Particulars: Difference between revisions
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==General Principles== | ==General Principles== | ||
An accused can apply for an order requiring the Crown to provide particulars. Section states: | An accused can apply for an order requiring the Crown to provide particulars. Section states: | ||
{{ | {{quotation2| | ||
; What may be ordered | |||
; What may be ordered | |||
587 (1) A court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality of the foregoing, may order the prosecutor to furnish particulars | 587 (1) A court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality of the foregoing, may order the prosecutor to furnish particulars | ||
:(a) of what is relied on in support of a charge of perjury, the making of a false oath or a false statement, fabricating evidence or counselling the commission of any of those offences; | :(a) of what is relied on in support of a charge of perjury, the making of a false oath or a false statement, fabricating evidence or counselling the commission of any of those offences; | ||
| Line 14: | Line 15: | ||
:(f) further describing the means by which an offence is alleged to have been committed; or | :(f) further describing the means by which an offence is alleged to have been committed; or | ||
:(g) further describing a person, place or thing referred to in an indictment. | :(g) further describing a person, place or thing referred to in an indictment. | ||
; Regard to evidence | |||
(2) For the purpose of determining whether or not a particular is required, the court may give consideration to any evidence that has been taken. | (2) For the purpose of determining whether or not a particular is required, the court may give consideration to any evidence that has been taken. | ||
<br> | <br> | ||
| Line 22: | Line 23: | ||
:(b) the particular shall be entered in the record; and | :(b) the particular shall be entered in the record; and | ||
:(c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular. | :(c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular. | ||
R.S., 1985, c. C-46, s. 587; R.S., 1985, c. 27 (1st Supp.), s. 7. | R.S., {{LegHistory80s|1985, c. C-46}}, s. 587; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 7. | ||
| | |{{CCCSec2|587}} | ||
|{{NoteUp|587|1|2|3}} | |||
}} | }} | ||
The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary" | The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary."<ref> | ||
{{CanLIIRP|Hynes|51xk|2001 SCC 82 (CanLII)|[2001] 3 SCR 623}}{{perSCC-H|McLachlin CJ}}{{atL|51xk|33}}</ref> | |||
The dual purpose of particulars is to 1) ensure the defence's "ability to make full answer and defence" and 2) facilitate the administration of justice.<ref> | The dual purpose of particulars is to 1) ensure the defence's "ability to make full answer and defence" and 2) facilitate the administration of justice.<ref> | ||
{{CanLIIRx|McCarthy’s Roofing Limited|gpd33|2016 NSPC 21 (CanLII)}}{{perNSPC|Derrick J}}{{atL|gpd33|7}}<br> | |||
{{CanLIIRP|Canadian General Electric Co.|hv09b|1974 CanLII 1540 (ONSC)|[1974] OJ No 13 (HCJ)}}{{perONSC|Pennell J}}{{AtsL|hv09b|33| and 35}}<br> | |||
</ref> | </ref> | ||
There is no absolute right to particulars.<ref> | There is no absolute right to particulars.<ref> | ||
{{CanLIIRP|Hunter, Goshinman and Anderson|2djs5|1985 ABCA 301 (CanLII)|23 CCC (3d) 331}}{{perABCA|Lieberman JA}}{{atL|2djs5|33}} | |||
</ref> The burden is upon the applicant to establish on the balance of probabilities that the "necessity" to "understand and appreciate that which is alleged against him so as to enable him to adequately prepare and defend against said allegations" | </ref> | ||
The burden is upon the applicant to establish on the balance of probabilities that the "necessity" to "understand and appreciate that which is alleged against him so as to enable him to adequately prepare and defend against said allegations."<ref> | |||
{{CanLIIRx|McLaren|1nrvm|1995 CanLII 6031 (SK QB)}}{{perSKQB|Grotsky J}} | |||
</ref> | </ref> | ||
