Canadian Criminal Procedure and Practice/Informations and Indictments

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Informations and Indictments[edit]

Criminal charges are set out in written form, either through an Indictment or an Information. An Indictment is the form of a charge typically handled in superior court while an information is the form used in provincial court.

An information is a accusation sworn by a peace officer. (s. 507, 508, 788, 789 and Form 2) The indictment is an unsworn accusation.(s.566,580, 591 and Form 4)

The purpose of an information was described as;[1]

  1. to commence the proceedings until the accused is arraigned or the charges dismissed;
  2. to inform the accused of the allegations against him or her;
  3. to indicate that an allegation has been made under oath before a justice of the peace; and
  4. for a summary conviction offence, to indicate to the accused that the information was sworn within six months after the time when the subject-matter of the proceedings arose: s. 786(2) of the Criminal Code.
  1. R. v. Akey, [1990] O.J. No. 2205 (Gen. Div.) at para. 6

Laying of an Information and Issuing Process[edit]

Once an accused is arrested he is given an appearance notice. The peace officer will then create the charge by laying of an information. It typically involves the officer, who has formed reasonable grounds to believe that a criminal offence has occurred, draft an information that will be presented to a justice of the peace along with a sworn summary of the evidence. Under s. 507 or 508 the justice of the peace will determine whether there is sufficient grounds to go forward with laying the sworn information and have the accused attend court. If there is sufficient grounds the justice will either issue a summons or a warrant, or simply confirm the appearance notice already served on the accused. This step is known as "issuing process". Once completed the accused will be required to attend court on the first appearance date. If not satisfied, the justice may cancel the appearance notice, promise to appear or recognizance.

The format for an information is taken from Form 2 of the Code.

Indictable Offences[edit]

The two main routes of swearing the information for an indictable offence is either under s. 504 or 507. The main difference between the two is based on whether the accused was arrested (s. 504) or not (s. 507) at the time of the laying of the information.

A police officer cannot unilaterally compel a person to attend court. At sometime either before or after the arrest, a justice of the peace must review the grounds of the police officer to believe a criminal offence has occurred.

Under s. 504, where an accused person is charged with an offence, the Information detailing the charge will be sworn by a peace officer.

In what cases justice may receive information
504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person
(i) is or is believed to be, or
(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;
(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or
(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

R.S., c. C-34, s. 455; R.S., c. 2(2nd Supp.), s. 5.

...

CCC

Section 508 sets out the requirement to confirm the form of the release as well as the need to consider the allegations from the informant and, where necessary, hear evidence.

Justice to hear informant and witnesses
508. (1) A justice who receives an information laid before him under section 505 shall

(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;
(b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence,
(i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or
(ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and
(c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation.

...


CCC

Once Justice of the Peace has reviewed and accepted the information, the information must be endorsed either confirming the release release documents, if the accused is present, or issue a summons or arrest warrant if the accused is not present.

A failure to confirm the release document ("the process") results in the information has been found to produce a nullity.[1] However, the growing attitude has been that the failure to endorse the process does not eliminate jurisdiction over the matter, and rather can only be used to support a charge of failure to attend.[2]

This provision requires a justice of the peace who receives an information outlining an offence that was sworn by a person who has "reasonable grounds" to believe an offence has been committed. If the requirements are made out, there is no discretion on the part of the justice.

Section 507 provides for a justice of the peace to receive an unsworn information outside of those received under s. 505. If the justice receives an information where the accused has not been arrested, the justice must hear and consider evidence setting out the allegations. If satisfied there is reasonable grounds to believe an offence has been committed, the justice may issue a summons or a warrant of arrest to compel the accused to attend before the justice of the peace or a provincial court. Note that the provision does not contemplate the issuance of a appearance notice or promise to appear.

Justice to hear informant and witnesses — public prosecutions
507. (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.

..


CCC

Implied within the phrase of s. 507, includes an exception where "detained at the time the information is laid".[3]

The justice of the peace should issue a summons unless it is in the public interest to issue a warrant.(s. 507(4))

If a warrant is issued then the peace officer may arrest the accused under s. 511. (see Canadian Criminal Procedure and Practice/Arrest and Detention/Warrant Arrests)

Under s. 508.1, an information can be laid before a justice of the peace by way of telecommunications including telephone. In this case the information provided by phone is deeded to be under oath (s. 508.1(2)).

