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Difference between revisions of "Criminal Charges (1:IV)"
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The Information must contain sufficient allegations to indicate that the named person committed an offence. It may contain “counts” charging the accused with separate offences. It must contain sufficient details of the circumstances of the offence(s) to enable the accused to make full answer and defence to the charge (ss 581(1) and (2) of the ''Criminal Code''). If the Information does not contain sufficient particularisation to allow full answer and defence to the charge, an application may be brought to the court to particularise the Information (see ''Criminal Code'', s 587). If the Information does not adequately state the charge or contains a very unclear description of the alleged offence, then a motion can be made to quash or strike down the Information. However, as noted below, this process is rarely used because the courts will generally allow Crown Counsel to amend the Information instead of ordering it to be quashed. | The Information must contain sufficient allegations to indicate that the named person committed an offence. It may contain “counts” charging the accused with separate offences. It must contain sufficient details of the circumstances of the offence(s) to enable the accused to make full answer and defence to the charge (ss 581(1) and (2) of the ''Criminal Code''). If the Information does not contain sufficient particularisation to allow full answer and defence to the charge, an application may be brought to the court to particularise the Information (see ''Criminal Code'', s 587). If the Information does not adequately state the charge or contains a very unclear description of the alleged offence, then a motion can be made to quash or strike down the Information. However, as noted below, this process is rarely used because the courts will generally allow Crown Counsel to amend the Information instead of ordering it to be quashed. | ||
==== c) Obtaining the Information ==== | ==== c) Obtaining the Information ==== | ||
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! style="font-style: italic;text-align: left;" | Challenging an Information | ! style="font-style: italic;text-align: left;" | Challenging an Information | ||
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| Although the court rarely strikes down an Information due to technical errors, at trial Crown must prove the offence as alleged in the Information. They must prove beyond a reasonable doubt the identity of the accused, the location of the crime (British Columbia), the physical criminal act, and a guilty mind. Despite the very broad power to amend an Information to cure technical defects prior to the end of the trial, amendments after the defence/accused has closed its case are less likely to be granted. This is because once defence/accused has closed its case – based on a flawed Information, and with a view to a closing argument that Crown has not proven the Information as alleged – the accused is prejudiced by any subsequent amendment of the Information. Hence a possible strategy on a case where there is an error in the Information is to wait out the Crown’s case, close the defence case, and then argue reasonable doubt on the offence as alleged. | | Although the court rarely strikes down an Information due to technical errors, at trial, Crown must prove the offence as alleged in the Information. They must prove beyond a reasonable doubt the identity of the accused, the location of the crime (British Columbia), the physical criminal act, and a guilty mind. Despite the very broad power to amend an Information to cure technical defects prior to the end of the trial, amendments after the defence/accused has closed its case are less likely to be granted. This is because once defence/accused has closed its case – based on a flawed Information, and with a view to a closing argument that Crown has not proven the Information as alleged – the accused is prejudiced by any subsequent amendment of the Information. Hence a possible strategy on a case where there is an error in the Information is to wait out the Crown’s case, close the defence case, and then argue reasonable doubt on the offence as alleged. | ||
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==== e) If the Information is Struck Down ==== | ==== e) If the Information is Struck Down ==== | ||
If there has been no adjudication of the case on its merits, the prosecutor may lay a new Information. The prosecutor must do so within the limitation period. | If there has been no adjudication of the case on its merits, the prosecutor may lay a new Information. The prosecutor must do so within the limitation period. | ||
==== f) Limitation Periods and the Information ==== | ==== f) Limitation Periods and the Information ==== | ||
Section 786 of the ''Criminal Code'' states that no proceedings may be initiated in summary conviction offences after twelve months have elapsed from the time of the alleged offence, except on agreement of the prosecution and the defendant. The date on which proceedings commence is when the Information is laid, therefore | |||
