View source for Informations and Indictments

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==Informations and Indictments==
Criminal charges are set out in written form, either through an Indictment or an Information. An Indictment is the form of a charge typically handled in superior court while an information is the form used in provincial court.

'''Indictment'''<Br>
Section 2 defines "indictment" stating:
{{Quotation|
2<br>...<br>
indictment includes
:(a) information or a count therein,
:(b) a plea, replication or other pleading, and
:(c) any record; 
...<br>
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Under the English common law, there was a system of laying indictments that would permit an indictment against an accused by either a grand jury or coroner's inquest. Section 576 abolished these modes of laying indictments. 

'''Information'''<Br>
Section 785 defines "information":
{{quotation|
787 In this Part [Part XXVII - Summary Convictions]
"information" includes
:(a) a count in an information, and
:(b) a complaint in respect of which a justice is authorized by an Act of Parliament or an enactment made thereunder to make an order; (dénonciation)
<Br>
...<br>
R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4.
[Annotations Added]
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An '''information''' is a accusation sworn by a peace officer. (s. 507, 508, 788, 789 and Form 2) The '''indictment''' is an unsworn accusation.(s.566,580, 591 and Form 4)

The purpose of an information was described as;<ref>R v Akey, [http://canlii.ca/t/g1ck8 1990 CanLII 6755] (ON SC), [1990] O.J. No. 2205 (Gen. Div.) at para 6</ref>
#to commence the proceedings until the accused is arraigned or the charges dismissed;
#to inform the accused of the allegations against him or her;
#to indicate that an allegation has been made under oath before a justice of the peace; and
#for a summary conviction offence, to indicate to the accused that the information was sworn within six months after the time when the subject-matter of the proceedings arose: s. 786(2) of the Criminal Code.

{{reflist|2}}

==Validity of the Information or Indictment==
[http://canlii.ca/t/7vf2#sec580 Sections 580 to 601] sets out the criteria for a valid information.

{{quotation|
'''Form of indictment'''<Br>
580 An indictment is sufficient if it is on paper and is in Form 4.
<Br>R.S., 1985, c. C-46, s. 580; R.S., 1985, c. 27 (1st Supp.), s. 117.
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An indictment should be in conformity with Form 4.<ref>
see s. 580 "An indictment is sufficient if it is on paper and is in Form 4."
</ref>

The more modern approach to validity of an information is more focused on substance rather than technical form considered in the older approach.<Ref>
R v Sault Ste. Marie (1978), 40 CCC (2d), [http://canlii.ca/t/1mkbt 1978 CanLII 11] (SCC), at 353
</ref>

The date "is relevant and material only when the issue of limitation periods arises"<ref>R v Dean, [http://canlii.ca/t/27t5r 1985 CanLII 1142] (AB QB), (1985), 36 Alta. L.R. (2d) 8 (Q.B.)</ref> Where the date is in error, it may be that the proper date can be inferred. 

Where the date of the information has been amended without any indication of the circumstances creates a nullity. <ref>R v Howell [http://canlii.ca/t/27p4d 1978 CanLII 692] (AB QB), (1978), 14 A.R. 299</ref>

It is often said that an information that contains on its face contained a contradiction that was an impossibility is a nullity. <ref>R v George, [http://canlii.ca/t/1qlcm 1993 CanLII 4609] (NS SC)</ref>

'''Presumptions and Burdens'''<br>
There is a rebuttable presumption that a justice of the peace will only operate within their authority.<ref>R v Justice of the Peace;  Ex Parte Robertson, [1971] 1 O.R. 12 (CA){{NOCANLII}}</ref>

There is a presumption that an information is valid on its face.<ref>
R v Kamperman, 48 N.S.R. (2d){{NOCANLII}} at para 9 ("There is a presumption that the information is valid on its face and the onus is upon the accused to rebut that presumption ")<br>
</ref>

