Defending Yourself Against a Criminal Charge (Script 211)

From Clicklaw Wikibooks

If you are charged with a criminal offence, you may not be able to afford a lawyer or get legal aid. In that case, you may have to defend yourself. This script explains how to do so. You should defend yourself only as a last resort – the laws and the process can be complicated.

See if you can get legal aid—contact the Legal Services Society (LSS) at any of its legal aid office locations. You can also call the LSS province-wide Call Centre at 604.408.2172 (Greater Vancouver) or 1.866.577.2525 (call no charge, elsewhere in BC).

Check the following scripts:

  • 210, called “If You Receive an Appearance Notice or Summons”
  • 212, called “Pleading Guilty to a Criminal Charge”

If you defend yourself in a trial, you should be clear about the following three basic legal principles:

  1. The law presumes you are innocent, even though you are charged with a criminal offence. As you walk into the court, the judge should be thinking, "I presume that this person is innocent."
  2. The Crown, called Crown Counsel (Crown), has to prove that you are guilty. Generally, you don't have to prove anything.
  3. A judge can find you guilty only if the Crown proves the charge beyond a reasonable doubt. So if the judge has a reasonable doubt about whether you are guilty, you cannot be convicted.

There are some exceptions to these principles, which a lawyer can explain to you.

What are the steps in a trial?

This script describes a criminal trial in provincial court. If you are charged with a serious criminal offence, you may have a choice of which level of court will hold your trial. If you decide to defend yourself without a lawyer, it is extremely important to bring to the trial any documents or physical evidence that you intend to use at the trial.

First appearance

Your first appearance date is not the trial date. The first time you appear in court is the date you receive documents called “particulars” or “disclosure” from the Crown. Disclosure lists the allegations against you, and what the Crown will rely on to prove you are guilty.

Make sure you arrive at the time listed in any document that tells you the first date you must be at court. If you do not have a lawyer, tell the Sheriff that you are present and wait until your name is called. When your name is called, stand up in front of the judge or justice of the peace and ask the Crown for your disclosure. At this point, ask to adjourn your case (put it on hold) for as long as you need (or the court will allow) to read the disclosure, consult a lawyer, and decide whether to plead guilty or go to trial.

There may be a big difference between what the disclosure says (what the police say you did) and what you believe actually occurred. There may also be things missing from the disclosure that you believe are important to your case. If so, you can ask the Crown to give them to you.

Your next appearance in court will be an “arraignment hearing” where you will plead “not guilty” or “guilty”.

How do you plead?

Before the trial, at an “arraignment hearing”, the court may ask you how you plead – guilty or not guilty. This is called entering a plea. If you don't do so, the court will enter a plea of “not guilty” for you. Pleading “not guilty” does not mean that you deny you committed the offence. It means that you are making the Crown prove the case against you, if they can. If you plead not guilty, the judge presumes you are innocent unless the Crown proves that you are guilty.

What happens if you plead not guilty?

You will be asked to see the judicial case manager in the courthouse. They will give you a trial date, which can be anywhere from a few months to over a year away, depending on the type of charge. You will get two dates from the judicial case manager: a Trial Confirmation Hearing (TCH) date and a trial date. The TCH is usually 6 weeks before your trial. You must attend court on the TCH date to tell them you are ready to proceed on the trial date.

The trial

The trial starts with the formal charge being read to you. The judge will confirm that you pleaded not guilty and then ask the Crown to proceed. The Crown will try to prove you are guilty by calling its witnesses and questioning them. They will tell the court (testify) about what they saw or heard about the case. You have the right to question (cross-examine) each witness the Crown uses. You would question them to weaken their testimony by showing that they have a poor memory, or are mistaken or lying.

Should you make a “no-evidence motion”?

When the last witness for the Crown has finished testifying, you may want to make a “no-evidence motion”. It depends on whether the Crown has proven all the parts of the offence. For example, if you are charged with possession of marijuana, the Crown must prove several things. First, that you were the person who had it; second, where and when you had it; third, that you had knowledge and control of the marijuana; and fourth, that it really was marijuana. If the witnesses cannot identify you as the person who possessed the marijuana, there is no evidence on the first thing, your identity. So you would stand up and tell the judge that there is no evidence that you possessed the marijuana. If the judge agrees, the charge must be dismissed.

Should you use witnesses?

If you don't make a no-evidence motion, or you do, but lose it, then you have to decide whether to call any witnesses – either yourself or someone else – to tell your side of what happened. If you want to use a defense, such as self-defense, you would normally testify yourself, and then call other witnesses who could testify to support what you say. “Testify” means tell the judge, under oath, what happened. This means you promise (or swear or affirm) that what you say is the truth. No one can force you to testify – you decide. But if you don’t testify, the judge cannot consider any explanation you give. If you choose to testify, you are a witness and the Crown can question (cross examine) you – just as you can cross examine the Crown’s witnesses. You must answer all the questions, if they are about the charge against you.

Often, if you plead not guilty, you do so because you say that you did not commit the offence. In that case, you would explain this to the judge.

If you decide to call witnesses, you question them first, and then the Crown may cross-examine them.

What submission should you make?

The next step in the trial is called “submissions”. After all the Crown’s witnesses have testified, and after you have either called your witnesses or have decided not to call any, both you and the Crown can summarize your cases. The Crown can explain to the judge why you are guilty, and you can explain why you are not guilty. All you have to do is raise a reasonable doubt in the judge's mind. If you do, the judge has to find you not guilty.

What happens when the judge announces the verdict?

After the Crown and you finish your submissions, the judge announces the decision, or verdict. You are either acquitted or convicted. If you are acquitted, the charge is dismissed, and you are free to go. If you are convicted, the judge will penalize (sentence) you. The judge may sentence you then, or later. Depending on the offence and your background, the sentence could be a discharge, a fine, probation, or jail. Check script 203, called “Conditional Sentences, Probation and Discharges” for details on those types of sentences.

The judge will want to know something about you before deciding what sentence to give you. Key information includes your age, whether you are married, how many people you support, if you are working, your income, your plans, and why you committed the offence. So be prepared with this information in case the judge asks for it.

If you can get letters about your character from people, such as an employer, clergyman, or doctor, or even from your family and friends, ask the judge for an adjournment for time to get these letters. Then give them to the judge before you receive your sentence.

Summary

Defending yourself is very difficult, and you should do it only as a last resort. At least try to talk to a lawyer and get some initial advice. Then you will be in a better position to decide whether you want to hire a lawyer to represent you in court.

If you have to defend yourself and you do not understand something during the trial, ask the judge to explain it to you.

Also, check the criminal law publications from the Legal Services Society. They explain what to do if you are charged with a crime, how to represent yourself in a criminal trial, and how to speak to the judge before you are sentenced. Other publications explain what to do if you are charged with one of a number of specific offences.


[updated December 2015]

The above was last reviewed for accuracy by Jordan Allingham and Paul Briggs, and edited by John Blois.



© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.


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