Laying of an Information

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General Principles

Either before or after arrest a peace officer can create a 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.

According to s. 506, the format for an information is taken from Form 2 of the Code:

Form
506 An information laid under section 504 or 505 may be in Form 2.
R.S., c. 2(2nd Supp.), s. 5.


An information must be sworn by an officer who has formed reasonable and probable grounds to believe that the offence described had been committed by the accused.[1] A failure to have the requisite grounds does not render the informations void ab initio.[2]

Charges can be laid before any justice within the province.[3]

The swearing of information commences the prosecution of an accused.[4]

  1. R v Awad, 2014 NSSC 44 (CanLII)
  2. R v Whitmore (1987), 41 CCC (3d) 555 (Ont. H.C.J.)(*no link) per Ewaschuk J. aff’d 51 CCC (3d) 294 (Ont. C.A.)
    Awad at para 14
  3. R v Ellis, 2009 ONCA 483 (CanLII)
  4. R v Awad, 2015 NSCA 10 (CanLII) at para 49

Indictable Offences

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.

Laying an Information

See also: Reasonable and Probable Grounds

Under s. 504, where an accused person is charged with an offence, the Information detailing the charge will be sworn by a peace officer. An officer may only swear an information on the basis of personal information or upon reasonable and probable grounds.[1]

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 504 provides a preliminary "screen" of the case to only proceed where there is a prima facie case.[2]

The justice's function at this stage is "entirely ministerial or administrative."[3]

The process set out in s. 504 is mandatory without any discretion, even in the case of private prosecutions.[4] No additional steps, such as requiring leave before laying an information are permitted.[5]

If the justice affirms the information by signing it, then the information has been laid and the matter begins the prosecution. The judge then must go to the next stage under s. 507 (public prosecutions) or 507.1 (private prosecutions).[6]

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 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. [7]

Once an information is sworn and laid, there is no obligation on the part of police to seek a summons or arrest "immediately following" the laying of the information.[8]

Signature
While it is acceptable for an affiant to sign by way of a rubber stamp, it is not permitted for an authorizing justice to use a stamp as it is "irreconcilable with the solemnity and importance" of the oath swearing process.[9]

  1. R v Kamperman (1981), 48 N.S.R. (2d) 317, 92 A.P.R. 317 (S.C.T.D)(*no link)
  2. R v Whitmore, (1989), 35 O.A.C. 373, 51 CCC (3d) 294 (Ont. C.A.)(*no link) ("In any event, the duty of the justice of the peace is, first, to determine if the information is valid on its face and secondly, to determine whether it discloses or there is disclosed by the evidence a prima facie case of the offences alleged.")
  3. R v Lupyrypa, 2008 ABQB 427 (CanLII), at paras 48-49
  4. R v Thorburn, 2010 ABQB 390 (CanLII) at paras 56, 59
  5. Thorburn, ibid.
  6. Thornburn at para 59
  7. R v Markovic, 2005 CanLII 36251, OJ No 4286 (ON CA)
  8. R v Worme, 2014 SKQB 383 (CanLII), at para 33
  9. R v Welsford, 1967 CanLII 36 (ON CA), [1967] 2 O.R. 496

Issuing Process

See also: Warrant Arrests and Issuing Process

Laying An Information by Phone

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)).

Information laid otherwise than in person
508.1 (1) For the purposes of sections 504 to 508, a peace officer may lay an information by any means of telecommunication that produces a writing.
Alternative to oath
(2) A peace officer who uses a means of telecommunication referred to in subsection (1) shall, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the officer’s knowledge and belief, and such a statement is deemed to be a statement made under oath.
1997, c. 18, s. 56.


CCC

Summary Offences

The process of laying charges for summary offences is similar to that of indictable offences. The procedure 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.

No reference to previous convictions
(2) No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions.
R.S., c. C-34, s. 724.


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))

Replacement Informations

523
...
Where new information charging same offence
(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, section 507 or 508, as the case may be, does not apply in respect of the new information and the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.


CCC

Under s. 524(1.1) a court has "jurisdiction to receive and proceed on a relaid information nothwithstanding that the process has not been issued no that information".[1]

New Charges
Section 523(1.1) does not apply for new charges before the court that does not have process.[2]

Where the accused and a new information without process are both before the court, the court has jurisdiction to deal with the information.[3]

  1. R v Brar, 2007 ONCJ 359 (CanLII) at para 8
    Re McCarthy and The Queen (1999), 1998 CanLII 5749 (BC SC), 131 CCC (3d) 102
  2. R v Dougan, 2012 YKSC 88 (CanLII), at para 19
  3. Dougan at para 19
    R v McCarthy

Direct Indictment Laid

See also: Direct Indictments

523
...
When direct indictment is preferred charging same offence
(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.


CCC

Replacement Release Order

See also: Terms_of_Release#Variation_and_Review_of_Conditions

Section 523(2) and (3) relate to the vacating of a previous detention/bail order.

523
...
Order vacating previous order for release or detention
(2) Despite subsections (1) to (1.2),

(a) the court, judge or justice before which or whom an accused is being tried, at any time,
(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or
(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time
(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,
(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or
(iii) the court, judge or justice before which or whom an accused is to be tried,

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
Provisions applicable to proceedings under subsection (2)
(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.


CCC

The judge must be satisfied that that "cause" has been shown before they may vacate the old order and make any new one.[1]

The ability to seek an order under 523(2) will depend on the stage of proceedings. An application can be made when:

  1. during trial (523(2)(a))
  2. upon "completion of the preliminary inquiry", except when it is a 469 offence (523(2)(b))
  3. with consent of Crown and defence (523(2)(c)); or
  4. if no consent, then "any time" so long as it is an order under (1.1) [ie. Replacement information] and the application is before any judge or justice (for a non 469 offence) or, if it is a 469 offence, it must be before a superior court of criminal jurisdiction;

A judge should only interfere where there has been a "material change in circumstances".[2]

Merely being committed to trial after a preliminary inquiry does not amount to "cause".[3]

Exclusive jurisdictions Offences under s. 469 do not apply to these orders under 523(2) and (3).[4]

  1. See s. 523(2) "on cause being shown"
  2. R v McDonell, 2012 ONSC 2567 (CanLII), at para 17
  3. McDonell, at para 19
  4. See 523(3)

Transferring the Accused's Matter to the Proper Jurisdiction

Order that accused appear or be taken before justice where offence committed
543. (1) Where an accused is charged with an offence alleged to have been committed out of the limits of the jurisdiction in which he has been charged, the justice before whom he appears or is brought may, at any stage of the inquiry after hearing both parties,

(a) order the accused to appear, or
(b) if the accused is in custody, issue a warrant in Form 15 to convey the accused

before a justice having jurisdiction in the place where the offence is alleged to have been committed, who shall continue and complete the inquiry.
Transmission of transcript and documents and effect of order or warrant
(2) Where a justice makes an order or issues a warrant pursuant to subsection (1), he shall cause the transcript of any evidence given before him in the inquiry and all documents that were then before him and that are relevant to the inquiry to be transmitted to a justice having jurisdiction in the place where the offence is alleged to have been committed and

(a) any evidence the transcript of which is so transmitted shall be deemed to have been taken by the justice to whom it is transmitted; and
(b) any appearance notice, promise to appear, undertaking or recognizance issued to or given or entered into by the accused under Part XVI shall be deemed to have been issued, given or entered into in the jurisdiction where the offence is alleged to have been committed and to require the accused to appear before the justice to whom the transcript and documents are transmitted at the time provided in the order made in respect of the accused under paragraph (1)(a).


R.S., c. C-34, s. 471; R.S., c. 2(2nd Supp.), s. 7.


CCC

Confirming Attendance

Once the accused attends for the first time in court, the authority of the justice of the peace or peace officer is complete and only the judge may compel future attendance. The purpose of a promise to appear, summons, or any other tool to ensure attendance is to secure attendance for the first time. After the initial appearance the promise to appear is irrelevant.[1]

Whenever a judge had an information before him, he must comply with section 508. Section 508(b)(i) would appear to require that judges confirm that the notice, promise to appear or recognizance remains in effect and then endorse the information.[2]

However, case law has been divergent on the issue of whether the failure to confirm the order to return to court creates a nullity, invalidating the information. While there are a number of cases supporting the nullity effect on the lack of confirmation,[3] there is a growing line of cases that see it as having no effect on the validity of the charge.[4]

  1. R v Oliveira, 2009 ONCA 219 (CanLII) at 30
  2. R v Key, 2011 ONCJ 780 (CanLII) - detailed review of cases
  3. eg. R v Koshino, [1991] O.J. No. 173 (Gen. Div.)(*no link)
    R v Sandoval, [2000] O.J. No. 5591 (S.C.J.)(*no link)
    R v Smith, 2008 CanLII 3410 (ON SC), [2008] O.J. No. 381 (S.C.J.)
    R v Pilieci (2010), 257 CCC (3d) 541 (Ont. S.C.J.), 2010 ONSC 3606 (CanLII)
  4. R v Rennie, [2004] O.J. No. 4990 (S.C.J.)(*no link)
    R v Pavlick, [2008] O.J. No. 2114 (S.C.J.)(*no link)
    R v Sullivan, [2009] O.J. No. 5075 (S.C.J.)(*no link)
    R v Duran, 2011 ONSC 7346 (CanLII)
    R v Morton, 1992 CanLII 7818 (ON SC), (1992), 70 CCC (3d) 625 (Ont. Gen. Div.), affirmed, (1993), 83 CCC (3d) 95 (Ont.C.A.)
    R v Matykubov,2010 ONCJ 233 (CanLII)
    See also R v Wetmore (1976), 18 N.S.R. (2d) 292 (NSCA)(*no link)

See Also