The onus is upon the accused to establish on a balance of probabilities that the information is defective.<ref>
R v Awad, [http://canlii.ca/t/g0nng 2013 NSPC 82] (CanLII), at para 51 aff'd at 2015 NSCA 10<br>
R v Peavoy, 15 CCC (2d) 97{{NOCANLII}}<br>
R v Vanstone, 1982 Carswell Alta. 626{{NOCANLII}} at para 30<br>
R v Kamperman{{supra}}, at para 9 ("There is a presumption that the information is valid on its face and the onus is upon the accused to rebut that presumption ")<br>
</ref>

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===Motion to Quash the Information===
Where the process required by s. 504 to 508 is not complied with and it results in a loss of jurisdiction allows the accused to apply to quash the information.

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===Types of Errors===

'''Defects to the Jurat'''<br>
A "jurat" is the part of an information where a judicial officer certifies the document.<ref>
http://www.duhaime.org/LegalDictionary/J/Jurat.aspx Duhaime's Law Dictionary: "jurat"<br>
</ref>
Where the jurat is missing, or where parts of the information were not seen by the judicial offcier who certified the document, the result can be a nullification of the document.<ref>
e.g. R v Yerxa, [http://canlii.ca/t/2bzfc 1991 CanLII 6234] (NB QB)
</ref>

'''Bilingualism'''<br>
Under [http://canlii.ca/t/7vf2#sec841 s. 841(3)] the boiler-plate or pre-printed portion of the information or indictment must be in both french and english.<Ref>
c.f. R v Shields, [1990] O.J. No. 2534 (Ont.Dist.Ct.){{NOCANLII}} - information a nullity, suggests ''all'' document must be bilingual<br>
R v Noiseux (1999) 135 CCC (3d) 225{{NOCANLII}} - this also applies to release documents <br>
</ref> The document will be a nullity where the pre-printed portion is only in a single language.<ref>
R v Goodine (1991), 68 CCC (3d) 366 (N.S.Co.Ct.){{NOCANLII}} overturned on other point at 71 CCC (3d) 146 (NSCA)<br> 
</ref> 
There is some suggestion that it will only be a nullity where there is prejudice to the accused.<ref>
R v Sorensen, [http://canlii.ca/t/g18gr 1990 CanLII 6852] (ON SC), (1990), 59 CCC (3d) 211 (Ont.Ct.(Gen.Div.))<br>
</ref>

Section 841 will not apply for summary proceedings.<Ref>
R v Joudrey (1992), 309 A.P.R. 117 (NSPC){{NOCANLII}}
</ref>

'''Lost Information'''<br>
A trial for a regulatory offence can still proceed despite the information having been lost. <ref>
R v City of Toronto, [http://canlii.ca/t/fkqf1 2011 ONCJ 131] (CanLII)</ref>


{{reflist|2}}

===Other Errors===
{{quotation|
'''No reference to previous conviction'''<br>
664 No indictment 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.
<br>
R.S., c. C-34, s. 591.
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==Effect of Defects and Nullities==
Where a defect is found, the information cannot stand. It may only be amended within the authority of the Criminal Code.<ref>
R v Vanstone, 1982 Carswell Alta. 626{{NOCANLII}} at para 30<br>
</ref>

Absent an information being a nullity, s. 601 gives the judge powers to cure defects.<ref>
R v Awad, [http://canlii.ca/t/gg43m 2015 NSCA 10] (CanLII) at para 15 citing trial judge <br>
</ref>

'''Corrections'''<br>
Any amendment to fix a defect must be done before the conclusion of trial.<ref>
R v Vanstone{{supra}} at para 30<br>
</ref>

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==See Topics==
* [[Laying of an Information and Issuing Process]]
* [[Direct Indictments]]
* [[Form and Content of Charges]]
* [[Joinder and Severance of Charges]]
* [[Amendments to Charges]]

==Case Digests==
* [[Informations and Indictments (Cases)|Case Digests]]