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Defending Yourself
April2
01
3
Possession of
After you’ve been charged: A step-by-step chart
The flowchart under this flap shows how you can get help after you’ve been charged with a crime, including the free legal aid publications to help you at each stage.
Get these publications as soon as you can and read them before you go to court. Ask for them at the same place where you got this one or at any legal aid office. You can also read these and other legal aid publications
From your criminal charge to your trial
Apply for a
legal aid
lawyer
If accepted
If Aboriginal,
learn about
Gladue rights
If not
accepted
Decide on
your plea
court to make
Appear in
your plea
Get sentence
or date to
return to court
Guilty?
Not guilty?
Get notice
of the charge
LSS publications to help you
April 2013
• Give this information in a way that lets the judge b
e sympathetic toward you and your situation. • You sho
uld include the following things (check off the ones th
at apply to you): your age your income your education your job (or, if you d
on’t have a job, why you aren’t working) your kids (how many and what ages) your health your spouse other peo
ple you live with other people you support why you committed the crime why you won’t do it again how you feel about what you did to the victim (for examp
le, if you’re sorry and if you
understand how you hurt the victim)whether you’re living in poverty whether y
ou have any disabilities any addictions you h
ave to alcohol or drugs
any treatment you’re g etting for these addictions whether you grew up in a home where there were addictio
ns, abuse, or neglect any other problems y
ou have and help you need for them whether y
ou’re an Aboriginal person (see the section “Are you Aboriginal?” for more information) whether you’re a new immigrant or refugee whether English is y
our second language anything else you think the ju
dge should know to h
elp your position
Fines
• If the ju dge fines you at your sentencing hearing, you can ask for more time to pay. If you a
sk for additional time to pay, you will need to let the judge know why you need a
dditional time (for example, you’re on a limited income or have seasonal employment). • The
victim surcharge fine is 15 percent of your fin
e. If you’re not fined, the surcharge is $50 for a su
mmary offence, $100 for an indictab
le offence or more if the judge orders a higher amount.
• You can ask the judge to excuse you from h
aving to pay the victim surcharge fine. The judge can decide that you don’t have t
o pay the surcharge o
nly if he or she is satisfied that paying it would c
ause you or your dependants undue hardship.
Questions
• If you don’t unde rstand something, ask the judge to explain i
t. You may not get another chance. • If you realize late
r on that you can’t pay your court fine on time, get the legal aid brochure called
If You Can’t Pay Your Court Fine on Time (see blow).
How to get legal aid publications
You can get
If You Can’t Pay Your Court Fine on Time
and other publications from your local legal aid office or online.
Read online:
www.legalaid.bc.ca/ publications
Order online:www.crownpub.bc.ca
(Under Quick Links, click Legal Services Society.)
Speaking to
the Judge
Before You Are
Sentenced
Ju
ly 2
011
If you’re charged with a crime and you plead guilty or a judge finds you guilty, you will get a chance to speak before the judge decides your sentence. This is called speaking to sentence. This booklet helps you prepare to speak to sentence.
February 2011
Criminal Fact Sheet Series
NO
TE
If you self-identify as Aboriginal (meaning if you think of yourself as Aboriginal), you have rights under the Criminal Code, often called Gladue rights. These rights apply to all Aboriginal people, whether you’re status or non-status Indian, First Nations, Métis, or Inuit, and whether you live on or off reser
ve. In addition to your Gladue rights, you may be able to have your bail or sentencing hearing in the First Nations Court of BC in New W
estminster.
Are you Aboriginal?
Do you have a bail hearing? Are you being sentenced for a crime? Do you know about First Nations Court?
Will Gladue keep me out of jail?
Gladue does not automatically mean you won’ t get jail time. However, your sentence could involve participating in a program that would help you to address the issues that got you into trouble with the law in the first place. This is called a community sentence
. A community sentence might involve participating in drug rehabilitation or counselling. If you do a community sentence, you may get less or no time in jail. However, the judge may have no choice but to send you to jail. If this is the case, the judge must still apply Gladue when deciding how long your jail sentence will be.