The purpose of orders for particulars is: (1) "to give exact and reasonable information to the accused respecting the charges before the court"; and (2) to "facilitate the administration of justice." | The purpose of orders for particulars is: (1) "to give exact and reasonable information to the accused respecting the charges before the court"; and (2) to "facilitate the administration of justice." | ||
<ref> | <ref> | ||
{{supra1|Canadian General Electric}}{{AtL|hv09b|35}} | |||
</ref> | </ref> | ||
The applicable factors to ordering particulars are set out as follows:<ref> | The applicable factors to ordering particulars are set out as follows:<ref> | ||
{{CanLIIRP|Imperial Tobacco Co. et al.|gc0fn|1940 CanLII 238 (AB QB)|[1940] 1 DLR 397, 1 WWR 124, 73 CCC 18 (Alta. T.D.)}}{{perABQB|McGillivray J}}<br> | |||
{{supra1|Canadian General Electric}}<br> | |||
{{CanLIIRP|Cominco Ltd. et al.|gcw3q|1978 CanLII 1997 (AB QB)|91 DLR (3d) 541, 41 CCC (2d) 514, 13 AR 106 (Alta. T.D.)}}{{perABQB|Brennan J}}<br> | |||
cf. | cf. {{CanLIIRP|McGavin Bakeries et al.|gbf63|1950 CanLII 372 (AB QB)|99 CCC 330, 1 WWR (N.S.) 129, 11 CR 227 (Alta. T.D.)}}{{perABQB|McBride J}}<br> | ||
see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003) | see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003){{atps|9-41}}<br> | ||
</ref> | </ref> | ||
#The purpose of particulars in a criminal trial is twofold. The first is to give exact and reasonable information to the accused respecting the charge against him as will enable him to establish his defence.<ref> | #The purpose of particulars in a criminal trial is twofold. The first is to give exact and reasonable information to the accused respecting the charge against him as will enable him to establish his defence.<ref> | ||
{{supra1|Canadian General Electric}}{{atp|443}}</ref> | |||
See also | The second purpose is to facilitate the administration of justice.<ref> | ||
#To facilitate the administration of justice, it is essential that the trial judge has sufficient information before him or her by means of particulars as to what the Crown intends to prove against the accused in order that the trial judge may make “proper, adequate and expeditious rulings on the admissibility or otherwise of evidence sought to be deduced”<ref> | {{CanLIIRP|Adduono|g1366|1940 CanLII 109 (ON CA)|[1940] 1 DLR 597, 73 CCC 152}}{{perONCA|Masten JA}}<br> | ||
See also {{CanLIIRP|Côté|1mk97|1977 CanLII 1 (SCC)|[1978] 1 SCR 8}}{{atp|13}}, (1977), 73 DLR (3d) 752, 2 WWR 174, 33 CCC (2d) 353{{perSCC|de Grandpré J}}</ref> | |||
#To facilitate the administration of justice, it is essential that the trial judge has sufficient information before him or her by means of particulars as to what the Crown intends to prove against the accused in order that the trial judge may make “proper, adequate and expeditious rulings on the admissibility or otherwise of evidence sought to be deduced”<ref> | |||
{{supra1|Cominco}}{{atL|gcw3q|15}}<br> | |||
''R v General Electric'', supra, the secondary purpose of particulars was illustrated as follows at 443 (CCC): ". . .When a conspiracy count involves an alleged widespread complicated conspiracy for the accomplishment of a purpose going beyond the performance of individual acts, the particulars furnished will assist the Judge in ruling on the relevancy of the evidence. To adopt a homely form of words, at trial circumscribed by particulars will not wander all over the shop and will foreclose an unreal controversy."<br></ref> | ''R v General Electric'', supra, the secondary purpose of particulars was illustrated as follows at 443 (CCC): ". . .When a conspiracy count involves an alleged widespread complicated conspiracy for the accomplishment of a purpose going beyond the performance of individual acts, the particulars furnished will assist the Judge in ruling on the relevancy of the evidence. To adopt a homely form of words, at trial circumscribed by particulars will not wander all over the shop and will foreclose an unreal controversy."<br></ref> | ||
