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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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{{LSLAP Manual TOC|expanded = criminal}} | {{LSLAP Manual TOC|expanded = criminal}} | ||
It is important | It is important to review the elements of the alleged offence to ensure an understanding of what one is charged with. | ||
== A. Stay of proceedings == | == A. Stay of proceedings == | ||
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This option allows for a first-time offender to be “diverted away” from the court system. Although referred to as “diversion,” the program’s official name is Alternative Measures (''Criminal Code'', s 717). | This option allows for a first-time offender to be “diverted away” from the court system. Although referred to as “diversion,” the program’s official name is Alternative Measures (''Criminal Code'', s 717). | ||
The accused or the accused’s | The accused or the accused’s counsel may make a request to the Crown Counsel office to be “diverted”. In some cases, Crown may also recommend diversion. This program takes the accused out of the court system. The application itself may be made before or after a charge is laid. The diversion program is primarily designed for first-time offenders who are prepared to admit their culpability and remorse in the matter. It is advised to call Crown in advance of sending the diversion application to make sure they are open to it. Include the following in the application: | ||
# That the letter is Without Prejudice; | # That the letter is Without Prejudice; | ||
# The circumstances of the offence, including a clear admission of all the essential circumstances of the offence; | # The circumstances of the offence, including a clear admission of all the essential circumstances of the offence; | ||
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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 a pending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and one should be prepared to move the court process forward at the same time as they are pursuing a diversion request. | 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 a pending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and one should be prepared to move the court process forward at the same time as they are pursuing a diversion request. | ||
See '''Appendix D | See '''Appendix C '''and''' D''' for an example of an application for diversion. | ||
== C. Peace bond (s 810) == | == 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 an accused person’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 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 | 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 an accused person’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 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 the 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 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 | 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 does 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 (''[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). | 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 ( | 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 (''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code 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. | ||
== D. Pleading guilty == | == D. Pleading guilty == | ||
