Introduction to Criminal Law (1:I)

This chapter provides a reference for self-represented litigants and law students to assist and advise them through each step of the criminal justice process. It highlights the procedures and issues self-represented litigants and law students commonly face in representing themselves or clients in criminal proceedings, sets out the relevant substantive law to assist students in preparing for trial, and includes practice recommendations for students and self-represented litigants.

A. Governing legislation and resources

Resources

• David Watt & Michelle Fuerst, eds, Tremeear’s Criminal Code, 2015 ed (Toronto: Carswell, 2015).
• Edward L Greenspan, QC& Marc Rosenberg, eds, Martin’s Annual Criminal Code, 2014 ed (Aurora: Canada Law Book Inc, 2014).
• 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.

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 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.

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 fee is $25 plus tax for the first half-hour session, and the client will have to negotiate the fee for subsequent sessions at his or her first meeting with the lawyer. See Chapter 23: Referrals for more information.

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.