How to Change the Date of Your Trial

Many months after you request a trial, you will get a notice of trial in the mail indicating when your trial will be held. It should be at least several months away. Often your trial will be scheduled during your vacation, or a planned hospital operation or a relative's wedding. What can you do to avoid this?

Your options

You could change your plans but more likely you will want a different trial date. You must request an adjournment. An adjournment suspends your trial until a later time. To do this, you basically have to chose from a list of terrible options:

  1. get someone to go instead of you;
  2. make a motion to change the trial date in advance;
  3. don't go to your trial.

A. Find Someone To Go For You

This will not be an ideal situation because you are relying on someone to do the right thing when it can be confusing. They must appear on your behalf and request an adjournment. They must present a valid reason why the justice should grant the adjournment. They may be asked why you didn't make a motion for an adjournment in advance.

Generally justice's are lenient for adjournment requests IN ADVANCE. But on the day of trial, the cop might be there, the prosecution has prepared its case and your rep needs a solid excuse to postpone.

Rep: My father couldn't be here today, we would like to postpone the trial.

Justice: Why couldn't he be here?

Rep: He's out of the country and won't be back for several weeks?

Justice: When did he leave?

Rep: He left on December 10.

Justice: Where did he go?

Rep: He went to France.

Justice: When is he due back?

Rep: On March 23.

Justice: Okay, we will postpone the trial until after that date.

Rep: Thank you.

Justice: I'll make a note here that on the new trial date, you or your father will present to the court the airline ticket showing he left on December 10 to France and returned on March 23.

Rep: I'm not exactly sure of the dates.

Justice: Those are the dates you told me. [to the clerk] Make sure that I am seized for that trial date. That means sir, that I will be the justice hearing the trial and you must present the valid ticket as proof of what you are saying.

Will your rep get it right? Will they know what to say? You can't make up an excuse without the potential of being called on it.

Excuses that work:

  • You need more time to prepare your defence.
  • You have additional disclosure requests.
  • You need more time to properly file a Charter application.
  • Proof of an emergency situation like a sick child.
  • Your employer requires you to work due to an unforeseen urgent problem that day AND attending court will jeopardize your job and your livelihood.

The key is to show diligence in wanting to defend against the charge. You must show that there was something unanticipated that forced you to miss your trial. You must be prepared to show proof of what you, through your representative, are claiming.

The Cop May Not Be There

Your rep will also have the responsibility of playing chicken with the prosecutor. When you go to court, usually you see the prosecutor before the trial who will confirm how you want to plead. Since your rep is there for you, the prosecutor will know that you are not there. She also won't indicate whether the cop is there. If the cop isn't there she would normally have to drop the charge as there is no witness. But if your rep is asking for an adjournment, then the prosecutor gets another chance to convict you.

How do you play chicken? What your rep says to the prosecutor is crucial.

In the following examples the defendant is Mr. Smith. The representative is Mr. Jones. In the first example, the rep has given everything away to the prosecutor when there is no need to.

Example 1 (bad)

"I'm Jones. I'm here because Mr. Smith couldn't make it. We would like an adjournment."

Not saying everything to the prosecutor is not lying. In this example, the rep doesn't identify himself, just the case.

Example 2 (good)

Jones: "Smith, charge of speeding."

Prosecutor: "How do you plead?"

Jones: "Not guilty."

At this point the prosecutor may concede that the cop is not there or may do so before the justice when court is in session. If she doesn't, it means the cop is there. In that case when your case is called your rep can go up, state their name and and explain why you couldn't be there and that you want an adjournment.

B. Motion to Change the Trial Date

You must take the following steps to change your trial date. These are the same steps the prosecutor will sometimes take if he finds out the officer can't make it to your trial. Warning: this will not be fun!

  1. Go to the courthouse and tell the clerk you want to file a motion to adjourn.
  2. The clerk will give you a court date at which a justice will hear your motion. (Yes you are going to court to explain why you can't go to court!)
  3. The clerk will give you a simple "Notice of Motion" form to fill out.
  4. You will then swear an oath before a Commissioner (usually the same clerk) that the information you put on the form is true.
  5. You take the form to the prosecutor's office where they will stamp it showing that they have been served with the notice.
  6. You return to the clerk with the stamped copy which is filed with the court.
  7. You appear on your court date (not the trial date) before the court is in session and meet with the prosecutor/clerk of the court where you will agree on a new trial date.
  8. The justice will come in and the court will be in session.
  9. You will be called up at some point to make your motion/explain to the justice why you want to change the court date.
  10. The justice will ask the prosecutor if she objects.
  11. If all goes well, you will get the new trial date that you and the prosecutor agreed to.
  12. You leave wondering why the courts are backlogged!

Excuses that work

Unlike asking for an adjournment on your trial date, this cumbersome process is far more lenient with excuses including simple ones like "I will be on vacation that day." The likelihood of getting an adjournment is excellent. It should be after all you went through!

The Clock Starts Ticking

Until now, the amount of time it has taken to go to trial is entirely the responsibility of the prosecutor. Since you have requested an adjournment, the clock starts ticking against you. You are responsible for the amount of time it takes from your old trial date to the new trial date. This will seriously impact any 11b Charter argument you could have made for an unreasonable delay.

One technique to use is to ask for an earlier court date. Usually they won't be able to give you one. But then you can make it clear to the justice that you would have preferred an earlier court date as you are dissatisfied with the pace of the proceedings and that it shouldn't be your fault that the trial was scheduled on a day that you just cannot attend. This sets up a great counter argument against you causing the delay. While it won't completely absolve you of the delay, it will go a long way to strengthen your 11b application.

C. Don't Go To Your Trial

There really is no advantage to be gained by not showing up at your trial. If the cop isn't there, your rep can take advantage of that or request an adjournment. Otherwise if you miss your trial, they will find you guilty, add $10 court costs and mail you a notice to pay your fine.

So what can you do? Basically you must request a reopening of your case. Similar to the steps above for making a motion for adjournment, go to the court house and see a justice of the peace. There is usually one "on call" to hear your application.

You will need a really good excuse to get a reopening. One of the few that does work is if you claim you did not get a notice of trial in the mail. Therefore you did not know when your trial was being held. The justice may ask you why you did not inquire as to the status of your case. You may claim you did call the court office or that you assumed your charge was dropped along with the thousands of other cases you heard were dropped annually. Warning: you are appearing before a justice and perjury is a serious offence. Do not lie to a justice!

Other excuses that may work are the reason why you couldn't attend your trial. It had better be an unforeseen emergency. You will also need to show why you could not get anyone else to attend the court date on your behalf.

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