Difference between pages "How to Prepare For and Conduct a Non-custodial Sentencing Hearing as a Law Student (1:App D)" and "Criminal Law Glossary (1:App F)"

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{{LSLAP Manual TOC|expanded = criminal}}
{{LSLAP Manual TOC|expanded = criminal}}


1. Determine the available sentence and the appropriate range of sentence. Review sections 720-729 of the Criminal Code and, in particular, section 718.
'''Absolute Discharge'''
*An accused pleads guilty or is found guilty but has no conditions or probation period imposed. There will be no conviction on the criminal record.


2. Determine the Crown’s position on sentence – consider whether:
'''Accused'''
* There is anything the accused could demonstrate to cause the Crown to soften its position; and / or
*The person whom the Crown charges with a criminal offence.
* A delay of the hearing would be advantageous to the accused.


3. Consider any mitigating or aggravating factors.  The following are some mitigating factors:
'''Actus Reus'''
* Early plea of guilt;
*An essential element of the criminal offence; what the accused physically did to commit the crime.
* Pre-trial custody attributed to this offence;
* Restrictions placed upon the client pursuant to the release (bail) order; and
* Loss of employment or loss of license (if there was a driving offence) or other events which have caused hardship to the accused.


4. Consider the facts of the offence as it relates to our client:
'''Adjournment'''
* The accused person's role in the offence (i.e., follower or under the influence of others);
*A postponement; an accused or clinician can ask for this at an appearance if they need more time before deciding what to do about the charge.  
* Offence was the result of a spontaneous event;
* Incident was an isolated occurrence;
* Absence of property loss;
* Absence of injuries or full recovery from injuries;
* Motive (i.e., for property offences, the items obtained were necessities);
* Previous and/or subsequent positive relationship with the victim;
* Accused person’s state of mind at the time of offence;
* Mental illness short of not criminally responsible;
* Alcohol or drug involvement, particularly if addiction present;
* Accused person’s limited or diminished intelligence or emotional instability; and
* Any changes made by the accused such as counselling or other treatment.


5. Collect reference letters or letters of employment. Make 2 copies of each and '''confirm with the writers of the letter that the letters are authentic. The letters must state that the writer is aware of the criminal charges.
'''Admission'''
'''
*A statement made by an accused to a civilian witness.
==Procedure (after the Crown has made submissions)==
1. Tell the judge what the defence is seeking in terms of a sentence.


2. Tell the judge whether the defence is in agreement with the Crown’s sentencing position in terms of the sentence, the length, and conditions.
'''Agent'''
*An appearance made by a person other than the accused acting on behalf of the accused.


3. If the defence is not in complete agreement with the Crown position tell the judge:
'''Alternative Measures'''
* Which additional facts are relevant to the client; and
*A program offered by Crown to divert the offender away from the criminal justice system. No guilty plea is made and charges are stayed. An acknowledgement of guilty and expression of remorse are required by the client.  
* Which portions of the Crown sentencing position are in dispute (such as the sentence, length & conditions). Note: Formal fact disputes are to be made through s. 721 of the Criminal Code.


4. Briefly review the accused person’s background.
'''Appeal'''
*Formally contesting the verdict or sentence.


5. Briefly discuss the effect of the crime on the accused and the changes made as a result.
'''Appearance Notice'''
*A notice provided by a police officer requiring the accused to attend court at a certain date and time.


6. Review why some of the conditions sought by Crown may not be necessary.
'''Arraignment Hearing'''
*A hearing in front of a Judge or JP where the accused decides whether to plead guilty or go to trial.


7. Tell the judge that the accused is extremely remorseful and embarrassed by the incident (if you have instructions from the client to say that).
'''Bail'''
*Refers to the release (or detention) of a person charged with a criminal offence prior to a trial or guilty plea.


8. Review what the defence is seeking and why it satisfies the principles of sentencing as set out in section 718 of the Criminal Code.
'''Bail Conditions'''
*Release conditions imposed on an accused that they must abide by in order to be released from custody prior to trial or plea.


==Sentencing Submissions Script for Law Students==
'''Bench Warrant'''
1. Crown calls the case.
*A bench warrant is an order issued by a judge requesting the detention of a person until they can appear in court. Such an order is often issued because a defendant did not appear in court.


