Experienced Criminal Defence Lawyer in Courtenay

At A. W. McGarvey Law Offices, our goal is to provide you with the highest level of personal service to obtain the best possible result in your case. We walk you through each and every process of a criminal proceeding and explain the process and the progress of your case. We are at your side at all times. We speak very plain English, not “legalese”, and you will have no doubt as to exactly where you stand in your criminal case. While based at Courtenay, we provide legal assistance for our clients from Victoria to Port Hardy, including every city and Courthouse on Vancouver Island and Powell River.

Our team provides criminal defence for all types of criminal charges and, particularly complex criminal cases of:

All sexual offences
Impaired driving
Drug offences
Theft
Domestic violence
Motor vehicle offences (criminal only)
Assault
Robbery
Fraud
Arson

We coordinate expert services such as: psychologists, psychiatrists, counsellors, licensed private investigators, medical experts, engineers, auto accident reconstruction experts and all treatment providers to provide you with the best defence to secure the best result possible.

Chronology of a Criminal Matter

The following describes the basic chronology of a criminal matter, including the event, complaint, report to Crown Counsel, charge approval, swearing of the information, the process for compelling attendance in court, court appearances, and resolution. The process is complex, and anyone facing criminal charges needs to understand his or her rights within the context of his or her particular circumstances. As with all of the information provided on our website, the following is not legal advice nor a substitute for legal advice. If you have questions or concerns related to a criminal charge, please contact a lawyer and get legal advice. What is important here is that you obtain legal advice from any lawyer available to you. We would be pleased and honoured if you elect to contact our office.

Road police with flashing lights stopped drunk driver. Young man drinking beer while drivi

Event

When one person causes harm, loss, or damage to another person or their property, there may be a basis for a criminal complaint.

Complaint

When an individual believes that a criminal event has taken place, that individual may report that event to the police. The person who makes the complaint is called the "complainant." The person complained about is called the "accused." The process to file a complaint is:

The complainant usually attends a police station to make the complaint by way of a statement.
The police officer asks questions, the complainant gives answers, and that interview is often audio-recorded and video-recorded, or sometimes simply recorded in the form of the police officer's notes.
A formal handwritten or typed statement is then prepared.

That statement is then read by the complainant, and the complainant signs the statement.

Traffic accident, motorcycle collision with a car on city street

Report to Crown Counsel

The police officer receives the complaint as set out above.If any further investigation is warranted, the police officer may contact other witnesses to obtain statements (to support the charge). The police may also attempt to locate and detain the accused (client) in the following manner:

The police officer may or may not attempt to arrest or “detain” to interview (interrogate) the accused in order to obtain a statement (confession) from him or her.
An accused should, therefore, always speak with a lawyer to obtain advice before answering any questions posed by any police officer. Any person should have a lawyer present, in person, with them, whenever speaking to a police officer in any investigation.
Any statement obtained from an accused will only be used against him or her by the police and the Crown in court at a later time. Many persons are convicted and may go to prison as a result of speaking to the police in this situation.

After gathering the evidence as set out above, the police officer writes a document entitled: Report to Crown Counsel. In that document, the police officer references all of his activities, such as seeking and obtaining statements.

The officer also recommends specific criminal charges to be laid against the accused based on the evidence that the police officer has gathered.

The officer then provides the report, along with copies of any statements obtained, to the office of the Crown Counsel for the purpose of having the proposed charge “approved” by the Crown prosecutor.

Lawyer Participation

Also, at this phase ("charge approval") a lawyer may make submissions to the police and to the Crown as to why a criminal charge should not be approved against the accused. This can be a very important and effective service provided by a lawyer.

It offers the only chance for the accused to put forth their side of the story, their version of what happened,and to assemble and provide any favourable facts for the prosecutor to consider in his or her decision to approve the charge. The submissions of the lawyer (unlike all acts or statements made by the accused) cannot be used against the accused at a later date.

Two business people shaking hand after business job interview in meeting room at office

Desperate handcuffed suspect listening to prosecution charge, punishment

Charge Approval

The Crown Counsel, or Crown Prosecutor, receives the Report to Crown Counsel. The RCMP report and the RCMP supporting statements are then considered by the Crown Counsel (as well as any submissions by the defence lawyer on behalf of the accused) to determine whether or not any criminal charges should be laid. The recommendations of the police officer are considered, and one or more of the RCMP proposed charges is usually approved by The Crown prosecutor, however, it is possible to sometimes stop a charge approval (or secure a significantly lesser charge) and our office has accomplished such results.

Crown Counsel must consider all of the information and apply a two-part test when approving charges:

That is, based on all of the information provided, if this matter was to be before a judge on that evidentiary basis, would a conviction be the most likely result? If the answer is yes, then the second point is considered.

The second point is whether or not the prosecution is in the public interest.
There may be circumstances where the prosecutor decides that a criminal charge should not proceed, even though the evidentiary basis is there.