What is a Gladue report?
In order to apply Gladue, the judge needs to understand your circumstances and to know what kinds of community sentences are available. T
o help the judge, your lawyer needs to provide the court with a Gladue report. A Gladue report gives the judge, the Crown counsel (the government lawyer), and your lawyer as much information as possible about you. The other side of this fact sheet has some questions that can help you and your lawyer get started on preparing your Gladue report.
What is Gladue?
In 1999, an Aboriginal woman named Jamie Gladue had her case heard by the Supreme Court of Canada. As a result of this case, the court said that there are too many Aboriginal people being sent to jail. The court also said that Aboriginal people face racism in Canada and in the justice system. Now the word Gladue refers to the special consideration that judges must give an Aboriginal person when sentencing or setting bail. When your lawyer informs the court of your Gladue rights, the judge must keep in mind that Aboriginal offenders face special cir
cumstances. When the judge is sentencing you, he or she must consider alloptions other than jail.
Note: It’s your right to have Gladue applied to your case. Your lawyer should do everything possible to make sure your Gladue rights are respected. More information on Gladue is available in the Gladue Primer (see www.legalaid.bc.ca/publications), or from the booklet Are You Aboriginal? (see www.cleonet.ca). If you don’
t have a lawyer, the judge must still apply Gladue.
Contact legal aid immediat ely to find out if you qualify for a free lawyer.
Legal aid:
604-408-2172 (Great er Vancouver) 1-866-577-2525 (call no charge, elsewhere in BC)
www.legalaid.bc.ca British Columbia
Continued over
Speaking to the Judge Before You Are Sentenced
Are You Aboriginal? If You Are Charged
with a Crime
If You Can’t Get a Lawyer for Your Criminal Trial
Representing Yourself in a Criminal Trial Theft under $5,000 Defending Yourse lfAugu st 2 012 D ef en d in g y ou rse lf D ef end ing yo u rs elf Def end in g y ou rse lf D e fen din g y o u rse lf
Defending Yourself series or
What to Do If You Are Charged series
Apply for a
court-appointed lawyer
Complicated case?
Lawyer
referral
service
Duty counsel
for legal
advice
Law clinic
for legal
advice
Native
court-
workers
© 2013 Legal Services Society, BC First edition: April 2013
ISSN: 2291-6865 (Print) ISSN: 2291-6873 (Online) Acknowledgements Editor: Judy Clarke
Designers: Gillian Boyd and Danette Byatt Illustrations: Gillian Boyd
Legal reviewer: Michelle Poulsen Development coordinator: Alex Peel
Thank you to the many field testers who contributed to this booklet series.
Defending Yourself: Possession of an Illegal Drug replaces
the LSS booklet What to Do If You Are Charged with
Possession of an Illegal Drug.
This booklet may not be commercially reproduced, but copying for other purposes, with credit, is encouraged.
Defending Yourself: Possession of an Illegal Drug is a publication of the Legal Services Society (LSS), an independent organization that provides legal aid to British Columbians. LSS is funded primarily by the provincial government and also receives grants from the Law Foundation and the Notary Foundation. This booklet explains the law in general. It isn’t intended to give you legal advice on your particular problem. Because each person’s case is different, you may need to get legal help. The information in this booklet is up to date as of April 2013.
Defending Yourself:
Possession of an Illegal Drug
p1
Introduction
p1
What is possession of an
illegal drug?
p1
Could I go to jail?
p4
Before the trial
p4
Preparing your defence
p7
At the trial
p7
What must the prosecutor prove?
p10
Presenting your case
p11
What if the judge finds me guilty?
p13
Checklist: How well did the
prosecutor do?
