Month: September 2024

Section 810 of the Code provides that a Justice or summary court may receive an information laid by a private citizen who fears on reasonable grounds that another person will cause personal injury to him or to his spouse or common-law partner or child or will damage his property. If a Justice is satisfied by the evidence adduced that the person has reasonable grounds for his fears, the Justice may:

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or

(b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.
Section 810 aims to prevent harm but does not create an offence. A person subject to an application for a peace bond must have a full opportunity to be heard.1 The onus of proof is upon the applicant on a balance of probability. It is not a trial, it is a hearing.
The Justice also has the power to include conditions on the recognizance that prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for any period specified in the recognizance, where the Justice or summary court decides that it is desirable to add such a condition.
When the Justice or summary conviction court adds a condition described in subsection (3.1) to a recognizance order, the Justice or summary conviction court shall specify in the order the manner and method by which

(a) the things referred to in that subsection that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and

(b) the authorizations, licences and registration certificates held by the person shall be surrendered.
Continue reading “Section 810 Recognizances”

Section 507.1 provides that a Justice may receive an information laid under section 504 by a private citizen and shall refer it to a provincial court Judge or a designated Justice to consider whether to compel the appearance of the accused on the information. The Judge or designated Justice to whom an information is referred then considers the case, determines if a case has been made out, meaning that there is some merit to the allegation, issues a summons or warrant for the arrest of the accused to compel him to attend before a Justice and answer to the charge. The receiving of an information is a ministerial act. The issuing of process is a judicial act.

Continue reading “Privately Laid Informations: Private Prosecutions”

If an accused believes an indictment does not provide sufficient detail to allow him to know the charge against him, he may move for particulars under section 587 of the Code. The applicant must convince the court that particulars are “necessary for a fair trial”.
Particulars are intended to supplement an indictment that is not sufficiently informative to ensure a fair trial. Particulars may be ordered by a trial Judge, but not by a Justice presiding at a preliminary inquiry. Particulars ordered on essential elements of the offence pursuant to section 587 become part of the charge itself and must be proved by the Crown.

Continue reading “Particulars”

An objection to an indictment or to a count in an indictment for a defect apparent on the face of it, must be taken by motion to quash the indictment or count before the accused has pleaded and thereafter only by leave of the court. The court that receives the objection may, if it considers it necessary, order the indictment or count to be amended to cure the defect.1 When a count in an information or indictment is so deficient that the court quashes it, the order may, in effect, end the prosecution. It may end because the limitation period for prosecuting the offence has expired, or, because further prosecution may be stayed as an abuse of process pursuant to section 7 of the Charter, or, based on unreasonable delay pursuant to section 11(b) of the Charter.

Continue reading “Amendments”

Unfortunately case law authority sometimes confuses what should be a fundamental difference between a count that violates the single transaction rule and a count that violates the duplicity rule. The single transaction rule has, at its base, a consideration of the factual circumstances that underpin the allegation contained in the count. The duplicity rule, in contrast, is concerned with the legal circumstances of the count. If the count is objectionable because it contains two separate and distinct legal allegations or charges, then the objection is framed in a manner that invokes the duplicity rule. If the count is seen to be objectionable based on the facts that underpin the count in the indictment, then the objection invokes the single transaction rule.

Continue reading “Single Transaction Rule vs. Duplicity”

Duplicity refers to the technical fault in drafting a charge that unites more than a single offence in one count. Counts or charges in an information or indictment breaching the rule prohibiting duplicity will be seen as alleging more than one or perhaps even multiple offences in a single count. Amendments pursuant to section 601 usually erase the problem by breaking a single count into two or more counts, each alleging a singular offence.

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Section 581 provides the rules governing the drafting of charges. The rules are designed to ensure, at minimum, an accused knows the offence(s) and is informed sufficiently to be able to respond to the charge(s).

Each count in an indictment or information shall in general apply to a single transaction and contain a statement that the accused committed the specified (indictable) offence.1 The count must contain sufficient detail of the circumstances of the alleged offence to provide reasonable information of the act or omission to be proved and to identify the transaction.

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Although this legislation appears to give an accused the right to appeal from the dismissal of an application for certiorari, including an application to quash an order to stand trial, or, mandamus or prohibition, the accused does not have the right to a stay of the trial proceedings pending the appeal. The power to grant a stay is discretionary, the test being whether the accused can show the existence of a serious question, and, unless a stay is granted he would suffer irreparable harm, and, that the balance of convenience favours granting the stay.1
Continue reading “No Automatic Stay of Trial Pending Appeals Under 784”

Section 13 of the Criminal Code of Canada (“the Code”) provides that no person shall be convicted of an offence while that person was under the age of twelve. Age is measured by chronological age and not according to intellectual capacity. Although the Code exempts a child from criminal liability, an adult may still be found to be a party to an offence committed by someone less than twelve years of age.

Continue reading “Age”

Certiorari is a remedy that seeks to have the Superior court of a Province review proceedings in the Provincial Court to determine if the lower court has acted without, or, in excess of its jurisdiction. The applicant seeks to demonstrate that the decision of the lower court either exceeded its jurisdiction or had no jurisdiction to make the decision challenged. If the Superior Court agrees, it quashes the decision of the lower court. The Superior Court may also give directions to the lower court as to how to proceed now that its earlier decision has been quashed.

Continue reading “The Extraordinary Remedies”