Criminal Charges (1:IV)

A. Arrest

There may be a Charter issue here. See Section X: Charter Issues with respect to arbitrary detention and unlawful arrest.

B. Informing an accused of the charge and compelling appearance

A person may learn that he or she is accused of committing a criminal offence in one of several ways. He or she may:

1. receive an appearance notice or a promise to appear from the police,
2. receive a summons (in the mail or personally), or
3. be arrested and kept in custody until he or she is brought before a Judge or JP.

Many clients who seek assistance from LSLAP will have received an appearance notice or a summons requiring them to attend court. Such an appearance notice indicates that the police officer involved believes that they have a case against an accused. After an appearance notice is issued, the police officer forwards a package to Crown for charge approval. Usually such charges are approved by Crown prior to the first appearance in court. By the time they attend court, an Information will likely have been sworn. An accused must attend court on the date required by the appearance notice or summons. If they fail to attend court, a warrant for their arrest will usually be issued.

1. Appearance notice

The attending officers at the scene of an alleged summary conviction or hybrid offence do not always have cause to arrest the suspect. (See Section 495 (2) Criminal Code). When there is no cause to arrest the suspect but the police still intend to forward charges for an offence they will serve an appearance notice on the accused compelling them to appear at a future date and time at a courthouse to face potential charges. See Section 496 Criminal Code.

Note: When advising a client with an Appearance Notice, they should be advised that they MUST attend court as directed in the Appearance Notice, but that sometimes they will not be on the court list as the police might not forward charges, Crown might not approve charges or there may be a delay in processing the charges. If a client does not see their name on the court list on the appearance date they should attend the court registry to show them the Appearance Notice and ask if their matter is on any court list.

2. Promise to appear

If an accused is arrested then the police must decide whether a) keep the accused in custody for Crown to seek detention, or b) whether to exercise the power to release the accused. A promise to appear is a binding agreement whereby the accused person promises to attend court on a later date and abide by the conditions the police impose, and in exchange the police release the accused from custody.

3. Summons

A summons is a written order by a justice in prescribed form requiring the accused to appear before a justice at a particular time and place. (See Criminal Code, s 509).

Note: A summons should not be disregarded because of a misspelling of the accused’s name, nor because of minor irregularities or mistakes. The summons may be served by a peace officer personally, or it may arrive by mail. It can also be served, when the accused cannot conveniently be found, to a person living in the accused’s residence who appears to be at least 16 years old (Criminal Code, s 509(2)).

Note: An accused may attend court to answer to an appearance notice or summons indicating a certain charge. The accused may at that time be faced with additional charges, or with a different charge. It is the charge contained in the Information that the accused is charged with, regardless of what is contained in the summons or appearance notice. So long as an Information has been laid the Crown can proceed against the accused on that charge.

4. Judicial interim release (bail)

A person who has been charged with an offence may be arrested by the police and not released on a promise to appear. This can occur if the police are seeking conditions on the promise to appear which the accused does not agree to or if the police determine that in their opinion the accused ought not to be released from custody.

A person so detained must be brought before either a judge or a justice of the peace as soon as possible (see Criminal Code, s 503). When the accused is brought before a judge or a justice of the peace and the Crown or police are seeking the continued detention of the accused the onus is on the Crown to show cause as to why the continued detention of the accused is necessary (see Criminal Code, s 515(10)), except for the offences listed under section 469 of the Criminal Code.

There are three ways in which the detention of a person charged with a criminal offence can be justified under section 515(10) of the Criminal Code. In the case law these are usually referred to as:

• Primary—to ensure attendance in court (a possible flight risk)
• Secondary—bail can be denied for the protection and safety of the public, including a substantial likelihood the person will commit a criminal offence
• Tertiary—the detention is necessary to maintain confidence in the administration of justice (includes seriousness of the offence charged and strength of the Crown’s case)

Often when opposing the show cause hearing the focus becomes the conditions an accused can abide by if released on conditions. Crown will usually have specific bail conditions and concerns about specific behaviours of an accused. The law requires conditions of release to be as minimally restrictive on a person’s freedom as possible while still addressing the cause for concern.

