Defending Yourself Against a Criminal Charge: Difference between revisions
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{{ | {{REVIEWEDPLS | reviewer = [http://www.vancitydefence.com/our-people/jordan-allingham/ Jordan Allingham], Ferguson Allingham and [https://www.paulbriggslawyer.com/blank-3 Paul Briggs], Paul Briggs Law|date= March 2018}} {{Dial-A-Law TOC|expanded = crime}} | ||
{{Dial-A-Law TOC|expanded = | |||
If you are charged with a criminal offence and you cannot afford a lawyer or get legal aid, you may have to defend yourself. Learn your rights and what’s involved. | If you are charged with a criminal offence and you cannot afford a lawyer or get legal aid, you may have to defend yourself. Learn your rights and what’s involved. | ||
== | ==What you should know== | ||
===You are presumed innocent=== | ===You are presumed innocent=== | ||
If you are charged with a criminal offence, the law '''presumes you are innocent'''. As you walk into the court, the judge should be thinking, "I presume this person is innocent" | If you are charged with a criminal offence, the law '''presumes you are innocent'''. As you walk into the court, the judge should be thinking, "I presume this person is innocent." | ||
===The prosecutor must prove your guilt beyond a reasonable doubt=== | ===The prosecutor must prove your guilt beyond a reasonable doubt=== | ||
| Line 22: | Line 20: | ||
===The process in Provincial Court=== | ===The process in Provincial Court=== | ||
This information describes the process of defending yourself against a criminal charge 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, Supreme Court or Provincial Court. If so, you should contact legal aid to find out if you qualify for a free lawyer. Call 604-408-2172 in Greater Vancouver or toll-free 1-866-577-2525 elsewhere in BC, or | This information describes the process of defending yourself against a criminal charge 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, Supreme Court or Provincial Court. If so, you should contact legal aid to find out if you qualify for a free lawyer. Call 604-408-2172 in Greater Vancouver or toll-free 1-866-577-2525 elsewhere in BC, or [https://lss.bc.ca/legal_aid/criminalLaw.php visit legalaid.bc.ca]. | ||
===Step 1. First appearance=== | ===Step 1. First appearance=== | ||
You will have been given a document telling you the date of your | You will have been given a document telling you the date of your '''first appearance''' in court. You must go to court at that time and date. If you don’t, a warrant may be issued for your arrest, and you could be charged with an offence (failing to appear in court). | ||
====What happens at the first appearance==== | ====What happens at the first appearance==== | ||
The first appearance date is not a trial. It’s the first step to find out more about the charge against you. The prosecutor will give information about the charge, in a | The first appearance date is not a trial. It’s the first step to find out more about the charge against you. The prosecutor will give information about the charge, in a '''particulars''' or '''disclosure''' document. It lists the allegations against you, and what the prosecutor will rely on to prove you are guilty. | ||
The prosecutor may also give you their | The prosecutor may also give you their '''initial sentencing position''', which is the '''sentence''' (or penalty) they think the judge should give you. | ||
====When you arrive at court==== | ====When you arrive at court==== | ||
Make sure you arrive at court on time. If you do not have a lawyer, tell the sheriff you are present. When your name is called, stand up in front of the judge or justice of the peace and introduce yourself. Ask the prosecutor for the disclosure and initial sentencing position. | Make sure you arrive at court on time. If you do not have a lawyer, tell the sheriff you are present. When your name is called, stand up in front of the judge or justice of the peace and introduce yourself. Ask the prosecutor for the disclosure and initial sentencing position. | ||
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 material, talk with a lawyer, and decide on how to proceed. | 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 material, talk with a lawyer, and decide on how to proceed. | ||
====Read the material carefully==== | ====Read the material carefully==== | ||
| Line 41: | Line 39: | ||
===Step 2. Talk with a lawyer=== | ===Step 2. Talk with a lawyer=== | ||
At this point, '''speak with a lawyer''' before you do anything else. A lawyer can tell you about your legal rights and options, how strong the Crown’s case is against you, and what kind of sentence you might get if the judge convicts you (finds you guilty). | At this point, '''speak with a lawyer''' before you do anything else. A lawyer can tell you about your legal rights and options, how strong the Crown’s case is against you, and what kind of sentence you might get if the judge convicts you (finds you guilty). | ||
{| class="wikitable" | {| class="wikitable" | ||
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You need to decide how to '''plead''' (respond to the charge against you). In deciding how to proceed, you have three choices. | You need to decide how to '''plead''' (respond to the charge against you). In deciding how to proceed, you have three choices. | ||
