Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"

It is important at this point to review the elements of the alleged offence with the client to ensure that they understand what they are charged with.

 

| Prior to asking a client what happened from their perspective, some counsel want to review the nature and character of the charges and the possible defences with the client. Even if the client admits their guilt, a client must be advised regarding the strength of the Crown’s case. A criminal defence lawyer has an ethical obligation to pursue any viable defence, even if only as a negotiation tactic. There is nothing unethical about running a trial with regards to a client who admits their guilt, as long as the clinician is not misleading the court and the client does not take the stand to testify. 

 

| Be very sure that the client understands exactly what they are pleading to, and the consequences of their plea. Also be very sure that the client understands that it is ultimately their decision as to which option to apply. Ensure that the client understands the consequences and risks of going to trial, any possible defence he or she may have and the difficulties in raising such a defence.

 

Clinicians must never force a client to choose a particular option, particularly one where the accused is required to admit guilt. ''It is always the client who ultimately decides the course of action they wish to follow.''

 

 

 

''Common Ethical Situations Arising in Assisting a Client with their Options''

 

 

 

 

 

 

The clinician can attempt to negotiate with Crown for a better disposition of the matter for the client. With the exception of a Stay of Proceedings and a full trial, the options below (Diversion, Peace Bond, and Pleading Guilty) all require the client to take some measure of responsibility for the crime.

After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a student can approach Crown Counsel and ask that they reconsider the charge. The letter must be without prejudice. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges, the Crown may again choose to reconsider (e.g. the client is terminally ill). Be  sure  to inform the client that for  a summary  offence  the Crown can recommence proceedings within the  limitation period. For hybrid offences, Crown could choose to proceed by indictment and re-lay the charges at any subsequent time.

This option allows for a first time offender to be "diverted away" from the court system. Although referred to as "diversion," the program's official name is Alternative Measures (''Criminal Code'', s 717). The client or the client’s lawyer may make a request to the Crown Counsel office to be "diverted."  In some cases, Crown may also recommend diversion. This program takes the client out of the court system. The application itself may be made before or after a charge is laid. The diversion program is primarily designed for first-time offenders who are prepared to admit their culpability and remorse in the matter. It is advised to call Crown in advance of sending the diversion application to make sure they are open to it. Include the following in the application:

*The background of the client,

*The effect that a criminal record would have on the client, and

*The client's feelings of remorse or repentance for the offence.

 

You must ensure your client understands the concept of diversion and is prepared to speak openly and honestly to a probation officer. The client must clearly admit the offence and express remorse for its commission. He or she may also be required, and should offer to in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options could be considered in the letter or during meetings with the Crown.

The Crown will consider whether the client and the nature of the offence are such that diversion is appropriate. If the Crown decides the client is a good candidate for diversion, the file will be sent to a community worker who will review the circumstances and then discuss the matter with the client. The client is entitled to have legal counsel present at this meeting. If the client admits his or her culpability, and the probation officer is satisfied that the client is an appropriate candidate for diversion, the Crown will be so advised. The Crown will likely enter a stay of proceedings and the client will likely be required to work in the community, write an essay, write a letter of apology, etc. The stay of proceedings is usually entered once diversion has been completed and a letter from the Greater Vancouver Adult Community Alternative Measures Program confirms the completion. The client should be advised that Crown will not attempt to use the offender's admission against him or her if diversion is ultimately refused.

The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with fixing a trial date and writing a letter of application for diversion. Some judges think they should not grant adjournment "for the purpose of considering diversion," since technically the diversion process is separate and apart from the court process. Therefore, although appending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and you should be prepared to move the court process forward at the same time as you are pursuing a diversion request. See [[Diversion Application and Sample Letter (1:App C) | Appendix C: Diversion Application and Sample Letter]] for an example of an application for diversion.

In order for a peace bond to be imposed, there must exist ''reasonable grounds'' for the complainant to believe that the accused will cause personal injury to the complainant or his or her spouse or child or that they will cause damage to his or her property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the client is conceding that the complainant has reasonable grounds for their fear. The client does not have to admit to all of the facts in the Report to Crown Counsel. However, they do have to admit to sufficient facts to form a reasonable basis for the victim to fear the client. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on [[{{PAGENAME}}#D. Pleading Guilty | Pleading Guilty]], below.

*the client admits guilt,

*the client wishes to plead guilty.

