Difference between revisions of "Criminal Charges (1:IV)"

At an Initial Appearance, the accused comes forward; the prosecutor indicates the nature of the offence without reading the Information and a Justice of the Peace will make inquiries as to whether the accused has legal counsel and the intentions of the accused regarding the case. ''An accused should not enter a plea at an initial appearance. (One cannot make a plea in front of a Justice of the Peace.)'' There will often be many appearances before a plea or trial is set.

Before the accused is asked to decide how he or she will plead, counsel should ensure that the accused fully understands his or her legal rights, the consequences of a guilty plea, and the Crown’s burden of proof to prove all elements of the offence beyond a reasonable doubt. Also, counsel should discuss any possible defences, mitigating factors, and any possibility of being found guilty for lesser included offences if guilt is not established for the original charge.  

''If the accused does not already have a copy of the particulars, he or she should request the particulars at the next appearance date.'' Particulars are usually given to the accused on the first appearance.

The “Information” contains the specifics of the charge, including the date of the alleged offence, the name of the accused, and the specific section of the statute allegedly contravened. It guides the entire legal process faced by the accused. See [[Sample Information (1:App B) | Appendix  B for a sample Information]].

The Information should be reviewed to determine what offence the accused has been charged with. Review the appropriate ''Criminal Code'' provisions in an annotated ''Criminal Code'' which often provides quick references to common issues that arise from prosecution under that section of the ''Criminal Code.''

One should review all aspects of the Information to ensure that it has been laid properly. Particularly, ensure that the Information has been laid within six months of the alleged offence on summary conviction offences. Also ensure that the date of the alleged offence and the names of the accused and complainant are correct.

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 full particularisation to allow full answer and defence to the charge, an application may be brought to the court to particularise the Information (''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 the Crown Counsel to amend the Information instead of ordering it to be quashed.

Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea or, with leave of the court, afterward (''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it does not adequately state the charge, does not include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled. The court will generally amend an Information if the defects are in form only. R v Stewart (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)).

| 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.

Section 786 of the ''Criminal Code'' states that no proceedings may be initiated in summary conviction offences after six 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 the six-month limitation period. Indictable offences have no specific statutory limitation period.

The Crown’s Initial Sentencing Position should be reviewed. This will indicate whether Crown is seeking jail time and what sentence the Crown is seeking. See [[Sample Initial Sentencing Position (1:App A) | Appendix A]] for a sample ISP.

 

When the accused receives the RTCC with the Particulars, the RTCC should be reviewed to ensure full disclosure has been made from the investigation. 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 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.

These should be obtained from the court registry if the accused has misplaced his/her copy of his release documents. The accused should review the release conditions and ensure that he/she understands 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 by.  In a case of domestic assault there will almost always be a 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. (See above section for Bail Variations)

If the accused has a good reason to have his/her release conditions varied, Crown Counsel should be contacted. The reason for the proposed variation should be explained to the 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 are made at the BC Supreme Court.  

The accused should keep in mind that if there is a no-contact or an area restriction, he/she must remember that contacting the complainant or going to that location is a criminal offence.