July 2021 The Role of the Prosecution and Defense
THE ASSISTANT DUPUTY GENERAL IS THE HEAD OF THE B.C. PROSECUTION SERVICE. IN B.C. THE PROSECUTION SERVICE, NOT POLICE, IS ALMOST ALWAYS RESPONSIBLE FOR APPROVING THE LAYING OF FORMAL CHARGES. This is unlike most other provinces.
The role of the Crown Counsel in Canada is a quasi-judicial function and a matter of significant public duty. In Crown’s system of justice, when a crime is committed against a victim, it is also a crime against society as a whole. It is Crown Counsel that lays charges in British Columbia. The review investigation reports from police and investigative agencies conduct a charge assessment in relation to offenses under the Criminal Code or under provincial statutes. Charge decisions are based on a substantial likelihood of conviction at prosecution. Crown Counsel make their charge assessment and other prosecutorial decisions impartially, independent of any outside influence, including political influence.
The purpose of the charge assessment is to ensure only solid cases of substance and those in the public interest move forward to trial. The prosecutors primary role is to ensure the evidence against an accused person is presented vigorously, but fairly in court. This ensures the accused person’s defense counsel can respond to the evidence, then the judge or jury can perform their independent function of deciding the outcome of the charge. Prosecutors conduct their charge assessments as quickly as possible, with a thorough analysis and principled decision making, to guard against delay in the criminal justice process. Charge assessment for a very few of the most complex cases can take longer.
CHARGE ASSESSMENT GUIDELINES
The charge assessment guidelines policy states prosecutors should, in most cases, make their charge assessment decision according to the following, two-part formula: Crown decides whether there is a substantial likelihood of conviction based on the evidence presented in the RCC. In other words, whether there is a strong, solid case of substance to present to the court.
Once the prosecutor decides there is a substantial likelihood of conviction, the second test is whether a prosecution is required in the public interest. The many factors prosecutors must consider in deciding this, including the seriousness of the allegations (for example, whether a victim suffered serious harm or a weapon was used.
In every criminal case, the Crown must prove at least 4 things:
- That you are the person who committed the crime.
- The crime took place when the police said it did.
- Elements of the crime.
It is not enough for the judge to think that you are probably guilty, they must be certain. Therefore the Crown must prove their case beyond a reasonable doubt. It is the duty of Crown Counsel to provide legal advice to law enforcement agencies in enforcing federal law. This is to ensure that evidence is gathered in a manner that will be admissible at trial. It is the duty of a Crown prosecutor to lay all the credible evidence before a jury relevant to what is alleged to be a crime.
The Crown must prove identity, jurisdiction, date and every element of the crime. If a judge has any doubt about even one of these things the judge cannot find the accused guilty. There must be proof beyond a reasonable doubt. The burden of proof rests with Crown counsel to show that no reasonable doubt rests as to the guilt of the accused. The Crown must disclose all materials and information that is in its possession or control that is not clearly irrelevant.
All hearsay evidence is inadmissible.
If the prosecution does not submit evidence of your guilt you can’t be convicted, and no doubt the case would be dismissed at the preliminary hearing stage. If any of your Charter rights are violated the judge can throw out certain evidence. In some situations the judge may even dismiss your charges completely.
ACCESSORY AFTER THE FACT
- is someone who assists someone who has committed a crime.
- has knowledge that the person committed the crime.
- intended to help the person avoid arrest or punishment.
CHARGE ASSESSMENT
While B.C. prosecutors conduct prosecutions vigorously once they have made a principled charge decision, based on the prosecution standard, their first duty is to ensure the trial process is fair to all, evidence is presented thoroughly and accurately and the independence and integrity of the justice process is maintained. Their duty as professionals is not to obtain a conviction at any cost, but rather to ensure that justice is done in a fair, impartial, efficient and respectful manner.
Public Interest in a Prosecution:
It seems to me that Lindsay’s case, meets most of the criteria. Crown Counsel must determine whether the public interest requires a prosecution.