====You can plead | ====You can plead not guilty==== | ||
Pleading | Pleading '''not guilty''' means you are making the prosecutor prove the case against you. (It does not mean you deny you committed the offence.) The law presumes you are innocent, and the prosecutor must prove you are guilty. If you decide to plead not guilty, the court will set a date for your trial. | ||
====You can plead | ====You can plead guilty==== | ||
A '''guilty plea''' means you accept responsibility for the offence. If you decide to plead guilty, you will go before a judge for sentencing. For more details, see our information on [ | A '''guilty plea''' means you accept responsibility for the offence. If you decide to plead guilty, you will go before a judge for sentencing. For more details, see our information on [https://dialalaw.peopleslawschool.ca/pleading-guilty-to-a-criminal-charge/ pleading guilty to a criminal charge]. | ||
====You can ask for more time==== | ====You can ask for more time==== | ||
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===Step 4. Arraignment hearing=== | ===Step 4. Arraignment hearing=== | ||
The court appearance where you tell the court how you will plead is called an | The court appearance where you tell the court how you will plead is called an '''arraignment hearing'''. At this hearing, you '''enter''' your plea, telling the court whether you plead not guilty or guilty. | ||
If you plead | If you plead not guilty, the court will give you a trial date. It can be anywhere from a few months to over a year away, depending on the type of charge and the caseload in your local court. | ||
===Step 5. Prepare for the trial=== | ===Step 5. Prepare for the trial=== | ||
When you prepare your defence, think about what '''evidence''' (information about the crime) you can use. Evidence includes documents, witnesses, or your own personal '''testimony''' (telling your story). | When you prepare your defence, think about what '''evidence''' (information about the crime) you can use. Evidence includes documents, witnesses, or your own personal '''testimony''' (telling your story). | ||
It is extremely important to bring to the trial any documents or physical evidence you plan to use at the trial. | It is extremely important to bring to the trial any documents or physical evidence you plan to use at the trial. | ||
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{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
Make sure the prosecutor has given you all the evidence they’ll use (called the '''disclosure'''), such as any documents or witness statements. The prosecutor should also tell you who they’ll call as a witness. You can send the prosecutor a letter or email asking for this information. | Make sure the prosecutor has given you all the evidence they’ll use (called the '''disclosure'''), such as any documents or witness statements. The prosecutor should also tell you who they’ll call as a witness. You can send the prosecutor a letter or email asking for this information. | ||
|} | |} | ||
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Before you can present your defence, the prosecutor will present the case against you. The prosecutor must '''prove beyond a reasonable doubt''' that you’re guilty of all the parts (the '''elements''') that make up the crime. To do this, they present evidence to the court, using witnesses or documents. The witnesses will '''testify''' (tell the court) about what they saw or heard. You have the right to '''cross-examine''' (question) each witness. Your questions might try to show weak spots, points they’re not sure of, or that they’re lying. | Before you can present your defence, the prosecutor will present the case against you. The prosecutor must '''prove beyond a reasonable doubt''' that you’re guilty of all the parts (the '''elements''') that make up the crime. To do this, they present evidence to the court, using witnesses or documents. The witnesses will '''testify''' (tell the court) about what they saw or heard. You have the right to '''cross-examine''' (question) each witness. Your questions might try to show weak spots, points they’re not sure of, or that they’re lying. | ||
====You might make a | ====You might make a no-evidence motion==== | ||
For a judge to find you guilty, the prosecutor must prove all the parts of the offence. When the prosecutor finishes presenting their case, if you feel they haven’t proven all the parts, you can make a | For a judge to find you guilty, the prosecutor must prove all the parts of the offence. When the prosecutor finishes presenting their case, if you feel they haven’t proven all the parts, you can make a '''no-evidence motion'''. If the judge agrees there is no evidence of an element of the offence, the charge is dismissed. | ||
For example, if you are charged with shoplifting, the prosecutor must prove several things: | For example, if you are charged with shoplifting, the prosecutor must prove several things: | ||
*you’re the person charged, | |||
*you committed the offence, | * you’re the person charged, | ||
*you intended to do it, and | * you committed the offence, | ||
*the offence took place within the court’s jurisdiction. | * you intended to do it, and | ||
* the offence took place within the court’s jurisdiction. | |||
