Resolving Criminal Matters Prior to Trial (1:VI)

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

It is important to review the elements of the alleged offence to ensure an understanding of what one is charged with.

A. Stay of Proceedings

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 letter can be drafted to the assigned Crown Counsel requesting that they reconsider the charge. The contact information for the assigned Crown can be obtained by calling the Crown Counsel office in the city in which the charge was laid. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges (e.g., the accused is terminally ill), the Crown may choose to reconsider. A stay of proceedings is a decision to not proceed with the charges. A stay of proceedings appears on the accused’s Vulnerable Sector Criminal Record Check. Therefore, a stay may affect the accused’s employment if they intend to work with children or seniors.

B. Diversion / Alternative Measures

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 accused or the accused’s counsel may make a request to the Crown Counsel office to be “diverted”. In some cases, Crown Counsel may also recommend diversion. This program takes the accused 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:

1. that the letter is Without Prejudice;
2. the circumstances of the offence, including a clear admission of all the essential circumstances of the offence;
3. the background of the accused;
4. the effect that a criminal record would have on the accused; and
5. the accused person’s feelings of remorse or repentance for the offence.

The accused must understand the concept of diversion and be prepared to speak openly and honestly to a probation officer. The accused must clearly admit to the offence and express remorse for their commission. They should offer in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options should be considered with the Crown, if possible.

The Crown will consider whether the accused and the nature of the offence are such that diversion is appropriate. If the Crown decides the accused 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 accused. The accused is entitled to have legal counsel present at this meeting. If the accused admits their culpability, and the probation officer is satisfied that the accused is an appropriate candidate for diversion, the Crown will be so advised. The criminal matter will likely be adjourned to allow the accused to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.

The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with both fixing a trial date and writing a letter of application for diversion. Where an accused has not yet been determined to be an appropriate candidate for diversion, the court is unlikely to grant an adjournment for the purpose of considering diversion. That is, unless Crown Counsel opines that they believe diversion if likely to occur.

See Appendix C and D for an example of an application for diversion.

C. Peace Bond (s 810)

A peace bond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict an accused person’s liberty. Under section 810 of the Criminal Code, the accused enters into a recognizance with conditions. In addition to requiring that the recipient “keep the peace and be of good behaviour”, a peace bond will also set out specific conditions intended to protect a person or a specific type of property, such as not to contact certain persons and/or not to attend a certain address or area. These conditions can last up to one year, and the length of the term can be negotiated with the Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond is a separate criminal offence.

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 their spouse or child, or that they will cause damage to the complainant’s property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, the accused does have to admit to sufficient facts to form a reasonable basis for the victim to fear them. 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 Pleading Guilty, below.

Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a victim’s reluctance to go to trial. At the hearing, the Crown must prove on a balance of probabilities that there are reasonable grounds for the fear. Hearsay evidence is allowed, as it goes to the informant’s belief that there are grounds for the fear (R v PAO, [2002] BCJ No 3021 (BC Prov Ct)). Since there is no criminal standard of proof, the judge must look at all the evidence, and not focus merely on the absence of the offending conduct (R v Dol, 2004 BCSC 1438).

If a bonded person breaches the peace bond, a criminal charge may be laid against them. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (Criminal Code, s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody.

D. Pleading Guilty

A guilty plea is appropriate only when all of the below are true:

• diversion is not granted;
• a peace bond is not appropriate;
• the accused admits guilt;
• it appears that the Crown will be able to prove its case; and
• the accused wishes to plead guilty.

Section 606 of the Criminal Code outlines the conditions that need to be met for a court to accept a guilty plea. These include that:

• the accused is making the plea voluntarily;
• the accused understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor; and
• the facts support the charge.

The court has an obligation to ensure that section 606 has been canvassed with the accused before accepting any guilty plea and should canvass these matters directly with the accused, unless the accused is represented by legal counsel who assures the court that section 606 has been canvassed. Legal counsel should canvass these matters with the client prior to the guilty plea and take detailed notes of this interaction, if there is any doubt about the clients understanding of this interaction counsel should have the court canvass section 606 directly with the accused.

Applying to Strike an Entered Guilty Plea

Legal counsel should bear in mind that accused persons sometimes desire to change their plea after entering a guilty plea and may blame counsel for failing to advise them about the consequences of their plea. An accused may retain new counsel and make an application to set aside the entered guilty plea. In such a situation, solicitor client privilege will usually be set aside, and the lawyer may be forced to take the stand and explain why they believed the client understood the consequences of the guilty plea (see R v Lam, 2020 BCCA 276 (CanLII)).

The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. For self-represented litigants, duty counsel can assist with a sentencing negotiation with the Crown. It is generally a good strategy to talk to Crown before pleading guilty, about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission (see R v Anthony‑Cook, 2016 SCC 43). See Appendix E: How to Prepare for and Conduct and Sentencing Hearing for the process of entering a guilty plea.

