Other Issues in Criminal Matters (1:VIII)

A. Client suspects he or she may be charged with an offence

The client may have been stopped by the police or observed doing "something wrong," but has not yet received a summons. To see if a client has been officially charged, contact the Vancouver police or the RCMP to see if a report to Crown Counsel has been made. It is also possible to check with the court clerk, the police, or the Crown Counsel office to see if an Information has been laid and forwarded to Crown Counsel. If there is an outstanding warrant for the client’s arrest, the accused must be advised that he should turn himself in immediately. This is a critical time to advise clients of their legal rights, including the right to remain silent.

B. Client is on probation or otherwise serving a sentence

The student may be able to help the client understand the terms of a sentence, or help the client in his or her relationship with the supervising authority. If the issue for which the client is seeking advice is complex, the client should be advised to seek legal counsel.

C. Staying a charge

Once the Information has been laid, the prosecution of the case is in the hands of the Crown. The Crown can only stay a charge if there is no substantial likelihood of conviction, or if it is not in the public interest to proceed with the charge.

A judge has no discretion in the decision of Crown Counsel to enter a stay of proceedings (Criminal Code, s 579). The Crown may enter a stay of proceedings either before or during the trial. See Section VII: Resolving the Matter Prior to Trial, above, for more information.

Note: At trial, the accused may instead ask Crown to call no evidence rather than enter a stay of proceedings, in which case the accused is acquitted due to a lack of evidence. This decision is solely within the discretion of Crown Counsel. An acquittal is preferable to a stay of proceedings as the accused's record will be removed immediately rather than remain as a 'pending charge' for one year.

Any person who wishes to have a stay of proceedings entered should do so with advice of counsel. Complainants should be careful with regards to what is said to Crown. The complainant could potentially cause charges to be brought against them if they tell Crown that they will not testify even if summoned, or that they initially lied to the police.

If the complainant and the accused both seek advice from LSLAP, the student must be aware that this is a serious conflict of interest. The second party must seek independent advice even if the complainant and accused are husband and wife. Under no circumstances should counsel for the accused advise the complainant, or vice versa. If the other party approaches LSLAP for advice, they must be immediately referred to their own legal counsel.

D. Appeal

The accused has a right to appeal a conviction or sentence or both. Appeals must be filed within 30 days of the sentence. A client who believes that he or she has a strong case for an appeal should be referred to the Lawyer Referral Service as LSLAP does not handle appeals.

E. Default in payment of fine or non-compliance with order

1. Provincial offences

A convicted person may not be jailed for defaulting on payment of a fine, except as under the Small Claims Act, RSBC 1996, c 430 (Offence Act, s 82). Failure to pay a fine can result in the Crown obtaining a court Judgment Order by filing the conviction and entering the amount of the fine. The order has the same effect as a judgment in a civil case. The Crown can collect the fine by a Garnishing Order, Warrant of Execution, or other means, just as a judgment would be enforced in a civil case.

2.Federal summary and indictable offences

If a fine or a community work service is ordered, the court may grant more time for payment or completion of hours. This is granted when a person has a legitimate excuse for wanting an extension.

F. Criminal records

1. What is a criminal record?

The answer is not straightforward as different people will use the term "criminal record" to mean different things. Informally, a "criminal record" often refers to criminal convictions. This would include suspended sentences, fines imposed after criminal convictions and any