If the justice affirms the information by signing it, then the information has been laid and the matter begins the prosecution.

Once an accused person is charge and, if released, the officer has a time limit to swear the information under s.504. Section 505 addresses the the timing in which the information should be laid before a justice. It states:

Time within which information to be laid in certain cases
505. Where

(a) an appearance notice has been issued to an accused under section 496, or
(b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.

R.S., c. 2(2nd Supp.), s. 5.

CCC

Where the peace officer fails to comply with 505 by laying an information after the first court appearance does not result in a lack of jurisdiction over the offence or invalidate the information. [4]

Where the accused is released, a justice of the peace will review the charge before ordering the accused to attend court.(s. 508) If satisfied that there is reason to compel an accused to attend court, the justice will confirm the appearance notice or cancel it and issue a summons or warrant of arrest.[5]

There is an onus on the accused to establish that the justice of the peace did not comply with the requirements of s.504-508.[6] If the requirements are not met, the courts may lose jurisdiction over the accused and the charge may become a nullity.

  1. R v Gougeon, [1980] OJ No 1332 (ONCA)
  2. R v Haight, 2011 ONCJ 156; R v Duran, 2011 ONSC 7346
  3. R. v. Ladzinski, 2012 ONCJ 205 at 9
    R v Drozd, [2011] OJ No 616 (OCJ)
  4. R. v. Markovic, 2005 CanLII 36251, OJ No 4286 (ON CA)
  5. R v Romanchuk, 2011 SKCA 127 at 4
  6. Romanchuk at 6

Summary Offences[edit]

The process of laying charges for summary offences is similar to that of indictable offences. The process is set out in s. 788 to 795.

Commencement of proceedings
788. (1) Proceedings under this Part shall be commenced by laying an information in Form 2.

One justice may act before the trial
(2) Notwithstanding any other law that requires an information to be laid before or to be tried by two or more justices, one justice may

(a) receive the information;
(b) issue a summons or warrant with respect to the information; and
(c) do all other things preliminary to the trial.

R.S., c. C-34, s. 723.

Formalities of information
789. (1) In proceedings to which this Part applies, an information

(a) shall be in writing and under oath; and
(b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.

CCC

Under s. 795, the provisions of Parts XVI and XVIII, XVIII.1, XX and XX.1 apply equally to summary offences.

All summary offences can only be sworn less than 6 months after the date of the allegations. (s. 786(2))

Validity of the Information[edit]

Chief Justice Dickson, in R. v. Sault Ste. Marie (1978), 40 C.C.C.(2d), 1978 CanLII 11 (SCC), at 353, considered the evolution of the validity of informations, where in modern times substances rules over formality.

The date "is relevant and material only when the issue of limitation periods arises"[1] Where the date is in error, it may be that the proper date can be inferred.

Where the date of the information has been amended without any indication of the circumstances creates a nullity. [2]

There is a rebuttable presumption that a justice of the peace will only operate within their authority.[3]

It is often said that an information that contains on its face contained a contradiction that was an impossibility is a nullity. [4]

  1. R. v. Dean, (1985), 36 Alta. L.R. (2d) 8 (Q.B.)
  2. R. v. Howell 1978 CanLII 692 (AB QB), (1978), 14 A.R. 299
  3. R. v. Justice of the Peace; Ex Parte Robertson, [1971] 1 O.R. 12 (CA)
  4. R. v. George, 1993 CanLII 4609 (NS SC)

Motion to Quash the Information[edit]

Where the process required by s. 504 to 508 is not complied with and it results in a loss of jurisdiction allows the accused to apply to quash the information.

Amendments to Information[edit]

An information and indictment may be amended under s. 601.[1]

Under s. 601(3)(b) and (c), the court may amend the form or substance of an information at any stage of the proceeding.[2]

Amendments prior to the defendant electing to call evidence will often be permitted.[3]

Amendments to an information is a question of law (s. 601(6)).

