Change of Venue

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. 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”.

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Joinder and Severance

There is no limit on the number of counts that may be joined together in the same indictment or information, except in the case of murder. Section 589 of the Code provides that no count may be joined to a murder charge unless it arose out of the same transaction. Otherwise, provided the various counts have at least some connection in time and place, they may be tried together. It is important to note that joining the counts together does not make the evidence of one count admissible on any other count, unless the evidence meets the standard of similar fact evidence. Indeed, a trial Judge now has the discretion to permit the joinder of offences together even if the offences are a mixture of indictable and summary conviction offences. Summary conviction offences should not be joined with indictable offences unless the trial of the indictable offence is to take place in Provincial Court.

Joinder and severance relate both to the counts and to the accused. In other words, the court is given discretion to join or sever counts or to join or sever accused persons. In some instances a separate trial is preferable. For example, where a joint trial would deprive one accused of the benefit of the evidence of his co-accused , the court may order separate trials. On a joint trial one accused does not have the power to force the other accused to take the witness stand, even if the evidence of that co-accused would be beneficial. But on a separate trial the co-accused may be subpoenaed to testify, thereby ensuring the benefit. In fact, it has been held to be inappropriate for a trial Judge to refuse an application for severance by concluding that the co-accused’s evidence would not be credible.

In any event the general principle is that jointly charged accused will be jointly tried. The onus therefore is upon the applicant to demonstrate that it is in “the interests of Justice” to sever either the accused or the counts in an indictment. The Crown has a duty not to overload an indictment with unnecessary counts or particulars. An accused is entitled to a manageable and fair trial that will be understandable to members of the jury. Thus, the trial Judge, exercising her power to sever, will often solve an overloaded indictment.

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An accused who believes an indictment does not provide sufficient detail to allow him/her to know the charge against him/her, 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.1 In the Ontario Court of Justice the procedure for the service and filing of a motion for particulars is contained in Rule 29.
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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 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.
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Organizations: Failure to Appear or Attend

Because organizations cannot appear personally in court, the Code provides in subsection 556(1) that an organization, which includes a corporation, may appear by counsel or agent, and, if it fails to do so, and it is proved that a summons was served properly on the organization, the Judge may either conduct an ex parte trial or a preliminary inquiry depending on the nature of the charge.

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Failure to Appear

If an accused fails to appear for his/her jury trial, subsection 598(1) of the Code provides that the accused loses the right to be tried by a Judge and jury. At a subsequent trial date the accused (if and when he/she re-appears) may be required to proceed on the basis of a trial before a Judge sitting without a jury unless the accused satisfies the court that there was a legitimate excuse for his/her earlier non-appearance, or, the Attorney General requires that the trial proceed before a jury pursuant to section 598.
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Arraignments and Appearances

The initial appearance or “arraignment” may be before a Justice or a provincial court Judge. The purpose of the arraignment is to formally present the allegations to the accused. The accused is usually called forward, the charge or charges are read to him and he is asked if he is prepared to enter a plea to the charge(s). Before a jury is empaneled, or in the case of a trial by Judge alone, before the case may begin, an accused must be arraigned.
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Appearances in Court

Pursuant to section 650 of the Code the accused has the right and duty to attend at all times and for all aspects of his trial. In certain limited circumstances the court may interfere with the right of the accused to be present. Subsection 650(2) allows the court to exclude an accused from any proceeding against his or her will in the limited circumstances where the court causes the accused to be removed and to be kept out of the court because the accused is interrupting the proceedings, or, if the accused is unfit to stand trial and the court is satisfied that failure to do so might have an adverse effect on the mental condition of the accused. Also, the court may permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper. “Present” means physically present and able to hear and see the proceedings.
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Criminal Procedure: The Rules of the Game

Subsection 482(1) of the Code authorizes every Superior Court to make rules not inconsistent with a Federal statute. Subsection 482(2) provides a similar power to Provincial courts, subject to the approval of the Lt. Governor-in-Council of the Province. Sections 169 and 170 of the Courts of Justice Act create the Criminal Rules Committee and a procedure for enacting rules related to criminal proceedings. These are the rules permitted by section 482 of the Code. The Rules of the Ontario Court of Justice in Criminal Proceedings apply to all trials in the Ontario Court of Justice, often referred to as the Provincial Court.
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