If you’re Aboriginal, you have certain rights under the Criminal
Code, often called Gladue rights. These rights apply to all
Aboriginal people: status or non-status Indians, First Nations,
Métis, or Inuit. They also apply whether you live on or off
reserve. For more information, ask for the LSS fact sheet
Are You Aboriginal? at the
same place where you got this publication. Or go to the LSS website at www.legalaid.bc.ca/aboriginal for publications and other legal information for Aboriginal people.
Are you Aboriginal?
February 2011
Criminal Fact Sheet Series
NO
TE
If you self-identify as Aboriginal (meaning if you think of yourself as Aboriginal), you have rights under the Criminal Code, often called Gladue rights. These rights apply to all Aboriginal people, whether you’re status or non-status Indian, First Nations, Métis, or Inuit, and whether you live on or off reser
ve. In addition to your Gladue rights, you may be able to have your bail or sentencing hearing in the First Nations Court of BC in New W
estminster.
Are you Aboriginal?
Do you have a bail hearing? Are you being sentenced for a crime? Do you know about First Nations Cour t?
Will Gladue keep me out of jail?
Gladue does not automatically mean you won’ t
get jail time. However , your sentence could involve participating in a program that would help you to address the issues that got you into trouble with the law in the first place. This is called a community sentence
. A community sentence might involve participating in drug rehabilitation or counselling. If you do a community sentence, you may get less or no time in jail. However, the judge may have no choice but to send you to jail. If this is the case, the judge must still apply Gladue when deciding how long your jail sentence will be.
What is a Gladue report?
In order to apply Gladue, the judge needs to understand your circumstances and to know what kinds of community sentences are available. T
o
help the judge, your lawyer needs to provide the court with a Gladue report. A Gladue report gives the judge, the Crown counsel (the government lawyer), and your lawyer as much information as possible about you. The other side of this fact sheet has some questions that can help you and your lawyer get started on preparing your Gladue report.
What is Gladue?
In 1999, an Aboriginal woman named Jamie Gladue had her case heard by the Supreme Court of Canada. As a result of this case, the court said that there are too many Aboriginal people being sent to jail. The court also said that Aboriginal people face racism in Canada and in the justice system.
Now the word Gladue refers to the special consideration that judges must give an Aboriginal person when sentencing or setting bail. When your lawyer informs the court of your Gladue rights, the judge must keep in mind that Aboriginal offenders face special cir
cumstances. When the judge is sentencing you, he or she must consider alloptions other than jail
.
Note: It’s your right to have Gladue applied to your case. Your lawyer should do ever
ything possible to make sure your Gladue rights are respected. More information on Gladue is available in the Gladue Primer (see www.legalaid.bc.ca/publications), or from the booklet Are You Aboriginal? (see www.cleonet.ca). If you don’
t have a lawyer, the judge must still apply Gladue.
Contact legal aid immediately to find out if y ou qualify for a free lawyer. Legal aid: 604-408-2172 (Greater Vancouver) 1-866-577-2525 (call no charge, elsewhere in BC)
www.legalaid.bc.ca British Columbia
Continued over
This guide is for people who want to plead not guilty to a charge of possession of an illegal drug. Use this guide if you don’t qualify for legal aid, you can’t afford a lawyer, and you plan to represent yourself (be your own lawyer) in court.
You should represent yourself only if you don’t qualify
for legal aid and you can’t afford a lawyer. If you choose to do this, be sure to talk to a lawyer before your trial for advice. Some legal help is better than none. See “Where can I get legal help?” on page 14.
This guide explains how to defend yourself when you’re charged with possession of an illegal drug. It doesn’t try to cover every situation. For detailed information, speak to a lawyer about your case.
Introduction
What is possession of an illegal drug?
Possession of an illegal drug is a criminal offence under the Controlled Drugs and Substances Act. The act lists many types of illegal drugs, such as heroin, cocaine, marijuana (cannabis), and hashish (cannabis resin). If
you’re convicted (found guilty) of possession of an illegal
drug, this means that:
• you had possession of the drug (in other words, you had the substance and you had some control over it) and
• you knew the drug was illegal.
