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Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"
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Resolving Criminal Matters Prior to Trial (1:VI) (view source)
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The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with fixing a trial date and writing a letter of application for diversion. Some judges think they should not grant adjournment "for the purpose of considering diversion," since technically the diversion process is separate and apart from the court process. Therefore, although appending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and you should be prepared to move the court process forward at the same time as you are pursuing a diversion request. See [[Diversion Application and Sample Letter (1:App C) | Appendix C: Diversion Application and Sample Letter]] for an example of an application for diversion. | The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with fixing a trial date and writing a letter of application for diversion. Some judges think they should not grant adjournment "for the purpose of considering diversion," since technically the diversion process is separate and apart from the court process. Therefore, although appending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and you should be prepared to move the court process forward at the same time as you are pursuing a diversion request. See [[Diversion Application and Sample Letter (1:App C) | Appendix C: Diversion Application and Sample Letter]] for an example of an application for diversion. | ||
== C. Peace Bond (s 810) == | |||
A peace bond is a court order requiring a specific individual to "keep the peace and be of good behaviour". A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict the client’s liberty. Under section 810 of the ''Criminal Code'' the accused enters into a recognizance with conditions; in addition to requiring that the recipient to "keep the peace and be of a good behaviour", a peace bond will also set out specific conditions intended to protect a person or a specific type of property, such as, not to contact certain persons and/or not to attend a certain address or area. These conditions can last up to one year, and the length of the term can be negotiated with Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond is a separate criminal offence. | |||
In order for a peace bond to be imposed, there must exist ''reasonable grounds'' for the complainant to believe that the accused will cause personal injury to the complainant or his or her spouse or child or that they will cause damage to his or her property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the client is conceding that the complainant has reasonable grounds for their fear. The client does not have to admit to all of the facts in the Report to Crown Counsel. However, they do have to admit to sufficient facts to form a reasonable basis for the victim to fear the client. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on [[{{PAGENAME}}#D. Pleading Guilty | Pleading Guilty]], below. | |||
Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a victim's reluctance to go to trial. At the hearing, the Crown must prove on a ''balance of probabilities'' that there are reasonable grounds for the fear. Hearsay evidence ''is'' allowed, as it goes to the informant’s belief that there are grounds for the fear (''R. v PAO'', [2002] BCJ No 3021 (BC Prov Ct)). Since there is no criminal standard of proof, the judge must look at ''all'' the evidence, and not focus merely on the absence of the offending conduct (''R v Dol'', [2004] BCJ No 2314 (BCSC)). | |||
If a person breaches the peace bond, a criminal charge may be laid against the bonded person. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the client is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses his or her concerns without raising the uncertainty and possible trauma of a trial. A client should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody. | |||
== D. Pleading Guilty == | |||
A guilty plea is appropriate when: | |||
*diversion is not granted, | |||
*a peace bond is not appropriate, | |||
*the client admits guilt, | |||
*it appears that the Crown will be able to prove its case, and | |||
*the client wishes to plead guilty. | |||
If the client wishes to plead guilty then the court appearances should be adjourned to allow the clinician sufficient time to "negotiate" with Crown Counsel for the most appropriate sentence. It is generally a very good strategy to talk to Crown in advance about a joint submission where both sides agree on a sentence. Most Crown will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with Crown, a sentencing hearing will be scheduled at which the clinician can present the client’s position. If an agreement is reached with Crown, it is important to know that the Judge is not bound by a joint submission; however, a joint submission is highly likely to be accepted. See [[How to Prepare For and Conduct a Sentencing Hearing (1:App D) | Appendix D: How to Prepare for and Conduct a Sentencing Hearing]] for the process of a guilty plea. | |||
Consequences of a guilty plea may include, but are not necessarily limited to: | |||
*possible inability to obtain a passport or to enter the U.S., | |||
*difficulty or impossibility of entering some postgraduate fields of study such as law, | |||
*exclusion from jobs requiring bonds, | |||
*possible use of the conviction in subsequent proceedings, and | |||
*possible deportation if the client is not a Canadian citizen. | |||
In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). Consecutive sentences are often ordered whenthe offences are unrelated and of a serious nature. | |||
The judge also has discretion to credit an accused with any time spent in custody as a result of the charges. | |||
An important part of a student’s role as an LSLAP clinician may be negotiating a sentence with Crown Counsel. In fact, some of a student’s best advocacy can occur outside the courtroom – when discussing mitigating factors with the Crown. The Crown can sometimes be convinced to assume a less harsh position, or even to agree on a joint submission for sentencing. Most judges will follow a joint submission but they are not bound by it. | |||
=== 1. Speaking to sentence (sentencing hearing) === | |||
Before a sentence is given, the accused, or counsel for the accused, must be permitted to "speak to sentence" and make submissions to the judge that could affect the sentence. After hearing Crown recommendations and then defence submissions, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see [[How to Prepare For and Conduct a Sentencing Hearing (1:App D) | Appendix D: How to Prepare for and Conduct a Sentencing Hearing]]. | |||
It is important to ''consult sections 718 and 718.2 of the Criminal Code'' for the principles in sentencing that the judge will consider, ''and address these issues when drafting your submissions''. A clinician should also read up to section 743.1 of the ''Criminal Code'' before any sentencing hearing. | |||
There tend to be two broad strategies for presenting a client’s circumstances. With first time offenders this typically involves presenting the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control, and then showing what has changed in the life of the client to avoid a similar set of unusual and exceptional circumstances. Students should seek to show the court that the problem has already been cured and will not recur, and that a harsh sentence is unnecessary. With repeat offenders, it is more strategic to present the disadvantageous life circumstances, such as lack of family support or lack of employment/educational opportunities, which may have contributed to the offence being committed. Students should then show that the offender has changed his or her outlook and is seeking to turn their lives around. This involves in part an understanding of the client’s situation, and an understanding of the severity of the offence. | |||
