Difference between pages "Welfare Appeals (21:XI)" and "Criminal Law Glossary (1:App F)"

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{{REVIEWED LSLAP | date= July 02, 2019}}
{{REVIEWED LSLAP | date= August 4, 2021}}
{{LSLAP Manual TOC|expanded = welfare}}
{{LSLAP Manual TOC|expanded = criminal}}


== A. What Can Be Appealed ==
'''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.


It is possible to appeal most Ministry decisions that deny, reduce, or discontinue welfare benefits of any kind, including supplements. See s 17 of the EAA and s 16 of the EAPWDA.  
'''Accused'''
*The person whom the Crown charges with a criminal offence.


The legislation list certain supplements for which decisions can not be appealed to the Employment and Assistance AppealTribunal: see EAR, s  81, and EAPWDA, s 73. Note however that a person may still apply for reconsideration of decisions related to those supplements. In addition, one cannot appeal decisions regarding the terms of employment plans to the Tribunal, but they can be reconsidered (see s 9 and 17(1)(e) of the EAA).  
'''Actus Reus'''
*An essential element of the criminal offence; what the accused physically did to commit the crime.


'''NOTE:''' If a client would like a review of a decision that is not open to reconsideration and/or appeal, they may still request an internal administrative review by registering a complaint with the supervisor at a local Ministry office. This may be particularly useful for service  quality issues. This is entirely separate from the appeal process.  
'''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.  


== B. Two-Level Appeal Process ==
'''Admission'''
*A statement made by an accused to a civilian witness.


There is a two-level appeal process for reviewing decisions by the Ministry. The levels are:
'''Agent'''
*reconsideration (which is an administrative review done within the Ministry) and
*An appearance made by a person other than the accused acting on behalf of the accused.
*appeal to the Employment and Assistance Appeal Tribunal or “EAAT”  an independent tribunal).


To seek reconsideration, a person must obtain and complete a “Request for Reconsideration” form and return it to the Ministry''' within 20 business  days of being notified of a decision''', along with relevant documents, to request a reconsideration of a Ministry decision.
'''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.  


“Request for Reconsideration” forms can be picked up at Ministry offices.
'''Appeal'''
*Formally contesting the verdict or sentence.


To appeal a reconsideration decision to the EAAT, a person must submit a Notice of Appeal form within '''seven business days''' of being notified of the reconsideration decision.  
'''Appearance Notice'''
*A notice provided by a police officer requiring the accused to attend court at a certain date and time.


== C. Reconsideration and Appeal Supplements (Benefits While an Appeal is Pending) ==
'''Arraignment Hearing'''
*A hearing in front of a Judge or JP where the accused decides whether to plead guilty or go to trial.


If a recipient is seeking reconsideration or appeal of a decision to discontinue or reduce a benefit or supplement, he or she may continue to receive the benefit or supplement while awaiting the outcome of the reconsideration or appeal. This is called a “reconsideration supplement”  or “appeal supplement”.  
'''Bail'''
*Refers to the release (or detention) of a person charged with a criminal offence prior to a trial or guilty plea.


Before paying a reconsideration or appeal supplement, the Ministry requires people to sign an agreement saying they will repay the benefit if the appeal fails. See s 54 of EAR and s 52 of EAPWDR.  
'''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.


== D. Commonly Appealed Decisions ==
'''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.


Some decisions for which people commonly seek reconsideration and appeal are: 
'''Complainant'''
*A decision denying someone PWD status under s 2 of the EAPWDA; 
*The person who usually makes the report to the police about having been the victim of a crime.
*A decision denying someone a special supplement for which he or she has applied;
*A decision that a person is in a “dependent” relationship with someone he or she lives with (e.g.a spousal relationship), and that they must therefore be treated as being in the same family unit; and
*A decision that a person has received a welfare overpayment that he or she must repay.  


There are many other types of decisions that can be appealed.  
'''Conditional Discharge'''
* A period of probation imposed on an accused where after the period is complete, no convictions will appear on a criminal record.


