Practice Checklists Manual: Criminal Procedure Checklist
LAW SOCIETY OF BRITISH COLUMBIA CRIMINAL PROCEDURE
PRACTICE CHECKLISTS MANUAL
ACTION TO BE CONSIDERED / NA / L / LA / DATE DUE / DATE DONE /
INTRODUCTION
Purpose and currency of checklist. This checklist is designed to be used with the client identification and verification procedure (A-1) checklist. This is a general procedural checklist for use by defence counsel in criminal cases heard by a judge alone. It should also be used, where appropriate, with the checklists for judicial interim release procedure (C-2), sentencing procedure (C-3), and impaired/over-80 trial examination of witnesses (C-4). It does not include procedure for appeals. This checklist is current to September 1, 2017.
New developments:
· Amendments to Criminal Code regarding gender identity and expression. On June 19, 2017, An Act to amend the Human Rights Act and the Criminal Code, S.C. 2017, c. 13 came into force. The Act amends s. 318 of the Criminal Code, R.S.C. 1985, c. C-46, which prohibits hate propaganda against an identifiable group, to include gender identity or expression as a protected distinguishing characteristic. Further, under s. 718.2(a)(i), evidence that a crime was motivated by hatred on the basis of gender identity or expression will now be an aggravating factor in sentencing.
· Judicial stay of proceedings due to delay. In R. v. Cody, 2017 SCC 31, a unanimous court reaffirmed and clarified certain aspects of its landmark ruling in R. v. Jordan, 2016 SCC 27 and provided additional guidance on how to assess defence delay. Trial judges may consider defence conduct of a trial, particularly with respect to the timeliness of and adherence to notice and filing requirements for defence applications. A decision by the defence to take a step, as well as the manner in which it is conducted, may be scrutinized to determine whether the action was legitimately taken to respond to the charges. Inaction may also amount to defence conduct that is not legitimate. The court also emphasized the importance of a trial judge’s trial management power and encouraged trial judges to deny adjournment requests that would cause unacceptably long delays, to carefully screen both Crown and defence applications, and to summarily dismiss applications determined to be frivolous. The court also encouraged trial judges and counsel to continue to find ways to pursue applications more efficiently.
· Practice Directions
· Supreme Court CPD-2 and Provincial Court CRIM 11. In keeping with Jordan and Cody, the B.C. Supreme Court issued Practice Direction CPD-2 (effective June 6, 2017) and the Provincial Court issued CRIM 11 (effective June 28, 2017) relating to scheduling conflicts between the courts. The Practice Directions mirror each other in content and bring to an end the traditional practice of permitting counsel’s Supreme Court trial or continuation to automatically take precedence over a case in Provincial Court. Counsel are now obliged to address a number of factors when seeking an adjournment, including the nature, ages, and requirements of the respective proceedings.
· Supreme Court CPD-3, Complex Criminal Cases. Practice Direction CPD-3, effective September 1, 2017, provides a lengthy and detailed direction for complex criminal cases, applicable to all cases expected to take 60 or more court days, determined by the chief justice, associate chief justice, or designate to be unusually complex, or involving a direct indictment. Among other things, CPD-3 mandates regular case management conferences from the outset of proceedings and an application screening conference to permit the orderly and timely scheduling and hearing of voir dires and other pre-trial applications well in advance of trial.
· Provincial Court GEN 03. In all affidavits filed in Provincial Court, the jurat or certification must contain the typed, stamped, or legibly printed name of the counsel or commissioner before whom the affidavit was sworn.
· Code of Professional Conduct for British Columbia (“BC Code”)
· Introduction.An introduction was added in March 2017 based on the Federation of Law Societies’ Model Code of Professional Conduct. In determining their professional obligations, lawyers must consult the Federation’s Model Code in its entirety and be guided in their conduct equally by the language in the rules, commentary, and appendices. Mandatory statements have equal force wherever they appear in the Federation’s Model Code.
· Language rights.In March 2017, language rights provisions from the Federation’s Model Code were adapted for British Columbia (BC Code rules 3.2-2.1 and 3.2-2.2, including commentary). A lawyer must, when appropriate, advise a client of the client’s language rights, including the right to proceed in the official language of the client’s choice. A lawyer must not undertake a matter for a client unless the lawyer is competent to provide the required services in the official language of the client’s choice.
