Resolving Criminal Matters Prior to Trial (1:VI)

It is important at this point to review the elements of the alleged offence with the client to ensure that they understand what they are charged with.

Practice Recommendation - Ensuring the Crown can Prove Its Case

Prior to asking a client what happened from their perspective, some counsel want to review the nature and character of the charges and the possible defences with the client. Even if the client admits their guilt, a client must be advised regarding the strength of the Crown’s case. A criminal defence lawyer has an ethical obligation to pursue any viable defence, even if only as a negotiation tactic. There is nothing unethical about running a trial with regards to a client who admits their guilt, as long as the clinician is not misleading the court and the client does not take the stand to testify.

Practice Recommendation - Explaining a Client’s Options

Be very sure that the client understands exactly what they are pleading to, and the consequences of their plea. Also be very sure that the client understands that it is ultimately their decision as to which option to apply. Ensure that the client understands the consequences and risks of going to trial, any possible defence he or she may have and the difficulties in raising such a defence. Clinicians must never force a client to choose a particular option, particularly one where the accused is required to admit guilt. It is always the client who ultimately decides the course of action they wish to follow. The client may ask the clinician what they should do or what option they should take. The clinician should always remind the client that the choice is up to them, and refrain from telling the client whatto do. Explain the options open to the client again and review the risks and consequences facing the client for each option. However, the clinician must not counsel a client to plead guilty unless he or she is actually guilty AND the Crown can prove its case beyond a reasonable doubt. In explaining the clinicians assessment of whether Crown can prove its case beyond a reasonable doubt clinicians should never give clients "odds" or their chances of winning an acquittal, rather a clinician should point out the possible defences available to the client and the difficulties, if any, of arguing such a defence. Common Ethical Situations Arising in Assisting a Client with their Options In certain circumstances, the course of action the client wants to take may render LSLAP unable to represent the client, for example if the client insists on illegal or unethical instructions, or where the client wishes to plead guilty for convenience. Some examples of this are as follows: "I didn't do it, but I want to plead guilty because this is taking too much time away from my job, and it is just more convenient if I plead guilty." Clinicians have an ethical duty to ensure that the innocent do not plead guilty. Particularly, clinicians cannot represent clients in cases where they wish to plead guilty for the purposes of convenience, not because they actually admit guilt. "What if my wife / girlfriend / husband / boyfriend (complainant) doesn't come to testify?" At this point in time the client may ask what would happen if the complainant does not attend court to testify, even if summoned. Inform the client that if the key witness does not attend at court Crown may stay the charges against the client. If a Crown witness wishes not to attend to testify, they should obtain independent legal advice. If any witness has been summoned, and fails to attend to a summons, they can be arrested and even jailed. In addition, the client should be advised that if they tell a witness not to show up they would be committing the criminal offence of obstructing justice (Criminal Code, s 139).

The clinician can attempt to negotiate with Crown for a better disposition of the matter for the client. With the exception of a Stay of Proceedings and a full trial, the options below (Diversion, Peace Bond, and Pleading Guilty) all require the client to take some measure of responsibility for the crime.

A. Stay of proceedings

After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a student can approach Crown Counsel and ask that they reconsider the charge. The letter must be without prejudice. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges, the Crown may again choose to reconsider (e.g. the client is terminally ill). Be sure to inform the client that for a summary offence the Crown can recommence proceedings within the limitation period. For hybrid offences, Crown could choose to proceed by indictment and re-lay the charges at any subsequent time.

B. Diversion / alternative measures

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 client or the client’s lawyer may make a request to the Crown Counsel office to be "diverted." In some cases, Crown may also recommend diversion. This program takes the client 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,
• The circumstances of the offence, including a clear admission of all the essential circumstances of the offence,
• The background of the client,
• The effect that a criminal record would have on the client, and
• The client's feelings of remorse or repentance for the offence.