'''NOTE:''' Whenever a client asks about appealing a decision, begin by checking s 17 of the EAA, s 16 of the EAPWDA, s 81 of the EAR, and s 73 of the EAPWDR to ensure the decision is appealable. Then, review the legislation to understand the law affecting the decision.  
'''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.


== E. APPEAL LEVEL 1: Reconsideration ==
'''Confession'''
*A statement of guilt made to a police officer or another person in authority.


Reconsideration is a “paper review” by the Ministry with no hearing. To request reconsideration, the client needs to fill in Request for Reconsideration form. He or she may need to ask for this form, although often it will come with the Ministry decision.  
'''Cross-Examination'''
*The interrogation (leading questions) of a witness called by the other side.


The client '''must''' get the completed request for reconsideration in to the Ministrywithin 20 business days from the day the client was informed of the decision.  
'''Crown Counsel'''
*Lawyers appointed by the government who prosecute criminal cases.


A client should submit the following with a request for reconsideration: 
'''Custodial Sentence'''
*'''Evidence:''' any relevant documentary evidence can be submitted with the request for reconsideration. It is essential to provide complete evidence at this stage, and cover all possible evidentiary issues, as only limited evidence is allowed at next appeal stage and
*A sentence served in jail.
*'''Argument:''' it is also good to provide a one-page written summary of outlining why the client is eligible for the benefit.


If a client is not able to submit all relevant evidence and argument to the Ministry within the 20 business day deadline, they can request (in writing) an extension to do so of up to 10 business days. They must still submit the completed Request for Reconsideration form to the Ministry within  the initial 20 business day deadline, but can indicate on that form that they require an extension of time to provide supporting evidence and argument.
'''Detention'''
*A suspension of an individual’s liberty by physical or psychological restraint.


Once a completed Request for Reconsideration form is submitted to the Ministry, the Ministry must provide a written response to the reconsideration request  within 10 business days. Section 80(b) of the EAR, and s 72(b) of the EAPWDR provide that, with the agreement of both parties, the Ministry may have up to an additional 10 business days to make its decision. These are the sections that are relied upon when requesting an extension of time to  provide additional evidence and argument in support of a client’s completed Request for Reconsideration form.
'''Direct Examination'''
*Where the defence or Crown questions its own witnesses.


'''NOTE:''' While going through this process, it is also well worth contacting the Supervisor at the client’s Ministry office to try and negotiate  a solution, particularly if the decision appears to be obviously unfair and out of line with the legislation.  
'''Disposition'''
*If a matter in court is “for disposition,” this means there will be a guilty plea instead of a full trial.


== F. APPEAL LEVEL 2: Appeal to the EAAT ==
'''Duty Counsel'''
*Lawyers paid by the government who work in the court house and advise accused with basic legal information and basic court appearances.


The EAAT is an independent tribunal. See its website at http://www.gov.bc.ca/eaat. Its website has many useful materials including a set of practices and procedures, guidelines, forms, and a member code of conduct.  
'''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).


The EAAT holds oral and written hearings. Oral hearings may be done in person or by teleconference. An oral, in-person hearing should always available if the client requests one, although it may lead to a delay in scheduling.
'''''Ex Parte'''''
*Proceeding without the accused present.


To request an appeal, file a Notice of Appeal with the EAAT or deliver it to a local Ministry office. The EAAT or the Ministry must receive the notice  of appeal within '''7 business days''' from the day the client gets the reconsideration decision.
'''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.


One does not need to file evidence or argument at the same time as filing the Notice of Appeal, although one could do so.  
'''Hybrid Offence'''
*An offence where the Crown can choose to proceed either summarily or by indictment. The majority of ''Criminal Code'' offences are hybrid.  


The EAAT will hold the hearing within 15 business days of the notice of appeal, unless the client consents to having it later.  
'''Judicial Case Manager'''
*A JP who controls the calendar for the court and sets trial dates.