Hard and fast rules cannot be imposed as the public interest is determined by the particular circumstances of each case and the legitimate concerns of the local community. In making this assessment, the factors which Crown Counsel will consider include the following:
It is generally in the public interest to proceed with a prosecution where the following factors exist or are alleged:
(a) the allegations are serious in nature;
(b) a conviction is likely to result in a significant sentence;
(c) considerable harm was caused to a victim;
(d) the use, or threatened use, of a weapon;
(e) the victim was a vulnerable person, including children, elders, spouses and common law partners
(f) the alleged offender has relevant previous convictions or alternative measures;
(g) the alleged offender was in a position of authority or trust;
(h) the alleged offender’s degree of culpability is significant in relation to other parties;
(i) there is evidence of premeditation;
(j) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.
(k) there is a significant difference between the actual or mental ages of the alleged offender and the victim;
(l) the alleged offender committed the offence while under an order of the Court;
(m) there are grounds for believing that the offence is likely to be continued or repeated;
(n) the offence, although not serious in itself, is widespread in the area where it was committed;
(o) the need to protect the integrity and security of the justice system and its personnel;
STAGE 1: THE INVESTIGATIVE FUNCTION
When a possible crime is reported to an investigative agency like the police, or the agency itself identifies a possible crime, the agency will investigate and decide whether the incident warrants forwarding a report to Crown Counsel (RCC) to the BC prosecution Service.
STAGE 2: THE PROSECUTION PROCESS (Receiving reports to Crown Counsel (RCC)
Police send an RCC if they conclude a crime has been committed. Most categories of offenses are the responsibility of the B.C. Prosecution Service, but some offenses are handled by the federal prosecution service, known as the Public Prosecution Service of Canada.
STAGE 3: THE TRIAL FUNCTION
If, after they have reviewed the RCC, Crown decides if a charge or charges should be laid, the matter will go to court. Although one of their responsibilities is to keep victims informed about the justice process, prosecutors do not act for victims of a crime. Rather, Crown Counsel conducts the prosecution on behalf of the whole community. Crown Counsel conduct prosecution and appeals in every level of court:
The Provincial Court of BC, the BC Supreme Court, the BC Court of Appeal and the Supreme Court of Canada. Prosecutions may be before a judge or a judge and jury. If an accused pleads guilty or is convicted, prosecutors are responsible for recommending appropriate sentences. The final sentencing decision is made by the judge.
THE CHOICE: JUDGE OR JURY
In a trial, the jury, if there is one, hears the evidence and decides the facts. The judge decides the conduct and to some extent the timing of the trial, and decides among other things, what evidence the jury hears. Juries often acquit guilty people or cannot reach a verdict, resulting in a hung jury. Statistically a defendant would prefer to have a jury trial because the judge is one person and statistically a person on trial has a greater chance of 1 in 12 jurors disagreeing. Average people can often be bamboozled by good lawyering- but judges are harder to fool. Prosecutors will recommend terms of sentencing, but judges are under no obligation to listen. The judges job is basically to make sure the law is followed.
An accused has a right to elect to be tried before a judge alone (Section 469) offenses must be tried by a jury unless the Crown Attorney consents to a judge sitting alone. Jury trials in Canada are only for the most serious offenses (indictable) and usually only if the accused wants to be tried by a panel of his or her peers.
STAGE 4: THE CORRECTIONS FUNCTION
If the accused is found guilty by a judge or jury they may be sentenced to a correction centre or assigned other penalties. Post sentence reviews, applications, appeals and other legal processes may result in some matters related to a concluded file being resurrected.
THE DEFENSE LAWYER
A good defense lawyer recognizes that their client’s life is about to change significantly. At the very basic level, they are constantly prepared for court and the battles their client will face moving forward.
