Criminal Defence

When an individual believes that a criminal event has taken place, that individual may report that event to the police. The person who makes the complaint is called the “complainant”. The person complained about is called the “accused”. The complainant usually attends at a police station to make the complaint by way of a statement. The police officer asks questions, the complainant gives answers, and that interview is often audio-recorded and/or video-recorded, or sometimes simply recorded in the form of the police officer’s notes during the conversation. A formal handwritten or typed statement is then prepared. That statement is then read by the complainant, and the complainant signs the statement.

The police officer receives the complaint as set out above. If any further investigation is warranted, the police officer will contact other witnesses to the event, to obtain statements from them in the same manner. The police officer may, or may not, attempt to arrest, or “detain”, to interview the accused in order to obtain a statement from him or her.

Interviewing an accused requires strict adherence to the protection set out in the Charter of Human Rights and Freedoms. An accused should, therefore, always speak with a lawyer to obtain advice before answering questions posed by a police officer. Any statement obtained from an accused will be used against him or her in court at a later time. Many persons are convicted as a result of speaking to the police in this situation.

After gathering the evidence as set out above, the police officer writes a document entitled: Report to Crown Counsel. In that document, the police officer references all of his activities, such as seeking and obtaining statements. The officer also recommends specific criminal charges to be laid against the accused, based on the evidence that the police officer has gathered. He then provides his report, along with copies of any statements obtained, to the office of the Crown Counsel.

Also, at this phase, “charge approval”, a lawyer may make submissions to the Crown as to why a criminal charge should not be approved against the accused. This can be a very important and effective service provided by a lawyer. It offers a chance for the accused to put forth favourable facts to assist the accused, by the lawyer, and unlike statements by the accused, it cannot be used against the accused.

The Crown Counsel, or Crown Prosecutor, receives the Report to Crown Counsel. The RCMP report and the RCMP supporting statements are then considered by the Crown Counsel (as well as any submissions by the defence lawyer on behalf of the accused) to determine whether or not any criminal charges should be laid. The recommendations of the police officer are considered, and one or more of the RCMP proposed charges is usually approved. Crown Counsel must consider all of the information and apply a two-point test when approving charges. The first point is whether or not there is a substantial likelihood of conviction. That is, based on all of the information provided, if this matter was to be before a judge on that evidentiary basis, would a conviction be the likely result? If the answer is yes, then the second point is considered. The second point is whether or not the prosecution is in the public interest. There may be circumstances where the prosecutor decides that a criminal charge should not proceed, even though the evidentiary basis is there. These situations are extremely rare. The discretion whether or not to proceed with the criminal charge is within the appropriate powers of the Crown Counsel.

After a prosecutor has approved the criminal charge, the “file” is referred back to the police. A police officer then attends in front of a Justice of the Peace and swears a document called “Information”. The Information states that the evidentiary basis for a criminal charge exists, and that the officer swears that he or she believes that the circumstances of the criminal event are the proper basis for a criminal charge. The Justice of the Peace accepts the officer’s sworn statement as described and then, for the first time, a criminal charge comes into existence, and is “before the Court”.

After Information is sworn, an accused may be compelled to attend Court by receiving a document called a “Summons”. A Summons is usually served personally on the accused by a police officer. In some circumstances it may be left at his or her ordinary place of residence.

In the alternative, rather than receiving a Summons, an accused may be arrested by the police, either before or after Information is sworn, and the accused may be released from police custody by signing a document called a “Promise to Appear”. The purpose of the Promise to Appear is to compel the attendance of that person in Court on a given date.

If the person is arrested, he or she may be released at the police station, or he or she may be compelled to appear in front of a Justice of the Peace, or a Provincial Court Judge, for a formal release pursuant to bail conditions. Bail conditions usually impose some form of restrictions on the activity of the accused (report to bail supervisor, no alcohol, curfew etc), and may also require a deposit of cash, or a promise to pay cash if the accused fails to attend Court.

All persons charged with a criminal offence in Canada are required to attend in Provincial Court for a “first appearance”. If the accused wishes to plead guilty or not guilty to the charge alleged against him or her, that may be done at the first appearance, or someday shortly thereafter on a “subsequent appearance”. It is best to wait until the Crown Counsel is able to disclose the evidence, known as the “particulars”, before a plea is entered. The Crown Counsel usually provides the particulars at the first appearance, and so a plea should not be entered until after the particulars are reviewed, and legal advice has been obtained from a lawyer. Most pleas of not guilty or guilty therefore take place at a subsequent appearance. If a person wishes to enter a plea of “not guilty”, then, in British Columbia, a number of pre-trial court appearances will be required prior to the appearance in Court for the actual trial of the matter. The pre-trial appearances address a variety of pre-trial concerns regarding various matters related to readiness and preparation to proceed with the trial. These matters relate in part to the schedule of the Court, Crown Counsel, the accused, and his or her defence counsel if the accused elects to have a lawyer.

People accused of a less serious offence, known as a “summary” offence, have their matters concluded in Provincial Court. People accused of a more serious offence, known as an “indictable” offence, may have the option of continuing their matter in Provincial Court through to trial, or having a “Preliminary Inquiry” in Provincial Court, and eventually having their trial in a higher court, called Supreme Court. Trials by jury are only available to accused persons with more serious charges, who elect to have their trial in Supreme Court, and elect to have a jury attend.

Resolution of a criminal charge can take place in three primary ways. First, an accused may plead guilty and obtain their sentence. Second, an accused may plead not guilty and proceed with a trial of the matter, after which the Judge or jury will provide a verdict of “guilty” or “not guilty”. If found “not guilty” the person is immediately released. If found guilty, a sentence will be imposed either immediately following the verdict, or most likely at a subsequent court appearance. The third way a criminal charge may be resolved is through a “plea bargain” between the lawyer for the accused, and Crown Counsel. A plea bargain might result in “alternative measures”, which diverts the criminal charge out of the court system, in exchange for such things as community service or other reparations to the complainant, and / or community, performed by the accused. A plea bargain more frequently involves a resolution by way of a guilty plea to an agreed less serious offence and an agreed less significant sentence penalty. A plea bargain, within the court system, may also result in a “joint submission” to the Judge regarding an agreed appropriate sentence following a guilty plea by the accused. A Judge is not bound to follow a joint submission on sentence and may impose any sentence the Judge deems appropriate, either more sever or less sever in penalty.