2. Introduce oneself– go up to the counsel table (and motion for the accused to stand beside you) – “Your Honour, my name is Jane Doe, last name spelt D-O-E. I am a law student and with the court’s leave I represent John Smith, who is present before the court.” – Get the accused to stand up from where they are seated.  If they are in the gallery get them to cross the bar to stand beside the counsel’s seat.
'''Complainant'''
*The person who usually makes the report to the police about having been the victim of a crime.


3. Explain why the defence is here – “Your Honour, this matter is before the Court today for guilty plea and sentencing on counts 2 and 3 of the information, and we are ready to proceed”.
'''Conditional Discharge'''
* A period of probation imposed on an accused where after the period is complete, no convictions will appear on a criminal record.


4. Waive the Formal Reading of the Information - “Your honour we waive the formal reading of the information”.  
'''Conditional Sentence'''
*A conditional sentence is a jail sentence that you serve in the community instead of jail. Judges will use a conditional sentence only if they are satisfied that you won’t be a danger to the community and do not have a history of failing to obey court orders.


5. Continue on and say, “and Mr. Smith wishes to enter a guilty plea to Counts 2 and 3 of the Information.  
'''Confession'''
*A statement of guilt made to a police officer or another person in authority.


6. If there are concerns about the accused person’s ability to understand the process, the student should instead state, “I ask that the charge be formally read to Mr. Smith”.  
'''Cross-Examination'''
*The interrogation (leading questions) of a witness called by the other side.


7. The Court will then read the charge to the accused and ask the accused to enter their plea, plus the questions required by s 606(1.1). This should only be done in rare cases where the accused is seriously mentally ill, changing instructions and throwing up red flags and the student need to protect themselves in case the client tries to withdraw their guilty plea in the future.
'''Crown Counsel'''
*Lawyers appointed by the government who prosecute criminal cases.


8. (The student and the accused can sit down at this point in time). Crown will read in the facts, state Crown’s sentencing position and make submissions as to why their position is fit and appropriate in the circumstances.  
'''Custodial Sentence'''
*A sentence served in jail.


9. Defence submissions – The student should stand when making submissions and the accused can remain seated. It depends on one’s style, and each case and each submission is different, but they should have the following contents and in approximately this order:
'''Detention'''
* a) Defence sentencing position – tell the judge right away what the defence wants.
*A suspension of an individual’s liberty by physical or psychological restraint.
* b) Facts – Does defence have a different take on the facts of the offence. Is there further information or facts you wish to submit? Note: actual facts disputes are to be made through s. 721 of the Criminal Code, not here.
* c) Circumstances of the accused – the student should tell the judge everything that is on the background questionnaire.
* d) Go through the defence’s proposed conditions and why. Link the condition you are proposing back to a specific principle of sentencing.
* e) Summarize and conclude and tell the judge again what you are asking for and why.


'''Please review the section of the Guide to Criminal Defence Work with respect to court etiquette and guilty plea-sentencing.'''
'''Direct Examination'''
*Where the defence or Crown questions its own witnesses.
 
'''Disposition'''
*If a matter in court is “for disposition,” this means there will be a guilty plea instead of a full trial.
 
'''Duty Counsel'''
*Lawyers paid by the government who work in the court house and advise accused with basic legal information and basic court appearances.
 
'''Election'''
*For indictable offences, where the accused can decide whether to have their case tried in Provincial Court or Supreme Court (and with or without a jury).
 
'''''Ex Parte'''''
*Proceeding without the accused present.
 
'''Hearsay'''
*Evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them.
 
'''Hybrid Offence'''
*An offence where the Crown can choose to proceed either summarily or by indictment. The majority of ''Criminal Code'' offences are hybrid.
 
'''Judicial Case Manager'''
*A JP who controls the calendar for the court and sets trial dates.
 
'''Justice of the Peace (JP)'''
*A person appointed by the government to conduct certain tasks in court (like initial appearances), fix trial dates, and hear bail applications.
 
'''Indictable Offence'''
* A more serious criminal offence where the maximum sentence could be life imprisonment. There is no time limit to when charges can be laid (e.g., an accused can be charged 20 years after an act has occurred). The exception to this point is treason, which has a 3-year limitation period. 
 
'''Information'''
*The document which sets out the specific offences the accused is charged with.
 
'''Initial Appearance(s)'''
*An appearance before a JP or Judge where the accused can decide how to proceed. There can be multiple initial appearances.
 