The role of the defense lawyer is to be an advocate for the accused, doing everything within the law to clear the defendant of charges. A defense lawyer gathers information through several means, including Open and Collaborative communication with his or her client to obtain a thorough personal and criminal history, and to ascertain the client’s mental capacity (state of mind). They examine the timeline of the crime, and relationship with the victim. The top criminal lawyers are excellent communicators, have strong analytical skills, solid research skills, proficient digital literacy, intuitive people skills, perseverance and dedication and sound judgement.
DEFENSE LAWYERS NEED TO HAVE SOLID CRITICAL THINKING, INTERPERSONAL, WRITTEN AND VERBAL COMMUNICATION SKILLS.
Lawyers are notoriously known for changing the facts to “WIN” their case. After hearing the facts and identifying the legal issues a client is facing, a lawyer must find a previously decided opinion (case law or precedent) with an outcome that favors their client’s position.
EFFECTIVE CRIMINAL DEFENSE STRATEGIES
- Review arrest and/or investigation details.
- Retain expert witnesses when necessary.
- Point out potential unreliability of an eye witness testimony.
- Prepare the defendant to take the stand.
- GET EVIDENCE AGAINST THE DEFENDANT THROWN OUT OF COURT.
ATTRIBUTES OF A GOOD DEFENSE LAWYER
The ability to investigate, the ability to negotiate, the ability to provide a technicaL LEGAL DEFENSE AND THE ABILITY TO WIN AT TRIAL
THE 2 TOP CRIMINAL DEFENSE LAWYERS IN VICTORIA
BRADLEY HICKFORD AND RICHARD NEARY
LINDSAY BUZIAK MURDER TRIAL
This will be a high-profile complex trial and there will be a heavy burden upon the Crown to prove their case. By the time this case goes to court this murder will have been unsolved for ____ years. A good defense lawyer will be well- prepared, looking for any flaw/misstep that could impact a successful prosecution. They will try to show that the waters have been muddied by things such as witch-hunts, blogs, unreliable witness testimony and possible police interference. In the end the Crown will prove no malice just honorable intent of the part of well-meaning people that cared.
Let’s not forget about the Surrey Six Murder which happened October 19/2007. Four RCMP officers were charged with breach of trust, obstruction of justice, and fraud. The actions of one of those officers nearly resulted in the key witness Mr. X refusing to testify. (See story below)
There is a strong likelihood high-profile lawyer Brad Hickford or Richard Neary will be retained to represent the defendant/s at trial, whoever the defendants might be we have no idea at this time. One thing is for certain, the Crown prosecutors will need to be prepared for an arduous battle in the courtroom. Hickford and Neary are well known for representing clients accused of murder, drug-trafficking, home invasions, and assaults, and without a doubt, once they step inside the courtroom the mudslinging will begin. They will show no mercy to the witnesses, if fact, they will pull out all the stops to discredit their testimony.
Neary and Hickford are cold-hearted ruthless lawyers who pride themselves on winning, no matter what the cost. One just needs to read court transcripts from some of their old cases to see that they play down and dirty and have a total disregard for the victims of crime.
Hickford will use the Charter of Rights when and wherever he can. He will find ways to delay the proceedings hoping in the end to show that the case ran longer than the new time limit set by a Supreme Court of Canada ruling in 2016.
Hickford tried this strategy at the trial of Zachary Matheson in 2017, but lost. The Crown Prosecutor in that case was well prepared and ruled that the almost five months of delays were caused by the defense. Once those five months were subtracted the case fell within the 30 month range. If Hickford had been successful it would have resulted in a stay of proceedings.
HICKFORD’S METHODS USED TIME AND TIME AGAIN.
With probable certainty Hickford will make applications for the disclosure of the materials relating to the confidential informants knowing full-well that privilege afforded to the confidential informer is one of the most absolute, unqualified rights recognized at law. By shielding the identity of those who provide confidential information to police, the privilege protects against the risk of retribution and encourages the co-operation of future informants. Hickford/Neary’s objective will be to intimidate the witnesses and expose their identity, knowing that exposing their identity could put their lives at risk. The end goal is to conquer and win at any cost.