5. Warrant in the first instance

A warrant for arrest may be issued when an accused fails to appear for a summons or a Justice decides that it is in the public interest to issue a warrant. Some common situations where this arises are as follows:

• An appearance notice or summons was issued for the client to attend court, and he or she did not attend court at the appropriate date and time,
• The client is avoiding service or is unable to be located,
• The client was never actually arrested for the offence, or
• Crown cancels a promise to appear and seeks a warrant because they are seeking the client's detention or conditions on the release of the client.

(See Criminal Code, s 512).

6. Fingerprinting and photographing

A person in lawful custody for an indictable offence (or a hybrid offence where the Crown has yet to elect) may be fingerprinted and photographed. A person may be required to submit to being fingerprinted and photographed under the Identification of Criminals Act, R.SC 1985, c I-1. If the Crown is proceeding summarily, they have no power to request fingerprints. If the student is contacted prior to fingerprinting, the file can be called ahead and Crown should elect on record how they are proceeding. Once they have stated on record that they are proceeding summarily, the client will not be required to attend fingerprinting. If the client has already been fingerprinted and the Crown is proceeding summarily, the student can apply to the Crown to have those fingerprints destroyed.

7. Varying conditions of interim release (bail variation)

Sometimes an accused is unhappy with one or more of their bail conditions and wants those conditions changed. Bail conditions can be changed in Provincial Court with consent of Crown. However, if a trial has already begun, the judge can make the variation without Crown consent. If there is no consent, this is a Supreme Court matter (see below). In order to convince Crown to vary bail conditions it will be necessary to convince Crown Counsel that a less restrictive condition is sufficient to meet the concern addressed by the condition or that the condition is no longer necessary. For example on a spousal assault file an accused is usually released on a condition that they do not contact their spouse. It is not uncommon that following an incident the couple will want contact with each other. In these circumstances Crown will often interview the complainant in order to determine what if any contact conditions remain necessary for the complainant.

Should Crown not consent to the proposed bail review an accused can bring an application to review the bail conditions before a judge of the BC Supreme Court under section 520 of the Criminal Code. Such reviews can be difficult and anyone conducting such a review is advised to retain counsel as LSLAP clinicians cannot conduct bail reviews in Supreme Court.

8. Charge approval by Crown Counsel

In BC, charge approval is conducted by the Crown Counsel, not by the police. On occasion, a client will have a compelled court appearance or will be arrested for an offence by the police, but when the Crown Counsel reviews the charges being recommended by the police they may conclude that it does not meet their Charge Approval standard.

The criteria used by Crown to determine whether to proceed with a charge are:

• whether there is a substantial likelihood of conviction, and
• whether it is in the public interest to proceed.

More information regarding charge approval is available online at http://www.ag.gov.bc.ca/prosecution-service, in the Crown Counsel Policy Manual (Policy Code CHA 1).

C. Appearance requirements

For summary offences, anyone can appear as agent for the client if the client is unable to attend court. However LSLAP students do not appear as agents for their clients.

For indictable offences, the client must appear in person or by a validly executed counsel designationform (unless the accused is a corporation, in which case it must appear by counsel or agent).

A client who fails to attend court without lawful excuse as required under a recognizance, appearance notice, promise to appear, or summons, may be charged with an offence (Criminal Code, s 145).

D. Initial appearance(s)

Matters are generally set for the Initial Appearance Room if the client has not previously appeared in court for this matter, or if the client has not yet obtained counsel. An accused can have multiple Initial Appearances. If the client has not yet made their first appearance in court, they should be instructed to attend their Initial Appearance and obtain the particulars and Initial Sentencing Position from Crown. LSLAP clinicians are encouraged to attend all court appearances; however, they must not attend and go on record as counsel until they have seen the particulars, the supervising lawyer, and Initial Sentencing Position.