Section 786 of the ''Criminal Code'' states that no proceedings may be initiated in summary conviction offences after twelve months have elapsed from the time of the alleged offence, except on agreement of the prosecution and the defendant. The date on which proceedings commence is when the Information is laid, therefore the Information must be laid within this limitation period. Indictable offences have no specific statutory limitation period. | |||
=== 2. The Initial Sentencing Position (ISP) === | === 2. The Initial Sentencing Position (ISP) === | ||
The Crown’s Initial Sentencing Position should be reviewed. | The Crown’s Initial Sentencing Position should be reviewed. This will sometimes indicate whether the Crown is seeking jail time, or it can specify the sentence the Crown is seeking. | ||
A request for a more detailed initial sentencing position can be made. See [[Sample Initial Sentencing Position (1:App A) | '''Appendix A''']] for a sample ISP. | |||
=== 3. Report to Crown Counsel (RTCC) === | === 3. Report to Crown Counsel (RTCC) === | ||
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* Summary of other important evidence collected by police in the investigation. | * Summary of other important evidence collected by police in the investigation. | ||
When the accused receives the RTCC with the particulars, the RTCC should be cross referenced to the particulars to ensure that full disclosure has been made of | When the accused receives the RTCC with the particulars, the RTCC should be cross referenced to the particulars to ensure that full disclosure has been made of the investigative file. If the RTCC mentions an audio statement that was taken, that audio and perhaps a transcript of the audio should be included in the disclosure. In addition, ensure that there is a narrative and corresponding personal notes from each police officer mentioned in the RTCC and that any other evidence mentioned in the RTCC has been provided in the particulars. If something is missing from the file, make a disclosure request to the Crown in writing, as soon as possible. | ||
=== 4. Release Conditions (Contained within the Bail Document) === | === 4. Release Conditions (Contained within the Bail Document) === | ||
If the accused has a good reason to have their release conditions varied, Crown Counsel should be contacted. The reason for the proposed variation should be explained to | Release documents can be obtained from the court registry if the accused has misplaced the copy they should have been given upon release. The accused should review the release conditions and ensure that they understand all of the conditions and the importance of abiding by the conditions of release regardless of how unfair or difficult those conditions are to abide. In a case of domestic assault, there will almost always be no-contact conditions and area restrictions. The accused may encounter situations where the complainant and the accused wish for contact and there is a no-contact bail condition. In such cases, the accused and their counsel could look into bail variations (see '''section IV''' above for Bail Variations). | ||
If the accused has a good reason to have their release conditions varied, Crown Counsel should be contacted. The reason for the proposed variation should be explained to Crown Counsel. It is important to make a convincing argument for the proposed variation directly to Crown Counsel, as an application cannot be made to vary bail conditions in Provincial Court without the Crown’s consent. In practice, Crown Counsel only consents to hearing applications for bail variation in Provincial Court when they agree with the proposed variations. Variation applications without Crown Counsel’s consent can be made at the BC Supreme Court. | |||
The accused should keep in mind that if there is a no-contact condition or an area restriction, contacting the complainant or going to that location is a criminal offence. | |||
== G. Assessing the Strength of the Case == | == G. Assessing the Strength of the Case == | ||
Once the accused has received the particulars and knows the evidence that Crown | |||
Once the accused has received the particulars and knows the evidence that Crown seeks to lead in its case to prove the accused’s guilt, it is important to critically assess the strength of the Crown’s case and consider any challenges which can be made. At this stage, the defence/self-represented accused should be in a position to review the elements of the offence and be able to concisely summarize the key evidence that the Crown will seek to adduce at trial to prove each element of the offence. | |||
=== 1. Things to Consider when Assessing the Crown's Evidence === | === 1. Things to Consider when Assessing the Crown's Evidence === | ||
For each key piece of evidence that the Crown needs to establish its case, consider the following : | For each key piece of evidence that the Crown needs to establish its case, consider the following: | ||
==== a) Is the Evidence Direct or Circumstantial? ==== | ==== a) Is the Evidence Direct or Circumstantial? ==== | ||
