Criminal Charges (1:IV)
There may be a Charter issue here. See Section IX: 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:
- receive an appearance notice or a promise to appear from the police;
- receive a summons (in the mail or personally); or
- be arrested and kept in custody until he or she is brought before a judge or JP (Justice of the Peace).
An accused person will have received an appearance notice or a summons requiring him or her to attend court. Such an appearance notice indicates that the police officer involved in the case believes that he or she has a case against an accused. After an appearance notice is issued, the police officer forwards a package to the Crown for charge approval. Usually such charges are approved by the Crown prior to the first appearance in court. By the time an accused attends court, an Information will likely have been sworn. The accused person must attend court on the date required by the appearance notice or summons. If he or she fails to attend court, a warrant for the accused person’s 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 him or her to appear at a future date and time at a courthouse to face potential charges. (See Criminal Code, s. 496
- NOTE: An accused person should note that he or she MUST attend court as directed in the Appearance Notice, but that sometimes the accused person will not be on the court list as the police might not forward the charges, the Crown might not approve charges or there may be a delay in processing the charges. If an accused person does not see their name on the court list on the appearance date they should go to the court registry to show them the Appearance Notice and ask if their they are on any court list.
2. Promise to appear
If an accused is arrested then the police must decide whether to a) keep the accused in custody for the Crown to seek detention, or b) 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 releases the accused from custody.
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)).
4. Judicial interim release (bail)
A person who has been charged with an offence may be arrested by the police and not be 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 its opinion the accused ought not to be released from custody.
A detained person must be brought before either a judge or a justice of the peace without unreasonable delay or where a justice is not available within a period of 24 hours after the person has been arrested, the person shall be taken before a Justice 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 is 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 or interfere with the administration of justice.
- 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 during the show cause hearing, the focus becomes the conditions an accused person can be released upon and the adequacy of the accused’s bail plan. A release plan may include: sureties, cash deposit or restrictive conditions such as a curfew or an area restriction. The Crown will usually have specific concerns about an accused’s behaviour. Previously, the law required conditions of release to be as minimally restrictive on a person’s freedom as possible while still addressing the cause for concern.
Currently, over 50% of inmates in provincial remand centres consist of individuals detained prior to their trial. Pre-trial detention can last as long as 24 months, inmates are held in crowded conditions, and indigenous individuals are overrepresented among them. Furthermore, detention can hurt an accused’s ability to provide a full defence and may lead to induced guilty pleas. Therefore, the bail decision can be life-changing to an individual accused. However, because of the temporary nature of bail and the length of time the court process takes, bail decisions are rarely appealed.
In response to these problems, the Supreme Court of Canada modified the test for judicial interim release in R v Antic, 2017 SCC 27 and R v Myers, 2019 SCC 18. The court emphasized that the accused should be released at the earliest reasonable opportunity and on the least onerous grounds. The test in Myers requires a bail plan that reduces the risk of the accused re-offending to a reasonable level. There is no longer any requirement to address the risk completely. Furthermore, the courts in Myers allows for accused to be released from detention in order to receive treatment for mental health conditions and issues with substance abuse; this may help reduce the rate of re-offence and help defence counsel achieve better sentences for these accused.
Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 42nd Parl, 2019, cl 210 (received Royal Assent on June 21, 2019, coming into force on December 18, 2019) [Bill C-75] amended Criminal Code to add sections 493.1 and 493.2 regarding releasing accused that are in custody. In short, the amendment emphasized the rulings in Antic and Myers, stating that peace officers, justices, and judges should place the highest priority on releasing an accused at the earliest possible opportunity and on the least onerous grounds. Furthermore, section 493.2 obligates peace officers, justices, and judges to give particular attention to the circumstances of aboriginal accused and those accused who belong to vulnerable populations that are overrepresented in the criminal justice system and are disadvantaged in obtaining release.
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 accused to attend court, and he or she did not attend court at the appropriate date and time;
- The accused is avoiding service or is unable to be located;
- The accused was never actually arrested for the offence; or
- The Crown cancels a promise to appear and seeks a warrant because they are seeking the accused’s detention or conditions on the release of the accused. (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 require fingerprints. If the accused attends court prior to the fingerprinting date, the accused can ask the Crown to elect in court how they are proceeding. Once Crown has stated on record that it is proceeding summarily, the accused will not be required to attend fingerprinting. If the accused has already been fingerprinted and the Crown is proceeding summarily, the accused 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 his/her bail conditions and wants those conditions changed. Bail conditions can be changed in Provincial Court with consent of the Crown. However, if a trial has already begun, the judge can make the variation without Crown consent. If there is no consent by the Crown, it becomes a Supreme Court matter (see below). In order to convince the Crown to vary bail conditions, it will be necessary to convince the 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 to contact with each other. In these circumstances the Crown will often interview the complainant in order to determine what if any no-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. Review procedures in Supreme Court are difficult for a layperson to navigate through and anyone conducting such a review is advised to retain a lawyer.
