Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"

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 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 ([https://www.canlii.org/en/bc/bcsc/doc/2004/2004bcsc1438/2004bcsc1438.html?searchUrlHash=AAAAAQAHciB2IGRvbAAAAAAB&resultIndex=2 ''R v Dol''], 2004 BCSC 1438).

| Legal counsel should bear in mind that accused persons sometimes desire to change their plea after entering a guilty plea and may blame counsel for failing to advise them about the consequences of their plea. An accused may retain new counsel and make an application to set aside the entered guilty plea. In such a situation, solicitor client privilege will usually be set aside, and the lawyer may be forced to take the stand and explain why they believed the client understood the consequences of the guilty plea (see [https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca276/2020bcca276.html?autocompleteStr=R%20v%20Lam%2C%202020%20BCCA%20276%20(CanLII&autocompletePos=1 ''R v Lam''], 2020 BCCA 276 (CanLII)).

The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. For self-represented litigants, duty counsel can assist with a sentencing negotiation with the Crown. It is generally a good strategy to talk to Crown before pleading guilty, about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission (see [https://www.canlii.org/en/ca/scc/doc/2016/2016scc43/2016scc43.html?resultIndex=1 ''R v Anthony‑Cook''], 2016 SCC 43). See '''Appendix E: How to Prepare for and Conduct and Sentencing Hearing''' for the process of entering a guilty plea.

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). The default is consecutive. However, if the offences were sufficiently distinct from each other Crown may seek concurrent sentences. The legal test is whether or not the two criminal acts were part of a linked series of acts within a single endeavour. See [https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca85/2009bcca85.html?autocompleteStr=R%20v%20Li%202009%20BCCA%2085&autocompletePos=1 R v Li] 2009 BCCA 85 at para 43.

In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs.concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see [https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19405/index.do ''R v Bissonnette'', 2022 SCC 23].

It is important to note that, even if there is no Gladue report present, lawyers still have an obligation to bring information relevant to Gladue principles before the court in every case and judges have an obligation, not just to reference those principles, but provide an explanation of how they applied them when it comes to sentencing. Gladue principles apply to '''all''' offences under the Criminal Code.

In ''[https://www.canlii.org/en/ca/scc/doc/2018/2018scc58/2018scc58.html?searchUrlHash=AAAAAQAOciB2IGJvdWRyZWF1bHQAAAAAAQ&resultIndex=2 R v Boudreault]'', 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the ''Criminal Code'', which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the ''Charter'' and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the ''Charter''and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay.