LSLAP File Administrative Policy – Small Claims (20:App M)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 18, 2019.

Resources Annotated Criminal Codes:

• Edward Greenspan, Marc Rosenberg, & Marie Henein, eds, Martin’s Annual Criminal Code, 2020 ed (Toronto: Thomson Reuters, 2019)
• Alan D. Gold, The Practitioners Criminal Code, 2020 ed (Toronto: LexisNexis Canada, 2019)
• The Honourable Mr. Justice David Watt, The Honourable Madam Justice Michelle Fuerst, Tremeear’s Annotated Criminal Code, 2020 ed (Toronto: Thomson Reuters, 2019)

Note: All criminal lawyers carry around one of the three leading annotated criminal codes. The most commonly used is Martins. When reviewing any case the annotations on the section a client is charged with provide a good place to start regarding identifying the elements of the offence.

• Edward Greenspan, QC& Marc Rosenberg, eds, Martin’s Annual Criminal Code, 2017 ed (Aurora: Canada Law Book Inc, 2017).
• Eugene E Ewaschuk, Criminal Pleadings and Practice in Canada, 2d ed (Toronto: Canada Law Book, 1988).
• Peter K McWilliams & S Casey Hill, McWilliam’s Canadian Criminal Evidence, 4th ed (Toronto: Canada Law Book, 2003).
• David Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 1998).
• R Paul Nadin-Davis & Clarey B Sproule, eds, Canadian Sentencing Digest Quantum Service (Toronto: Carswell, 1988) (also available on e-carswell).
• Francis Lewis Wellman, Art of Cross-Examination With the Cross-Examinations of Important Witnesses in Some Celebrated Cases (New York: Collier Books, 1903).
• Earl J Levy, Examination of Witnesses in Criminal Cases, 3d ed (Toronto: Carswell, 1994).
• Thomas A Mauet, Donald G Casswell, & Gordon P MacDonald, Fundamentals of Trial Techniques (Toronto: Little, Brown, 1995).
• Christopher Bentley, Criminal Practice Manual: a Practical Guide to Handling Criminal Cases (Scarborough, Ont: Carswell, 2000).

Relevant statutes

• Criminal Code, RSC, 1985, c C-46.
• Controlled Drugs and Substances Act, SC 1996, c 19 (if drug offence).
• Canada Evidence Act, RSC, 1985, c C-5.
• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (particularly ss 7 – 14, 24 (1) and (2)).
• Identification of Criminals Act, RSC, 1985, c I-1.
• DNA Identification Act, SC 1998, c 37.

1. Legal Aid

The Legal Services Society of B.C. (LSS) is the only source of criminal legal aid in British Columbia. Legal Aid’s purpose is to provide free representation for financially eligible accused persons (low-income individuals), who are charged with certain offences. The Society will provide a retainer to a lawyer chosen by the eligible client in private practice who will provide legal assistance on a contract basis. The Society will also assist the eligible applicant in finding a lawyer if needed.

A wide range of booklets and pamphlets covering various legal problems and legal rights are also available from LSS offices. This material is free.

The client should be advised to contact Legal Aid directly at (604) 408-2172. See Chapter 23: Referrals, or the blue pages of the phone book, for more information.

a) Financial eligibility

The Legal Services Society will grant a letter of referral to applicants who meet the Society’s financial eligibility requirements. These can be found at http://www.lss.bc.ca/legal_aid/doIQualifyRepresentation.php.

There is some flexibility in the requirements, subject to the discretion of the person assessing the application. Clients will be required to fill out a means test indicating income, expenses, education, and employment history.

b) Eligible offences and conditions

Legal aid lawyers may be able to represent an accused person in his or her criminal case if, after conviction (or a plead guilty) the accused would:

• be sentenced to a period of jail (including a conditional sentence),
• lose his or her way of earning an income
• face an immigration proceeding that could lead to deportation from Canada.

Legal aid lawyer may also represent an accused person, if he or she:

• have a physical condition or disability or mental or emotional illness that makes it impossible for the accused to represent themselves, or
• are indigenous and the case affects his or her ability to follow a traditional livelihood of hunting and fishing.

c) Reviewing a decision

An accused who has been rejected can have the decision reviewed where circumstances warrant it. Requests for reviews must be in writing, must set out the reasons for disagreeing with the decision, and must include copies of supporting documentation. LSS does not consider any requests received 30 or more days from the date of the intake legal assistant’s decision.

2. Vancouver Lawyer Referral Service

The accused may call (604) 687-3221 or 1-800-663-1919 (for those outside the Lower Mainland) to reach the service, where an operator will provide the name of a lawyer who practices criminal law. The client should then call the lawyer to make an appointment. The initial half-hour meeting is only a consultation, and the client will have to negotiate the fee for subsequent sessions at his or her first meeting with the lawyer. See Chapter 22: Referrals for more information.

3. Duty Counsel

If the accused does not have a lawyer (either retained privately or through Legal Aid) Duty Counsel (lawyers paid by the government) are there to assist unrepresented people (whether in custody or out of custody) by providing them with basic legal information and advice, and to assist them in conducting basic court appearances. Duty Counsel is often the first lawyer to give legal advice to people in custody. As Duty Counsel are there to assist anyone on a given day, they cannot conduct trials or other lengthy matters. Duty counsel can help the accused by:

• giving advice about the charges and court procedures; conducting a bail hearing;
• entering a guilty plea and providing background information about the accused for the purposes of sentencing; and
• talking to the accused about possible ways of resolving the file such as through diversion.

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