If an applicant needs more time once he or she has filed the notice of appeal, the Tribunal has an adjournment request form online. Ideally  the applicant should get the Ministry to consent to the adjournment and send the form in at least 24 hours before the hearing. Applicants can also ask for an adjournment on the day if there is good reason.
'''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.


The following are some notes about the EAAT process:
'''Indictable Offence'''
*Appeal panels typically have 3 members, but sometimes have 2 or even 1 member;
* 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.
*The EAAT applies the income assistance legislation and common law;
*It cannot apply the Charter or ''Human Rights Code'' (see the ''Administrative Tribunals Act'');
*While an EAAT hearing is formal, it is less formal than court. Rules of evidence are not strictly applied; 
*The Ministry sends a representative to advocate for its point of view at most EAAT hearings; and
*Appellants before the EAAT may be represented by an advocate or legal counsel. LSLAP students may act in this capacity for clients.  


The EAAT hearing must be held within 15 business days of delivery of the appeal notice. The hearing can be postponed if both parties and the chairperson agree to a later date. Applicants can request an adjournment if there is good reason to do so, using an “Appeal Adjournment Request  Form”. See also s 85 of the EAR.  
'''Information'''
*The document which sets out the specific offences the accused is charged with.


Evidence can be given at an EAAT hearing in the following forms:
'''Initial Appearance(s)'''
*'''Documentary evidence''', which should be set it in to EAAT in advance if possible, but it is acceptable to bring it to the hearing, with enough copies for the three panel members and the Ministry representative) and 
*An appearance before a JP or Judge where the accused can decide how to proceed. There can be multiple initial appearances.
*'''Oral evidence''' from client or supporters.  


Completely new evidence is not supposed to be allowed before the EAAT, whereas evidence “supporting” what was put forward at reconsideration is allowed. There can sometimes be a fine line between new evidence and supporting evidence. The EAAT has a useful guideline on this issue, at http://www.gov.bc.ca/eaat/popt/additional_evidence.html
'''Initial Sentencing Position'''
*The sentence Crown would seek if the accused were to plead guilty and not go to trial.  


The EAAT must decide whether the Ministry's reconsideration decision:
'''Insufficient Evidence Motion'''
*Is reasonably supported by evidence OR 
*A motion made by defence at trial claiming Crown has not proven the case beyond a reasonable doubt.
*Is a reasonable application of the legislation to the circumstances of the person appealing the decision (s 24 of the EAA).  


If so, the panel must uphold the Ministry's decision, and if not, the panel must rescind the Ministry’s decision. If the decision of the tribunal cannot be implemented without some further determination, then the tribunal must refer the further determination back to the Ministry.  
'''K-File'''
*A file where the accused and complainant are family members. The most common is spousal assault.


The EAAT panel must render its decision within five business days of the conclusion of the hearing. The EAAT chair then has five business days to mail a copy of it to all parties.  
'''Mens Rea'''
*An essential (mental) element of the criminal offence (an intention to commit the crime).


'''NOTE:''' If a client failed to submit key pieces of evidence with his or her request for reconsideration, it may not be worthwhile to appeal  the decision to EAAT, since appellants are not permitted to present completely new information on appeal to EAAT. Therefore, it may be in the client’s best interest to re-apply for the benefit and provide proper documentation on the new application.  
'''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.


What can be appealed to the EAAT
'''Particulars'''
*A denial of PPMB or PWD status;
*The disclosure package provided to the accused by the Crown containing all of the relevant evidence in the Crown’s case against the accused.
*A denial of a monthly benefit or supplement;
*A reduction of the amount of money received for monthly benefits or for a supplement;
*The existence of an alleged overpayment; OR
*A cancellation of a monthly benefit or supplement.  


What cannot be appealed to the EAAT:
'''Preliminary Inquiry'''
*Whether someone has to sign an employment plan or have certain conditions in the employment plan;
*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.
*Refusing to change or cancel an employment plan once signed;
*How much of an overpayment is owed to the Ministry;
*Refusing to take part in a program set up under the welfare laws;
*Refusing certain benefits while the case is under reconsideration or appeal; OR
*Not giving a person a supplement related to their employment plan or to a confirmed job.  