If the client wishes to plead guilty then the court appearances should be adjourned to allow the clinician sufficient time to "negotiate" with Crown Counsel for the most appropriate sentence. It is generally a very good strategy to talk to Crown in advance about a joint submission where both sides agree on a sentence. Most Crown will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with Crown, a sentencing hearing will be scheduled at which the clinician can present the client’s position. If an agreement is reached with Crown, it is important to know that the Judge is not bound by a joint submission; however, a joint submission is highly likely to be accepted. See [[How to Prepare For and Conduct a Sentencing Hearing (1:App D) | Appendix D: How to Prepare for and Conduct a Sentencing Hearing]] for the process of a guilty plea.

In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). Consecutive sentences are often ordered whenthe offences are unrelated and of a serious nature.

Before a sentence is given, the accused, or counsel for the accused, must be permitted to "speak to sentence" and make submissions to the judge that could affect the sentence. After hearing Crown recommendations and then defence submissions, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see [[How to Prepare For and Conduct a Sentencing Hearing (1:App D) | Appendix D: How to Prepare for and Conduct a Sentencing Hearing]].

It is important to ''consult sections 718 and 718.2 of the Criminal Code'' for the principles in sentencing  that  the  judge  will  consider,  ''and  address  these  issues  when  drafting  your submissions''. A clinician should also read up to section 743.1 of the ''Criminal Code'' before any sentencing hearing.  

There tend to be two broad strategies for presenting a client’s circumstances. With first time offenders this typically involves presenting the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control, and then showing what has changed in the life of the client to avoid a similar set of unusual and exceptional circumstances. Students should seek to show the court that the problem has already been cured and will not recur, and that a harsh sentence is unnecessary. With repeat offenders, it is more strategic to present the disadvantageous life circumstances, such as lack of family support or lack of employment/educational opportunities, which may have contributed to the offence being committed. Students should then show that the offender has changed his or her outlook and is seeking to turn their lives around.  This involves in part an understanding of the client's situation, and an understanding of the severity of the offence.

*The discharge must be in the best interests of the accused and not against the public interest.

The sentence is available if the accused is not subject to a minimum penalty. An accused can be sentenced to probation for up to three years. Probation means that the accused has to follow certain conditions that the judge sets. For example, the accused will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused), and obey other court-imposed conditions. The accused is still convicted of the crime, but the sentence is suspended while the accused is on a term of probation. A suspended sentence is not a final sentence. An accused who is convicted of breaching any of the conditions of the probation order may in addition to being sentenced for the offence of breach of probation, also have the suspended sentence revoked and the accused can be sent to jail.

''This is a jail sentence'' and occurs when a court orders the accused to serve his or her jail sentence in the community. It is not allowed when there is a minimum sentence of imprisonment, when there is a term of imprisonment of two years or more imposed, or where the offence involved a serious personal injury. The term conditional refers to rules the offender must follow in order to remain out of jail. The conditions are often similar to conditions imposed on a probation order; however, a curfew is almost always imposed. An accused that breaches any of his or her conditions or commits a new crime may be ordered to complete the remaining portion of the sentence in prison.

Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence stated is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction.  

 

If the total sentence is two years or more, the accused will serve his or her sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve his or her sentence in a provincial jail.

 

If a judge imposes a sentence not exceeding 90 days, he or she may order that the sentence be served intermittently on certain days of the week or month. The accused is released on the other days, subject to conditions of a probation order.

If an offender is convicted of a "primary designated offence" enumerated in section 487.04 of the ''Criminal Code'' – for example, sexual  interference (s 151) and sexual exploitation (s 153) – a court must order the taking of bodily substances for the purposes of forensic DNA analysis, unless the impact on the person’s privacy would be "grossly disproportionate" to the public interest.  

The surcharge will be at 30 percent of any fine imposed on the offender. Where no fine is imposed, the surcharge will be $100 for offences punishable by summary conviction and $200 for offences punishable by indictment. In addition, the judge will retain the discretion to impose an increased surcharge where the circumstances warrant and the offender has the ability to pay.  

Previously, sentencing judges had the discretion to waive the victim surcharge when it could be demonstrated that its payment would cause undue hardship to the offender or his or her dependents. This legislation removes the waiver option to 1-21 ensure that the victim surcharge is applied in all cases without exception. However, if a victim surcharge is imposed and the client cannot pay, the client’s counsel can argue the client should not be subject to the victim fine surcharge by asking:

#for the fine to be in default for one day,

#for the one day to be deemed served and that the client should not be in custody.