Canadian Criminal Procedure and Practice/Charges

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Form and Content of a Charge[edit]

An information must provide sufficient detail to identify the transaction which gives rise to the criminal liability so that the accused can make full answer and defence.[1]

Where the charge is particularized beyond the essential elements, the Crown is still bound to prove the transaction delineated in the charge.[2]

Substance of offence
581. (1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

Form of statement
(2) The statement referred to in subsection (1) may be

(a) in popular language without technical averments or allegations of matters that are not essential to be proved;
(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or
(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

Details of circumstances
(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

...

Reference to section
(5) A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for the purpose of determining whether a count is sufficient, consideration shall be given to any such reference.

...

Certain omissions not grounds for objection
583. No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 581 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that

(a) it does not name the person injured or intended or attempted to be injured;
(b) it does not name the person who owns or has a special property or interest in property mentioned in the count;
(c) it charges an intent to defraud without naming or describing the person whom it was intended to defraud;
(d) it does not set out any writing that is the subject of the charge;
(e) it does not set out the words used where words that are alleged to have been used are the subject of the charge;
(f) it does not specify the means by which the alleged offence was committed;
(g) it does not name or describe with precision any person, place or thing; or
(h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained.
R.S., c. C-34, s. 512.

CCC

A count is the specific wording of the charge itself. It sets out the specifics of the allegation.

For a count to be valid under s. 581 it must apply to a single transaction and must contain a statement that the accused committed the offence specified.

A crown cannot join two or more offences into a single count on an information.[3]

  1. R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C.R. 1020
    R. v. Jimmy, [2004] B.C.J. No. 1555
    R. v. Gauthier 1995 B.C.J. No. 1527 (C.A.)
    R v. Katsiris 2008 BCCA 251
  2. see R. v. Rai, 2011 BCCA 341 at para. 16 referring to s. 581
  3. R. v. City of Sault St. Marie (1978) 2 SCR 256
    R. v. Barnes (1975) 26 CCC (2d) 112 (NSCA)

Duplicity and Multiplicity[edit]

A charge should only set out one offence.[1] At common law, a charge is invalid where it violates the rule rule of duplicity, setting two offences in a single count, and rule against multiplicity, setting out more than two offences in a single count. [2] The purpose of this rule is so that the accused may know the charge against him and, once a verdict is given, that he know what his conviction is exactly for. This is particularly relevant where the accused may later wish to rely upon a plea of autrefois acquit/convict.[3]

However, the common law rules against duplicity and multiplicity has been modified to be less stringent. A "double or multifarious" count is a defect in form, but not necessarily void.[4]

Further, s. 590 sets out that:

Offences may be charged in the alternative
590. (1) A count is not objectionable by reason only that

(a) it charges in the alternative several different matters, acts or omissions that are stated in the alternative in an enactment that describes as an indictable offence the matters, acts or omissions charged in the count; or
(b) it is double or multifarious.

R.S., c. C-34, s. 519.


CCC

In such cases, both the defence (590(2)) or the judge (590(3)) have the ability to amend the count into multiple counts on the information.

The primary test applied is to ask "does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?"[5]

A charge is not duplicitous because the range of offence dates cover a period of time where the relevant available defence changed in law.[6]

  1. e.g. see s. 789 regarding summary offences
    see also s. 581 ("Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.")
  2. R v Archer, 1955 CanLII 2 (SCC), [1955] SCR 33
  3. R. v. Sault Ste. Marie (City) [1978] 2 S.C.R. 1299
  4. R. v. Neville, [1981] 2 S.C.R. 434
    R. v. Cotroni; R. v. Papalia , [1979] 2 S.C.R. 256
  5. R. v. Sault Ste. Marie (City) , [1978] 2 S.C.R. 1299 at p. 1308
  6. R. v. Katigbak, 2011 SCC 48

Sufficiency of Count[edit]

The indictment should contain “sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence".[1] The information necessary will vary depending on the facts of the case and the nature of the offence.

