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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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{{REVIEWED LSLAP | date= July | {{REVIEWED LSLAP | date= July 27, 2021}} | ||
{{LSLAP Manual TOC|expanded = criminal}} | {{LSLAP Manual TOC|expanded = criminal}} | ||
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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 their spouse or child or that they will cause damage to the complainant’s property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, the accused do have to admit to sufficient facts to form a reasonable basis for the victim to fear them. 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 '''Pleading Guilty''', below. | 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 their spouse or child or that they will cause damage to the complainant’s property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, the accused do have to admit to sufficient facts to form a reasonable basis for the victim to fear them. 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 '''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 P.A.O.'', [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 BCSC 1438). | 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 (''[https://www.canlii.org/en/bc/bcpc/doc/2002/2002bcpc597/2002bcpc597.html?autocompleteStr=r%20v%20o%20(p.a.)&autocompletePos=1 R. v P.A.O.]'', [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 (''[https://www.canlii.org/en/bc/bcsc/doc/2004/2004bcsc1438/2004bcsc1438.html?searchUrlHash=AAAAAQAHciB2IGRvbAAAAAAB&resultIndex=2 R v Dol]'', 2004 BCSC 1438). | ||
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 accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused 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. | 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 accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused 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. | ||
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*the accused wishes to plead guilty. | *the accused wishes to plead guilty. | ||
If an accused person wishes to plead guilty then the court appearances should be adjourned to allow sufficient time to “negotiate” with Crown Counsel for the most appropriate sentence. For self-represented litigants, a duty counsel will assist with a sentencing negotiation with a Crown. 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 Counsel will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with the Crown, a sentencing hearing will be scheduled at which the accused/defence can present their position. If an agreement is reached with Crown, it is important to know that the judge is not bound by a joint submission. Though making a joint submission does increase the likelihood the accused will get the sentence defence is arguing for, it does not guarantee it [''R. v. Anthony‑Cook'', 2016 SCC 43]. See '''Appendix E: How to Prepare for and Conduct a Sentencing Hearing''' for the process of a guilty plea. | If an accused person wishes to plead guilty then the court appearances should be adjourned to allow sufficient time to “negotiate” with Crown Counsel for the most appropriate sentence. For self-represented litigants, a duty counsel will assist with a sentencing negotiation with a Crown. 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 Counsel will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with the Crown, a sentencing hearing will be scheduled at which the accused/defence can present their position. If an agreement is reached with Crown, it is important to know that the judge is not bound by a joint submission. Though making a joint submission does increase the likelihood the accused will get the sentence defence is arguing for, it does not guarantee it [''[https://www.canlii.org/en/ca/scc/doc/2016/2016scc43/2016scc43.html?resultIndex=1 R. v. Anthony‑Cook]'', 2016 SCC 43]. See '''Appendix E: 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: | Consequences of a guilty plea may include, but are not necessarily limited to: | ||
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There tend to be two broad strategies for presenting an accused person’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 accused to avoid a similar set of unusual and exceptional circumstances. The accused should seek to show the court that the problem has already been cured and will not recur, and such 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. The accused should then show that they have changed their outlook and is seeking to turn their life around. This involves in part an understanding of an accused person’s own situation, and an understanding of the severity of the offence. | There tend to be two broad strategies for presenting an accused person’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 accused to avoid a similar set of unusual and exceptional circumstances. The accused should seek to show the court that the problem has already been cured and will not recur, and such 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. The accused should then show that they have changed their outlook and is seeking to turn their life around. This involves in part an understanding of an accused person’s own situation, and an understanding of the severity of the offence. | ||
:'''NOTE:''' In cases of '''Aboriginal offenders''', reference must be made to section 718.2(e) and the principles enunciated in ''R v Gladue'', [1999] 1 SCR 688 | :'''NOTE:''' In cases of '''Aboriginal offenders''', reference must be made to section 718.2(e) and the principles enunciated in ''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html?searchUrlHash=AAAAAQAKciB2IGdsYWR1ZQAAAAAB&resultIndex=1 R v Gladue]'', [1999] 1 SCR 688 | ||
== E.Types of sentences == | == E.Types of sentences == | ||
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A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. | A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. | ||
In ''R v Boudreault'', 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the ''Criminal Code'', which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the ''Charter'' and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the ''Charter'' and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay. | In ''[https://www.canlii.org/en/ca/scc/doc/2018/2018scc58/2018scc58.html?searchUrlHash=AAAAAQAOciB2IGJvdWRyZWF1bHQAAAAAAQ&resultIndex=2 R v Boudreault]'', 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the ''Criminal Code'', which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the ''Charter'' and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the ''Charter'' and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay. | ||
The current section 737 of the ''Criminal Code'' re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge in the event that it would cause undue hardship on the offender or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. Where the surcharge is waived, the court must provide reasons for doing so. | The current section 737 of the ''Criminal Code'' re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge in the event that it would cause undue hardship on the offender or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. Where the surcharge is waived, the court must provide reasons for doing so. | ||
