Particulars: Difference between revisions
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The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary".<ref> | The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary".<ref> | ||
R v Hynes, [http://canlii.ca/t/51xk 2001 SCC 82] (CanLII), [2001] 3 SCR 623 at para 33</ref> | R v Hynes, [http://canlii.ca/t/51xk 2001 SCC 82] (CanLII), [2001] 3 SCR 623{{perSCC|McLachlin CJ}} at para 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> | ||
R v McCarthy’s Roofing Limited, [http://canlii.ca/t/gpd33 2016 NSPC 21] (CanLII) at para 7<br> | R v McCarthy’s Roofing Limited, [http://canlii.ca/t/gpd33 2016 NSPC 21] (CanLII){{perNSPC|Derrick J}} at para 7<br> | ||
R v Canadian General Electric Co., [1974] OJ No 13 (HCJ), [http://canlii.ca/t/hv09b 1974 CanLII 1540] (ON SC) | R v Canadian General Electric Co., [1974] OJ No 13 (HCJ), [http://canlii.ca/t/hv09b 1974 CanLII 1540] (ON SC){{perONSC|Pennell J}}, at para 33 and 35<Br> | ||
</ref> | </ref> | ||
There is no absolute right to particulars.<ref> | There is no absolute right to particulars.<ref> | ||
R v Hunter, Goshinman and Anderson (1986), 23 CCC (3d) 331 (Alta. C.A.), [http://canlii.ca/t/2djs5 1985 ABCA 301] (CanLII) | R v Hunter, Goshinman and Anderson (1986), 23 CCC (3d) 331 (Alta. C.A.), [http://canlii.ca/t/2djs5 1985 ABCA 301] (CanLII){{perABCA|Lieberman JA}}, at para 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> | </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> | ||
R v McLaren, [http://canlii.ca/t/1nrvm 1995 CanLII 6031] (SK QB) | R v McLaren, [http://canlii.ca/t/1nrvm 1995 CanLII 6031] (SK QB){{perSKQB|Grotsky J}} | ||
</ref> | </ref> | ||
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The applicable factors to ordering particulars are set out as follows:<ref> | The applicable factors to ordering particulars are set out as follows:<ref> | ||
R v Imperial Tobacco Co. et al., [1940] 1 DLR 397, 1 W.W.R. 124, 73 CCC 18 (Alta. T.D.), [http://canlii.ca/t/gc0fn 1940 CanLII 238] (AB QB)<br> | R v Imperial Tobacco Co. et al., [1940] 1 DLR 397, 1 W.W.R. 124, 73 CCC 18 (Alta. T.D.), [http://canlii.ca/t/gc0fn 1940 CanLII 238] (AB QB){{perABQB|McGillivray J}}<br> | ||
R v Canadian General Electric Co. Ltd. et al.{{supra}}<br> | R v Canadian General Electric Co. Ltd. et al.{{supra}}<br> | ||
R v Cominco Ltd. et al., (1978), 91 DLR (3d) 541, 41 CCC (2d) 514, 13 A.R. 106 (Alta. T.D.), [http://canlii.ca/t/gcw3q 1978 CanLII 1997] (AB QB)<br> | R v Cominco Ltd. et al., (1978), 91 DLR (3d) 541, 41 CCC (2d) 514, 13 A.R. 106 (Alta. T.D.), [http://canlii.ca/t/gcw3q 1978 CanLII 1997] (AB QB){{perABQB|Brennan J}}<br> | ||
c.f. R v McGavin Bakeries et al. (1950), 99 CCC 330, 1 W.W.R. (N.S.) 129, 11 C.R. 227 (Alta. T.D.), [http://canlii.ca/t/gbf63 1950 CanLII 372] (AB QB)<br> | c.f. R v McGavin Bakeries et al. (1950), 99 CCC 330, 1 W.W.R. (N.S.) 129, 11 C.R. 227 (Alta. T.D.), [http://canlii.ca/t/gbf63 1950 CanLII 372] (AB QB){{perABQB|McBride J}}<br> | ||
see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003), at p. 9-41<br> | see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003), at p. 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>R v Canadian General Electric at p. 443</ref> The second purpose is to facilitate the administration of justice.<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>R v Canadian General Electric at p. 443</ref> The second purpose is to facilitate the administration of justice.<ref> | ||
R v Adduono, [http://canlii.ca/t/g1366 1940 CanLII 109] (ON CA), [1940] 1 DLR 597, 73 CCC 152 (Ont. C.A.) | R v Adduono, [http://canlii.ca/t/g1366 1940 CanLII 109] (ON CA), [1940] 1 DLR 597, 73 CCC 152 (Ont. C.A.){{perONCA|Masten JA}}<Br> | ||
