Defending Yourself Against a Criminal Charge

If you are charged with a criminal offence, you may not be able to afford a lawyer or get legal aid. In that case, you may have to defend yourself. This script explains how to do so. You should defend yourself only as a last resort – the laws and the process can be complicated. To find out if you can get legal aid contact the Legal Services Society (LSS). To find a legal aid location near you, go to LSS’s website at www.legalaid.bc.ca and under “Legal aid,” click “Legal aid locations”. Or call the LSS province-wide Call Centre at 604.408.2172 (Greater Vancouver) or 1.866.577.2525 (call no charge, elsewhere in BC).

Also, check the website of the Legal Services Society at www.legalaid.bc.ca– details are in the Summary section at the end of this script. As well, check the following scripts:

• 210, called “If You Receive an Appearance Notice or Summons”
• 212, called “Pleading Guilty to a Criminal Charge”

If you defend yourself in a trial, you should be clear about the following three basic legal principles:

1. The law presumes you are innocent, even though you are charged with a criminal offence. As you walk into the court, the judge should be thinking, "I presume that this person is innocent."
2. The Crown, called Crown Counsel (Crown), has to prove that you are guilty. Generally, you don't have to prove anything.
3. A judge can find you guilty only if the Crown proves the charge beyond a reasonable doubt. So if the judge has a reasonable doubt about whether you are guilty, you cannot be convicted.

There are some exceptions to these principles, which a lawyer can explain to you.

What are the steps in a trial?

This script describes a criminal trial in provincial court. If you are charged with a serious criminal offence, you may have a choice of which level of court will hold your trial. If you decide to defend yourself without a lawyer, it is extremely important to bring to the trial any documents or physical evidence that you intend to use at the trial.

First appearance

Your first appearance date is not the trial date. The first time you appear in court is the date you receive documents called “particulars” or “disclosure” from the Crown. Disclosure lists the allegations against you, and what the Crown will rely on to prove you are guilty.

Make sure you arrive at the time listed in any document that tells you the first date you must be at court. If you do not have a lawyer, tell the Sherriff that you are present and wait until your name is called. When your name is called, stand up in front of the judge or justice of the peace and ask the Crown for your disclosure. At this point, ask to adjourn your case (put it on hold) for as long as you need (or the court will allow) to read the disclosure, consult a lawyer, and decide whether to plead guilty or go to trial.

There may be a big difference between what the disclosure says (what the police say you did) and what you believe actually occurred. There may also be things missing from the disclosure that you believe are important to your case. If so, you can ask the Crown to give them to you.

Your next appearance in court will be an “arraignment hearing” where you will plead “not guilty” or “guilty”.

How do you plead?

Before the trial, at an “arraignment hearing”, the court may ask you how you plead – guilty or not guilty. This is called entering a plea. If you don't do so, the court will enter a plea of “not guilty” for you. Pleading “not guilty” does not mean that you deny you committed the offence. It means that you are making the Crown prove the case against you, if they can. If you plead not guilty, the judge presumes you are innocent unless the Crown proves that you are guilty.

What happens if you plead not guilty?

You will be asked to see the judicial case manager in the courthouse. They will give you a trial date, which can be anywhere from a few months to over a year away, depending on the type of charge. You will get two dates from the judicial case manager: a Trial Confirmation Hearing (TCH) date and a trial date. The TCH is usually 6 weeks before your trial. You must attend court on the TCH date to tell them you are ready to proceed on the trial date.

The trial

The trial starts with the formal charge being read to you. The judge will confirm that you pleaded not guilty and then ask the Crown to proceed. The Crown will try to prove you are guilty by calling its witnesses and questioning them. They will tell the court (testify) about what they saw or heard about the case. You have the right to question (cross-examine) each witness the Crown uses. You would question them to weaken their testimony by showing that they have a poor memory, or are mistaken or lying.

Should you make a “no-evidence motion”?

When the last witness for the Crown has finished testifying, you may want to make a “no-evidence motion”. It depends on whether the Crown has proven all the parts of the offence. For example, if you are charged with possession of marijuana, the Crown must prove several things. First, that you were the person who had it; second, where and when you had it; third, that you had knowledge and control of the marijuana; and fourth, that it really was marijuana. If the witnesses cannot identify you as the person who possessed the marijuana, there is no evidence on the first thing, your identity. So you would stand up and tell the judge that there is no evidence that you possessed the marijuana. If the judge agrees, the charge must be dismissed.

