Difference between revisions of "Criminal Charges (1:IV)"

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.

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.

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:

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).  

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).

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.