'''Initial Sentencing Position'''
*The sentence Crown would seek if the accused were to plead guilty and not go to trial.
 
'''Insufficient Evidence Motion'''
*A motion made by defence at trial claiming Crown has not proven the case beyond a reasonable doubt.
 
'''K-File'''
*A file where the accused and complainant are family members. The most common is spousal assault.
 
'''Mens Rea'''
*An essential (mental) element of the criminal offence (an intention to commit the crime).
 
'''No Evidence Motion'''
*When the Crown has presented the case against you, if you feel that they have failed to prove all the things that had to be proved, you can make a no-evidence motion. This means that you are asking the judge to dismiss the case, without hearing the defence evidence.
 
'''Particulars'''
*The disclosure package provided to the accused by the Crown containing all of the relevant evidence in the Crown’s case against the accused.
 
'''Preliminary Inquiry'''
*A hearing held in provincial court to determine if there is enough evidence to move forward to the trial in Supreme Court. The Preliminary Inquiry is available to all accused persons charged with offences that proceed by way of indictment.  A preliminary inquiry is a hearing to determine whether there is sufficient evidence to proceed to trial. A preliminary inquiry is not a trial.
 
'''Pre-Sentence Report'''
*A report that can be ordered by a judge after a guilty plea has been entered and prior to sentencing in order to recommend an appropriate sentence for the accused.
 
'''Report to Crown Counsel'''
*Summary of the police narrative and any witness statements taken with respect to the case.
 
'''Sentence'''
*What punishment the judge decides the accused should be subject to when found guilty.
 
'''Summary Conviction Offence'''
*A less serious offence where the maximum jail term is usually 6 months and maximum fine is $5,000.
 
'''Summons'''
*A written order by a judge or JP requiring the accused to attend court at a certain date and time.
 
'''The Bar of the Court'''
*The partition in the courtroom between where the lawyers sit and where the general public sits.
 
'''Vacating a Warrant'''
*In order to vacate a bench warrant, the client will need appear before a judge and apply to be re-released on bail.
 
'''Verdict'''
*After the trial, the judge returns a finding of guilty or not guilty.
 
'''Voir Dire'''
*An in-trial hearing that is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and is designed to determine an issue separate from the procedure or admissibility of evidence.
 
'''Witness'''
*Anyone called to give evidence at a trial.

Revision as of 22:49, 30 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 4, 2021.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
1. Criminal Law
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Etiquette
 · IV. Criminal Charges
 · V. Substantive Law
 · VI. Resolving Prior to Trial
 · VII. Pleading Not Guilty/Trial
 · VIII. Other Issues
 · IX. Charter of Rights and Freedoms
 · X. LSLAP Policies
 · XI. Information for LSLAP Students
 · XII. Etiquette for Law Students
 · XIII. Practice Recommendations
 · Appendix A: Initial Sentencing Position
 · Appendix B: Sample Information
 · Appendix C: Diversion Application
 · Appendix D: Sentencing Hearing
 · Appendix E: Trial Books

 · Appendix F: Glossary
v • d • e



Absolute Discharge

  • An accused pleads guilty or is found guilty but has no conditions or probation period imposed. There will be no conviction on the criminal record.

Accused

  • The person whom the Crown charges with a criminal offence.

Actus Reus

  • An essential element of the criminal offence; what the accused physically did to commit the crime.

Adjournment

  • A postponement; an accused or clinician can ask for this at an appearance if they need more time before deciding what to do about the charge.

Admission

  • A statement made by an accused to a civilian witness.

Agent

  • An appearance made by a person other than the accused acting on behalf of the accused.

Alternative Measures

  • A program offered by Crown to divert the offender away from the criminal justice system. No guilty plea is made and charges are stayed. An acknowledgement of guilty and expression of remorse are required by the client.

Appeal

  • Formally contesting the verdict or sentence.

Appearance Notice

  • A notice provided by a police officer requiring the accused to attend court at a certain date and time.

Arraignment Hearing

  • A hearing in front of a Judge or JP where the accused decides whether to plead guilty or go to trial.

Bail

  • Refers to the release (or detention) of a person charged with a criminal offence prior to a trial or guilty plea.

Bail Conditions

  • Release conditions imposed on an accused that they must abide by in order to be released from custody prior to trial or plea.