8. Charge approval by Crown Counsel
In BC, charge approval is conducted by the Crown Counsel, not by the police. On occasion, an accused person 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 Provincial 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://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf, in the Crown Counsel Policy Manual (Policy Code CHA 1).
C. Appearance requirements
For summary offences, anyone can appear as agent for the accused if the accused is unable to attend court.
For indictable offences, the self-represented accused must appear in person.
An accused person 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 accused has not previously appeared in court for this matter, has not yet obtained counsel or has not set a date for trial or guilty plea. An accused can have multiple Initial Appearances. If the accused person has not yet made his/her first appearance in court, he/she should be instructed to attend their Initial Appearance and obtain the particulars and Initial Sentencing Position from Crown.
- NOTE: 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 accused is self-represented, he/she should 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. (One cannot make a plea in front of a Justice of the Peace.) 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, counsel 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 accused does not already have a copy of the particulars, he or she should request the particulars at the next appearance date. Particulars are usually given to the accused on the first appearance.
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 accused. See Appendix B for a sample Information.
a) Review the Information
The Information should be reviewed to determine what offence the accused has been charged with. Review the appropriate Criminal Code provisions in an annotated Criminal Code which often provides quick references to common issues that arise from prosecution under that section of the Criminal Code.
One 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 (this becomes twelve months after December 18, 2019). 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, an application may be brought 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 the Crown Counsel to amend the Information instead of ordering it to be 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, afterward (Criminal Code, s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it does not adequately state the charge, does not 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)).
|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/accused has closed its case are less likely to be granted. This is because once defence/accused 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 (twelve months after December 18, 2019). The date on which proceedings commence is when the Information is laid, therefore, the Information must be laid within the limitation period. Indictable offences have no specific statutory limitation period.
2. The Initial Sentencing Position (ISP)
The Crown’s Initial Sentencing Position should be reviewed. This will sometimes indicate whether Crown is seeking jail time, or it can specify the sentence the Crown is seeking. A request for a more detailed initial sentencing position can be made. 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
- Summary of other important evidence collected by police in the investigation.
When the accused receives the RTCC with the Particulars, the RTCC should be reviewed to ensure full disclosure has been made from 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 the Crown.
4. Release conditions (contained within the bail document)
These should be obtained from the court registry if the accused has misplaced his/her copy of his release documents. The accused should review the release conditions and ensure that he/she understands all of the conditions and 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 conditions and area restrictions. The accused may encounter situations where the complainant and the accused wish for contact and there is a no-contact bail condition. (See above section for Bail Variations)
If the accused has a good reason to have his/her release conditions varied, Crown Counsel should be contacted. The reason for the proposed variation should be explained to the Crown Counsel. It is important to make a convincing argument for the proposed variation directly to Crown Counsel, as an application cannot be made to vary bail conditions in Provincial Court without the Crown’s consent. In practice, Crown Counsel only consents to hearing applications for bail variation in Provincial Court when they agree with the proposed variations. Variation applications without Crown Counsel’s consent are made at the BC Supreme Court.
The accused should keep in mind that if there is a no-contact or an area restriction, he/she must remember that contacting the complainant or going to that location is a criminal offence.
G. Assessing the strength of the case
Once the accused has received the particulars and knows the evidence that Crown would seek to lead in its case to prove the accused’s guilt, it is important to critically assess the strength of the Crown’s case, and consider any challenges which can be made to the case. At this stage, the accused/defence should be in a position to review the elements of the offence and be able to concisely summarize the key evidence that the Crown Counsel will seek to adduce at trial to prove each element of the offense.
1. Things to consider when assessing the Crown's evidence
For each key piece of evidence that the Crown needs to establish its case, consider the following :
a) Is the evidence direct or circumstantial?
If the evidence is circumstantial, is there an innocent explanation for the totality of circumstances?
b) Is the evidence testimonial?
For testimonial evidence, consider the reliability and credibility of the witness. Consider whether there is a good reason to suspect that the witness is mistaken (attacking reliability) or lying (credibility).
c) Is the evidence physical evidence?
If the evidence is physical evidence that has been collected by the police, consider the chain of custody of the item and whether there has been a break in the continuity of custody.
d) Is there a possible Charter challenge
Consider whether there is a possible Charter challenge that could result in the exclusion of evidence. Charter challenges include challenges to police searches, arrests, and confessions. (See Section IX for information on Charter challenges)
e) Are there any other exclusion rules
Consider whether there are other exclusionary rules that could be used to exclude any key pieces of evidence that the Crown needs to prove its case. Generally, if a piece of evidence has more prejudicial effect than probative value, the evidence will be excluded. (R v. Seaboyer  2 SCR 577)
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