· Short-term summary legal services. In June and September 2016, the “limited representation” rules regarding pro bono services were rescinded and replaced with a set of “short-term summary legal services” rules. See BC Code rule 3.1-2, commentary [7.2], rules 3.4-11.1 to 3.4-11.4, and commentaries regarding conflicts and confidentiality.(Note that “short-term summary legal services” differ from “limited scope retainers” and that the rules for the latter are unchanged.) Compare the differences in terms as defined by the BC Code in rules 1.1-1 and 3.4-11.1, and more generally, 7.2-6.1.
· Amendment of transferring lawyer rules. In November 2016, the transferring lawyer rules were amended to more closely align with the Federation’s Model Code (see BC Code rule 3.3-7 and commentary and rules 3.4-17 to 3.4-26). Appendix D was rescinded.
· Incriminating physical evidence. Under new BC Code rule 5.1-2.1, added in December 2016, a lawyer must not counsel or participate in the concealment, destruction, or alteration of incriminating physical evidence so as to obstruct or attempt to obstruct the course of justice (see also commentaries [1] to [7]).
· Duty to sign court orders. Under March 2017 amendments to the BC Code, in the absence of a reasonable objection lawyers have a duty to promptly sign appropriately drafted court orders that have been granted or agreed to while the lawyer was counsel, notwithstanding a client’s subsequent instructions to the contrary or the lawyer’s discharge or withdrawal (see BC Code rule 3.7-9, commentary [6] and rule 5.1-2, commentary [5]).
· Affidavits, solemn declarations, and officer certifications. In June 2016 amendments, references to the Supreme Court Civil Rules, B.C. Reg. 168/2009 were updated (Appendix A, paragraph 1, commentaries [11], [16], and [20] of the BC Code).
· Table of contents.In June 2016 the table of contents was amended. The BC Code is published at www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia.
· Law Society Rules
· Reporting criminal charges to the Law Society.To prevent the risk of breaching undertakings of confidentiality to the Crown, lawyers are no longer required to disclose certain information when reporting criminal charges to the Law Society (Law Society Rule 3-97, January 2017 amendment).
· Providing contact information to the Law Society. In January 2017, the contact information that members must provide to the Law Society was expanded to include telephone numbers and email addresses (Law Society Rules 2-9, 2-10, and 2-11).
· Trust protection insurance. In April 2017, the Law Society Rules were amended to ensure compliance with s. 30 of the Legal Profession Act, S.B.C. 1998, c. 9, which requires lawyers to maintain trust protection insurance andprofessional liability insurance. Also, the language of the Rules was made consistent with that in the Act. See Law Society Rules 2-16(3) and (6), 2-19(3), 2-22(3), 2-32, 2-40(2), 2-49(1), 2-77(1), 2-79(1), 2-82(1), 2-117(1), 3-39 heading and (3), 3-39.1, 3-44(1) and (2), and 3-46(1) to (3) and (5).
· The Law Society Rules are published at www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules.
· Searches of lawyers’ electronic devices at borders. In response to the Law Society’s concerns about the searches of lawyers’ electronic devices by Canada Border Services Agency officers, the Minister of Public Safety advised that officers are instructed not to examine documents if they suspect they may be subject to privilege, if the documents are specifically marked with the assertion they are privileged, or if privilege is claimed by a lawyer with respect to the documents.View the Minister’s letter and Law Society’s response at www.lawsociety.bc.ca/our-initiatives/rule-of-law/issues-that-affect-the-rule-of-law. Lawyers are reminded to claim privilege where appropriate and to not disclose privileged information or the password to electronic devices containing privileged information without client consent or a court order.See also “Client Confidentiality—Think Twice before Taking Your Laptop or Smart Phone across Borders” in the Spring 2017 Benchers’ Bulletin.
· Fraud prevention.Lawyers should maintain an awareness of the myriad scams that target lawyers, including the bad cheque scam and fraudulent changes in payment instructions, and must be vigilant about the client identification and no-cash rules.See the “Fraud Prevention” page on the Law Society website at www.lawsociety.bc.ca/support-and-resources-for-lawyers/lawyers-insurance-fund/fraud-prevention.
Of note:
· Additional resources. For further information on criminal law practice and procedure, see: Introducing Evidence at Trial: A British Columbia Handbook, 2nd ed. (CLEBC, 2012); Canadian Criminal Jury Instructions, 4th ed. (CLEBC, 2005–); annual editions of the Annual Review of Law and Practice (CLEBC); Criminal Law: Special Issues (CLEBC, 2011); Search Warrants and Wiretap (CLEBC, 2010); and Controlled Drugs—2012 (CLEBC, 2012).
