Withdraw and Dismissal of Charges

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2015. (Rev. # 91115)

Withdraw of Charges

The Crown can withdraw a charge at any time prior to plea. After a plea has been entered, it may only be withdrawn with leave of the court and may require consent of the defence.

Source of Power to Withdraw

It is a Crown's prerogative power, derived from s. 8(2) and common law, to withdraw a charge prior to plea.[1]

The power to withdraw charges is possessed by the Crown alone. The judge has limited control or review of that authority.[2]

Procedure

A withdraw can be accomplished by taking the information out of possession of the court or simply refusing to put the information before the court.[3]

In practice, a charge can be withdrawn by simply writing a letter to the clerk of the court directing them not to place the information before the court.[4]

Timing of Withdraw

The Crown's authority to withdraw prior to plea is unfettered.[5]

The authority to withdraw an information requires the "commencement of a prosecution", which coincides with the decision of the justice to issue process.[6]

After the plea, the Crown may only withdraw with leave of the court.[7]

When an election to Superior Court court has been made, the charge can be withdrawn up until a preliminary inquiry is complete.

Effect of Withdraw

Once an information is withdrawn, all associated arrest warrants, recognizances, or detention orders are vacated.[8]

A detention order is associated with a particular information. A replacement information cannot carry to old detention order.[9]

A withdraw of an information, that is subsequently replaced by a different charge, may in some circumstances give rise to a plea of "autrefois acquit."[10]

  1. ↑ R v Beauchamp, 2014 ABPC 113 (CanLII), per Rosborough J, at paras 9 to 10
    R v McHale, 2010 ONCA 361 (CanLII), 256 CCC (3d) 26, per Watt JA, at para 32 ("Despite the absence of express or necessarily implied authority in the Criminal Code, it is well‑established that the Attorney General has the authority to withdraw an information prior to plea")
    R v Dick, 1968 CanLII 231 (ON SC), , [1968] 2 OR 351 (H.C.J.), per Lieff J, at p. 359
    R v Osborne, 1975 CanLII 1357 (NB CA), (1975), 11 NBR (2d) 48 (S.C.(A.D.)), per Limerick JA, at paras 17 and 30
    R v Blasko, 1975 CanLII 1405 (ON SC), , [1975] O.J. No. 1239 (H.C.J.), per Parker J, at paras 5 and 6
    Re Forrester and The Queen, 1976 CanLII 1433 (AB QB), 33 CCC (2d) 221 (Alta. S.C.(T.D.)), per Quigley J, at pp. 223-5
  2. ↑ See R v Garcia and Silva, 1969 CanLII 450 (ON CA), , [1970] 3 CCC 124, per Gale CJ
    Osborne, supra, at pp. 411-12
  3. ↑ Beauchamp, supra, at para 14
    Re Forrester and the Queen, supra
  4. ↑ Beauchamp, supra, at paras 15 to 18
  5. ↑ Forrester, supra, at para 8 ("In the present case the Crown appeared to apply for a withdrawal but in effect it need not have had to frame its intentions by way of a request, and in any event the Provincial Judge clearly stated the effect of what transpired when he said "... the charge is withdrawn by the Crown"")
  6. ↑ McHale, supra, at para 77
  7. ↑ Beauchamp, supra, at para 13
    Re Blasko and the Queen, supra
  8. ↑ Beauchamp, supra, at paras 19 to 25
  9. ↑ Beauchamp, supra, at paras 20 to 21
    Ex Parte Stewart, 1978 CanLII 2443 (ON SC), 42 CCC (2d) 62 (Ont.H.C.), per Linden J, at para 5 ("I hold that a detention order springs from the information, not from the offence itself. Once an information is withdrawn or declared void, then I believe that any detention order based upon that information must also fall.")
  10. ↑ e.g. see R v C(SS), 2001 ABQB 959 (CanLII), 301 AR 25, per Lee J

Dismissal for Want of Prosecution

A judge may make an order dismissing charges for "want of prosecution" resulting in the cessation of the proceedings.

The order can be made at any point up until the commencement of trial.

An applicant can make a motion seeking the dismissal of the charges. Typically, this will arise where a matter cannot proceed any further such as where:

  1. the judge has refused to adjourn a matter
  2. the Crown elects to "offer no evidence"
  3. the crown has failed to attend or is otherwise incapable of moving a prosecution forward

The authority to dismiss charges is discretionary.[1]

A judge cannot make an order to dismiss for want of prosecution where the prosecutor is late in attending court.[2] And particularly where a guilty plea has already been entered.[3]

  1. ↑ R v Fletcher and Smith, 1990 CanLII 2507 (NSCA), 99 NSR (2d) 258, per MacDonald JA, at p. 260 or, at para 7
  2. ↑ R v Moreland, 1994 CanLII 1016 (BC SC), per Hutchison J
  3. ↑ R v Siciliano, 2012 ONCA 168 (CanLII), per curiam

Dismissal Due to Non-Appearance of Relevant Party

Non-appearance of prosecutor

799 Where, in proceedings to which this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] applies, the defendant appears for the trial and the prosecutor, having had due notice, does not appear, the summary conviction court may dismiss the information or may adjourn the trial to some other time on such terms as it considers proper.
R.S., c. C-34, s. 734.

– CCC (CanLII), (DOJ)

Note up: 799

Simply dismissing matters on the docket for non-attendance of the Crown without any inquiry into the reasons for delay is not a judicial exercise of discretion.[1] The same rule would apply for failure of Crown witnesses to attend.[2]

  1. ↑ R v Fletcher, 1990 CanLII 2507 (NSCA), 270 APR 258, per MacDonald JA - judge dismisses the docket because crown is not present 4 minutes after court opens
  2. ↑ R v Carvery, 1992 CanLII 2603 (NSCA), 299 APR 350, per Hallett JA

Recommence Dismissed Charges

A charge that is dismissed for want of prosecution may be recommenced with the laying of a new information or direct indictment only with written consent of the Attorney General or Deputy Attorney General:

Recommencement where dismissal for want of prosecution

485.1 Where an indictment in respect of a transaction is dismissed or deemed by any provision of this Act to be dismissed for want of prosecution, a new information shall not be laid and a new indictment shall not be preferred before any court in respect of the same transaction without

(a) the personal consent in writing of the Attorney General or Deputy Attorney General, in any prosecution conducted by the Attorney General or in which the Attorney General intervenes; or
(b) the written order of a judge of that court, in any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene.

R.S., 1985, c. 27 (1st Supp.), s. 67.

– CCC (CanLII), (DOJ)

Note up: 485.1

Dismissal After Trial

Under s.804, a summary conviction court may dismiss an information at the conclusion of trial.

Upon dismissing the charge, the summary conviction court must make an order of dismissal. Section 808 states:

Order of dismissal

808 (1) Where the summary conviction court dismisses an information, it may, if requested by the defendant, draw up an order of dismissal and shall give to the defendant a certified copy of the order of dismissal.

Effect of certificate

(2) A copy of an order of dismissal, certified in accordance with subsection (1) [summary conviction court may issue order of dismissal on request] is, without further proof, a bar to any subsequent proceedings against the defendant in respect of the same cause.
R.S., c. C-34, s. 743.

– CCC (CanLII), (DOJ)

Note up: 808(1) and (2)

See Also

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