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Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"
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Resolving Criminal Matters Prior to Trial (1:VI) (view source)
Revision as of 22:57, 8 February 2020
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In order for a peace bond to be imposed, there must exist '''reasonable grounds''' for the complainant to believe that the accused will cause personal injury to the complainant or his or her spouse or child or that they will cause damage to his or her property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the client is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, they do have to admit to sufficient facts to form a reasonable basis for the victim to fear the accused. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on [[{{PAGENAME}}#D. Pleading Guilty | Pleading Guilty]], below. | In order for a peace bond to be imposed, there must exist '''reasonable grounds''' for the complainant to believe that the accused will cause personal injury to the complainant or his or her spouse or child or that they will cause damage to his or her property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the client is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, they do have to admit to sufficient facts to form a reasonable basis for the victim to fear the accused. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on [[{{PAGENAME}}#D. Pleading Guilty | Pleading Guilty]], below. | ||
Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a victim's reluctance to go to trial. At the hearing, the Crown must prove on a '''balance of probabilities''' that there are reasonable grounds for the fear. '''Hearsay evidence is allowed, as it goes to the informant’s belief that there are grounds for the fear''' (''R. v PAO'', [2002] BCJ No 3021 (BC Prov Ct)). Since there is no criminal standard of proof, the judge must look at '''all''' the evidence, and not focus merely on the absence of the offending conduct (''R v Dol'', | Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a victim's reluctance to go to trial. At the hearing, the Crown must prove on a '''balance of probabilities''' that there are reasonable grounds for the fear. '''Hearsay evidence is allowed, as it goes to the informant’s belief that there are grounds for the fear''' (''R. v PAO'', [2002] BCJ No 3021 (BC Prov Ct)). Since there is no criminal standard of proof, the judge must look at '''all''' the evidence, and not focus merely on the absence of the offending conduct (''R v Dol'', 2004 BCSC 1438). | ||
If a person breaches the peace bond, a criminal charge may be laid against the bonded person. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the client is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses his or her concerns without raising the uncertainty and possible trauma of a trial. A client should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody. | If a person breaches the peace bond, a criminal charge may be laid against the bonded person. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the client is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses his or her concerns without raising the uncertainty and possible trauma of a trial. A client should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody. | ||
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=== f) Imprisonment (jail) === | === f) Imprisonment (jail) === | ||
Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence stated is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction. | Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months (two years less a day after December 18, 2019); and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence stated is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction. | ||
If the total sentence is two years or more, the accused will serve his or her sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve his or her sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years of imprisonment, but has served one week in jail, will not be sent to a federal penitentiary. | If the total sentence is two years or more, the accused will serve his or her sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve his or her sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years of imprisonment, but has served one week in jail, will not be sent to a federal penitentiary. | ||
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A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. | A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. | ||
In ''R v Boudreault'', 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the ''Criminal Code'', which removed any judicial discretion to waive the Victim Fine Surcharge.. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the ''Charter'' and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the Charter and declared that section 737 was of no force or effect. As a result the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay. | |||
Clause 304 of Bill C-75 re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge. Where the surcharge is waived, the court must provide reasons for doing so. | |||
{{REVIEWED LSLAP | date= July 18, 2019}} | {{REVIEWED LSLAP | date= July 18, 2019}} | ||
{{LSLAP Manual Navbox|type=chapters1-7}} | {{LSLAP Manual Navbox|type=chapters1-7}} | ||