There are three ways you could have possessed the illegal drug:
• personal possession (you knew you had the illegal
drug because you had control over it and you actually handled it),
• joint possession (you and someone else both
knowingly possessed the illegal drug), or
• constructive possession (you had control over the
place where the illegal drug was found, or someone else was holding the illegal drug for you but you knew about it and had some control over it). Being charged with a drug-related offence can have very serious consequences. If you’re convicted, you’ll get a criminal record, which can limit the kinds of jobs you can get and where you can travel.
Could I go to jail?
Depending on the details of of what happened, the prosecutor (the lawyer who presents the case against
you) can choose to charge you with either a summary
or indictable offence. The exception is a charge of
possession of marijuana (under 30 grams), which is always treated as a summary offence. You could get a jail sentence for either type of offence.
A summary offence is a less serious crime. If the
prosecutor proceeds “summarily,” the maximum sentence a judge could give you for a first offence is six months in jail and/or a fine of $1,000. If you’ve been convicted of this same offence before, the maximum jail term is one year (and/or a $2,000 fine).
These are maximums; the judge could give you a shorter sentence or a sentence that doesn’t include jail at all, especially if you don’t have a criminal record.
An indictable offence is a more serious crime. If the prosecutor proceeds “by indictment,” the judge could give you a longer jail sentence. The maximum jail terms range from eighteeen months to seven years, depending on the type of drug.
The first time you are in court, ask the prosecutor if he or she is proceeding “summarily” or “by indictment.” The prosecutor may also say whether he or she is asking for a jail sentence.
What to do if your sentence could be strict
If the prosecutor says he or she will: • proceed “by indictment,”
• ask for a sentence that includes jail, or
• ask for a sentence that will have other serious consequences for you,
immediately ask the judge to adjourn (delay) your case so you can get legal help.
If the prosecutor proceeds “by indictment,” you’ll usually have a better chance of getting legal aid — so be sure you understand how the prosecutor will proceed. Legal aid may change its decision to not cover your case.
You can ask the court to appoint a government-funded
lawyer to your case (a Rowbotham application) if:
• you can’t afford a lawyer and were denied legal aid; • the prosecutor says that he or she will seek a jail
sentence if you’re convicted, or will seek any other type of sentence that will have serious consequences for you; and
• you feel that your case is too complicated for you to handle. For more information, see the
guide If You Can’t Get a Lawyer for Your
This booklet explains what can happen when you plead not guilty to a summary offence. It does not try to cover every
trial situation. For detailed information,
speak to a lawyer about your case. Representing Yourself in a Criminal Trial Representing Yourself in a Criminal Trial July 2012
Before the trial
Preparing your defence
When you prepare your defence, think about what
evidence (information about the crime) you can use.
Evidence includes documents, witnesses, or your own
personal testimony (telling your story).
Make sure the prosecutor has given you all the
evidence that he or she will use (called the disclosure),
such as drug analysis reports or witness statements. The prosecutor should also tell you who he or she will call as a witness.
Use any kind of evidence only if it helps you more than
it could hurt you. It can hurt you because, once you offer
something as evidence, the prosecutor can use it against
you to help fill in weak spots in the Crown’s case.
For more information about the trial process, such as how to use witnesses, prepare questions, and decide whether
to testify (speak) yourself, see the guide
Representing Yourself in a Criminal Trial. To defend yourself against a charge of possession of an illegal drug, you may be able to argue one (or more) of the following five points:
5
“I didn’t know about the drug.”
The prosecutor must prove that you had knowledge of the drug. But you may not have known about the drug. For example, suppose that when the police stopped you, they found the drug in your jacket pocket. If you had just borrowed the jacket from a friend, you may not have known about the drug.
5
“I had no control over the drug.”
The prosecutor must also prove that you had control over the drug — so lack of control is also a good defence. For example, perhaps you were riding in a car with two friends. They were smoking marijuana, but you refused. In a situation like this, you had no control over the drug.
