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 it is quashed by the court, the order may, in effect, end the prosecution, either because the limitation period for prosecuting the matter has expired, or, because further prosecution may be stayed as an abuse of process pursuant to section 7 of the Charter or because of unreasonable delay pursuant to section 11(b) of the Charter. The recent trend in law, however, is not to quash but to amend. The strict rules of pleading in criminal law have given way to a less rigid interpretation of those rules, as evidenced by many recent cases rejecting objections based on duplicity and the single transaction rule. A Justice presiding at a preliminary inquiry may now also make amendments pursuant to section 601 of the Code.
The court may also “fix” otherwise objectionable informations or indictments by ordering the Crown to produce “particulars” pursuant to section 587 of the Code. The amendment cannot, however, substitute an entirely different offence for the one originally charged.3 A count that is duplicitous (or multifarious) may be amended.
In deciding whether or not to amend the court must consider:
a. The matters disclosed by the evidence taken at 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 variation, error or omission; and
e. Whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
In any event, it is important to note that a motion to quash must be brought prior to plea, otherwise the applicant will be left to the mercy of the court as to whether or not leave will be granted to argue the motion. One should also be aware of the fact that if the court does quash an indictable offence that does not have a limitation period, subject only to a finding of abuse or an infringement of the constitutional right to a trial within a reasonable time, the Crown may relay the charge, and if the Crown does so, the accused will not be able to argue autrefois acquit.
If an accused’s application to quash is dismissed, based upon a question of law, the legal issue may be raised on any subsequent appeal.
In addition to amendments that may be requested to cure defects that are apparent on the face of the indictment, amendments may also be permitted where the evidence deviates from the allegations within the information or indictment. The court is provided with discretion to amend defects that emerge during the course of the trial. If the amendment can be made without prejudice to the accused it will usually be made.7 This affects the timing of an amendment. An amendment for a defect on the face of the indictment may be made at any time, but an amendment for a variance of evidence and charge, may only be made after the evidence has been presented in court.8 A trial Judge may, on her own motion, amend an information to conform with the evidence. The trial Judge, however, is under no duty to amend an information on her own motion, in other words, in the absence of an application to amend by the Crown.
The above is the an excerpt of Patrick J Ducharme’s book, Criminal Trial Strategies, available at Amazon or in bulk through MedicaLegal Publishing.
Read or listen to the Preface and Introduction and subscribe to Patrick Ducharme’s Youtube Channel.