Consequences of a guilty plea may include, but are not necessarily limited to:

• possible inability to obtain a passport or to enter the US;
• difficulty or impossibility of entering some postgraduate fields of study such as law;
• exclusion from jobs requiring bonds;
• possible use of the conviction in subsequent proceedings; and
• possible deportation if the accused is not a Canadian citizen.

E. Sentencing Hearing

The statutory range for all sentences is in the Criminal Code. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful Charter challenge or is about to be abolished by an act of Parliament.

Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document. The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see Criminal Code, s 724 for how the court determines disputed facts). Note: Sometimes this will occur in the moment where Crown Counsel summarizes an aggravating fact during their sentencing submissions and the accused and their counsel realizes only then that an aggravating fact was not agreed upon. This may also occur in the process of the defence’s submissions when a mitigating circumstance is summarized.

For serious offences, prior to the actual sentencing hearing, the accused or their counsel should consider whether the guilty person would benefit from seeking a Pre-Sentence Report (PSR) under section 721 of the Criminal Code. A PSR can only be ordered after a guilty plea or finding is made. It is prepared by a probation officer and is considered a “neutral third party” report. It is a formal report and can help or harm the interests of the accused. If the accused is experiencing mental health issues, the PSR can include a psychological report. A favourable psychological report can reduce an accused’s eventual prison sentence. A psychological disorder that makes a person more likely to lose control of their emotions or impulses mitigates the moral culpability of an offender for offences where that emotion or impulse contributed to the occurrence of the offence. Where an accused person desires to obtain a psychological opinion, they should consider obtaining a private psychological report from a psychologist of the guilty person’s choosing instead of a PSR with a psychological component. A private psychological report commissioned by the accused person or their counsel has the advantage of being legally privileged and is only disclosed if it helps the accused. This avoids the possibility that exists with a PSR that the contents of the report will suggest that the offender has limited prospects of rehabilitation, thereby supporting a lengthier custodial sentence.

Crown presents their submissions in the sentencing hearing first. Assuming that there is no substantial disagreement on the facts of the offence, Crown Counsel will simply blend together their summary of the facts of the offence and their position on the appropriate sentence, and the accused or their accused will do the same in reply.

After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Law students should alert their client to the fact that they will be invited to speak after the law student finishes their submissions, and that the only thing that can help them at that point is a heartfelt expression of remorse thought there is no obligation to say anything. Following the accused’s opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see Appendix E: 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 to address these issues when drafting your submissions. The accused should also read up to section 743.1 of the Criminal Code before any sentencing hearing, where various consequences and conditions for various sentences are outlined.

There are two common strategies for presenting the circumstances of an accused. One strategy is to present the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control and explain what has changed in the accused’s life to avoid a similar set of unusual and exceptional circumstances. This establishes that the problem has already been resolved and will not recur, and that a harsh sentence is unnecessary. Another strategy is to highlight the disadvantageous life circumstances, such as lack of family support, lack of employment or educational opportunities, mental illness, or addiction, which contributed to the commission of the offence. This lessens the accused’s moral culpability for their conduct.

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). The default is consecutive. However, if the offences were sufficiently distinct from each other Crown may seek concurrent sentences. The legal test is whether or not the two criminal acts were part of a linked series of acts within a single endeavour. See R v Li 2009 BCCA 85 at para 43.

In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see R v Bissonnette, 2022 SCC 23.

The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.

Gladue Reports

For cases where the offender is Indigenous, reference must be made to section 718(e) of the Criminal Code and the principles laid out in R v Gladue, [1999] 1 SCR 688. Section 718(e) of the Criminal Code, which states that judges must pay attention to the circumstances of Aboriginal offenders, was implemented in 1996 in an attempt to address the over representation of Indigenous Peoples within Canadian prisons. Gladue followed shortly thereafter in 1999, and established that judges must consider Gladue principles when making decisions in cases with Indigenous offenders. This means that a judge must consider the personal and unique circumstances of the accused as well as the particular hardships they have faced, resilience they have demonstrated, and ways to support them that would address their challenges. The judge should consider the accused’s life experience and what has happened to them, their friends, family and community. The Supreme Court in Gladue specifically outlined that sentencing judges must pay attention to: The unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of his or her particular Indigenous heritage or connection. The Crown, defence counsel, and the Indigenous individual must give the judge the information they need to make an assessment based on Gladue principles. This can be done through a Gladue report, which is a report that lays out a holistic profile of an Indigenous individual and how they have come to be before the court. These reports are based on interviews with the individual, friends, family, and community members as well as information about their family background and the effect of colonization. A Gladue report is different than a Pre-Sentencing Report and should be prepared by someone with experience preparing these reports and insight into Indigenous communities. The BC First Nations Justice Council has provincial responsibility for Gladue services and offers the opportunity to request a Gladue report from a roster of experienced Gladue report writers: https://bcfnjc.com/information-for-the-public/. It is important to note that, even if there is no Gladue report present, lawyers still have an obligation to bring information relevant to Gladue principles before the court in every case and judges have an obligation, not just to reference those principles, but provide an explanation of how they applied them when it comes to sentencing. Gladue principles apply to all offences under the Criminal Code. For further information on Gladue principles and reports see the Gladue Report Guide published by the Legal Services Society in collaboration with the BC First Nations Justice Council: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://pubsdb.lss.bc.ca/pdfs/pubs/Gladue-Report-Guide-eng.pdf.