5
“I didn’t know that the substance was an illegal drug.”
You can argue that you made a mistake of fact. For
example, maybe your son gave you a jar for the spice rack, telling you that it contained homegrown oregano. When the substance was analyzed, it turned out to be
marijuana — but you really believed that it was oregano. If the police found any drug supplies or equipment in your house, this defence probably won’t work. All the surrounding circumstances have to support your argument if you want to claim that you didn’t know the substance was an illegal drug.
For example, if you say that you believed a green, plant-like substance in your possession was an herb, but the police found rolling papers and hashish pipes in your house, this defence will probably fail because the circumstances don’t support your argument.
5
“I only had a trace of the drug on me.”
You can use this defence if you possessed only a trace of the drug. For example, maybe the police found a trace of hashish resin in a pipe. In order for this defence to work, the quantity of the drug has to be very small and you can’t have admitted to the police that you previously possessed or consumed the drug that left the trace. It’s best to speak to a lawyer before using this defence.
5
“My Charter rights were violated.”
If the police got evidence by violating your rights under the Charter of Rights and Freedoms, the judge might not let the prosecutor use that evidence. And if that happens, you can ask the judge to dismiss the charge against you.
For example, if you were a passenger in a car that was stopped for speeding, and the police decided to search you on only a suspicion that you had an illegal drug, you can say that was an unreasonable search.
Under the Charter, the police must do the following when they arrest you:
• tell you immediately what they’ve arrested you for; • tell you immediately that you can talk to a lawyer,
and let you do so in private before questioning you or taking any samples;
• give you access to a telephone; and
• tell you that you can get legal help for free. (The Legal Services Society has lawyers available 24 hours a day to talk over the phone for free to people in police custody.)
If the police didn’t do all of these things, you can argue that they violated your rights. You would then argue that the prosecutor shouldn’t be able to use any statements you made or other evidence that the police got by violating your rights.
However, the judge will not automatically throw out the evidence in question. You must also show that accepting the evidence will reflect badly on how justice is carried out in Canadian courts.
If you plan to argue that your Charter rights were
violated, talk to a lawyer before your trial. Judges expect you to tell the prosecutor in advance if you plan to use this type of an argument.
At the trial
What must the
prosecutor prove?
At the trial, before you can present your defence, the prosecutor will present the Crown’s case against you.
The prosecutor must prove beyond a reasonable doubt that you’re guilty of all the parts that make up the crime of possession of an illegal drug. To do this, the prosecutor will present evidence to the court, using witnesses or documents.
You can cross-examine (question) the prosecutor’s
witnesses. But you‘ll normally do so only if you disagree with their information. For details about how to
cross-examine, see the guide Representing Yourself in a Criminal
Trial.
For a judge to find you guilty of possession of an illegal drug, the prosecutor must prove the following things:
5
Identity
The prosecutor must prove that you’re the person who committed the crime. To do this, the prosecutor will call witnesses, including the investigating police officer, to give evidence. The witnesses will probably describe the person they saw committing the crime. Then the prosecutor will ask the witnesses to say if that person is in the courtroom.
The evidence, either from the witnesses or from other sources (such as fingerprints or videotapes), must show that you are the person who committed the crime.
5
Jurisdiction
The prosecutor must prove:
• that the crime happened in BC, • the date of the crime, and
• the specific location where it happened.
These details are included on the Information (the
official court form listing the date, place, and type of offence) that the prosecutor will give you before the trial.
Usually the prosecutor will call a witness to give evidence about the date and place of the crime. This witness will likely be the investigating police officer.
5
You possessed the drug
The prosecutor must prove that you had an illegal drug in your possession. To show that you had the substance, the prosecutor will call witnesses, including the investigating police officer.
The prosecutor will usually argue that you had personal possession of the drug. For example, suppose the police officer found marijuana in your jacket pocket. The prosecutor would argue that you had personal possession because you had control over the drug.
