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

A person who has been charged with an offence may be arrested by the police and not be released on a promise to appear. This can occur if the police are seeking conditions on the promise to appear to which the accused does not agree or if the police determine that, in their opinion, the accused ought not to be released from custody.

A detained person must be brought before either a judge or a justice without unreasonable delay or, where a justice is not available within a period of 24 hours after the person has been arrested, the person shall be taken before a justice as soon as possible (see Criminal Code, s 503). When the accused is brought before a judge or a justice and the Crown is seeking the continued detention of the accused, the onus is on the Crown to show cause as to why the continued detention of the accused is necessary (see Criminal Code, s 515(10)), except for the offences listed under section 515(6) of the Criminal Code. Section 515(6) includes very serious offences such as murder and treason and less serious matters where special considerations apply such as when violence was allegedly used against an intimate partner and the accused has been previously convicted of an offence. For these offences, the onus is reversed, and it is on the accused to show why they can be safely released on bail.

There are three ways in which the detention of a person charged with a criminal offence can be justified under section 515(10) of the ''Criminal Code''. In the case law, these are usually referred to as:

* Primary—to ensure attendance in court (a possible flight risk).

* Tertiary—the detention is necessary to maintain confidence in the administration of justice (includes seriousness of the offence charged and strength of the Crown’s case).

=== 6. Fingerprinting and Photographing ===

A person in lawful custody for an indictable offence (or a hybrid offence) may be fingerprinted and photographed. A person may be required to submit to being fingerprinted and photographed under the ''Identification of Criminals Act'', R.SC 1985, c I-1.

Should Crown not consent to the proposed bail review, an accused can bring an application to review the bail conditions before a judge of the Supreme Court of British Columbia under section 520 of the ''Criminal Code''. Review procedures in the Supreme Court are difficult for a layperson to navigate and anyone conducting such a review is advised to retain a lawyer.

=== 8. Charge Approval by Crown Counsel ===

In BC, charge approval is conducted by Crown Counsel, not the police. On occasion, an accused person will have a compelled court appearance or will be arrested for an offence by the police. However, when the Crown reviews the charges being recommended by the police, they may conclude that they do not meet Crown’s charge approval standard.

# whether there is a substantial likelihood of conviction; and

# whether it is in the public interest to proceed.

More information regarding charge approval is available online in the Crown Counsel Policy Manual (Policy Code CHA 1) accessible online at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf

== C. Appearance Requirements ==

For summary offences, anyone can appear as agent for the accused if the accused is unable to attend court.

For indictable offences, the self-represented accused must appear in person or remotely via MS Teams (see '''section III''' for further information on appearing remotely). However, if the accused person is unable to attend, anyone can appear with leave of the court (permission of the court) to explain why the accused is unable to attend. If the court is satisfied with the explanation, the court can note the accused person’s non-appearance and delay the issuance of a warrant for their arrest.

An accused person who fails to attend court without lawful excuse as required under a recognizance, appearance notice, promise to appear, or summons, may be charged with an offence (see ''Criminal Code'', s 145).

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. The Information guides the entire legal process faced by the accused. See '''Appendix B''' for a sample Information.

==== a) Review the Information ====

==== b) Content of the Information ====

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.

==== d) Striking down an Information ====

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, afterwards (see ''Criminal Code'', s 601(1)). Although this is rare, situations in which an Information might be struck down include 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''|https://www.canlii.org/en/bc/bcca/doc/1979/1979canlii2989/1979canlii2989.html?searchUrlHash=AAAAAQAXciB2IHN0ZXdhcnQgMTk3OSA0NiBjY2MAAAAAAQ&resultIndex=1]] (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)).