Author: Patrick Ducharme

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.

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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.

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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.

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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.

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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”

As a general rule, since crime is considered local, a trial must take place in the county or territorial division where the offence took place.1 However, a court before which an accused is or may be indicted, may, at any time before or after an indictment is found, on either the application of the prosecutor or the accused, order that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried if “it appears expedient to the ends of Justice or a competent authority has directed the jury is not to be summoned at the time appointed in a territorial division where a trial would otherwise by law be held”.
Most applications for a change of venue are based upon strong evidence of a general prejudicial attitude in the community against the accused. The Crown does not have a right of appeal from an order changing the venue of a trial. It is improper to bring successive applications for a change of venue, unless new grounds have arisen since a previous application.

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