If the client has already obtained particulars and the Initial Sentencing Position, and the clinician needs time to review the particulars and to discuss the client’s options, the client should be instructedto attend the Initial Appearance and inform Crown that they are being represented and ask that the matter be adjourned for one to two weeks. The client may also request an adjournment if there are significant outstanding disclosure issues.

If the accused does not have counsel and wants to obtain counsel, an adjournment will likely be granted.The case will be adjourned until the accused has had an opportunity to discuss the case with counsel. If the client is self-represented, he can consult duty counsel.

1. Procedure at initial appearance

At an Initial Appearance, the accused comes forward; the prosecutor indicates the nature of the offence without reading the Information and a Justice of the Peace will make inquiries as to whether the accused has legal counsel and the intentions of the accused regarding the case. An accused should not enter a plea at an initial appearance. There will often be many appearances before a plea or trial is set.

Before the accused is asked to decide how he or she will plead, counsel should ensure that the accused fully understands his or her legal rights, the consequences of a guilty plea, and the Crown’s burden of proof to prove all elements of the offence beyond a reasonable doubt. Also, the clinician should discuss any possible defences, mitigating factors, and any possibility of being found guilty for lesser included offences if guilt is not established for the original charge.

E. Obtaining particulars

If the client does not already have a copy of the particulars, he or she should be advised to request the particulars at the next appearance date. Particulars are usually given to the defence (or the accused) on the first appearance. If the client is not going to attend court in the immediate future, a student may request particulars by filling out a form letter and faxing it to the attention of the particulars clerk in the Crown Counsel’s office. The faxed request should be followed up by a phone call. When the particulars are ready, the client should be instructed to pick them up. They can also be faxed to LSLAP.

F. Review the particulars

The particulars should include the following documents:

1. The Information

The "Information" contains the specifics of the charge, including the date of the alleged offence, the name of the accused, and the specific section of the statute allegedly contravened. It guides the entire legal process faced by the client. See Appendix B for a sample Information.

a) Review the Information

The clinician should review the Information to determine what offence the accused has been charged with. If the clinician is unsure, the clinician can discuss the issue with the supervising lawyer.

The clinician should review all aspects of the Information to ensure that it has been laid properly. Particularly, ensure that the Information has been laid within six months of the alleged offence on summary conviction offences. Also ensure that the date of the alleged offence and the names of the accused and complainant are correct.

b) Content of the Information

The Information must contain sufficient allegations to indicate that the named person committed an offence. It may contain "counts" charging the accused with separate offences. It must contain sufficient details of the circumstances of the offence(s) to enable the accused to make full answer and defence to the charge (ss 581(1) and (2) of the Criminal Code). If the Information does not contain full particularisation to allow full answer and defence to the charge, the accused may bring an application to the court to particularise the Information (Criminal Code, s 587). If the Information does not adequately state the charge or contains a very unclear description of the alleged offence, then a motion can be made to quash or strike down the Information. However, as noted below, this process is rarely used because the courts will generally allow Crown Counsel to amend the Information instead of ordering it quashed.

c) Obtaining the Information

If the Information is not contained within the particulars package, a copy may be obtained from the court registry or Crown Counsel’s office any time after it is laid.

d) Striking down an Information

Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea or, with leave of the court, afterwards (Criminal Code, s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it doesn't adequately state the charge, doesn't include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled. The court will generally amend an Information if the defects are in form only. R v Stewart (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the Criminal Code that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)).