  1. section 601 specifically deals with indictable offences, but s. 795 allows it to equally apply to summary offences
  2. e.g. see R. v. McConnell, 2005 CanLII 13781 (ONCA)
  3. R. v. M. (E.A.D.), 2008 MBCA 78 (MBCA)

Conforming to the Evidence at Trial or Preliminary Inquiry[edit]

Where a trial or preliminary inquiry has commenced, the crown or judge may amend the information under s. 601(2) to conform to the evidence as it comes out.

See also s. 601(b)(i)

Under s.601(4.4), variations between the evidence and the time or jurisdiction set out in the information are not materials where the indictment was preferred within the limitation period or where the matter arose in the geographical jurisdiction of the court.

Factors to Consider[edit]

Section 601(4) sets out factors the court should consider:

601.

...

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.

CCC

Prejudice[edit]

An amendment will not be granted where the defence is prejudiced by the amendment. To be "prejudiced", the amendment must be create an offence the accused was unaware of or alter the manner in which the defence is conducted.[1]

An amendment may not substitute completely separate charges or otherwise "fundamentally" change the case against the accused.[2]

However, a correction in the section number alone is permissible at any point prior to the conclusion of trial.[3]


Under s. 601(5), where an accused is prejudiced by "a variance, error or omission" the court may adjourn the proceedings.

  1. R. v. Ali, 2008 ABCA 361
  2. R. v. Charlton and Ostere (1976), 30 C.C.C. (2d) 372 (B.C.C.A.)
  3. R. v. Hubek, 2011 ABCA 254 at para. 14

Preferred and Direct Indictments[edit]

Sections 574 and 577 under Part XX of the Criminal Code address the ability to prefer indictments.

Prosecutor may prefer indictment
574. (1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of

(a) any charge on which that person was ordered to stand trial; or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial.

Preferring indictment when no preliminary inquiry requested
(1.1) If a person has not requested a preliminary inquiry under subsection 536(4) or 536.1(3) into the charge, the prosecutor may, subject to subsection (3), prefer an indictment against a person in respect of a charge set out in an information or informations, or any included charge, at any time after the person has made an election, re-election or deemed election on the information or informations.

Preferring single indictment
(1.2) If indictments may be preferred under both subsections (1) and (1.1), the prosecutor may prefer a single indictment in respect of one or more charges referred to in subsection (1) combined with one or more charges or included charges referred to in subsection (1.1).

Consent to inclusion of other charges
(2) An indictment preferred under any of subsections (1) to (1.2) may, if the accused consents, include a charge that is not referred to in those subsections, and the offence charged may be dealt with, tried and determined and punished in all respects as if it were an offence in respect of which the accused had been ordered to stand trial. However, if the offence was committed wholly in a province other than that in which the accused is before the court, subsection 478(3) applies.

...

R.S., 1985, c. C-46, s. 574; R.S., 1985, c. 27 (1st Supp.), s. 113; 2002, c. 13, s. 45.

CCC

The preferring of an indictment occurs when it is when the indictment is "lodged" with the superior court at the opening of trial.[1]

Once an indictment has been preferred, any defect arising from the arrest, summoning, or preliminary inquiry will not invalidate the indictment.[2]

  1. R. v. Chabot 1980 CanLII 54 (SCC), [1980] 2 SCR 985
    R v Tippett 2010 NLCA 49
  2. R. v. Chabot 1980 CanLII 54 (SCC), [1980] 2 SCR 985
    R. v. Dowson (1983), [1983] 2 S.C.R. 144 (S.C.C.)

Direct Indictment[edit]

A "direct indictment" is an indictment that has been put before a Superior Court Justice without there having been an information from which the accused would have had an option of a preliminary inquiry.

Direct indictments
577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or
(b) in any other case, a judge of the court so orders.

R.S., 1985, c. C-46, s. 577; R.S., 1985, c. 27 (1st Supp.), s. 115, c. 1 (4th Supp.), s. 18(F); 2002, c. 13, s. 46.