Perhaps the prosecutor’s evidence does not show your intent to take the item without paying for it. Instead, the evidence makes it appear you simply forgot to pay for the item. In this case, you might make a no-evidence motion. You would stand up and tell the judge there is no evidence of your intent to commit the crime. If the judge agrees, the charge would be dismissed. | Perhaps the prosecutor’s evidence does not show your intent to take the item without paying for it. Instead, the evidence makes it appear you simply forgot to pay for the item. In this case, you might make a no-evidence motion. You would stand up and tell the judge there is no evidence of your intent to commit the crime. If the judge agrees, the charge would be dismissed. | ||
====Presenting your defence==== | ====Presenting your defence==== | ||
If you don't make a no-evidence motion (or you do but the judge doesn’t agree with you), you can present your defence. You can use documents, call witnesses, and, if you like, give your own personal '''testimony'''. | If you don't make a no-evidence motion (or you do but the judge doesn’t agree with you), you can present your defence. You can use documents, call witnesses, and, if you like, give your own personal '''testimony'''. | ||
If you call witnesses, you question them first, and then the prosecutor may '''cross-examine''' (question) them. If you want to use a document, it usually has to be presented to court by a witness to confirm that it’s real. | If you call witnesses, you question them first, and then the prosecutor may '''cross-examine''' (question) them. If you want to use a document, it usually has to be presented to court by a witness to confirm that it’s real. | ||
You can testify yourself, but you don’t have to. You have a right to remain silent. If you choose to testify, you must speak under oath. The prosecutor can cross-examine you. | You can testify yourself, but you don’t have to. You have a right to remain silent. If you choose to testify, you must speak under oath. The prosecutor can cross-examine you. | ||
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===Step 7. The judge’s decision=== | ===Step 7. The judge’s decision=== | ||
After the prosecutor and you finish your submissions, the judge gives their decision, or '''verdict'''. | After the prosecutor and you finish your submissions, the judge gives their decision, or '''verdict'''. | ||
If you are found | If you are found not guilty, you are '''acquitted'''. The charge is dismissed, and you are free to go. | ||
If you are found | If you are found guilty, you are '''convicted'''. The judge will penalize (sentence) you. The judge may sentence you then, or later. | ||
===Step 8. Sentencing=== | ===Step 8. Sentencing=== | ||
If you are convicted of the criminal charge, the judge will '''sentence''' you. Depending on the offence and your background, the sentence could be a discharge, a fine, probation, or jail. | If you are convicted of the criminal charge, the judge will '''sentence''' you. Depending on the offence and your background, the sentence could be a discharge, a fine, probation, or jail. [[Conditional Sentences, Probation, and Discharges|We explain the possible 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. | 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. | ||
| Line 116: | Line 115: | ||
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. | 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. | ||
== | ==Who can help== | ||
===With your case=== | ===With your case=== | ||
If you haven’t done so, contact '''Legal | If you haven’t done so, contact '''Legal Aid BC''' to find out if you qualify for a free lawyer under legal aid. | ||
* Call 604-408-2172 (Greater Vancouver) or 1-866-577-2525 (toll-free) | |||
* [https://lss.bc.ca/legal_aid/criminalLaw.php Visit website] | |||
If you cannot afford a lawyer or get legal aid, try to talk with a lawyer before your trial. Some legal help is better than none. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. They can give you brief advice and speak for you the first time you appear in court. | |||
''' | |||
* [https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php Visit website] | |||
At '''student legal clinics''' in the Lower Mainland and Victoria, law students can help if you’re charged with a summary conviction offence (a less serious crime) and likely won’t get a jail sentence if you’re convicted. | |||
[ | Call 250-385-1221 (Victoria) or 604-822-5791 (Lower Mainland) | ||
Visit [https://www.uvic.ca/law/about/centre/ The Law Centre] (Victoria) or [https://www.lslap.bc.ca/ LSLAP] (Lower Mainland) | |||
''' | ===With more information=== | ||
'''Legal Services Society''', the legal aid provider in BC, has a number of criminal law publications. They explain how to represent yourself in a criminal trial, and what to do if you’re charged with specific offences, including assault, theft and mischief. | |||
:Web: [https://legalaid.bc.ca/publications/subject.php?sub=9 legalaid.bc.ca] | |||
{{Dial-A-Law_Navbox|type=courts}} | |||
{{Dial-A-Law Copyright}} | {{Dial-A-Law Copyright}} | ||
Latest revision as of 02:26, 15 September 2020
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Jordan Allingham, Ferguson Allingham and Paul Briggs, Paul Briggs Law in March 2018. |
If you are charged with a criminal offence and you cannot afford a lawyer or get legal aid, you may have to defend yourself. Learn your rights and what’s involved.
