Governing Legislation and Resources for Criminal Law (1:II)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.

A. Resources

1. Annotated Criminal Codes:

• Edward Greenspan, Marc Rosenberg, & Marie Henein, eds, Martin’s Annual Criminal Code, 2023 ed (Toronto: Thomson Reuters, 2022).
• Alan D. Gold, The Practitioners Criminal Code, 2024 ed (Toronto: LexisNexis Canada, 2023).
• The Honourable Mr. Justice David Watt, The Honourable Madam Justice Michelle Fuerst, The 2023 Annotated Tremeear’s Criminal Code, 2023 ed (Toronto: Thomson Reuters, 2022).

NOTE: All criminal lawyers carry around one of the three leading annotated criminal codes. The most commonly used is Martin’s. 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.

2. Other Criminal Law Resources:

• The Honourable Mr. Justice Eugene Ewaschuk, Criminal Pleadings and Practice in Canada, 3d ed (Toronto: Canada Law Book, 2022).
• The Honourable S Casey Hill, David Tanovich, & Louis Strezos, McWilliam’s Canadian Criminal Evidence, 5th ed (Toronto: Canada Law Book, 2013).
• David Watt, Watt’s Manual of Criminal Evidence, 2023 ed (Toronto: Carswell, 2022).
• Robert Paul Nadin-Davis & Clarey B Sproule, eds, Canadian Sentencing Digest Quantum Service (Toronto: Carswell, 1989) (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, 2001).
• Christopher Bentley, Criminal Practice Manual: a Practical Guide to Handling Criminal Cases (Scarborough, Ont: Carswell, 2000).

3. 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.

4. Legal Aid:

Legal Aid BC (LABC), previously the Legal Services Society of BC, is the only source of criminal legal aid in British Columbia (BC). LABC’s purpose is to provide free representation for financially eligible accused persons (low-income individuals), who are charged with certain offences. LABC will provide a retainer to a lawyer in private practice requested by or assigned to the eligible client who will provide legal assistance on a contract basis.

A wide range of free resources covering various legal problems and legal rights are also available online and at LABC offices.

If appropriate, the client should be advised to contact Legal Aid directly at (604) 408-2172 or 1 (866) 577-2525. See Chapter 23: Referrals, or the blue pages of the phone book, for more information.

a) Financial Eligibility

LABC will grant a letter of referral to applicants who meet the financial eligibility requirements. These can be found at https://legalaid.bc.ca/legal_aid/doIQualifyRepresentation.

There is some flexibility in the requirements, subject to the discretion of the intake legal assistant assessing the application. Clients will be required to complete a means test indicating household size, income, and assets; certain expenses; and level of education. Information on how to apply can be found at https://legalaid.bc.ca/legal_aid/howToApply.

b) Eligible Offences and Conditions

Legal Aid lawyers may be able to represent an accused person in their criminal case if, after conviction (or a guilty plea) the accused would:

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

Legal Aid lawyers may also represent an accused person if the accused person:

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

c) Reviewing a Decision

An accused who has been denied Legal Aid can have the decision reviewed where circumstances warrant it. Requests for review must be in writing, must set out the reasons for disagreeing with the decision, and must include copies of supporting documentation. Legal Aid does not consider any requests received after 30 days from the date of the intake legal assistant’s decision. Information on how to apply for a review can be found at https://legalaid.bc.ca/about/applyForReviewOfDecision.

5. 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 to receive a free 15-minute consultation. The client will have to negotiate the fee for subsequent sessions at their first meeting with the lawyer. See Chapter 23: Referrals for more information.

6. Everyone Legal Clinic:

The Everyone Legal Clinic provides fixed-fee criminal defence at a lower cost to individuals facing summary conviction offences. Clients can request a consultation appointment with an articling student online at https://app.qase.net/create_elc_referral. More information, including rates, can be found at https://everyonelegal.ca/services-for- everyone/criminal-defence.

7. 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 is 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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