CONTENTS
1. Initial Matters
2. Bail Hearing
3. Initial Appearance, Election, and Fixing a Date
4. Preliminary Hearing
5. Preparation for Trial
6. Trial
7. Sentencing
8. Follow-up
CHECKLIST
1. INITIAL MATTERS
1.1 Initial contact by the client or client’s representative:
.1 Confirm compliance with Law Society Rules3-98 to 3-109 on client identification and verification, and complete the client identification and verification procedure (A-1) checklist. Gather additional information:
(a) Caller:
(i) Name, home address and telephone number, business address and telephone number (if any), occupation(s).
(ii) Relationship to the client.
(b) Client:
(i) Full name and aliases, home address and telephone number, business address and telephone number (if any), occupation(s).
(ii) Present location, including telephone number and number at which messages can be left.
(iii) Date of birth. (If the client was 12 to 17 years old at the time of the offence, refer also to the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”).)
(iv) Aboriginal status. Consider the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13. Section 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46 sets out factors a judge must consider when setting bail for, or sentencing, an Aboriginal person (youth or adult). Judges must take into account that Aboriginal offenders face special circumstances (e.g., residential schools, poverty in the communities, FASD), and should consider all options other than jail.
At different stages in the process, a Native court worker might be able to support the client or act as a useful liaison.
Further information on Aboriginal law issues is available on the “Aboriginal Law” page in the Practice Points section of the Continuing Legal Education Society of British Columbia website (www.cle.bc.ca) and in other CLEBC publications.
(c) Charge(s).
(d) Information number and police file number.
(e) Date, time, and location of next court appearance.
.2 Decide whether to accept the case, considering:
(a) The nature of the charge.
(b) Conflicts of interest (see Code of Professional Conduct for British Columbia (“BC Code”), s.3.4 and the model conflicts of interest checklist at www.lawsociety.bc.ca/docs/practice/resources/
checklist-conflicts.pdf).
(c) Your duty to provide legal services and your duties as an advocate. See BC Code, s.2.1 (especially rules2.1-1(c) and 2.1-3(e) and
(f)), and Chapter 5 (Relationship to the Administration of Justice—The Lawyer as Advocate), as well as rule 6.3-5, stipulating that a lawyer must not discriminate against any person.
(d) Human rights laws (see BC Code rule 6.3-5).
(e) The complexity of the case and your experience in that area of law. See BC Code, s.3.1 (Competence) and s.3.2 (Quality of Service).
(f) Amount of the fee and whether it will be paid; and whether the client is eligible for legal aid (see BC Code, s. 3.6 regarding fees and disbursements).
(g) If the client is ineligible for legal aid, whether it is an appropriate case for a Rowbotham application.
.3 If you do not wish to act:
(a) Advise the caller and, if the caller does not know how to find other counsel, suggest names, Lawyer Referral, or legal aid.
(b) Make a record of the advice given, and file your notes. Consider sending a non-engagement letter (for samples, see the Law Society website at www.lawsociety.bc.ca/Website/media/Shared/docs/ practice/resources/Ltrs-NonEngagement.pdf).
.4 If you agree to act:
(a) Advise the caller and client of the scope and amount of your retainer, and whether it must be paid in advance. (Note Law Society Rules 3-59 and 3-70 regarding cash transactions, and BC Code, s. 3.6 regarding fees and disbursements.) Follow up in writing. (See item1.9.2.)
(b) If you will be providing a limited scope of legal services, ensure that the client understands the limited scope of the retainer and the risks associated with the limits on the services you will provide. BC Code rule 3.2-1.1 requires that, before undertaking a “limited scope retainer” (a defined term in rule 1.1-1), you must advise the client about the nature, extent, and scope of the services you can provide and must confirm in writing as soon as practicable what services will be provided. Also be aware of the obligations in BC Code rules 3.1-2, 7.2-6, and 7.2-6.1. Note that rule 3.2-1.1 regarding “limited scope retainers” does not apply to situations in which you are providing summary advice, for example, over a telephone hotline or as duty counsel, or to an initial consultation that may result in the client retaining you. If you are providing “short-term summary legal services” (not the same as a “limited scope retainer”) under the auspices of a not-for-profit organization with the expectation by you and the client that you will not provide continuing representation in the matter, note BC Code rules 3.4-11.1 to 3.4-11.4 and commentaries regarding conflicts and confidentiality. See “Limited Scope Retainer FAQs” in the Fall 2017 Benchers’ Bulletin for more information.
(c) Promptly disclose, to the court and to those concerned, the scope of any limited retainer, if failure to disclose would be misleading. See BC Code rule 3.2-1.1, commentaries [2] to [4], rule 7.2-6, and rule 7.2-6.1.