Sometimes the prosecutor will argue that you had constructive possession of the drug. For example, maybe the police officer found marijuana in the bathroom of your house (and you live there alone). The prosecutor would argue that you had constructive possession because you had knowledge of the drug and some control over the drug — even though you were not carrying or holding it.
share with your spouse. The prosecutor would argue that you had joint possession because you and another person had control over the drug.
If you are being charged with constructive or joint possession and the drug was found in your house or car, the prosecutor may use fingerprint evidence. Your fingerprints will be taken and examined to see whether they match the fingerprints found on the container that held the drug.
Keep in mind that anything you say (or write)
voluntarily can be used against you. For example, suppose you were stopped and searched by the police, who
found the drugs on you. If you said to them, “Yes, that’s
my dope,” the prosecutor can mention this voluntary
statement at the trial to show proof of possession.
5
The substance is an illegal drug
A substance isn’t an illegal drug simply because you or the police say that it is. The prosecutor must prove that the substance is a drug by getting a government expert to analyze it. After testing the substance, the expert
will prepare a certificate of analysis (a document that
confirms what the substance is).
The prosecutor will use this certificate to prove that the substance was an illegal drug. The certificate will describe the substance physically. Marijuana, for example, would be described as a “green, plant-like material” and called by its technical name “cannabis.”
The prosecutor must give you a copy of the certificate before the trial, and must give you reasonable notice (usually seven days) that it will be used at the trial.
Instead of using the certificate as evidence, the
prosecutor may have the expert come to speak in court. If you want to cross-examine the expert, you can also ask the judge to have this person come to court.
Don’t plead guilty to the charge of possession of an illegal drug if the analysis hasn’t been completed: you may be pleading guilty to a criminal offence that doesn’t exist if it turns out that the substance isn’t an illegal drug after all.
Presenting your case
After the prosecutor finishes presenting the Crown’s case, it’s your turn.
Remember that the prosecutor needed to prove all the parts of the crime of possession of an illegal drug. If you think the prosecutor didn’t prove all the parts of the crime,
tell the judge you want to make a no-evidence motion. Tell
the judge what parts the prosecutor didn’t prove. If the judge
agrees with you, you’ll be found not guilty and the trial
will end.
If the judge doesn’t agree with your no-evidence motion (or if you don’t make one), the trial will continue. These motions often don’t work because the prosecutor usually has
some evidence for each part of the crime — so be ready to
defend yourself.
You’ll now have your chance to argue the points you’ve prepared to use as your defence. You can use documents, call witnesses, and, if you like, give your own personal testimony.
See the guide Representing Yourself in a Criminal Trial for more
details.
Closing your case
After you’ve finished presenting your defence, you’ll close your case. Tell the judge why you think the prosecutor didn’t prove that you’re guilty beyond a reasonable doubt. Mention if you think the prosecutor’s case was weak or inconsistent
What if the judge finds me guilty?
Once you and the prosecutor have finished speaking, the judge will decide if you’re guilty or not. If the judge finds you guilty, you’ll receive a sentence. The sentence you get will depend on the details of the offence and your criminal record. It could be any of the following:
• an absolute discharge (your record won’t show a conviction)
• a conditional discharge (your record won’t show a conviction if you meet conditions that the judge sets)
• probation (including, for example, community service)
• a fine
• a conditional sentence (most often means house arrest, which is like a jail term, but you serve it in the community)
• a jail term (maximum of one year for a summary offence, or six months for a first offence; maximum of eighteen months to seven years for an indictable offence)
February 2009
If You Can’t
Pay Your Court Fine
on Time
If you are arrested
Call the Brydges Line, a province-wide toll-
free legal advice service available 2
4 hours a
day, 7 days a week. Phone 1-866-458-5500
(call no charge, in the Lower Mainland) or
1-866-458-3300 (call no charge, o
utside the
Lower Mainland). Or ask the police for the
Brydges Line phone number.
How long will my jail te rm be?
