LEGEND — NA= Not applicableL = LawyerLA = Legal assistant
ACTION TO BE CONSIDERED
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 August 1, 2015.
Amendments to the Criminal Code. Parliament made a significant number of changes to the Criminal Code, R.S.C. 1985, c. C-46, which came into effect in late 2014 and early 2015:
Restrictions on offenders.An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders), S.C. 2014, c. 21 (Bill C-489, 2014), came into force on September 19, 2014. The most significant change in these amendments is that no-contact orders with victims and witnesses are now mandatory for all conditional sentence orders (“CSOs”) and probation orders, unless the victim or witness consents or there are “exceptional circumstances”. The new provisions apply to all offences.
Offences related to prostitution. The Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25 (Bill C-36, 2014), which came into force on December 6, 2014, is Parliament’s response to Canada (Attorney General) v. Bedford, 2013 SCC 72, in which several CriminalCode offences relating to prostitution were declared unconstitutional. The Act represents a revised approach to the criminalization of prostitution-related conduct of various kinds and is designed to prevent the exploitation of prostitutes without, for the most part, criminalizing the conduct of prostitutes themselves. Prostitutes are now prohibited from communicating to sell their services only if they do so in public near schools, playgrounds, or daycare centres. Although advertising the sale of sexual services is prohibited, a person who advertises her or his own sexual services is immune from prosecution. The purchase of sexual services is an offence, and a number of mandatory minimum sentences apply to customers of prostitutes, depending on the circumstances. The consequential amendments to the Criminal Code include revised offences relating to procuring persons to become prostitutes, and receiving a material benefit from sexual services performed by prostitutes.
Provision of bodily substances. On March 31, 2015, the Response to the Supreme Court of Canada Decision in R. v. Shoker Act, S.C. 2011, c. 7, and accompanying regulations finally came into force (SI/2014-105). The legislation and regulations allow courts to include conditions on CSOs, probation orders, and recognizances under ss. 810, 810.01, 810.1, and 810.2 of the Criminal Code requiring an offender to provide bodily samples demanded by peace officers, probation officers, and other designated persons, in order to monitor and ensure compliance where an offender has been ordered by the court to abstain from consuming alcohol and/or drugs. The accompanying regulations, however, stipulate that a province’s Attorney General must give written notice to the Attorney General of Canada of the sampling regime and system to be used in that province before any sampling can occur. As of August 1, 2015, the Attorney General of British Columbia had not given such written notice of any such sampling system to be used in this province.
Aggravating factor to threaten or assault a public transit operator. An Act to amend the Criminal Code(assaults against public transit operators), S.C. 2015, c. 1, in force on February 25, 2015, adds s. 269.01 to the CriminalCode, creating a codified aggravating factor on sentencing for threatening or assaulting a public transit operator engaged in the performance of his or her duty. “Public transit operator” is defined to include operators of buses, paratransit vehicles, taxis, trains, subways, trains, trams, and ferries.
Non-consensual distribution of intimate images. The Protecting Canadians from Online Crime Act, S.C. 2014, c. 31 (Bill C-13, 2014) came into force on March 9, 2015. It creates a new offence of publishing or distributing an “intimate image” of another person without their consent. The legislation also modernizes the CriminalCode’s terminology to reflect modern forms of communication, allows judges to issue preservation orders and preservation demands for computer data, and amends a number of other Code provisions relating to other offences involving the use of computers.
Firearms offences. The Common Sense Firearms Licensing Act, S.C. 2015, c. 27 (Bill C-42, 2015) came into force on June 18, 2015. It amends various CriminalCode provisions relating to firearms, adding a subcategory of “non-restricted firearms” in s. 84(1), which applies to all firearms that are not prohibited or restricted, and strengthening the firearms prohibitions for offenders in domestic violence cases. Mandatory prohibitions under s. 109 now apply to all such cases of an indictable offence involving the actual, attempted, or threatened use of violence, and the available length of discretionary prohibitions for other domestic cases under s. 110 has been increased from 10 years to life.
Anti-terrorism Act. On June 18, 2015, the Anti-terrorism Act, 2015, S.C. 2015, c. 20 (Bill C-51, 2015) came into force. It amends several federal statutes relating to terrorism, national security, and intelligence. It amends the CriminalCode by creating a new offence, in s. 83.221, of advocating or promoting the commission of terrorist offences, and provides a new scheme allowing authorities to seize and/or destroy terrorist propaganda. Provisions relating to recognizances for persons who may commit future terrorist offences have also been expanded, as have the court’s powers in s. 486 to exclude the public from any criminal proceeding in order to protect a witness, or to allow a witness to testify from behind a screen. Under a new provision, s. 486.7, the court has a broad discretion to make “any order” necessary to protect the security of any witness. Orders may be made on the court’s own motion, or an application by the prosecutor or by the witness.
Sentences for assaults of police officers and protection of service animals. The Justice for Animals in Service Act (Quanto’s Law), S.C. 2015, c. 34 (Bill C-35, 2015) came into force on June 23, 2015. Section 270.03 requires that sentences for assaults on police officers be made consecutive to any other sentence for other offences arising from the same event or series of events. It also creates a new offence, in s. 445.01, of killing, maiming, or harming “law enforcement” animals. In most instances it would apply to trained police dogs, but the new offence also applies to military animals and trained and certified “service animals” required for assistance by a person with a disability.