These situations are extremely rare, but possible. Sometimes, that would involve the pursuit of the prosecution for an improper purpose by the complainant.

The discretion of whether or not to proceed with the criminal charge is within the appropriate powers of the Crown Counsel.

Swearing of the Information

Here is the procedure of how a criminal charge reaches the court:

After a prosecutor has approved the criminal charge, the “file”is referred back to the police.
A police officer then attends in front of a Justice of the Peace and swears a document called "Information." The information states that the evidentiary basis for a criminal charge exists.
The officer swears that he or she believes that the circumstances of the criminal event are the proper basis for a criminal charge.
The Justice of the Peace accepts the officer's sworn statement as described, and then, for the first time, a criminal charge comes into existence and is "before the court."

Client listening to a lawyer advising on an embezzlement case, explaining the details

Process for Compelling Attendance in Courts

After Information is sworn, an accused may be compelled to attend court by receiving a "Summons" document. The procedure is as follows:

A Summon is usually served personally on the accused by a police officer. In some circumstances, it may be left at his or her ordinary place of residence.

In the alternative, rather than receiving a Summons, an accused may be arrested by the police, either before or after an information is sworn, and the accused may be released from police custody by signing a document called a "Promise to Appear."
The purpose of the Promise of Appear is to compel the attendance of that person in court on a given date.
If the person is arrested, he or she may be released at the police station, or he or she may be compelled to appear in front of a Justice of the Peace or a Provincial Court Judge for a formal release pursuant to bail conditions.
Bail conditions usually impose some form of restrictions on the activity of the accused (report to bail supervisor, no contact with the complainant, no attending to any place where the complainant may be located - including being banned from your own home if it is an allegation of domestic violence, and restricted in such as: no alcohol, follow a curfew etc.). This may also require a deposit of cash or a promise to pay cash if the accused fails to attend court.

Court Appearances

Depending on the offence, there are various factors to consider before and after appearing in a court. Here are some:

All persons charged with a criminal offence in Canada are required to attend the Provincial Court for a "first appearance."
If the accused wishes to plead guilty or not guilty to the charge alleged against him or her, that may be done at the first appearance or someday shortly thereafter on a "subsequent appearance."
It is best to wait until the Crown Counsel is able to disclose the evidence, known as the "particulars," before a plea is entered.
The Crown Counsel may provide the particulars at the first appearance, (or within 90 days). A plea (of nor guilty, or guilty) should not be entered until after the particulars are reviewed and legal advice has been obtained from a lawyer.

Therefore, most pleas of not guilty or guilty take place at a subsequent court appearance.

If a person wishes to enter a plea of "not guilty," then, in British Columbia, a number of pre-trial court appearances will be required prior to the appearance in court for the actual trial of the matter.
The pre-trial appearances address a variety of pre-trial concerns regarding various matters related to readiness and preparation to proceed with the trial. These matters relate in part to the schedule of the court, Crown Counsel, the accused, and his or her defence counsel if the accused elects to have a lawyer.

People accused of a less serious offence, known as a "summary" offence, have their matters concluded in Provincial Court.
People accused of a more serious offence, known as an "indictable" offence, may have the option of continuing their matter in Provincial Court through trial or, in some cases, having a "Preliminary Inquiry" in Provincial Court, and eventually having their trial in a higher court, called Supreme Court.
Trials by jury are only available to accused persons with more serious charges who elect to have their trial in Supreme Court and elect to have a jury attend.

Cinematic Close Up Footage of a Handcuffed Convict at a Law and Justice Court Trial

Police officer interrogating criminal in handcuffs at desk indoors

Resolution

Resolution of a criminal charge (once it has been “approved”) can take place in three primary ways:

First, an accused may plead guilty and obtain their sentence.
Second, an accused may plead not guilty and proceed with a trial of the matter, after which the Judge or jury will provide a verdict of "guilty" or "not guilty." If found "not guilty," the person is immediately released. If found guilty, a sentence will be imposed either immediately following the verdict or most likely at a subsequent court appearance.

The third way a criminal charge may be resolved is through a "plea bargain" between the lawyer for the accused and Crown Counsel. Some “plea bargains” result in less severe charges an/or less strict penalties.A plea bargain may also result in "alternative measures," which diverts the criminal charge out of the court system in exchange for such things as community service or other reparations to the complainant and/or community, performed by the accused.

A plea bargain most frequently involves a resolution by a guilty plea to an agreed less serious offence and an agreed less significant sentence or penalty.

A plea bargain within the court system may also result in a "joint submission" to the Judge regarding an agreed appropriate sentence following a guilty plea by the accused.

A Judge is not bound to follow a joint submission on sentence and may impose any sentence the Judge deems appropriate, either more severe or less severe in penalty (over 90% of “joint submissions” are accepted by the Judge)