What you should know
You are presumed innocent
If you are charged with a criminal offence, the law presumes you are innocent. As you walk into the court, the judge should be thinking, "I presume this person is innocent."
The prosecutor must prove your guilt beyond a reasonable doubt
The prosecutor, also called Crown counsel, is the lawyer making the case against you. They must prove you are guilty of the offence. Generally, you don't have to prove anything.
If the prosecutor doesn’t prove your guilt, the judge will acquit you (make a legal decision that you’re not guilty).
The prosecutor must prove your guilt beyond a reasonable doubt. If the judge has any reasonable doubt about whether you are guilty, they cannot convict you (find you guilty). If, in considering all the evidence, the judge can’t decide who to believe, they must acquit you.
You have the right to a fair trial
If your criminal charge goes to a trial, listen carefully and ask the judge to explain anything you don’t understand. The judge has a duty to help you understand the process to ensure a fair trial, but the judge can’t be your lawyer.
The steps in the process
The process in Provincial Court
This information describes the process of defending yourself against a criminal charge 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, Supreme Court or Provincial Court. If so, you should contact legal aid to find out if you qualify for a free lawyer. Call 604-408-2172 in Greater Vancouver or toll-free 1-866-577-2525 elsewhere in BC, or visit legalaid.bc.ca.
Step 1. First appearance
You will have been given a document telling you the date of your first appearance in court. You must go to court at that time and date. If you don’t, a warrant may be issued for your arrest, and you could be charged with an offence (failing to appear in court).
What happens at the first appearance
The first appearance date is not a trial. It’s the first step to find out more about the charge against you. The prosecutor will give information about the charge, in a particulars or disclosure document. It lists the allegations against you, and what the prosecutor will rely on to prove you are guilty.
The prosecutor may also give you their initial sentencing position, which is the sentence (or penalty) they think the judge should give you.
When you arrive at court
Make sure you arrive at court on time. If you do not have a lawyer, tell the sheriff you are present. When your name is called, stand up in front of the judge or justice of the peace and introduce yourself. Ask the prosecutor for the disclosure and initial sentencing position.
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 material, talk with a lawyer, and decide on how to proceed.
Read the material carefully
There may be a difference between what the disclosure says (what the police say you did) and what you believe happened. There may be things missing from the disclosure you believe are important to your case. If so, you can ask the prosecutor to give them to you.
Step 2. Talk with a lawyer
At this point, speak with a lawyer before you do anything else. A lawyer can tell you about your legal rights and options, how strong the Crown’s case is against you, and what kind of sentence you might get if the judge convicts you (finds you guilty).
| Tip
Most courthouses have lawyers called duty counsel. They give free legal advice to people who have a case in the courthouse on that day. Duty counsel might be able to help you. |
Step 3. Decide how to proceed
You need to decide how to plead (respond to the charge against you). In deciding how to proceed, you have three choices.
You can plead not guilty
Pleading not guilty means you are making the prosecutor prove the case against you. (It does not mean you deny you committed the offence.) The law presumes you are innocent, and the prosecutor must prove you are guilty. If you decide to plead not guilty, the court will set a date for your trial.
You can plead guilty
A guilty plea means you accept responsibility for the offence. If you decide to plead guilty, you will go before a judge for sentencing. For more details, see our information on pleading guilty to a criminal charge.
You can ask for more time
You can ask for more time to decide how to plead. The court can give you an adjournment. The court will set a date for your next court appearance, where you have to decide how you want to plead.
Step 4. Arraignment hearing
The court appearance where you tell the court how you will plead is called an arraignment hearing. At this hearing, you enter your plea, telling the court whether you plead not guilty or guilty.