Practice Recommendation - Challenging an Information

Although the court rarely strikes down an Information due to technical errors, at trial Crown must prove the offence as alleged in the Information. They must prove beyond a reasonable doubt the identity of the accused, the location of the crime (British Columbia), the physical criminal act, and a guilty mind. Despite the very broad power to amend an Information to cure technical defects prior to the end of the trial, amendments after the defence has closed its case are less likely to be granted. This is because once defence counsel has closed its case – based on a flawed Information, and with a view to a closing argument that Crown has not proven the Information as alleged – the accused is prejudiced by any subsequent amendment of the Information. Hence a possible strategy on a case where there is an error in the Information is to wait out the Crown’s case, close the defence case, and then argue reasonable doubt on the offence as alleged.

e) If the Information is struck down

If there has been no adjudication of the case on its merits, the prosecutor may lay a new Information. The prosecutor must do so within the limitation period.

f) Limitation periods and the Information

Section 786 of the Criminal Code states that no proceedings may be initiated in summary conviction offences after six months have elapsed from the time of the alleged offence, except on agreement of the prosecution and the defendant. The date on which proceedings commence is when the Information is laid, therefore, the Information must be laid within the six-month limitation period. Indictable offences have no specific statutory limitation period.

2. The Initial Sentencing Position (ISP)

The clinician should review the Crown’s Initial Sentencing Position (ISP). LSLAP is unable to represent clients where Crown is seeking jail time. If Crown requires further information or indicates that it wants to order a Pre-Sentence Report (PSR), the clinician should speak to the LSLAP Supervising Lawyer prior to agreeing to represent the client. See Appendix A for a sample ISP.

3. Report to Crown Counsel (RTCC)

The Report to Crown Counsel (RTCC) sets out the police officer’s narrative and summary of the case. It usually has a summary of the witness statements as well as what the police officer(s) themselves observed, and police actions taken in relation to the investigation of the alleged crime. It should also state whether the accused has a prior criminal record.

What should usually be in the RTCC:

• Summary of Police Notes,
• Summary of Witness Statements,
• Description of any Photographs or available Surveillance,
• Description of any expert evidence the police have requested,
• Criminal Record, and
• Any other important evidence collected by police in the investigation.

When you receive the RTCC with the Particulars you should compare the RTCC to the Particulars to make sure that you have full disclosure of the fruits of the investigation. If the RTCC mentions an audio statement that was taken, that audio and perhaps a transcript of the audio should be included in the disclosure. In addition, ensure that there is a narrative and corresponding personal notes from each police officer mentioned in the RTCC and any other evidence mentioned in the RTCC has been provided in the particulars. If something is missing from the file, make a disclosure request to Crown by fax through the Supervising Lawyer.

4. Release conditions (contained within the bail document)

These should be obtained from the court registry if your client has misplaced his/her copy of his release documents. Review the release conditions with your client and ensure that the client understands the importance of abiding by the conditions of release regardless of how unfair or difficult those conditions are to abide by. In a case of domestic assault there will almost always be a no-contact and a no-go condition. Clinicians may encounter situations where the complainant and client wish for contact and there is a no-contact bail order. If the complainant and client appear at the clinic together, the complainant must leave and the client made to understand the consequences of breaching a bail order. A breach of a bail order may lead to the client being charged with a breach and a warrant being issued for the client’s arrest.

If the client has a good reason to have their release conditions varied, the clinician should contact Crown Counsel, explain the good reason for seeking to vary the conditions of release and obtain their permission to call the file ahead for a bail variation hearing. To vary bail in Provincial Court, Crown must consent in order for the application to be heard. Inn theory, Crown Counsel could consent to the application for bail variation to occur in Provincial Court, yet oppose the bail variation, however, in practice Crown Counsel rarely consents to hearing the application for bail variation in Provincial Court unless they also agree with the proposed variation. Bail variation applications without Crown Counsel’s consent to hear them in Provincial Court are heard in Supreme Court.

Clinicians should keep in mind that if there is a no-contact or no-go condition, they must advise a client that contacting the complainant or going to that location is a criminal offence. Advising a client to breach a court ordered condition of release is counselling someone to commit a crime which is itself a criminal offence.