Parties
The common law does not generally distinguish between the principle and an aider or abettor for the purpose of the indictment. There is however a distinction between principles and accessories.[2] Counselling can fall within either an accessory or as a aider or abettor.[3]

  1. R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301, 63 C.C.C. (3d) 29 at para. 24
  2. R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652
  3. R. v. Fitur and Maldonado, 2012 MBQB 5

Charge Surplusage[edit]

Surplusage within the charge refers to non-material or "non-essential averments". Surplusage need not be strictly proved where the accused is not misled or prejudiced.[1]

  1. R. v. Vezina, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2
    R. v. Canadian National Railway Co. 2005 M.J. No. 104 at para. 41 to 42

Amendments to Charges[edit]

Amendments to an indictment are addressed in s. 601:

Amending defective indictment or count
601. (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.

Amendment where variance
(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and

(a) a count in the indictment as preferred; or
(b) a count in the indictment
(i) as amended, or
(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.

Amending indictment
(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;
(b) that the indictment or a count thereof
(i) fails to state or states defectively anything that is requisite to constitute the offence,
(ii) does not negative an exception that should be negatived,
(iii) is in any way defective in substance,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or

(c) that the indictment or a count thereof is in any way defective in form.

Matters to be considered by the court
(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry;
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

Variance not material
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or
(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

Adjournment if accused prejudiced
(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

...

R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6.

CCC

Mistakes to heading of indictment will not affect its validity.(s. 601(8))

Joinder and Severance[edit]

Joinder[edit]

Under s. 591(1), any counts can be joined onto the same indictment. A party may apply to the court join charges on separate informations where the offences relate. [1]. The judge further has the power to hear evidence concurrently on a summary and indictable matter where the offences relate. [2] The consequence of this is that an otherwise summary offence matter can be tried and disposed of by a Justice of a Superior Court where the offence relates to a indictable matter that the Justice is hearing evidence on.

See also: R. v. Dardon, 2004 ABQB 14

  1. See 9:13012 of E. Ewaschuk, Criminal Pleadings and Practice in Canada, 2d ed
  2. See. R. v. Clunas [1992] SCR 595 1992 CanLII 27

Severance of Charges[edit]

A motion to sever co-accused can be brought under s. 591(3)(b) of the Criminal Code:

Severance of accused and counts
(3) The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.

Order for severance
(4) An order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts

(a) on which the trial does not proceed; or
(b) in respect of the accused or defendant who has been granted a separate trial.

[3]

The "interest of justice" is determined based on the balance of “prejudice to the accused and the public interest in a single trial”. [1]This includes the interests of those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge shall weigh the competing interests and will sever only if satisfied that severance is required. The applicant must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together.[2] The crown has the option to indict the accused separately or jointly, and the discretion so exercised is entitled to great weight.[3]

The factors to consider include:[4]

  • the general prejudice to the accused;
  • the legal and factual nexus between the counts;
  • the complexity of the evidence;
  • whether the accused intends to testify on one count but not another;
  • the possibility of inconsistent verdicts;
  • the desire to avoid a multiplicity of proceedings;
  • the use of similar fact evidence at trial;
  • the length of the trial having regard to the evidence to be called;
  • the potential prejudice to the accused with respect to the right to be tried within a reasonable time;
  • and the existence of antagonistic defences as between co-accused persons
  • expense and convenience of witnesses;[5]

Severance will be granted where:[6]

  • the defendants have antagonistic defences;
  • the important evidence in favour of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial;
  • the evidence which is incompetent against one defendant is to be introduced against another, and that it would work prejudicially to the former with the jury;
  • a confession made by one of the defendants, if introduced and proved, would be calculated to prejudice the jury against the other defendants; and
  • one of the defendants could give evidence for the whole or some of the other defendants and would become a competent and compellable witness on the separate trials of such other defendants.

See also:R. v. Tymchyshyn et al., 2011 MBQB 261[4] (rejected)

  1. R. v. E. (T.I.), 2012 MBQB 20 at 8
  2. R. v. Savoury, 2005 CanLII 25884 (ON CA)[1] at 22
  3. R. v. Handsor, [2005] M.J. No. 79 (QL), 2005 CarswellMan 86, 193 Man.R. (2d) 8 (Q.B.) at 6
  4. R. v. Last, 2009 SCC 45[2] at 18
    R. v. E. (L.) 1994 CanLII 1785 (ON CA), (1994), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238
    R. v. Cross 1996 CanLII 5992 (QC CA), (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419
    R. v. Cuthbert 1996 CanLII 8341 (BC CA), (1996), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff'd1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8
    R. v. E. (T.I.), 2012 MBQB 20 (failed)
  5. Handsor, supra
  6. Handsor, supra