Information on Criminal Law for LSLAP Students (1:XI)
A. Determine the status of the file
When a client comes into the clinic and informs a clinician that he or she must appear in court, the first thing to do is determine the nature of the next appearance.
1. Client comes to the clinic before the first appearance date
The clinician should first advise the client he or she must attend court at each appearance date. The clinician should further advise the client about the nature of the first appearance, and tell the client that the trial never proceeds at that time. If the time before the first appearance date is brief (one week or less), the client should be advised not to enter a plea, but to ask for a two-week adjournment to find counsel, to seek further legal advice, or to prepare his or her case. The clinician should assess the possible options for legal counsel and give general advice. They should not get into the client’s version of the events that led to the criminal charge until particulars are obtained and they have met with the supervising lawyer.
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.
2. 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.
3. Client has already appeared in court
If the client has only appeared in court once, he or she has likely already been granted an adjournment to retain counsel. If the client has appeared in court on a number of occasions, the Justice of the Peace (JP) might not grant another adjournment, and a trial date may be set at the next appearance. A judge, however, has discretion to allow further adjournments when there are extenuating circumstances, like LSLAP black-out dates.
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 instructed to 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.
4. The trial has already been set
LSLAP cannot represent a client unless the trial is more than 3 months away. If the trial date is sooner, the clinician can advise the client to ask for an adjournment of the trial to a later date. This can be done at the Trial Confirmation Hearing or earlier. If the adjournment is not granted, the clinician should tell the client that LSLAP cannot represent him/her and it is their responsibility to seek other counsel.
- NOTE: Several pamphlets available from the Legal Services Society may help a client prepare for his or her own trial. These include: “Representing Yourself in a Criminal Trial,” “Speaking to the Judge Before you are Sentenced,” and “If you are Charged with a Crime”.
|Practice Recommendation - File Intake|
|Important: Once LSLAP has agreed to represent a client, it is always wise to confirm the exact details of the client’s next court appearance – date, time, courtroom, and what stage the matter is currently at.If the client has provided the clinician with their particulars, LSLAP will have their file number. You can access their information on the B.C. Ministry of Attorney General website. Go to http://www.gov.bc.ca/ag and follow the 'Court Services Online' link. This site allows you to look up your client by name and it will show all of his or her provincial court appearances, the nature of the next appearance, the date and time, and what courtroom it is in. Alternatively, you can call the registry (or Crown) at the particular courthouse and ask when the next court date is, and what is set to happen on that date.|
|Jurisdiction||First Appearance Court (Judge/JP)||Arraignment / Plea Court (Judge/JP)|
|Surrey||101||102 (Prov) / 103 (Fed)|
|Practice Recommendation - File Intake (Continued)|
|Vancouver’s Downtown Community Court (DCC)|
|The DCC differs from normal criminal courts in that it integrates a variety of agencies to address the underlying health and social problems that often lead to commission of the offence.
The DCC only has jurisdiction to take summary conviction cases where the offence occurred in Downtown Vancouver (with Clark Dr. and Stanley Park as the east-west boundary; and Coal Harbour and Great Northern Way as the north-south boundary).
|Drug Treatment Court Vancouver (DTCV)|
|The goal of the Drug Court program is to reduce drug use in adults charged with offences motivated by drug addiction problems. Individuals charged under the Controlled Drugs & Substance Abuse Act and other drug-motivated Criminal Code offences are eligible for the drug treatment court program. In exchange for less severe sentences, offenders plead guilty and participate in a supervised drug treatment program, which includes individual and group counselling and social activities.|
4. Client failed to appear
Failure to appear for a scheduled court appearance is an offence (Criminal Code, ss 145(4) and (5)) usually punishable by summary conviction. If the client did not appear, there is probably a bench warrant out for his or her arrest. This can be verified online on the CSO website (see box above for link). The client must be advised to report to the courthouse and apply to "vacate the warrant". The client must be advised to turn himself or herself in immediately.
B. Discuss LSLAP file procedures and policies with the client
The clinician must establish certain "ground rules" to govern the relationship between clinician and client in a criminal file:
- The client will attend all court appearances as required. LSLAP clinicians will not appear as agents for their clients.
- Counsel represents the client, and as such it is the clinician who is in charge of the file. While the client may assist in their own defence and can give the clinician specific instructions, it is the clinician who contacts Crown and other parties.
- The client cannot request another law student; the client can either be represented by the clinician they are assigned, or they can seek alternate representation outside of LSLAP.
- Clinicians cannot follow illegal or unethical instructions, such as tampering with witnesses or counselling a Crown witness not to attend court. Clinicians also cannot put the client on the stand knowing that the client will be untruthful and commit perjury. Students should be advised to speak to a supervising lawyer if there are any emerging ethical concerns.
|© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.|