== G. Judicial Review (if the Appeal to the EAAT is Unsuccessful) ==
'''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.


If the EAAT decision is unfavourable, the appellant has 2 options:
'''Report to Crown Counsel'''
*Summary of the police narrative and any witness statements taken with respect to the case.


OPTION 1: Where the appellant has applied for a benefit and been denied, and where it is important for her to get the benefit right away, she can re-apply. If there is new evidence on which to base a new application that should be submitted; otherwise she can still reapply although  her appeal rights on the new application will be limited if she cannot show that there has been a change in the applicant's circumstances relevant to the appeal since she last appealed to the EAAT (see section 17 of the EAPD Act and section 18 of the EA Act).
'''Sentence'''
*What punishment the judge decides the accused should be subject to when found guilty.


OPTION 2: Where the decision is very seriously problematic (see below) and there is some benefit to having a court overturn the original decision, students can advise the client to seek judicial review.  
'''Summary Conviction Offence'''
*A less serious offence where the maximum jail term is usually 6 months and maximum fine is $5,000.


A judicial review may be possible where the Tribunal decision has very serious problems with it, such as:
'''Summons'''
*issues of procedural fairness;
*A written order by a judge or JP requiring the accused to attend court at a certain date and time.
*errors of law; or
*glaring errors of fact that a judge would be able to see just by reading the decision and looking at the documentary evidence.


Note there is a '''60 day time limit''' for bringing judicial reviews. A client who is interested in applying for judicial review of an EAAT decision should be referred to a lawyer at the Community Legal Assistance Society to have their case assessed for merit.  
'''The Bar of the Court'''
*The partition in the courtroom between where the lawyers sit and where the general public sits.  


== H. Tips for the LSLAP Student Representative ==
'''Vacating a Warrant'''
*In order to vacate a bench warrant, the client will need to appear before a judge and apply to be re-released on bail.


*Representatives should read Part 6 of the EAR carefully to offer advice on the appeal process. 
'''Verdict'''
*The representative should determine what the issues are and read all of the relevant sections of the EAA or the EAPWDA and the associated Regulations. 
*After the trial, the judge returns a finding of guilty or not guilty.
*A representative should have the client fill out an “Authorization for Advocate and Confidentiality” form authorizing the representative to examine the client’s Ministry file. Also, if the case is at the EAAT level, a “Release of Information” form from the EAAT website should be completed. These forms are needed to communicate with the Ministry and the EAAT about the client’s case. 
*If a client has received a decision from the Ministry but has not yet taken any appeal steps, the representative should advise him or her to obtain a “Request for Reconsideration” form from the Ministry office and to complete and return it to his or her local Ministry office. This must be done within '''20 business days''' of getting the decision. If there is enough time, it is very helpful if you can help the client to fill in the Request for Reconsideration. 
*If an applicant has already received a reconsideration decision, and the matter is appealable (see above) advise him or her to complete a  Notice of Appeal form and to send it to the EAAT '''within seven business days''' of getting the reconsideration decision. 
*With the law as set out by the Act and regulation in mind, the representative should get copies of all relevant documents and review the details of the client’s case. It is vital to have a clear, comprehensive account of the facts as your client understands them.
*If the applicant submits additional documentation as evidence, such as medical reports, affidavits, or receipts, make enough copies for the Ministry's representatives and the tribunal members. Because there is no registry for administrative support for the tribunal system, advocates  must assume responsibility for seeing that all documentation is well-organized. 
*At all levels of appeal, it is best to have a written statement of one’s presentation of the facts in case there is a judicial review.  Hearings at the EAAT are not otherwise recorded.
*See above for specific tips on each level of appeal.


'''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.


{{LSLAP Manual Navbox|type=chapters15-22}}
'''Witness'''
*Anyone called to give evidence at a trial.

Revision as of 22:55, 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 to 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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