CCC

Section 577 was found to be constitutional despite its effect of removing the right to a preliminary inquiry.[1] However, where the preferring of a direct indictment is combined with inadequate disclosure on the new charge(s), then it could result in a breach of the right to full answer and defence under s. 7 of the Charter.[2]

Where a direct indictment has been preferred the accused is deemed to have waived the preliminary inquiry and has made an election of trial by judge and jury.(565)

Direct indictments can be used even where there was already an election to provincial court.[3] It can also be used where the offence is one of absolute jurisdiction under s. 553[4]

Direct Indictments are most frequently used where:[5]

  1. delays in the trial could deprive the accused of the right to be tried within a reasonable time;
  2. the physical or psychological health of witnesses, their age, their safety or that of their relatives, and the difficulties involved in having witnesses testify more than once;
  3. preservation of the integrity of the Crown’s evidence by, for example, protecting informants and ongoing police investigations;
  4. a risk that evidence could be destroyed;
  5. public safety reasons;
  6. the need to avoid multiple proceedings caused, for example, by delays in making arrests;
  7. the accused was wrongly discharged following the preliminary inquiry because of errors, or new evidence has been discovered;
  8. a preliminary inquiry would be unreasonably costly, complex or long, or would be inappropriate because of the nature of the issues or the evidence;
  9. the alleged offence is so controversial that it is in the public interest to try the case as quickly as possible; and
  10. certain guidelines set out additional, broader criteria, such as the need to maintain public confidence in the administration of justice, the public interest, or the fact that the case is notorious or of particular importance to the public, that the direct indictment is the most appropriate procedure in the circumstances, or that there is a special need to expedite proceedings.

The Attorney General does not need to give reasons for deciding to prefer a direct indictment.[6]

The power under s. 577 is a discretionary power of the Crown.[7] However, it is reviewable for violations of the Charter. [8]

The defence may be able to have the court order evidence be taken from the justice system participants involved in the decision and the documents related to the decision to direct the indictment.[9] There is a high standard to warrant such disclosure requiring evidence of mala fides or "flagrant impropriety".[10] Further, the applicant must show that the documents fall under an exception to solicitor-client privilege.[11]

The exercise of power under s. 577 can be reviewed as an abuse of process.[12]

To warrant a remedy, it must be shown "that a discretion was exercise for improper or arbitrary motives".[13] There must be "clear and convincing evidence supporting the allegations before the Court."[14]

The consent of the Attorney General should generally be found on the direct indictment with a signature. However, may still be valid by attaching a letter from the Attorney-General consenting to the indictment.[15]

  1. R. v. Ertel (1987) 35 CCC (3d) 398
    Re Regina and Arviv 1985 CanLII 161 (ON CA), (1985), 19 C.C.C. (3d) 395
    see also R. v. Charlie1998 CanLII 4145 (BC CA), (1998), 126 C.C.C. (3d) 513 (BCCA)
  2. Arviv at para. 26
  3. Sher v. The Queen, 2012 ONSC 4783 at para. 14
    R v Poloni, 2009 BCSC 629 (“[the case law] all unequivocally state that the Attorney General has jurisdiction to directly indict an accused person who previously elected trial in provincial court.”)
  4. R. v. Beaudry, [1967] 1 C.C.C. 272 (BCCA)
  5. R. v. S.J.L., 2009 SCC 14 (CanLII), [2009] 1 SCR 426 at para. 38
  6. Sher v .The Queen, 2012 ONSC 4783 at para. 27, 29
  7. R. v. Ertel (1987) 35 CCC (3d) 398
  8. R. v. Dallas, Hinchcliffe & Terezakis, 2001 BCSC 77 (CanLII) at para. 21
  9. R v Durette, 1992 CanLII 2779 (ON CA), (1992), 72 C.C.C. (3d) 421 - judge declined to order statements from prosecutors but ordered sealed copies of relevant documents
  10. R. v. Chan, 2003 ABQB 169 - application for disclosure denied
  11. R. v. Trang, 2002 ABQB 744 (CanLII) at para. 419
  12. e.g. R. v. Trang, 2002 ABQB 744 at para. 369
  13. R. v. Beare 1988 CanLII 126 (SCC)
  14. R. v. Dallas, Hinchcliffe & Terezakis, 2001 BCSC 77 at para. 21
  15. See R. v. L'Henaff, 1999 SKQB 259 for form of indictment

See Topics[edit]