The Criminal Code of Canada sets jail terms
for non-payment of fines. Your jail term will be
the smaller of the following two numbers:
• the amount of the fine, divided by 8 times
the provincial minimum hourly wage
OR
• the maximum jail term the judge could
have given you when you were convicted
You can get out of jail sooner by paying
all or part of your fine. The amount of time
that will be taken off your jail term will be in
proportion to how much you pay. For examp
le,
if you pay half your fine, you will cut your jail
time in half.
You must pay enough to reduce your jail time
by at least one day — you can’t pay a smaller
amount than this and still get any time taken
off your jail term.
Example:
You were fined $1,000 and haven’t paid
any of this by the due date. The judge could
have sent you to jail for a maximum of
6 months.
• First, divide 1,000 by 64 (the current
minimum hourly wage of $8 times 8
).
You get 15.625. Round this down to the
nearest whole number (15). This is the
number of days that you could ser
ve in
your jail term.
• Next, compare this figure with t he
maximum jail term the judge could
have given you (6 months).
Your jail term would be 15 days, b
ecause
that’s smaller than 6 months.
• Give this information in a way that lets
the judge be sympathetic toward you and
your situation.
• You should include the following things
(check off the ones that apply to you):
your age
your income
your education
your job (or, if you don’t have a job, why
you aren’t working)
your kids (how many and what ages)
your health
your spouse
other people you live with
other people you support
why you committed the crime
why you won’t do it again
how you feel about what you did to
the victim (for example, if you’r
e sorry
and if you understand how you hurt the
victim)
whether you’re living in pover
ty
whether you have any disabilities
any addictions you have to alcohol
or drugs
any treatment you’re getting for these
addictions
whether you grew up in a home where
there were addictions, abuse, or neglect
any other problems you have and help
you need for them
whether you’re an Aboriginal person (see
the section “Are you Aborigi
nal?” for more information)
whether you’re a new immigr
ant or refugee
whether English is your second language
anything else you think the ju
dge should
know to help your position
Fines • If the judge fines you at your s
entencing
hearing, you can ask for more time to
pay. If you ask for additional time to pay,
you will need to let the judge know why
you need additional time (for example,
you’re on a limited income or have
seasonal employment).
• The victim surcharge fine is 15 percent
of your fine. If you’re not fined, the
surcharge is $50 for a summary offence,
$100 for an indictable offence or more if
the judge orders a higher amou
nt. • You can ask the judge to excu
se
you from having to pay the vic
tim
surcharge fine. The judge can decide
that you don’t have to pay the
surcharge only if he or she is satisfied
that paying it would cause you or your
dependants undue hardship.
Questions • If you don’t understand something, ask
the judge to explain it. You ma
y not get
another chance.
• If you realize later on that you can’t pay
your court fine on time, get the legal
aid brochure called If You Can’t Pay You
r Court Fine on Time (see blow).
How to get legal aid publications
You can get If You Can’t Pay Your Court Fine
on Time and other publications from your
local legal aid office or online.
Read online:www.legalaid.bc.ca/ publications
Order online:www.crownpub.bc.ca
(Under Quick Links, click Legal
Services Society.)
Speaking to
the Judge
Before You Are
Sentenced
Ju
ly 2
011
If you’re charged with a
crime and you plead g
uilty or
a judge finds you guilty, you
will get a chance to speak
before the judge d
ecides
your sentence. This is called
speaking to sentence. This
booklet helps you prepare to
speak to sentence.
Speaking to the judge before you are sentenced
You get a chance to speak to the judge before he or
she decides your sentence. (This is called speaking to
sentence.) The judge will give you a chance to explain
why you committed the crime, whether you’ll do it again, and whether you need help for any problems
you may have that were connected to the crime. Speaking to sentence is important because it
gives you a chance to explain your situation to the judge.
Get the brochure Speaking to the Judge
Before You Are Sentenced and read it before you go to court.
