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Criminal Charges (1:IV) (view source)
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Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = criminal}} == A. Arrest == There may be a ''Charter'' issue here. See Canadian Law and the Canadian Charter of Rights and Freedom | Section X:...") |
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=== 5. Warrant in the first instance === | === 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: | 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; | *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 [[Sample Information (1:App B) | 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)). | |||