Resolving Criminal Matters Prior to Trial (1:VI): Difference between revisions

It is important to review the elements of the alleged offence to ensure an understanding of what one is charged with.

After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a letter can be drafted to the assigned Crown Counsel requesting that they reconsider the charge. The contact information for the assigned Crown can be ascertained by calling the Crown Counsel office in the city in which the charge was laid. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges (e.g., the accused is terminally ill), the Crown may choose to reconsider. A stay of proceedings is a decision to not proceed with the charges. A stay of proceedings appears on the accused’s Vulnerable Sector Criminal Record Check. Therefore, a stay may affect the accused’s employment if they intend to work with children or seniors.

This option allows for a first-time offender to be “diverted away” from the court system. Although referred to as “diversion,” the program’s official name is Alternative Measures (''Criminal Code'', s 717).

See '''Appendix C '''and''' D''' for an example of an application for diversion.  

A peace bond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict an accused person’s liberty. Under section 810 of the ''Criminal Code'' the accused enters into a recognizance with conditions; in addition to requiring that the recipient to “keep the peace and be of good behaviour”, a peace bond will also set out specific conditions intended to protect a person or a specific type of property, such as not to contact certain persons and/or not to attend a certain address or area. These conditions can last up to one year, and the length of the term can be negotiated with the Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond is a separate criminal offence.

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 (''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]s 264.1''), criminal harassment (s 264), and minor assaults (s 266). The benefit to the accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused 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.

A guilty plea is appropriate only when all of the below are true:

*diversion is not granted,

*possible deportation if the accused is not a Canadian citizen.

Before a sentence is given, the accused, or counsel for the accused, must be permitted to “speak to sentence” and make submissions to the judge that could affect the sentence. This is done primarily through counsel’s submissions.  

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:'''NOTE:''' Many mandatory minimum sentences are in the process of being repealed or amended. Bill C-5, which would repeal mandatory minimums for several drug and firearms related offenses, is currently in committee (as of June 2022) having passed its third reading in parliament. Always double check the that the minimum sentence for a charge is up to date and has not been repealed, amended or struck down by the courts as unconstitutional.     

If a judge imposes a sentence not exceeding 90 days, they may order that the sentence be served intermittently on certain days of the week or month. The accused is released on the other days, subject to conditions of a probation order.

=== 1. DNA Data Bank ===

The court may also consider the criminal record of the offender, the nature of the offence, and the circumstances surrounding its commission.  The court may also, at its discretion, make a DNA order upon conviction or discharge of a “secondary designated offence” – such as assault – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analysed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used for many different types of crimes ranging from violent crimes to fraud involving impersonation.

A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.