Should you use witnesses?

If you don't make a no-evidence motion, or you do, but lose it, then you have to decide whether to call any witnesses – either yourself or someone else – to tell your side of what happened. If you want to use a defense, such as self-defense, you would normally testify yourself, and then call other witnesses who could testify to support what you say. “Testify” means tell the judge, under oath, what happened. This means you promise (or swear or affirm) that what you say is the truth. No one can force you to testify – you decide. But if you don’t testify, the judge cannot consider any explanation you give. If you choose to testify, you are a witness and the Crown can question (cross examine) you – just as you can cross examine the Crown’s witnesses. You must answer all the questions, if they are about the charge against you.

Often, if you plead not guilty, you do so because you say that you did not commit the offence. In that case, you would explain this to the judge.

If you decide to call witnesses, you question them first, and then the Crown may cross-examine them.

What submission should you make?

The next step in the trial is called “submissions”. After all the Crown’s witnesses have testified, and after you have either called your witnesses or have decided not to call any, both you and the Crown can summarize your cases. The Crown can explain to the judge why you are guilty, and you can explain why you are not guilty. All you have to do is raise a reasonable doubt in the judge's mind. If you do, the judge has to find you not guilty.

What happens when the judge announces the verdict?

After the Crown and you finish your submissions, the judge announces the decision, or verdict. You are either acquitted or convicted. If you are acquitted, the charge is dismissed, and you are free to go. If you are convicted, the judge will penalize (sentence) you. The judge may sentence you then, or later. Depending on the offence and your background, the sentence could be a discharge, a fine, probation, or jail. Check script 203, called “Conditional Sentences, Probation and Discharges” for details on those types of sentences.

The judge will want to know something about you before deciding what sentence to give you. Key information includes your age, whether you are married, how many people you support, if you are working, your income, your plans, and why you committed the offence. So be prepared with this information in case the judge asks for it.

If you can get letters about your character from people, such as an employer, clergyman, or doctor, or even from your family and friends, ask the judge for an adjournment for time to get these letters. Then give them to the judge before you receive your sentence.

Summary

Defending yourself is very difficult, and you should do it only as a last resort. At least try to talk to a lawyer and get some initial advice. Then you will be in a better position to decide whether you want to hire a lawyer to represent you in court.

If you have to defend yourself and you do not understand something during the trial, ask the judge to explain it to you.

Also, check the criminal law publications on the Legal Services Society website, at www.legalaid.bc.ca. Click “Our publications” and then “Criminal law”. They explain what to do if you are charged with a crime, how to represent yourself in a criminal trial, and how to speak to the judge before you are sentenced. Other publications explain what to do if you are charged with several specific offences.

[updated January 2014]

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In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, (1) the federal and provincial governments and their departments and agencies, or (2) lawyers employed by the federal and provincial governments to prosecute criminal offences.

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

A court official appointed by the provincial government with limited decision-making authority and jurisdiction, usually charged with managing court schedules, the terms of release of arrested persons, and other administrative tasks with a discretionary element. See "judge" and "jurisdiction."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."

Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."

In law, an application to the court for an order, usually brought after the commencement of a court proceeding but before its conclusion by trial or settlement; an interim application. See "action," "interim application," and "order."

In law, the right to have the control and use of a thing. One can have a right to the possession of a thing without owning it, as in the case of a car lease, or ownership without possession, as in the case of a landlord who rents an apartment suite. See "ownership."

In law, a guarantee of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. People making affidavits and giving oral evidence in court will often give their evidence under oath. See "affidavit," "affirm," "perjury" and "witness."

To promise that a statement is true. When someone "swears" to tell the truth, they are taking an oath on their faith in a god and their fear of retribution in the afterlife. Affirming is a substitute for taking an oath, and is most often employed where the person making the statement is an atheist or under a religious proscription from making oaths. See "affidavit," "oath," "perjury," and "witness."

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

In law, a judge's conclusions after hearing the arguments and considering the evidence presented at a trial or an application; a judgment, the judge's reasons. Usually used in a criminal law context to indicate the judge's conclusions as to the guilt or innocence of an accused person. See "decision."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

The suspension of a hearing or trial, usually when the hearing or trial cannot proceed on the date scheduled or because it cannot complete within the time scheduled, normally until a specific date. See "sine die."