You must ensure your client understands the concept of diversion and is prepared to speak openly and honestly to a probation officer. The client must clearly admit the offence and express remorse for its commission. He or she may also be required, and should offer to in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options could be considered in the letter or during meetings with the Crown.

The Crown will consider whether the client and the nature of the offence are such that diversion is appropriate. If the Crown decides the client is a good candidate for diversion, the file will be sent to a community worker who will review the circumstances and then discuss the matter with the client. The client is entitled to have legal counsel present at this meeting. If the client admits his or her culpability, and the probation officer is satisfied that the client is an appropriate candidate for diversion, the Crown will be so advised. The Crown will likely enter a stay of proceedings and the client will likely be required to work in the community, write an essay, write a letter of apology, etc. The stay of proceedings is usually entered once diversion has been completed and a letter from the Greater Vancouver Adult Community Alternative Measures Program confirms the completion. The client should be advised that Crown will not attempt to use the offender's admission against him or her if diversion is ultimately refused.

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 appending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and you should be prepared to move the court process forward at the same time as you are pursuing a diversion request. See Appendix C: Diversion Application and Sample Letter for an example of an application for diversion.

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 the client’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 a 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 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 his or her spouse or child or that they will cause damage to his or her property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the client is conceding that the complainant has reasonable grounds for their fear. The client does not have to admit to all of the facts in the Report to Crown Counsel. However, they do have to admit to sufficient facts to form a reasonable basis for the victim to fear the client. 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 PAO, [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] BCJ No 2314 (BCSC)).

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 client is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses his or her concerns without raising the uncertainty and possible trauma of a trial. A client 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

A guilty plea is appropriate when:

• diversion is not granted,
• a peace bond is not appropriate,
• the client admits guilt,
• it appears that the Crown will be able to prove its case, and
• the client wishes to plead guilty.

If the client wishes to plead guilty then the court appearances should be adjourned to allow the clinician sufficient time to "negotiate" with Crown Counsel for the most appropriate sentence. 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 will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with Crown, a sentencing hearing will be scheduled at which the clinician can present the client’s position. If an agreement is reached with Crown, it is important to know that the Judge is not bound by a joint submission; however, a joint submission is highly likely to be accepted. See Appendix D: 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:

• possible inability to obtain a passport or to enter the U.S.,
• difficulty or impossibility of entering some postgraduate fields of study such as law,
• exclusion from jobs requiring bonds,
• possible use of the conviction in subsequent proceedings, and
• possible deportation if the client is not a Canadian citizen.

In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). Consecutive sentences are often ordered whenthe offences are unrelated and of a serious nature.

The judge also has discretion to credit an accused with any time spent in custody as a result of the charges.

An important part of a student’s role as an LSLAP clinician may be negotiating a sentence with Crown Counsel. In fact, some of a student’s best advocacy can occur outside the courtroom – when discussing mitigating factors with the Crown. The Crown can sometimes be convinced to assume a less harsh position, or even to agree on a joint submission for sentencing. Most judges will follow a joint submission but they are not bound by it.

1. Speaking to sentence (sentencing hearing)

Before a sentence is given, the accused, or counsel for the accused, must be permitted to "speak to sentence" and make submissions to the judge that could affect the sentence. After hearing Crown recommendations and then defence submissions, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see Appendix D: How to Prepare for and Conduct a Sentencing Hearing.

It is important to consult sections 718 and 718.2 of the Criminal Code for the principles in sentencing that the judge will consider, and address these issues when drafting your submissions. A clinician should also read up to section 743.1 of the Criminal Code before any sentencing hearing.

There tend to be two broad strategies for presenting a client’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 client to avoid a similar set of unusual and exceptional circumstances. Students should seek to show the court that the problem has already been cured and will not recur, and that 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. Students should then show that the offender has changed his or her outlook and is seeking to turn their lives around. This involves in part an understanding of the client’s situation, and an understanding of the severity of the offence.