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

A person may learn that he or she is accused of committing a criminal offence in one of several ways. He or she may:

#be arrested and kept in custody until he or she is brought before a judge or JP (Justice of the Peace).  

An accused person will have received an appearance notice or a summons requiring him or her to attend court. Such an appearance notice indicates that the police officer involved in the case believes that he or she has a case against an accused. After an appearance notice is issued, the police officer forwards a package to the Crown for charge approval. Usually such charges are approved by the Crown prior to the first appearance in court. By the time an accused attends court, an Information will likely have been sworn. The accused person '''must''' attend court on the date required by the appearance notice or summons. If he or she fails to attend court, a warrant for the accused person’s arrest will usually be issued.  

The attending officers at the scene of an alleged summary conviction or hybrid offence do not always have cause to arrest the suspect. (See Section 495(2) ''Criminal Code'') When there is no cause to arrest the suspect but the police still intend to forward charges for an offence, they will serve an appearance notice on the accused compelling him or her to appear at a future date and time at a courthouse to face potential charges.  (See ''Criminal Code'', s. 496

:'''NOTE:''' An accused person should note that he or she '''MUST''' attend court as directed in the Appearance Notice, but that sometimes the accused person will not be on the court list as the police might not forward the charges, the Crown might not approve charges or there may be a delay in processing the charges. If an accused person does not see their name on the court list on the appearance date they should go to the court registry to show them the Appearance Notice and ask if their they are on any court list.

* An appearance notice or summons was issued for the accused to attend court, and he or she did not attend court at the appropriate date and time;

Sometimes an accused is unhappy with one or more of his/her bail conditions and wants those conditions changed. Bail conditions can be changed in Provincial Court with consent of the Crown. However, if a trial has already begun, the judge can make the variation without Crown consent. If there is no consent by the Crown, it becomes a Supreme Court matter (see below). In order to convince the Crown to vary bail conditions, it will be necessary to convince the 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 to contact with each other. In these circumstances the Crown will often interview the complainant in order to determine what if any no-contact conditions remain necessary for the complainant.

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 his/her first appearance in court, he/she should be instructed to attend their Initial Appearance and obtain the particulars and Initial Sentencing Position 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, he/she should consult duty counsel.  

Before the accused is asked to decide how he or she will plead, counsel should ensure that the accused fully understands his or her legal rights, the consequences of a guilty plea, and the Crown’s burden of proof to prove all elements of the offence beyond a reasonable doubt. Also, counsel should 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, he or she should request the particulars at the next appearance date.''' Particulars are usually given to the accused on the first appearance.

These should be obtained from the court registry if the accused has misplaced his/her copy of his release documents. The accused should review the release conditions and ensure that he/she understands 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. (See above section for Bail Variations)

If the accused has a good reason to have his/her release conditions varied, Crown Counsel should be contacted. The reason for the proposed variation should be explained to the Crown Counsel.  It is important to make a convincing argument for the proposed variation directly to Crown Counsel, as an application cannot be made to vary bail conditions in Provincial Court without the Crown’s consent.  In practice, Crown Counsel only consents to hearing applications for bail variation in Provincial Court when they agree with the proposed variations. Variation applications without Crown Counsel’s consent are made at the BC Supreme Court.  

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