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

The police commonly fix the date for fingerprinting prior to the date of the first appearance and prior to any charge approval decision being made by Crown Counsel. If the accused has already been fingerprinted and the Crown does not approve the charges or stays the proceeding, the accused can apply to the police force who collected the fingerprints 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 only be changed in Provincial Court or by application before a judge who is in conduct of an ongoing trial or preliminary inquiry. If a Provincial Court trial has not started and there is no consent by the Crown, the only way to vary a bail term is to make an application to the Supreme Court of British Columbia (see below).  

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''. Review procedures in the Supreme Court are difficult for a layperson to navigate through and anyone conducting such a review is advised to retain a lawyer.

In BC, charge approval is conducted by Crown Counsel, not by the police. On occasion, an accused person 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.  

More information regarding charge approval is available online in the in the Crown Counsel Policy Manual (Policy Code CHA 1) (http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf).

For summary offences, anyone can appear as agent for the accused if the accused is unable to attend court.  

An accused person 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 (see ''Criminal Code'', s 145).

Matters are generally set for the Initial Appearance Room if the accused has not previously appeared in court for this matter, has not yet obtained counsel or has not set a date for trial or guilty plea. An accused can have multiple initial appearances. If the accused person has not yet made their first appearance in court, they should be instructed to attend their initial appearance and obtain the particulars and the Initial Sentencing Position (ISP) from Crown.  

:'''NOTE:''' 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 accused is self-represented, they should consult duty counsel.  

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.''' (One cannot enter a guilty plea in front of a Justice of the Peace.) There will often be many appearances before a plea is entered or a trial is set.

Before the accused is asked to decide how they will plead, counsel should ensure that the accused fully understands their legal rights, the consequences of a guilty plea, the conditions under which the court can accept a guilty plea (see Criminal Code, s 606(1.1)) and the Crown’s burden of proof to prove all elements of the offence beyond a reasonable doubt. Counsel should also 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.

'''If the accused does not already have a copy of the particulars, they should request the particulars at the next appearance date.''' Particulars are usually given to the accused at the first appearance.

The particulars should include the following documents:

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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.  

Section 786 of the ''Criminal Code'' states that no proceedings may be initiated in summary conviction offences after twelve 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 this limitation period. Indictable offences have no specific statutory limitation period.

When the accused receives the RTCC with the particulars, the RTCC should be cross referenced to the particulars to ensure that full disclosure has been made of the the investigative file. 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 that 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 the Crown.

Release documents can be obtained from the court registry if the accused has misplaced the copy they should have been given upon release. The accused should review the release conditions and ensure that they understand all of the conditions and 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 conditions and area restrictions. The accused may encounter situations where the complainant and the accused wish for contact and there is a no-contact bail condition condition in which case the accused and their counsel could look into bail variations (see '''section IV.B.7''' above for Bail Variations).

The accused should keep in mind that if there is a no-contact or an area restriction, they '''must''' remember that contacting the complainant or going to that location is a criminal offence.

Once the accused has received the particulars and knows the evidence that Crown would seek to lead in its case to prove the accused’s guilt, it is important to critically assess the strength of the Crown’s case and consider any challenges which can be made to the case. At this stage, the accused/defence should be in a position to review the elements of the offence and be able to concisely summarize the key evidence that the Crown Counsel will seek to adduce at trial to prove each element of the offence.   

For each key piece of evidence that the Crown needs to establish its case, consider the following :

If the evidence is circumstantial, is there an innocent explanation for the totality of circumstances?

For testimonial evidence, consider the reliability and credibility of the witness(es). Consider whether there is a good reason to suspect that the witness is mistaken (attacking reliability) or lying (credibility).

If the evidence is physical evidence that has been collected by the police, consider the chain of custody of the item and whether there has been a break in the continuity of custody.  

Consider whether there is a possible Charter challenge that could result in the exclusion of evidence. Charter challenges include challenges to police searches, arrests, and confessions (see Section IX for information on Charter challenges).

Consider whether there are other exclusionary rules that could be used to exclude any key pieces of evidence that the Crown needs to prove its case. Generally, if a piece of evidence has more prejudicial effects than probative value, the evidence will be excluded (''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii76/1991canlii76.html?searchUrlHash=AAAAAQARciB2IHNlYWJveWVyIDE5OTEAAAAAAQ&resultIndex=1 R v. Seaboyer]'' [1991] 2 SCR 577).

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