Paying a fine
The maximum fine for a summary possession offence is $2,000 (or $1,000 for a first offence of this type, or if the drug you were convicted of possessing was under 30 grams of marijuana).
If the judge fines you, you can ask for time to pay. Tell the judge how much you can pay each
month. Later, if you find you can’t pay on time,
get the brochure If You Can’t Pay Your Court Fine
on Time. Do this as soon as possible.
You’ll also have to pay a victim surcharge
fine. The amount of the surcharge is based on a percentage of your fine. If you didn’t get a court fine as part of your sentence, you’ll still have to pay a set amount for the surcharge. Ask the judge if there’s any way you can avoid paying the victim surcharge.
Checklist: How well did the prosecutor do?
Use this checklist at your trial to see if the prosecutor makes the case against you.
The prosecutor must prove all of these things:
5
your identity
5
jurisdiction
5
crime happened in BC
5
the date of the crime (for summary
offences, the Information must be dated
within six months of the date of the crime)
5
the town, city, or municipality where the
crime took place
5
you possessed the drug:
5
you had knowledge of the drug
5
you had control over the drug
5
the type of possession (personal,
constructive, or joint)
5
the substance was an illegal drug
Remember:
• If the prosecutor doesn’t prove all the necessary
parts of the crime, make a no-evidence motion
(see page 10).
• If the prosecutor’s case is weak or inconsistent in one of the above areas, mention this in your submission (see page 10).
Even if you can’t afford a lawyer to represent you in court, it’s a good idea to talk to a lawyer before your trial.
To find one:
• Speak to a duty counsel lawyer at the courthouse. Duty counsel are lawyers who give free legal advice. When they’re available, they can give you advice about the charges against you, court procedures, and your legal rights. Duty counsel can also speak on your behalf the first time you appear in court, but they can’t act as your permanent lawyer.
Call the Legal Services Society at 604-408-2172
(in Greater Vancouver) or 1-866-577-2525 (no charge,
outside Greater Vancouver) or your local courthouse to find out when duty counsel will be there. (See
www.legalaid.bc.ca for links to courthouse
locations.)
• Contact a lawyer in private practice. Find out if the lawyer is willing to help and what it will cost. Even if you pay for just two meetings to get basic advice about your particular case, it could be worth the cost.
• If you don’t know a lawyer who handles criminal cases, contact the Lawyer Referral Service. They’ll give you some suggestions. For $25 plus taxes, you can meet with a lawyer they recommend for a half hour. You can see whether you want to hire the lawyer and how much it would cost.
Call the service at 604-687-3221 (in Greater
Vancouver) or 1-800-663-1919 (no charge, outside
Greater Vancouver).
• If you live in the Lower Mainland, you may be able to get help from the University of British Columbia’s Law Students’ Legal Advice Program (LSLAP). You can get free legal advice or assistance from LSLAP if you’re charged with a summary offence and aren’t
likely to get a jail sentence if convicted. Call
604-822-5791 to find the location of the nearest
LSLAP clinic.
• If you live in Victoria, the Law Centre may be able to
help you. Call 250-385-1221 for more information.
• Access Pro Bono runs free legal advice clinics
throughout the province. To make an appointment,
call 604-878-7400 or 1-877-762-6664 (no charge).
• For more information about the law, go to the
Clicklaw website at www.clicklaw.bc.ca. Clicklaw
has links to legal information, education, and help. You can find out about your rights and options, get
toll-free numbers for law-related help, and learn about the law and the legal system.
How to get this and other free
Legal Services Society publications
Read: www.legalaid.bc.ca/publications Order: www.crownpub.bc.ca
(under Quick Links, click
BC Public Legal Education & Information)
Questions about ordering?
Phone: 604-601-6000 Email: distribution@lss.bc.ca
Feedback on this publication?
Read this Defending Yourself booklet along with Representing Yourself in a Criminal Trial. It has a blue pocket inside the back cover to hold this and other important documents.
Get Representing Yourself in a Criminal Trial at the same place where
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