Choose a Lawyer?”)
If the court asks you any questions or brings anything up that you do not understand you should ask to have an opportunity to speak with duty counsel. “Duty counsel” is a legal aid lawyer who is on duty to assist individuals who do not have counsel. Most Toronto courthouses will have a duty counsel office with many lawyers on duty and, in addition, most Toronto courtrooms will have their own duty counsel lawyer present who may be able to speak with you. You can ask the court to “hold the matter down” while you speak to duty counsel. This means that the court will go back to calling names off the docket while you speak with duty counsel and when you return they will recall your name and finish addressing your matter.
The dress code in court is somewhat formal. You should attend court wearing something you would feel comfortable wearing to a job interview, to work in an office, or to a religious service in a church, temple, mosque or the like. People do attend remand court in jeans and it is generally acceptable to do so, though it is preferable to wear dress pants or a skirt. When it comes to your trial you should aim to wear a suit or something equally formal if possible.
It is important to look respectable in court — both so that you will be taken seriously and to show proper respect to the court. For women this means avoiding short skirts (knee-length or longer is preferable), low cut cleavage, spaghetti strap tops, and bare mid-drifts. Men should be careful to avoid overly baggy jeans, hooded sweatshirts, and tank tops. It is not appropriate to wear a baseball cap or any other kind of hat in the courtroom (unless the hat is worn for religious purposes). You will always be appropriate in a suit, dress pants and a dress shirt, a conservative dress, khakis and a polo shirt, a long skirt and shirt with sleeves, or something similar. The court system in Toronto is quite conservative, and though you may see people in all sorts of dress when you appear, you will make the best impression if you dress appropriately.