F. Types of Sentences

1. Absolute and Conditional Discharges

Discharges are outlined in section 730 of the Criminal Code:

• Discharges are available if the accused is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years of imprisonment or more.
• A discharge means that there has been a finding of guilt rather than a conviction. At the end of the discharge period, the accused has no criminal record.
• The discharge must be in the best interests of the accused and not be against the public interest.
• An absolute discharge means that the accused has no criminal record immediately upon being sentenced.
• A conditional discharge means that the accused is on probation, with certain conditions, for a period of time. If the accused follows the rules, at the end of the probation period they are treated as if there were no conviction and will not have a criminal record.
• An absolute discharge is granted immediately without terms or conditions, whereas the effect of a conditional discharge is that the accused is on probation for a period of time. This can involve a number of various conditions by which the accused must abide. If the accused successfully completes the period of probation with no breaches or further criminal offences, the conviction is discharged, and the offender can say they have no prior convictions. It is important to note however that an absolute or conditional discharge still requires a finding of guilt.
• Both an absolute discharge and a conditional discharge (as well as the probation order that accompanies it) will be visible on some background checks, including vulnerable sector checks, for several months after they are entered into/the probation order ends. However, the guilty party still does not have a criminal record.

NOTE: Each of the sentences listed below results in a conviction and a criminal record.

2. Suspended Sentences and Probation

If the judge believes, having regard to the age, character, and personal circumstances of the individual, that the accused can rehabilitate themselves, the judge can suspend the passing of sentence and release the accused subject to the terms of a probation order of up to three years (Criminal Code, s 731(1)(a)). This does not mean that the accused has been acquitted; the accused will have a criminal record.

This sentence is only available if the accused is not subject to a minimum penalty. 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. An order for a suspended sentence means that the courts suspend the passing of a sentence for the duration of the probation period. If a person breaches the conditions of a suspended sentence the court may extend the length of the probation period or (in rare cases) revoke the suspension of sentence and substitute a jail sentence for the suspended sentence. In addition, the breach is a new criminal offence, and the accused may be charged with a breach of the probation conditions.

3. Fines

Under section 734 of the Criminal Code, an accused may be fined in addition to, or in lieu of, another punishment for offences punishable by imprisonment of five years or less for which there is no minimum penalty.

A fine can be ordered on its own or in addition to probation or imprisonment (but not both). An accused may be fined up to $5,000 for summary conviction offences (or a hybrid offence wheretheCrownelectstoproceedsummarily),or any amount for indictable offences. Before a court imposes a fine, it must inquire into the ability of the accused to pay the fine.

4. Restitution and Compensation

Restitution orders can be made as “stand-alone” orders imposed as an additional sentence (s 738 of the Criminal Code) or as a condition of probation or conditional sentence order by the court. The restitution can be ordered for the cost of repairing any property damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim that required the victim to incur out of pocket expenses or resulted in a loss of income.

5. Conditional Sentence Order (CSO)

This is a jail sentence and occurs when a court orders the accused to serve their jail sentence in the community. It is not available 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 in a probation order; however, a curfew is almost always imposed. An accused that breaches any of their conditions or commits a new crime may be ordered to complete the remaining portion of the CSO in prison.

6. Imprisonment (Jail)

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 two years less a day; 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 available 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 their sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve their sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years less a day of imprisonment, but has served one year in jail, while awaiting their trial, will be sent to a provincial penitentiary. If the jail sentence is provincial, a sentence of probation of up to 3 years can be added. If the jail sentence is federal, the court cannot add a probationary order to that sentence.

If a judge imposes a sentence not exceeding 90 days, they 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.

G. Matters Ancillary to Sentencing

1. DNA Data Bank

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 court may also consider the criminal record of the offender, the nature of the offence, and the circumstances surrounding its commission. The court may also, at its discretion, make a DNA order upon conviction or discharge of a “secondary designated offence” – such as assault (s 265) – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analyzed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used for many different types of crimes ranging from violent crimes to fraud involving impersonation.

2. Victim Fine Surcharge

A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.

In R v Boudreault, 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the Criminal Code, which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the Charter and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the Charter and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay.

The current section 737 of the Criminal Code re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge in the event that it would cause undue hardship on the offender, or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. Where the surcharge is waived, the court must provide reasons for doing so.

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