Criminal Process in British Columbia
From the moment you’re arrested to the point of realization of the potential consequences ahead, the criminal process can seem frightening and overwhelming. Our law office is dedicated to working with clients charged with offences under the Criminal Code of Canada. Alexander Ejsmont has helped hundreds of individuals and their families with their charges – with no case too small or too big. We fight for clients with everything from shoplifting to dangerous violent offences, with an exceptional record of success, and offer free consultations to people charged in British Columbia.
Stage One: The Complaint & Police Investigation
An investigation into an allegation of criminal conduct starts with a “complaint.” This complaint can be from a victim or an independent witness. Once the police investigate the complaint, they determine if there are “reasonable grounds” to lay a criminal charge. In the course of the investigation, and even following an arrest, the police may interview witnesses, obtain statements, and strengthen their case without charging a person for a significant amount of time. Fraud and white-collar cases are usually investigated for a significant period of time before a charge is laid, whereas the investigation phase for both domestic and non-domestic assault can be a matter of minutes.
Stage Two: Arrest & Forms of Release – Bail Hearing, Promise to Appear, Appearance Notice
Once the police determine that there are grounds to arrest a person, they locate the person and lay a charge.
If the Police decide to release you:
If you are released from the police station following a criminal charge, you will be given a piece of paper with the date, time, and location of your upcoming court appearance. This release is most commonly done on a “Promise to Appear.”
If you do not attend court on the specified date, you may be faced with an additional charge – that of failing to appear for court. However, if you hire a lawyer before your first appearance and sign a designation for your lawyer to appear on your behalf, you will not have to attend court for most appearance dates. Based on the nature of the charge you are facing, you may also be given several conditions, which may include staying away from the complainant, not possessing any weapons, not consuming any drugs or alcohol, or not attending within a certain distance from a specified location.
It is vital to your defence that you do not break any of these conditions, as even the most simple breach will result in the laying of additional criminal charges.
If the Police decide to hold you:
Most times following your arrest, the Police will inform you that you will be held for a “show cause” or a “bail hearing.” Essentially this means that the Police are going to leave it up to the Court to determine, based on the arguments of the Crown Prosecutor and your lawyer, whether or not you should be released before trial. For your bail hearing, you will likely be brought to court in handcuffs from the police station.
The importance of preparation for a bail hearing cannot be overstated.
If your are denied bail, you will either have to wait for your trial while in jail, or apply for a bail review. In the hours before your bail hearing, it is up to your lawyer to prepare for your hearing by meeting with people, either friends or family members, who agree to supervise you during the time up until your matter is resolved. These friends or family members who agree to supervise you are referred to as “sureties”, and you can have either one or several people agree to act as your surety.
In addition to agreeing to supervise you, your surety will often “pledge” a certain amount of money for your release. This does not mean that, in most cases, they will need to bring the money to court. Rather, they must show that they have the financial means to pay the amount that they have pledged should you fail to attend court or breach any of the conditions of your release. Your surety should, at the least, be of good character – it is preferable that they not have a criminal record, be able to supervise you in the manner agreed to by the court, and be able to show that they have a certain amount of money (usually through bank statements) to pledge to the Court as security for their promise.
Stage Three: The Initial Court Appearance – Particulars & Charge Screening
Whether released or in custody, you will have a court appearance scheduled either several days or weeks following your arrest. The most important and common concern clients should understand is that your first appearance in court is not a trial. Witnesses will not be called and you will not be found “guilty” or “not guilty,” unless you choose to plead guilty that day.
The purpose of the initial appearance after your release or bail hearing is, for the most part, procedural. At the initial appearance your name will be called and either you or your lawyer will stand up before the Judge to pick up a package of documents summarizing the case against you. These documents are referred to as the “Particulars” and often contain the following:
- Police notes
- Statements from witnesses
- Copies of DVD or video statements given by you or witnesses at the police station
What do I do with my Particulars?
If you have hired a lawyer before your first appearance, your lawyer will attend court and pick-up the particulars of your case for you. If you have not hired a lawyer, this is the important stage where finding the right lawyer to represent you is crucial. You will meet with your lawyer at his or her office and review your case with them.
Your lawyer will then be able to assess the strengths and weaknesses of your case, explain whether any of your constitutional rights were violated, and whether there are any defences available to you.
Stage Four: Case Management & Negotiation
After reviewing your case with you, your lawyer will be able to give you a good sense of the strengths and weaknesses of the Crown’s case against you. Often, your lawyer may ask the Crown, by writing a letter, to provide additional disclosure in situations where the information provided is incomplete, and where additional information is available. The Crown has an obligation under law to provide all relevant materials in their possession — for example, if there is a videotape of an incident that may be relevant to your defence, the Crown must produce that videotape so long as it’s relevant — even if it’s not particularly helpful to the prosecution’s side. Once your lawyer has had an opportunity to review your case, research case law, and speak with potential witnesses, he or she will then schedule a meeting with the Crown attorney.
Your lawyer will then meet with the Crown attorney and, in most situations, attempt to point out the weaknesses of the Crown’s case against you. These resolution meetings are crucial and often determine whether or not the Crown will choose to proceed with the charges against you, or in very rare circumstances, withdraw the charges for no reasonable prospect of conviction. Many of the topics that are covered during these meetings include:
- The possible length of a trial
- Potential violations of your constitutional rights
- The sentence the Crown is seeking for a guilty plea
- The possibility of changing some of your release conditions
- The names of witnesses who will be required for trial
Stage Five: The Plea, Trial, Withdrawal
Once your lawyer has had a chance to review the case and speak to the Crown attorney, there may be in some cases an opportunity to have your charges dropped or withdrawn. In other situations, you could choose to plead guilty or set a trial date. The consequences of a guilty plea could be significant in some cases, while in others it could be a strategic choice to obtain the benefit of remorse as a mitigating factor. Every case and every situation is different and your criminal defence lawyer should equip you with the knowledge to take the best possible course of action in your particular case.