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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.

Disclosure

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 over 12 months up to life in jail) or proceeding summarily (and seeking a sentence of up to 12 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.

Recent Successes

R. vs. C.Y. – Richmond Provincial Court

Charges: Assault with a weapon ( reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client to resolve this matter with a s. 810 Recognizance (Peace Bond) for a period of 12 months. Stay of proceedings on the criminal charge. No criminal record.

R. vs. F.K. – Vancouver Provincial Court

Charges: Theft and Fraud Over $5000 (from employer).
Issue: Whether the pre-charge delay of 3.5 years would reduce the sentence in this $215,000 employee fraud case.
Result: Mr. Mines was able to persuade the trial judge and Crown counsel that there was merit to our application for a judicial stay of proceedings based on our client's inability to properly defend the charges due to a delay of about 4 years in getting the charges approved. Notwithstanding this breach of trust, Mr. Mines was able to negotiate a plea arrangement in which our client received a 2 year conditional sentence order with a 10 pm curfew for 12 months. No monies were ordered to be repaid. No jail.

R. vs. M.P. – Abbotsford Police Investigation

Charges: Uttering Threats.
Issue: Whether it was in the public interest to proceed with a criminal prosucution.
Result: Mr. Gauthier was able to provide information to Crown and to ultimately persuade Crown counsel to not approve any charge in this case. No charge approves. No criminal record.

R. vs. J.H. – Abbotsford Provincial Court

Charge: Failing to stop at an accident resulting in bodily harm.
Issue: Given the circumstances of the offence, our client's background and his extreme remorse, whether a jail sentence was warranted.
Result: Mr. Gauthier was ble to direct our client through a course of psychological counselling and was able to persuade Crown counsel to agree to a non-custodial sentence. After hearing Mr. Gauthier's submissions, the Court sentenced our client to a 12 month conditional sentence. No jail.

R. vs. Q.G. – Vancouver Provincial Court

Charges: Theft Over $5000 (from employer).
Issue: Whether Crown counsel had sufficient evidence to meet the charge approval standard.
Result: Mr. Mines was able to persuade Crown counsel that important evidence would be missing from a cenrtal witness and to not approve any charges. No criminal record.

R. vs. K.H. – Abbotsford Provincial Court

Charges: Breaking and entering a dwelling house and committing an indictable offence, wearing a mask for the purpose of committing an indictable offence, breach of release order.
Issue: Whether it would be consistent with the principles of sentencing for our client to serve his sentence in the community.
Result: Mr. Johnston provided Crown counsel with information which, along with our client's rehabilitative progress and good compliance with strict bail conditions, persuaded the Crown to seek a jail sentence of under two years for his role in a violent "home invasion". After hearing Mr. Johnston's submissions, the court agreed it would not be inconsistent with the principles of sentencing for our client to serve his sentence in the community instead of in custody. This was a significant result for our client as home invasion convictions typically result in lengthy jail sentences served in federal prison. No further time in custody.

R. vs. G.T. – Surrey Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with a criminal prosecution.
Result: Mr. Johnston provided Crown counsel with information which, along with our client’s progress with counselling, persuaded the Crown to gradually relax our client’s bail conditions and ultimately direct a stay of proceedings on the charge. No further prosecution. No criminal record.

R. vs. B.K. – Vancouver Provincial Court

Charges: Impaired Driving.
Issue: Whether Crown counsel could prove the impaired driving offence in light of evidence brought forward by Mr. Gauthier which suggested that our client did not voluntarily consume the drug that may have contributed to the the manner of his driving and the ensuing accident.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed on the lesser charge of dangerous operation and, rather than being convicted of impaired driving, our client was granted a conditional discharge. No criminal conviction.

R. vs. D.H.P. – Vancouver Provincial Court

Charges: Assault causing bodily harm; mischief to property under $5000.
Issue: Whether there was a substantial likelihood of a conviction on the assault causing bodily harm charge.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the assault causing bodily harm charge. After hearing Mr. Mines' submissions, the court granted our client a conditional discharge and ordered restitution in relation to the smart phone that was damaged. No criminal conviction.

R. vs. W.J.M. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with a criminal prosecution.
Result: Upon presenting Crown counsel with a psychological report regarding our client's low risk to commit a similar act, Mr. Gauthier was able to persuade Crown to not approve any criminal charges whatsoever. No prosecution. No criminal record.

