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.

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.

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.

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.

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.

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.

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.