Resolving Criminal Matters Prior to Trial (1:VI)

It is important at this point to review the elements of the alleged offence to ensure an understanding of what one is charged with.

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 letter can be drafted to the assigned Crown Counsel requesting that they reconsider the charge. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges (e.g. the accused is terminally ill), the Crown may choose to reconsider. A stay of proceedings is a decision to not proceed with the charges.

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 accused or the accused'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 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,
• The circumstances of the offence, including a clear admission of all the essential circumstances of the offence,
• The background of the accused,
• The effect that a criminal record would have on the accused, and
• The accused's's feelings of remorse or repentance for the offence.

The accused must understand the concept of diversion and be prepared to speak openly and honestly to a probation officer. The accused must clearly admit the offence and express remorse for his or her 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 accused and the nature of the offence are such that diversion is appropriate. If the Crown decides the accused 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 accused. The accused is entitled to have legal counsel present at this meeting. If the accused admits his or her culpability, and the probation officer is satisfied that the accused is an appropriate candidate for diversion, the Crown will be so advised. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.

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 he or she is pursuing a diversion request. See Appendix B: 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 accused 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 accused. 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 accused admits guilt,
• it appears that the Crown will be able to prove its case, and
• the accused wishes to plead guilty.

If an accused person wishes to plead guilty then the court appearances should be adjourned to allow sufficient time to “negotiate” with Crown Counsel for the most appropriate sentence. For self-represented litigants, a duty counsel will assist with a sentencing negotiation with a Crown. 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 Counsel will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with the Crown, a sentencing hearing will be scheduled at which the accused/defence can present his/her position. If an agreement is reached with Crown, it is important to know that the judge is not bound by a joint submission.

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 when the 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.

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. One 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 an accused person’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 accused to avoid a similar set of unusual and exceptional circumstances. The accused should seek to show the court that the problem has already been cured and will not recur, and such 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. The accused should then show that he/she has changed his or her outlook and is seeking to turn his/her life around. This involves in part an understanding of an accused person’s own situation, and an understanding of the severity of the offence.

NOTE: In cases of Aboriginal offenders, reference must be made to section 718.2(e) and the principles enunciated in R v Gladue, [1999] 1 SCR 688.

E.Types of sentences

a) Absolute or conditional discharge

Discharges are outlined in section 730 of the Criminal Code:

• They are available if accused is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years imprisonment or more.
• A discharge means there is a finding of guilt rather than a conviction. At the end of the discharge period the accused has no criminal record.
• The discharge must be in the best interests of the accused and not be against the public interest.
• An absolute discharge means that the accused has no criminal record immediately upon being sentenced.
• A conditional discharge means that the accused is on probation, with certain conditions, for a period of time. If the accused follows the rules, at the end of the probation period he or she is treated as if there were no conviction and will not have a criminal record.
• An absolute discharge is granted immediately without terms or conditions, whereas the effect of a conditional discharge is that the accused is on probation for a period of time. This can involve a number of various conditions the accused must abide by. If the accused successfully completes the period of probation with no breaches or further criminal offences, the conviction is discharged and the offender can say he or she has no prior convictions. It is important to note however that an absolute or conditional discharge still requires a finding of guilt.

NOTE: Each of the sentences listed below results in a conviction and a criminal record.

b) Suspended sentences and probation

If the judge thinks that, having regard to the age, character and personal circumstances of the individual, the accused can rehabilitate him or herself, the judge can suspend the passing of sentence and release the accused subject to the terms of a probation order of up to three years (Criminal Code, s 731(1)(a)). This does not mean that the accused has been acquitted; at the expiry of their probationary period, the accused will still have a criminal record. This is an important difference between probation and a conditional discharge.

The sentence is available if the accused is not subject to a minimum penalty. An accused can be sentenced to probation for up to three years. Probation means that the accused has to follow certain conditions that the judge sets. For example, the accused will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused), and obey other court-imposed conditions. An order for a suspended sentence means that the courts suspend the passing of a sentence for the duration of the probation period. If a person breaches the conditions of a suspended sentence the court may extend the length of the probation period or (in rare cases) revoke the suspension of sentence and substitute a jail sentence for the suspended sentence. In addition, the breach is a new criminal offence and the accused may be convicted for a breach of the probation conditions (typically 2 or 3 days of jail time for a first offence or weeks of imprisonment for repeat offenders.)

c) Fines

Under section 734 of the Criminal Code, an accused may be fined in addition to, or in lieu of, another punishment for offences punishable by imprisonment of five years or less for which there is no minimum penalty.

A fine can be ordered on its own or in addition to probation or imprisonment (but not both). An accused may be fined up to $5000 for summary conviction offences (or a hybrid offence where the Crown elects to proceed summarily), or any amount for indictable offences. Before a court imposes a fine, it must inquire into the ability of the accused to pay the fine.

d) Restitution and compensation

Restitution orders can be made as "stand-alone" orders imposed as an additional sentence (s 738 of the Criminal Code) or as a condition of probation or conditional sentence order by the court. The restitution can be ordered for the cost of repairing any property damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim who required the victim to incur out of pocket expenses or resulted in a loss of income.

e) Conditional Sentence Order (CSO)

This is a jail sentence and occurs when a court orders the accused to serve his or her jail sentence in the community. It is not allowed when there is a minimum sentence of imprisonment, when there is a term of imprisonment of two years or more imposed, or where the offence involved a serious personal injury. The term “conditional” refers to rules the offender must follow in order to remain out of jail. The conditions are often similar to conditions imposed on a probation order; however, a curfew is almost always imposed. An accused that breaches any of his or her conditions or commits a new crime may be ordered to complete the remaining portion of the sentence in prison.

f) Imprisonment (jail)

Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence stated is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction.

If the total sentence is two years or more, the accused will serve his or her sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve his or her sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years of imprisonment, but has served one week in jail, will not be sent to a federal penitentiary.

If a judge imposes a sentence not exceeding 90 days, he or she may order that the sentence be served intermittently on certain days of the week or month. The accused is released on the other days, subject to conditions of a probation order.

F. Matters ancillary to sentencing

a) DNA Data Bank

If an offender is convicted of a "primary designated offence" enumerated in section 487.04 of the Criminal Code – for example, sexual interference (s 151) and sexual exploitation (s 153) – a court must order the taking of bodily substances for the purposes of forensic DNA analysis, unless the impact on the person’s privacy would be “grossly disproportionate” to the public interest.

The court may also consider the criminal record of the offender, the nature of the offence, and the circumstances surrounding its commission. The court may also, at its discretion, make a DNA order upon conviction or discharge of a “secondary designated offence” – such as assault – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analysed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used for many different types of crimes ranging from violent crimes to fraud involving impersonation.

b) Victim fine surcharge

A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.

The coming into force of the increasing Offenders' Accountability for Victims Act (October 24, 2013) amends the victim surcharge provisions in the Criminal Code to double the amount that an offender must pay when sentenced, and to ensure that the surcharge is applied in all cases.

The surcharge will be at 30 percent of any fine imposed on the offender. Where no fine is imposed, the surcharge will be $100 for offences punishable by summary conviction and $200 for offences punishable by indictment. In addition, the judge will retain the discretion to impose an increased surcharge where the circumstances warrant and the offender has the ability to pay.

Previously, sentencing judges had the discretion to waive the victim surcharge when it could be demonstrated that its payment would cause undue hardship to the offender or his/her dependents. This legislation removes the waiver option to ensure that the victim surcharge is applied in all cases without exception. However, the legislation has been found unconstitutional and many judges are no longer imposing the victim fine surcharge where it would be a financial hardship.

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