Bench Warrant

  • A bench warrant is an order issued by a judge requesting the detention of a person until they can appear in court. Such an order is often issued because a defendant did not appear in court.

Complainant

  • The person who usually makes the report to the police about having been the victim of a crime.

Conditional Discharge

  • A period of probation imposed on an accused where after the period is complete, no convictions will appear on a criminal record.

Conditional Sentence

  • A conditional sentence is a jail sentence that you serve in the community instead of jail. Judges will use a conditional sentence only if they are satisfied that you won’t be a danger to the community and do not have a history of failing to obey court orders.

Confession

  • A statement of guilt made to a police officer or another person in authority.

Cross-Examination

  • The interrogation (leading questions) of a witness called by the other side.

Crown Counsel

  • Lawyers appointed by the government who prosecute criminal cases.

Custodial Sentence

  • A sentence served in jail.

Detention

  • A suspension of an individual’s liberty by physical or psychological restraint.

Direct Examination

  • Where the defence or Crown questions its own witnesses.

Disposition

  • If a matter in court is “for disposition,” this means there will be a guilty plea instead of a full trial.

Duty Counsel

  • Lawyers paid by the government who work in the court house and advise accused with basic legal information and basic court appearances.

Election

  • For indictable offences, where the accused can decide whether to have their case tried in Provincial Court or Supreme Court (and with or without a jury).

Ex Parte

  • Proceeding without the accused present.

Hearsay

  • Evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them.

Hybrid Offence

  • An offence where the Crown can choose to proceed either summarily or by indictment. The majority of Criminal Code offences are hybrid.

Judicial Case Manager

  • A JP who controls the calendar for the court and sets trial dates.

Justice of the Peace (JP)

  • A person appointed by the government to conduct certain tasks in court (like initial appearances), fix trial dates, and hear bail applications.

Indictable Offence

  • A more serious criminal offence where the maximum sentence could be life imprisonment. There is no time limit to when charges can be laid (e.g., an accused can be charged 20 years after an act has occurred). The exception to this point is treason, which has a 3-year limitation period.

Information

  • The document which sets out the specific offences the accused is charged with.

Initial Appearance(s)

  • An appearance before a JP or Judge where the accused can decide how to proceed. There can be multiple initial appearances.

Initial Sentencing Position

  • The sentence Crown would seek if the accused were to plead guilty and not go to trial.

Insufficient Evidence Motion

  • A motion made by defence at trial claiming Crown has not proven the case beyond a reasonable doubt.

K-File

  • A file where the accused and complainant are family members. The most common is spousal assault.

Mens Rea

  • An essential (mental) element of the criminal offence (an intention to commit the crime).

No Evidence Motion

  • When the Crown has presented the case against you, if you feel that they have failed to prove all the things that had to be proved, you can make a no-evidence motion. This means that you are asking the judge to dismiss the case, without hearing the defence evidence.

Particulars

  • The disclosure package provided to the accused by the Crown containing all of the relevant evidence in the Crown’s case against the accused.

Preliminary Inquiry

  • A hearing held in provincial court to determine if there is enough evidence to move forward to the trial in Supreme Court. The Preliminary Inquiry is available to all accused persons charged with offences that proceed by way of indictment. A preliminary inquiry is a hearing to determine whether there is sufficient evidence to proceed to trial. A preliminary inquiry is not a trial.

Pre-Sentence Report

  • A report that can be ordered by a judge after a guilty plea has been entered and prior to sentencing in order to recommend an appropriate sentence for the accused.

Report to Crown Counsel

  • Summary of the police narrative and any witness statements taken with respect to the case.

Sentence

  • What punishment the judge decides the accused should be subject to when found guilty.

Summary Conviction Offence

  • A less serious offence where the maximum jail term is usually 6 months and maximum fine is $5,000.

Summons

  • A written order by a judge or JP requiring the accused to attend court at a certain date and time.

The Bar of the Court

  • The partition in the courtroom between where the lawyers sit and where the general public sits.

Vacating a Warrant

  • In order to vacate a bench warrant, the client will need appear before a judge and apply to be re-released on bail.

Verdict

  • After the trial, the judge returns a finding of guilty or not guilty.

Voir Dire

  • An in-trial hearing that is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and is designed to determine an issue separate from the procedure or admissibility of evidence.

Witness

  • Anyone called to give evidence at a trial.
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