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

{{REVIEWED LSLAP | date= August 7, 2024}}

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. The contact information for the assigned Crown can be obtained by calling the Crown Counsel office in the city in which the charge was laid. 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. A stay of proceedings appears on the accused’s Vulnerable Sector Criminal Record Check. Therefore, a stay may affect the accused’s employment if they intend to work with children or seniors.

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 their culpability, and the probation officer is satisfied that the accused is an appropriate candidate for diversion, the Crown will be so advised. The criminal matter will likely be adjourned to allow the accused to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.  

See '''Appendix C '''and'''Appendix D''' for an example of an application for diversion.  

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 an accused person’s liberty. Under section 810 of the ''Criminal Code'', the accused enters into a recognizance with conditions. In addition to requiring that the recipient “keep the peace and be of 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 the 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 their spouse or child, or that they will cause damage to the complainant’s property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused 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, the accused does have to admit to sufficient facts to form a reasonable basis for the victim to fear them. 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''' ([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<nowiki>]</nowiki> 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]).

If a bonded person breaches the peace bond, a criminal charge may be laid against them. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (''Criminal Code'', s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused 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.

The statutory range for all sentences is in the ''Criminal Code''. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful ''Charter'' challenge or is about to be abolished by an act of Parliament.

Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document (see Section IV.F.3). The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see ''Criminal Code'', s 724 for how the court determines disputed facts). '''Note:''' Sometimes this will occur in the moment where Crown Counsel summarizes an aggravating fact during their sentencing submissions and the accused and their counsel realizes only then that an aggravating fact was not agreed upon. This may also occur in the process of the defence’s submissions when a mitigating circumstance is summarized.

After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Law students should alert their client to the fact that they will be invited to speak after the law student finishes their submissions, and that there is no obligation to say anything. However, it is usually beneficial for an accused to express remorse. Following the accused’s opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see '''Appendix E: How to Prepare for and Conduct a Sentencing Hearing'''.

There are two common strategies for presenting the circumstances of an accused. One strategy is to present the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control and explain what has changed in the accused’s life to avoid a similar set of unusual and exceptional circumstances. This establishes that the problem has already been resolved and will not recur, and that a harsh sentence is unnecessary. Another strategy is to highlight the disadvantageous life circumstances, such as lack of family support, lack of employment or educational opportunities, mental illness, or addiction, which contributed to the commission of the offence. This lessens the accused’s moral culpability for their conduct.

This sentence is only available if the accused is not subject to a minimum penalty. Probation means that the accused must 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 charged with a breach of the probation conditions.

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 $5,000 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.

If the total sentence is two years or more, the accused will serve their sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve their sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. A person who is sentenced to two years less a day of imprisonment but has already served one year in jail while awaiting their trial will be sent to a provincial penitentiary. If the jail sentence is provincial, a sentence of probation for up to 3 years can be added. If the jail sentence is federal, the court cannot add a probationary order to that sentence.