Mr. Welsh has practised criminal law for three decades. He has been both a defence lawyer and prosecutor and acted in cases ranging from first degree murder to traffic tickets. With his thorough knowledge of criminal law, he has written for other lawyers on the subject. His latest article, published in 2010, deals with the amount of credit toward a jail sentence a court will give a person who does not make bail and is detained in jail pending trial. The criminal defence article can be downloaded here.
The vast majority of criminal cases are dealt with in the BC Provincial Court which has judges across the province. Provincial court judges sit without a jury.
In Canada, if the crime charged is quite serious (called an "Indictable Offence" in Canada and akin to the U.S. "Felony"), the accused person usually has a right to have a trial before a Judge alone, or to have it heard before a "Judge and Jury." In a "Judge and Jury" trial, the judge makes the legal decisions, and the jury acts as the judge or trier of the facts. In British Columbia, this level of court is known as the BC Supreme Court.
However, the bulk of offences that people are charge with are known as "Summary Offences" (akin to U.S. "Misdemeanors") and typically contain maximum punishments of six months imprisonment and $2,000 in fines.
Both the accused person and prosecution (the “Crown”) may be able to appeal verdicts or judgments. These appeals can be heard, depending on the circumstances, by the BC Supreme Court, and the BC Court of Appeal. Further appeals can be made in rare circumstances to the Supreme Court of Canada, which sits in Ottawa.
When you are accused of an offence, the police will generally have done an investigation and will have charged you. You will most often be given notice of a date to appear in court to answer the charges (an “Appearance Notice” or “Summons”). The police officer may also put you on a form of bail (an “Undertaking”). However, depending on the seriousness of the charge or other factors such as your criminal record, the police may decide to hold you in jail following your arrest and to have you brought before a judge for a bail hearing (called a “Show Cause Hearing”). You are entitled to a lawyer at that hearing and if you do not have one the court will appoint a duty counsel to assist you. The judge will either detain you in jail until your trial or sentencing or release you on certain conditions in an “Undertaking to the Court” or on a “Recognizance”. The Recognizance may or may not require you to post money for your release or obtain a person to act as your “Surety” (to agree to potentially be liable for a set amount of money if you breach your Recognizance).
While the police investigate and arrest and recommend charges, a prosecutor ultimately decides if the charges will be approved. If the prosecutor decides they will not, that is the end of the matter. If the prosecutor approves them, then on your first appearance date you are entitled to receive all documents and information accumulated by the police in their investigation, including all witness statements, photographs, documents, and a narrative statement of the investigation. The court will give you time to retain a lawyer and get legal advice once you receive this disclosure and on the first appearance date will adjourn your case for a couple or even several weeks to allow this. However, you should retain a lawyer as soon as you are charged as the earlier the lawyer is involved, the more he/she can do for you.
When the police arrest or detain you they will often seek a statement from you about the circumstances and the police are very skilled at getting people to talk. However, anything you say can be used as evidence against you in the case, so you should NEVER talk with the police about what happened until you have spoken with a lawyer and the lawyer has told you to talk or give a statement. Usually this will be in circumstances where your lawyer assists you to draft up a statement. OTHERWISE NEVER SPEAK WITH THE POLICE ABOUT WHAT HAPPENED.
The police are legally obliged when you are arrested to tell you the reason for that arrest, that you do not have to talk and that anything you say can be used against you in the case and that you have the right to talk with a lawyer of your choice at the earliest opportunity. This is usually by phone. They must also advise you of how to contact a lawyer if you do not know, including giving you a phone book or list of local criminal lawyers or given you access to legal aid duty counsel if that is your preference. Legal aid duty counsel is available on the phone 24 hours per day. They are not allowed to question you until you have had a proper chance to speak to a lawyer.
Once you retain a lawyer, he/she will advise you of any potential defences, of the options available to you, of the potential penalties you face and of the legal process. Depending on the circumstances, the lawyer may defend you in a trial, or may discuss with the prosecutor terms of a potential disposition of the charges and speak to sentence on your behalf. Ultimately the decision as to how to deal with the charges is yours with the lawyer’s help and advice.
The decision you make is very important as it can affect the rest of your life. Even if you wish to plead guilty, it is possible to avoid a criminal record. A criminal record of any kind can remove or restrict your right to travel outside Canada (particularly to the United States) and it can affect your ability to secure future employment opportunities and may even jeopardize your current employment.