If you plead not guilty, the court will give you a trial date. It can be anywhere from a few months to over a year away, depending on the type of charge and the caseload in your local court.
Step 5. Prepare for the trial
When you prepare your defence, think about what evidence (information about the crime) you can use. Evidence includes documents, witnesses, or your own personal testimony (telling your story).
It is extremely important to bring to the trial any documents or physical evidence you plan to use at the trial.
| Tip
Make sure the prosecutor has given you all the evidence they’ll use (called the disclosure), such as any documents or witness statements. The prosecutor should also tell you who they’ll call as a witness. You can send the prosecutor a letter or email asking for this information. |
Step 6. The trial
At your trial in front of a judge, the prosecutor (and you if you choose to) call witnesses and present evidence. The judge decides if you’re not guilty or guilty.
The Crown must prove its case
Before you can present your defence, the prosecutor will present the case against you. The prosecutor must prove beyond a reasonable doubt that you’re guilty of all the parts (the elements) that make up the crime. To do this, they present evidence to the court, using witnesses or documents. The witnesses will testify (tell the court) about what they saw or heard. You have the right to cross-examine (question) each witness. Your questions might try to show weak spots, points they’re not sure of, or that they’re lying.
You might make a no-evidence motion
For a judge to find you guilty, the prosecutor must prove all the parts of the offence. When the prosecutor finishes presenting their case, if you feel they haven’t proven all the parts, you can make a no-evidence motion. If the judge agrees there is no evidence of an element of the offence, the charge is dismissed.
For example, if you are charged with shoplifting, the prosecutor must prove several things:
- you’re the person charged,
- you committed the offence,
- you intended to do it, and
- the offence took place within the court’s jurisdiction.
Perhaps the prosecutor’s evidence does not show your intent to take the item without paying for it. Instead, the evidence makes it appear you simply forgot to pay for the item. In this case, you might make a no-evidence motion. You would stand up and tell the judge there is no evidence of your intent to commit the crime. If the judge agrees, the charge would be dismissed.
Presenting your defence
If you don't make a no-evidence motion (or you do but the judge doesn’t agree with you), you can present your defence. You can use documents, call witnesses, and, if you like, give your own personal testimony.
If you call witnesses, you question them first, and then the prosecutor may cross-examine (question) them. If you want to use a document, it usually has to be presented to court by a witness to confirm that it’s real.
You can testify yourself, but you don’t have to. You have a right to remain silent. If you choose to testify, you must speak under oath. The prosecutor can cross-examine you.
Closing your case
After you’ve finished presenting your defence, you’ll close your case. Tell the judge why you think the prosecutor didn’t prove that you’re guilty beyond a reasonable doubt. This summary is called your submission.
Step 7. The judge’s decision
After the prosecutor and you finish your submissions, the judge gives their decision, or verdict.
If you are found not guilty, you are acquitted. The charge is dismissed, and you are free to go.
If you are found guilty, you are convicted. The judge will penalize (sentence) you. The judge may sentence you then, or later.
Step 8. Sentencing
If you are convicted of the criminal charge, the judge will sentence you. Depending on the offence and your background, the sentence could be a discharge, a fine, probation, or jail. We explain the possible 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.
Who can help
With your case
If you haven’t done so, contact Legal Aid BC to find out if you qualify for a free lawyer under legal aid.
- Call 604-408-2172 (Greater Vancouver) or 1-866-577-2525 (toll-free)
- Visit website
If you cannot afford a lawyer or get legal aid, try to talk with a lawyer before your trial. Some legal help is better than none. On your first appearance in court or when you enter your plea, you can talk to duty counsel at the courthouse. They can give you brief advice and speak for you the first time you appear in court.
At student legal clinics in the Lower Mainland and Victoria, law students can help if you’re charged with a summary conviction offence (a less serious crime) and likely won’t get a jail sentence if you’re convicted.
Call 250-385-1221 (Victoria) or 604-822-5791 (Lower Mainland) Visit The Law Centre (Victoria) or LSLAP (Lower Mainland)
With more information
Legal Services Society, the legal aid provider in BC, has a number of criminal law publications. They explain how to represent yourself in a criminal trial, and what to do if you’re charged with specific offences, including assault, theft and mischief.
- Web: legalaid.bc.ca
 Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.
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