Court Process

This is a basic summary of the procedure for criminal cases in the Provincial Court of British Columbia in the Greater Vancouver Area. It is meant to be a guide for someone charged with a criminal offence for the first time and explains what that person may expect as the case moves through the court system from initial appearance to final disposition.

The charge

A person alleged to have committed a criminal offence may be served with a document directing an appearance before the court. In circumstances where a person has not been arrested and taken into custody by the police, he or she will receive a summons or an appearance notice.

If the person has been arrested and taken into custody, he or she may be released prior to an actual court appearance by means of a promise to appear, or by a recognizance. The person may also be required to provide an undertaking to abide by certain conditions before release. Examples of some of the more common conditions are remaining within the jurisdiction of the court, reporting to a bail supervisor, abstaining from contacting a named individual, etc.

Each of the documents referred to above will set out the intended charge as well as the location, date and time of the initial court appearance. They may also direct an attendance pursuant to the Identification of Criminals Act for fingerprinting and photographs prior to the initial court appearance. They will also set out the consequences of failing to appear for court or fingerprinting. If a person fails to attend as directed, a warrant could be issued for that person’s arrest to bring him or her before the court. There is also provision in the Criminal Code for the person to be charged with a separate offence of failing to appear.

Of course there are circumstances where an individual arrested and detained by the police will not be released prior to an actual court appearance before a judge, who will make a decision on release and if release is granted, whether there will be conditions attached to the release. Some of the factors that could lead to a person having to appear before a judge to seek his release would be if he or she was facing a serious criminal charge, had a criminal record, had failed to appear in court on a prior occasion, had breached previous bail conditions, was resident outside of the jurisdiction, etc.

Initial Appearance in Court

A person charged with a criminal offence will usually consult a criminal defence lawyer for advice prior to the first court appearance. If the accused person attends court without a lawyer, he or she will usually be provided with “disclosure” at this appearance which consists of documentation including a police report setting out the particulars of the charge. Usually there will also be a document setting out the position of the prosecution on sentence in the event of an early guilty plea. The judge or justice of the peace will inquire whether the person charged wishes to consult a lawyer if the individual has not already done so, and the case will be adjourned for a few weeks for this purpose.

The accused will discuss the disclosure documentation with a criminal defence lawyer who will then usually be in a position to offer advice on the different options available to the individual. During this meeting the lawyer will usually be in a position to provide the person with information regarding the cost of legal representation.

Although the lawyer may provide an initial consultation free of charge or for a nominal fee, he will usually require a retainer (partial payment of his fee) prior to attending court for the client. Lawyers generally charge fixed fees for criminal matters with complex cases being more expensive than routine matters.

One of the many advantages of hiring a criminal defence lawyer at an early stage is that the lawyer can make routine court appearances (including the initial court appearance) for the client without the client having to attend until the final disposition of the matter.

Arraignment

Usually the next court appearance will be an arraignment hearing. However, many times the initial document disclosure is incomplete and the arraignment hearing must be adjourned pending further disclosure so that the lawyer can properly assess the case and advise the Client. At the arraignment hearing, it will be determined if the accused intends to plead guilty to the offence or whether there will be a trial. If the matter is to proceed to trial, it will be necessary to discuss other matters, the most important of which is the time estimate for the trial so that sufficient court time can be set aside.

For certain charges there is the option to have the trial in Supreme Court instead of Provincial Court.  In these circumstances, the judge or justice of the peace at the arraignment hearing will  request an election from the accused as to the mode of trial. If the trial is to be in Supreme Court, a preliminary inquiry will take place in Provincial Court  in order to determine if there is sufficient evidence for the accused to actually stand trial.

At the conclusion of the arraignment hearing, a date will be scheduled by a judicial case manager for the trial or preliminary inquiry.

Preliminary Inquiry

The prosecution will call witnesses during a preliminary inquiry and a judge will determine whether there is sufficient evidence to commit the accused to trial in Supreme Court before a judge alone or with a jury.  The test for committal is a low threshold of probable guilt, or whether a properly instructed jury could reasonably convict the accused.  Issues of credibility of the witnesses are not an issue in the preliminary inquiry as this is an issue for determination at trial.  It is unusual for an accused to be discharged at a preliminary inquiry.

The benefit of this proceeding is the ability of defence counsel to cross examine the prosecution witnesses to determine if there are any weaknesses in the evidence presented and to lay the ground work for any defences at trial.  A criminal lawyer is in a better position after a preliminary inquiry to advise an accused as to the likelihood of success at trial.

Trial

Many if not most charges are resolved prior to trial as a result of consultations between the prosecution and defence counsel.  An experienced criminal defence lawyer will know the chances of success at trial after receiving full disclosure of the prosecution’s case, and interviewing witness or examining them at a preliminary inquiry.

If a conviction at trial is likely, the lawyer can attempt to negotiate a “plea bargain” in which the client enters a guilty plea to a lesser charge and/or the prosecution agrees to a lesser penalty.

If there is a weakness in the case against the Client, an experienced criminal lawyer may be able to persuade the prosecution not to proceed further with the case.  If that is not possible the matter will to proceed to trial.

At trial the onus is on the prosecution to prove the case against the accused beyond a reasonable doubt.  At the conclusion of the prosecution’s case, the lawyer for the accused will have the option of arguing the insufficiency of the evidence against his client, or of calling his Client as a witness to establish a reasonable doubt.

If the court finds that there is a reasonable doubt as to the guilt of the client, the case is dismissed and that concludes the matter.  If the client is found guilty the next step in the proceedings is sentencing.

For most offences there are many options available to a judge in sentencing an individual ranging from a discharge (which does not result in a criminal record) to incarceration.  The appropriate sentence will depend not only on the type of crime committed, but on the background of the offender and the circumstances of the offence.  Defence counsel will put before the court those facts most beneficial to his client to obtain the best result possible.

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