Marriage-related offences. The Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29 (Bill S-7, 2015), came into force on July 17, 2015, amending several federal statutes including the CriminalCode. It creates a number of marriage-related offences, including forced and underage marriages, removing children from Canada for such unions, and celebrating, aiding, or solemnizing such marriages. The Act also provides a new definition of “provocation” in s. 232, applicable in homicide cases where an accused seeks to have murder reduced to manslaughter. The previous definition of “wrongful act or insult” has been replaced by a new requirement that a victim’s act of provocation must be conduct that would constitute an indictable offence under the Code punishable by five or more years’ imprisonment.
Victims Bill of Rights Act (Bill C-32, 2015) in force. The Victims Bill of Rights Act, S.C. 2015, c. 13, amending the CriminalCode and other federal statutes, came into force on July 22, 2015, except for ss. 45 to 51 (some of which came into force on July 23, 2015 by order of the Governor in Council). It provides a number of rights to victims regarding access to information, protection, participation, and restitution. Amendments to the Code include a number of changes to the procedure for disclosure of third-party records, accommodation of witnesses, plea agreements, and victim impact statements. The Code’s definition of “victim” has been broadened to include indirect victims who have “suffered … from the commission of an offence against any other person”. New provisions allow for publication bans on the identity of witnesses, and for courts to allow a support person for a witness to be in court close by the witness when he or she testifies. The general principles of sentencing in ss. 718 and 718.2 have also been amended to include additional language regarding the importance of protecting society and denouncing the harm done to victims and the community. When an accused pleads guilty, the court must ask the prosecutor if reasonable steps have been taken to inform the victim. There is now a standardized form, Form 34.2, for victim impact statements (“VIS”) for use in all of Canada. A sentencing court must ask the prosecutor if reasonable steps have been taken to provide a victim with the opportunity to complete a VIS, and an adjournment of sentencing may be granted to allow for the completion of a VIS. A new provision, s. 722.2 (replacing the former s. 722.2), allows for an individual other than the victim to complete a community impact statement on behalf of a community for a sentencing court to consider. Finally, the Canada Evidence Act, R.S.C. 1985, c. C-5, has been amended to permit the married spouse of an accused to testify for the prosecution in all cases. Although married spouses are now fully competent and compellable by the Crown, the spousal privilege in s. 4(3) of the Act remains in force, so a spouse may not be compelled to testify regarding any communications during the marriage between the witness and the accused.
Citizen’s Arrest and Self-defence Act. The changes to the Criminal Code provisions relating to self-defence under the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9, which came into force on March 11, 2013, raised a legal dilemma as to which provisions should apply to an alleged act occurring before March 11, 2013 but tried after that date. This dilemma had split courts in British Columbia and the rest of the country, but in R. v. Evans, 2015 BCCA 46, the court resolved the question by deciding the provisions in effect before March 11, 2013 should apply to incidents occurring before that date; the new provisions only apply prospectively to incidents occurring after they came into force.
Incorporation of voir dire evidence into trial. The court in R. v. Ahmed-Kadir, 2015 BCCA 346, recently reminded counsel and trial judges that at the end of a voir dire they must turn their minds to determining what evidence from the voir dire is admissible in the trial proper. Not all evidence in the voir dire will be properly admissible in the trial: “‘what is in’ and ‘what is out’ must be clearly stated on the record to avoid any later misunderstanding or misuse”.
Limits on the scope of a preliminary inquiry. In R. v. S. (M.P.), 2014 BCCA 338, the court held that a sexual assault complainant may not be cross-examined about past sexual history at a preliminary inquiry under the exception in s. 276(2) of the Code; the exception applies at trials only. Thus, the complainant can be cross-examined at the preliminary inquiry about only sexual activity that gave rise to the charges. (At the currency date of this checklist, this decision had not been published and was not available on the Court of Appeal’s website, as the trial had not yet completed.) In R. v. Cowan, 2015 BCSC 224, the court held the accused does not have the right to cross-examine police officers whose evidence relates solely to an anticipated Charter of Rights and Freedoms application to exclude evidence to be made later at trial; the preliminary inquiry judge may restrict evidence to that which relates solely to the commission of the offence.
Code of Professional Conduct for British Columbia (the “BC Code”). In July 2015, rule 3.7-9 of the BC Code was amended to require that a lawyer promptly notify the client, other counsel, and the court or tribunal of the lawyer’s withdrawal from a file. Rule 3.6-3, commentary  was amended in June 2015 regarding the duty of candour owed to clients respecting fees and other charges for which a client is billed.
Law Society Rules. On July 1, 2015, revised and consolidated Law Society Rules came into effect. For a redlined version of the draft renumbered rules, providing background information and a historical table showing the new and old numbers assigned to each rule, see www.lawsociety.bc.ca/docs/newsroom/
Articled students permitted to act as commissioners for taking affidavits. Effective September 1, 2015, articled students and temporary articled students will be prescribed as persons who are commissioners for taking affidavits in British Columbia (B.C. Reg. 142/2015, made pursuant to s. 60(l) of the Evidence Act, R.S.B.C. 1996, c. 124). Principals will need to ensure that students understand the effect of acting as commissioner, and remain responsible for students’ actions.
Additional resources. For further information on criminal law practice and procedure, see: Introducing Evidence at Trial: A British Columbia Handbook, 2nd ed., print and online (CLEBC, 2012); Canadian Criminal Jury Instructions, 4th ed., looseleaf (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).
1.1 Initial contact by the client or client’s representative:
.1 Confirm compliance with Law Society Rules 3-98 to 3-109 on client identification and verification, and complete the client identification and verification procedure (A-1) checklist. Gather additional information:
(i) Name, home address and telephone number, business address and telephone number (if any), occupation(s).
(ii) Relationship to the client.
(i) Full name and aliases, home address and telephone number, business address and telephone number (if any), occupation(s).