Hickford will apply for the police source-handler notes, source-debriefing reports, notes from the constable in anticipation of obtaining the warrant, and all notes and reports by the officer after his discussions with the informant’s handlers. He will order edited police documents containing intelligence from confidential informers be disclose to the defense counsel. Like Hickford has done at previous trials he will argue that the witnesses discussions with the police amount to a waiver of privilege over all of his communications with his lawyer. He will argue that the lawyer’s file should be submitted to and reviewed by the court and that disclosure of all relevant materials should be made available.
HICKFORD WILL BE ON TOP OF HIS GAME – JUST REMEMBER HIS METHODS MAY BE CREATIVE BUT THEY DO NOT ALWAYS WORK.
SURREY SIX MURDERS OCTOBER 19/2007
Six people were shot dead execution style in a 15th floor high-rise apartment in Surrey. Two were innocent victims, young 17-year old Christopher Mohan who lived across the hall, and Ed Schellenberg a gas-fitter who was working in the apartment. At the time this murder happened there was a gang war going on between the Red Scorpions and the United Nations. The killing was about drugs and retribution.
The shooters Matthew Johnson, Cody Haevischer were charged with six counts of 1st degree murder, Michael Thang 1 charge of 1st degree murder, Jamie Bacon one count of 1st degree murder and Sophon Sek manslaughter.
Four RCMP officers faced charges of breach of trust, obstruction of justice, fraud in regards to their handling of the Surrey Six murders.
THE TRIAL LASTED 1 YEAR WITH NEARLY 100 WITNESSES CALLED TO TESTIFY.
Three key officers involved in this investigation worked with the integrated Homicide Investigation Team (IHIT), a specialty homicide unit made up of officers from the RCMP and municipal police. Staff Sgt. David Attew, Cpl. Danny Michaud and Sgt. Derek Brassington were principal investigators assigned to witness management, with Attew as Brassington’s superior.
Brassington met up with the witness, and the next month she agreed to testify. Brassington dated her for 6 months and in time he fell in love with her. She was the ex-girl friend of Jamie Bacon. The two frequented hotel rooms paid for by the force and he took her to bars and strip clubs. Brassington also admitted to sexual activity with the girlfriend of witness Y. Attew’s job was to ensure their continued co-operation, mainly by securing the girlfriend’s trust. When witness Y, known as DY, found out that Brassington was sleeping with his girlfriend he was so angry he said he was not going to testify, however he did change his mind. If Person Y had not testified at trial the Crown may never have been able to prove their case. It was also reported that Brassington and a few other cops were seen partying with Cody Haevischer’s girlfriend. She was known as KM.
At trial two of the officers claim they were crippled by the punishing stress and trauma of their jobs as principal officers on high-profile cases to a point beyond reason. RCMP Staff Sgt. Derek Brassington plead guilty to breach of trust and compromising the integrity and safety of a witness involved in the mass-murder investigation. He also admitted to sexual activity with a third witness on one occasion. He was sentenced to 2 years less a day. Staff Sgt. David Attew plead guilty to failing to maintain law and order in BC, contrary to the RCMP Act. He was sentenced to six months house arrest. Cpl. Danny Michaud was charged with misconduct, pleading guilty to lying when he was asked about the affair. He actively participated in the debauchery.
The individual officers credibility as investigators was tarnished and hours of police work needed to be re-done.
In 2018 RCMP’s disciplinary review body was struggling with a significant backlog of files. The independent committee that investigates things like harassment complaints and RCMP misconduct says it is drowning in casework. The committee warned Parliament about the backlog in 2016 when they had more files than they were able to process.
ARRESTS IN THIS CASE ARE FORTHCOMING, IT IS JUST A MATTER OF TIME.
EMAIL ADDRESS: murderondesousa@gmail.com