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Difference between revisions of "Criminal Charges (1:IV)"
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→F. Review the particulars
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==== d) Striking down an Information ==== | ==== 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)). | 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 ))''' | |||
==== 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 [[Sample Initial Sentencing Position (1:App A) | 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. | |||