R. vs. J.A. – Vancouver Provincial Court (DCC)

Charges: Assault; Assault Peace Officer (x2).
Issue: Given the circumstances of our client being severely intoxicated and acting out f character, whether a criminal conviction was appropriate.
Result: Mr. Mines was able to provide Crown counsel with our client's background information resulting in a joint recommendation to the Court for a conditional discharge. No criminal conviction.

R. vs. E.L. – Vancouver Provincial Court

Charges: Aggravated Assault; Breach of Probation.
Issue: Given the context of the offences and our client's rehabilitative efforts, whether a jail sentence was appropriate.>br> Result: Mr. Johnston informed Crown counsel of the significant rehabilitative progress our client had made since the offence dates and persuaded Crown to not pursue the 16 month  jail sentence they had been seeking. Crown agreed to proceed on the less serious charge of assault causing bodily harm and to stay the remaining charges. After hearing Mr. Johnston's submissions, the court granted our client a one year conditional sentence sentence and two years of probation. This was a particularly positive outcome for our client, who had a prior conviction for a similar offence. No jail.

The Accused’s Right to Elect Mode of Trial

When the Crown elects to proceed summarily, the matter must be heard in Provincial Court. However, when the Crown elects to proceed by indictment, the Accused in all but the most serious cases including murder and treason, may elect to have their case heard by a Provincial Court Judge or by a Supreme Court Judge alone or with a jury. In every case where our client has an election, we will analyze the pros and cons of electing Provincial or Supreme Court and will provide advice to our client with respect to the defence election.

Arraignment

After obtaining full disclosure from the Crown, the court will allow the defence a reasonable amount of time to analyze the material, review it with the accused and to make a decision as to whether to plead guilty or not guilty. Depending on the complexity of the case, it may take several weeks or even months to be able to make an informed decision, having regard to the strength of the Crown’s case, any available defences and the potential of having any evidence unlawfully obtained through Charter breaches excluded from the trial. After a careful analysis and review of the evidence we will provide advice to our client and seek our client’s instructions as to whether they will plead not guilty and proceed to trial or to plead guilty and proceed to a sentencing hearing. The process in which an accused enters their plea is formally known as the Arraignment Hearing.

Plea Bargaining

In British Columbia, any negotiation of a proposed sentence is done, out of court, between Crown and defence counsel. Plea discussions are conducted “off the record” and are done on a “without prejudice” basis to the accused. Before commencing down the path of resolution based on a guilty plea, it is incumbent on defence counsel to provide the accused with advice regarding the case. In order to make an informed decision as to how to plead, the accused must understand what the essential elements of the offence are; the potential consequences of pleading guilty i.e. the range of available sentences, and that, ultimately, it is the court that has the final say in what the sentence will be.

Plea negotiation can, in some cases, result in many positive advantages to proceeding to trial. They include:

  • Crown dropping some charge(s) in return for a plea to another;
  • A plea to a lesser charge in return for the primary charge being dropped;
  • A plea to a charge in consideration of the Crown taking a more lenient position on sentence;
  • A plea to a charge on the understanding that the Crown will drop charges against other individuals.

Above all, plea bargaining offers can offer a strong measure of certainty with respect to the outcome of the case. In all cases, we will advise our clients as to the pros and cons of a negotiated resolution to their charges.

The Trial

Where it is not appropriate to resolve the matter by way of a guilty plea, we will carefully prepare ourselves and our client for trial. This process involves carefully reviewing Crown’s disclosure materials and developing strategies for conducting the trial. Various trial strategies are numerous and can be complex. These include:

  • Impeaching the credibility and/or reliability of Crown witnesses by carefully preparing and skillfully conducting effective cross examination in court;
  • Seeking to exclude incriminating evidence from the trial under a myriad of rules pertaining to the laws of evidence. These include, for example, the exclusion of third party “hearsay” statements; and the exclusion of all evidence that tends to be prejudicial to the accused rather than probative of a material issue;
  • Seeking to exclude evidence that was obtained in breach of our client’s Charter rights, such as evidence obtained through an unlawful search or a confession obtained through coercion or some other unlawful police action;
  • Seeking to establish, through argument to the court, that the Crown has failed to meet the very high burden placed on it by the criminal law – that, at the end of the day, there remains reasonable doubt that the accused is guilty of the charged offence.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.