#In the event a preliminary inquiry was held, particulars and related information available from the transcript thereof are to be taken into account in applications for particulars<ref> | #In the event a preliminary inquiry was held, particulars and related information available from the transcript thereof are to be taken into account in applications for particulars<ref> | ||
{{supra1|McGavin Bakeries}}; {{CanLIIRP|Cominco; R v Leverton|gw6sz|1917 CanLII 378 (AB CA)|[1917] 2 WWR 584, 34 DLR 514, 28 CCC 61}}{{perABCA|Harvey CJ}}{{atps|519-22}} (DLR)</ref> | |||
#The defence carries the burden of satisfying the court that the particulars sought are necessary for a fair trial. | #The defence carries the burden of satisfying the court that the particulars sought are necessary for a fair trial. | ||
#An order for particulars is a discretionary power of the court and not an absolute right of the accused<ref> | #An order for particulars is a discretionary power of the court and not an absolute right of the accused<ref> | ||
{{CanLIIRP|Griffin|gw9m7|1935 CanLII 279 (NB CA)|[1935] 2 DLR 503, 63 CCC 286}}{{perNBCA|Grimmer JA}}<br> | |||
{{CanLIIRP|Hunter|2dk2r|1986 ABCA 81 (CanLII)|23 CCC (3d) 331}}{{perABCA|Stevenson J}}{{atp|338}}<br> | |||
</ref> | </ref> | ||
#Section 587 does not require the Crown to give specific details of acts and omissions relevant to the offence charged, save where the same is clearly necessary for the purposes of a fair trial<ref> | #Section 587 does not require the Crown to give specific details of acts and omissions relevant to the offence charged, save where the same is clearly necessary for the purposes of a fair trial<ref> | ||
{{supra1|McGavin Bakeries}}<br> | |||
{{supra1|Cominco}} | {{supra1|Cominco}} | ||
</ref> | </ref> | ||
The request should be granted when the ability to mount a proper defence or the fairness of trial are impacted.<ref> | The request should be granted when the ability to mount a proper defence or the fairness of trial are impacted.<ref> | ||
{{CanLIIRx|Violette|25tgv|2008 BCSC 185 (CanLII)}}{{perBCSC|Romilly J}}{{atL|25tgv|50}}<br> | |||
</ref> | </ref> | ||
The application should be considered in light of the amount and coverage of the disclosure already provided.<ref> | The application should be considered in light of the amount and coverage of the disclosure already provided.<ref> | ||
{{ibid1|Violette}} | {{ibid1|Violette}}{{atL|25tgv|50}}<br> | ||
{{CanLIIRP|Cargill Limited-Cargill Limitee|5qzs|2000 ABPC 96 (CanLII)|267 AR 5}}{{{perABPC|Stevenson J}}{{atL|5qzs|14}} | |||
</ref> | </ref> | ||
After the rules provided in Stinchcombe requests for particulars has become far less frequent.<ref> | After the rules provided in Stinchcombe requests for particulars has become far less frequent.<ref> | ||
e.g. see | e.g. see {{CanLIIRP|Dalton (R.C.)|fwwgs|1999 CanLII 19775 (NLSCTD)|579 APR 20}}{{perNLSC|Halley J}}{{atL|fwwgs|12}}<br> | ||
{{CanLIIRP|Badry|5qx8|2000 ABPC 126 (CanLII)|270 AR 167}}{{perABPC|Norheim J}}<br> | |||
</ref> | </ref> | ||
The application should not be aimed at discovering the Crown's theory.<ref> | The application should not be aimed at discovering the Crown's theory.<ref> | ||
{{CanLIIRx|Sharpe|1hmph|2004 BCSC 241 (CanLII)}}{{perBCSC|Edwards J}}{{atsL|1hmph|8| to 11}}<br> | |||
{{CanLIIRP|Thatcher|1ftkz|1987 CanLII 53 (SCC)|[1987] 1 SCR 652}}{{perSCC|Dickson CJ}}<br> | |||
</ref> It should not be used to bind the Crown in preventing them from pursuing one theory or method of proof over another.<ref> | </ref> | ||
{{ibid1|Thatcher}} | It should not be used to bind the Crown in preventing them from pursuing one theory or method of proof over another.<ref> | ||
{{ibid1|Thatcher}}{{atsL|1ftkz|60|, 61}}<br> | |||
</ref> | </ref> | ||
Particulars have the effect of forming "part of the indictment and like the other elements of the | Particulars have the effect of forming "part of the indictment and like the other elements of the | ||
indictment, must be proven beyond a reasonable doubt" | indictment, must be proven beyond a reasonable doubt."<ref> | ||
McCarthy's Roofing | {{supra1|McCarthy's Roofing}}{{atL|gpd33|8}}<br> | ||
