Criminal Law Procedure
In British Columbia, police do not lay criminal charges. Rather, police, upon concluding an investigation, may forward a report to Crown counsel recommending charges. Crown will only approve charges if they believe there is a “substantial likelihood” of obtaining a conviction at trial. Technically, once Crown approves a charge, a police officer will swear a document called an “information” before a justice. The information is, essentially, the official charging document that sets out the specifics of the alleged offence.
The Presumption of Innocence
Notwithstanding that a person is charged with an offence, the Canadian justice system presumes that the person is innocent until such time as they are convicted, beyond a reasonable doubt, at trial or they elect to plead guilty. Typically, even though an accused person is presumed innocent, they are released by police on an appearance notice, promise to appear or summons or by a court on a bail hearing on various conditions that can be restrictive. Alternatively, in some serious cases, the court may order detention and the accused may be held in custody until their trial regardless of their innocence. Our role as defence lawyers is to ensure that our clients are treated fairly, which includes that in every case, the Crown has the ultimate burden of proving, beyond a reasonable doubt, that they are guilty of the charged offence.
The Charter of Rights and Freedoms includes the right to a fair trial within a reasonable time. This right guarantees that the Crown is obliged to provide the accused with full disclosure of the particulars that the Crown intends to put before the court in the form of witness testimony and other pieces of real evidence, such as pictures, videos, or documents. Disclosure obligations also include items such as any expert witness opinions (for example, a police accident reconstruction expert or drug trafficking expert). Typically, the Crown will provide particulars to the accused or defence counsel at the first appearance. Crown is obliged to provide any further disclosure that may come to light up to and through the trial. The law sets out that the Crown is obliged to provide all relevant information that it intends to rely on at trial and must include all relevant evidence that may tend to aid the accused in their defence.
Crown’s Right to Elect
The Criminal Code sets out that the vast majority of offences are “hybrid” offences. This means that the Crown has the right to choose how it will proceed: either by summary conviction for the less serious cases and by indictment for more serious cases. For example, on an assault causing bodily harm charge, the Crown has the option of proceeding by indictment (and seeking a sentence of up to 10 years in jail) or proceeding summarily (and seeking a sentence of up to 18 months in jail). Various factors go into the Crown’s election, including the seriousness of the allegations, any criminal history of the accused, and the need for the court to send a message that will deter others from committing similar acts. Generally, the Crown will make its election at the first court appearance after bail is determined.