{{CanLIIRP|Saunders|1fsvd|1990 CanLII 1131 (SCC)|[1990] 1 SCR 1020}}{{perSCC-H|McLachlin J}}{{atsL|1fsvd|5| and 6}}<br> | |||
{{CanLIIRP|Dalton (R.C.)|fwwgs|1999 CanLII 19775 (NLSCTD)|579 APR 20}}{{perNLSC|Halley J}}{{atL|fwwgs|11}}<br> | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Qualified Expert== | |||
{{seealso|Procedure for Calling Expert Evidence#Other Remedies for Inability to Respond to Expert}} | |||
Where a party has given notice under s. 657.3(3) to call expert evidence, the responding party may seek an order for particulars under s. 657.3(5). | |||
==See Also== | ==See Also== | ||
* [[Production Orders]] | * [[Production Orders]] | ||
Latest revision as of 14:27, 14 July 2024
| This page was last substantively updated or reviewed January 2017. (Rev. # 95441) |
General Principles
An accused can apply for an order requiring the Crown to provide particulars. Section states:
- What may be ordered
- What may be ordered
587 (1) A court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality of the foregoing, may order the prosecutor to furnish particulars
- (a) of what is relied on in support of a charge of perjury, the making of a false oath or a false statement, fabricating evidence or counselling the commission of any of those offences;
- (b) of any false pretence or fraud that is alleged;
- (c) of any alleged attempt or conspiracy by fraudulent means;
- (d) setting out the passages in a book, pamphlet, newspaper or other printing or writing that are relied on in support of a charge of selling or exhibiting an obscene book, pamphlet, newspaper, printing or writing;
- (e) further describing any writing or words that are the subject of a charge;
- (f) further describing the means by which an offence is alleged to have been committed; or
- (g) further describing a person, place or thing referred to in an indictment.
- Regard to evidence
(2) For the purpose of determining whether or not a particular is required, the court may give consideration to any evidence that has been taken.
- Particular
(3) Where a particular is delivered pursuant to this section,
- (a) a copy shall be given without charge to the accused or his counsel;
- (b) the particular shall be entered in the record; and
- (c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular.
R.S., 1985, c. C-46, s. 587; R.S., 1985, c. 27 (1st Supp.), s. 7.
The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary."[1]
The dual purpose of particulars is to 1) ensure the defence's "ability to make full answer and defence" and 2) facilitate the administration of justice.[2]
There is no absolute right to particulars.[3] The burden is upon the applicant to establish on the balance of probabilities that the "necessity" to "understand and appreciate that which is alleged against him so as to enable him to adequately prepare and defend against said allegations."[4]
The purpose of orders for particulars is: (1) "to give exact and reasonable information to the accused respecting the charges before the court"; and (2) to "facilitate the administration of justice." [5]
The applicable factors to ordering particulars are set out as follows:[6]
- The purpose of particulars in a criminal trial is twofold. The first is to give exact and reasonable information to the accused respecting the charge against him as will enable him to establish his defence.[7]
The second purpose is to facilitate the administration of justice.[8]
- To facilitate the administration of justice, it is essential that the trial judge has sufficient information before him or her by means of particulars as to what the Crown intends to prove against the accused in order that the trial judge may make “proper, adequate and expeditious rulings on the admissibility or otherwise of evidence sought to be deduced”[9]
- In the event a preliminary inquiry was held, particulars and related information available from the transcript thereof are to be taken into account in applications for particulars[10]
- The defence carries the burden of satisfying the court that the particulars sought are necessary for a fair trial.
- An order for particulars is a discretionary power of the court and not an absolute right of the accused[11]
- Section 587 does not require the Crown to give specific details of acts and omissions relevant to the offence charged, save where the same is clearly necessary for the purposes of a fair trial[12]
The request should be granted when the ability to mount a proper defence or the fairness of trial are impacted.[13]
The application should be considered in light of the amount and coverage of the disclosure already provided.[14]
After the rules provided in Stinchcombe requests for particulars has become far less frequent.[15]
The application should not be aimed at discovering the Crown's theory.[16] It should not be used to bind the Crown in preventing them from pursuing one theory or method of proof over another.[17]
Particulars have the effect of forming "part of the indictment and like the other elements of the indictment, must be proven beyond a reasonable doubt."[18]
- ↑ R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623, per McLachlin CJ, at para 33
- ↑
R v McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII), per Derrick J, at para 7
R v Canadian General Electric Co., 1974 CanLII 1540 (ONSC), [1974] OJ No 13 (HCJ), per Pennell J, at paras 33 and 35
- ↑ R v Hunter, Goshinman and Anderson, 1985 ABCA 301 (CanLII), 23 CCC (3d) 331, per Lieberman JA, at para 33
- ↑ R v McLaren, 1995 CanLII 6031 (SK QB), per Grotsky J
- ↑ Canadian General Electric, supra, at para 35
- ↑
R v Imperial Tobacco Co. et al., 1940 CanLII 238 (AB QB), [1940] 1 DLR 397, 1 WWR 124, 73 CCC 18 (Alta. T.D.), per McGillivray J
Canadian General Electric, supra
R v Cominco Ltd. et al., 1978 CanLII 1997 (AB QB), 91 DLR (3d) 541, 41 CCC (2d) 514, 13 AR 106 (Alta. T.D.), per Brennan J
cf. R v McGavin Bakeries et al., 1950 CanLII 372 (AB QB), 99 CCC 330, 1 WWR (N.S.) 129, 11 CR 227 (Alta. T.D.), per McBride J
see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003), at pp. 9-41
- ↑ Canadian General Electric, supra, at p. 443
- ↑
R v Adduono, 1940 CanLII 109 (ON CA), [1940] 1 DLR 597, 73 CCC 152, per Masten JA
See also R v Côté, 1977 CanLII 1 (SCC), [1978] 1 SCR 8, at p. 13, (1977), 73 DLR (3d) 752, 2 WWR 174, 33 CCC (2d) 353, per de Grandpré J - ↑
Cominco, supra, at para 15
R v General Electric, supra, the secondary purpose of particulars was illustrated as follows at 443 (CCC): ". . .When a conspiracy count involves an alleged widespread complicated conspiracy for the accomplishment of a purpose going beyond the performance of individual acts, the particulars furnished will assist the Judge in ruling on the relevancy of the evidence. To adopt a homely form of words, at trial circumscribed by particulars will not wander all over the shop and will foreclose an unreal controversy."
- ↑ McGavin Bakeries, supra; R v Cominco; R v Leverton, 1917 CanLII 378 (AB CA), [1917] 2 WWR 584, 34 DLR 514, 28 CCC 61, per Harvey CJ, at pp. 519-22 (DLR)
- ↑
R v Griffin, 1935 CanLII 279 (NB CA), [1935] 2 DLR 503, 63 CCC 286, per Grimmer JA
R v Hunter, 1986 ABCA 81 (CanLII), 23 CCC (3d) 331, per Stevenson J, at p. 338
- ↑
McGavin Bakeries, supra
Cominco, supra - ↑
R v Violette, 2008 BCSC 185 (CanLII), per Romilly J, at para 50
- ↑
Violette, ibid., at para 50
R v Cargill Limited-Cargill Limitee, 2000 ABPC 96 (CanLII), 267 AR 5{, per Stevenson J, at para 14 - ↑
e.g. see R v Dalton (R.C.), 1999 CanLII 19775 (NLSCTD), 579 APR 20, per Halley J, at para 12
R v Badry, 2000 ABPC 126 (CanLII), 270 AR 167, per Norheim J
- ↑
R v Sharpe, 2004 BCSC 241 (CanLII), per Edwards J, at paras 8 to 11
R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ
- ↑
Thatcher, ibid., at paras 60, 61
- ↑
McCarthy's Roofing, supra, at para 8
R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J, at paras 5 and 6
R v Dalton (R.C.), 1999 CanLII 19775 (NLSCTD), 579 APR 20, per Halley J, at para 11
Qualified Expert
Where a party has given notice under s. 657.3(3) to call expert evidence, the responding party may seek an order for particulars under s. 657.3(5).