#To facilitate the administration of justice, it is essential that the trial judge | See also R v Côté, [http://canlii.ca/t/1mk97 1977 CanLII 1] (SCC), [1978] 1 SCR 8 at p. 13, (1977), 73 DLR (3d) 752, 2 W.W.R. 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> R v Cominco, supra, at para 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> | ||
R v McGavin Bakeries supra; R v Cominco; R v Leverton, [1917] 2 W.W.R. 584, 34 DLR 514, 28 CCC 61 (Alta. C.A.), [http://canlii.ca/t/gw6sz 1917 CanLII 378] (AB CA) at pp. 519-22 (DLR)</ref> | R v McGavin Bakeries supra; R v Cominco; R v Leverton, [1917] 2 W.W.R. 584, 34 DLR 514, 28 CCC 61 (Alta. C.A.), [http://canlii.ca/t/gw6sz 1917 CanLII 378] (AB CA){{perABCA|Harvey CJ}} at pp. 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> | ||
R v Griffin, [1935] 2 DLR 503, 63 CCC 286 (N.B.S.C.), [http://canlii.ca/t/gw9m7 1935 CanLII 279] (NB CA)<br> | R v Griffin, [1935] 2 DLR 503, 63 CCC 286 (N.B.S.C.), [http://canlii.ca/t/gw9m7 1935 CanLII 279] (NB CA){{perNBCA|Grimmer JA}}<br> | ||
R v Hunter, [http://canlii.ca/t/2dk2r 1986 ABCA 81] (CanLII), (1986), 23 CCC (3d) 331 (Alta. C.A.) at p. 338<br> | R v Hunter, [http://canlii.ca/t/2dk2r 1986 ABCA 81] (CanLII), (1986), 23 CCC (3d) 331 (Alta. C.A.){{perABCA|Stevenson J}} at p. 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>R v McGavin Bakeries{{supra}}<br> | #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>R v McGavin Bakeries{{supra}}<br> | ||
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</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> | ||
R v Violette, [http://canlii.ca/t/25tgv 2008 BCSC 185] (CanLII) at para 50<br> | R v Violette, [http://canlii.ca/t/25tgv 2008 BCSC 185] (CanLII){{perBCSC|Romilly J}} at para 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> | ||
Violette at para 50<br> | Violette{{ibid}} at para 50<br> | ||
R v Cargill Limited -Cargill Limitee, [http://canlii.ca/t/5qzs 2000 ABPC 96] (CanLII) at para 14 | R v Cargill Limited -Cargill Limitee, [http://canlii.ca/t/5qzs 2000 ABPC 96] (CanLII){{{perABPC|Stevenson J}} at para 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 R v Dalton (R.C.), [http://canlii.ca/t/fwwgs 1999 CanLII 19775] (NL SCTD) at para 12<br> | e.g. see R v Dalton (R.C.), [http://canlii.ca/t/fwwgs 1999 CanLII 19775] (NL SCTD){{perNLSC|Halley J}} at para 12<br> | ||
R v Badry, [http://canlii.ca/t/5qx8 2000 ABPC 126] (CanLII)<br> | R v Badry, [http://canlii.ca/t/5qx8 2000 ABPC 126] (CanLII){{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> | ||
R v Sharpe, [http://canlii.ca/t/1hmph 2004 BCSC 241] (CanLII) at para 8 to 11<br> | R v Sharpe, [http://canlii.ca/t/1hmph 2004 BCSC 241] (CanLII){{perBCSC|Edwards J}} at para 8 to 11<br> | ||
R v Thatcher, [http://canlii.ca/t/1ftkz 1987 CanLII 53] (SCC), [1987] 1 SCR 652<br> | R v Thatcher, [http://canlii.ca/t/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> It should not be used to bind the Crown in preventing them from pursuing one theory or method of proof over another.<ref> | ||
Thatcher{{ibid}} at para 60, 61<br> | Thatcher{{ibid}} at para 60, 61<br> | ||
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indictment, must be proven beyond a reasonable doubt".<ref> | indictment, must be proven beyond a reasonable doubt".<ref> | ||
McCarthy's Roofing at para 8<br> | McCarthy's Roofing at para 8<br> | ||
R v Saunders, [1990] 1 SCR 1020, [http://canlii.ca/t/1fsvd 1990 CanLII 1131] (SCC), at paras 5 and 6 <Br> | R v Saunders, [1990] 1 SCR 1020, [http://canlii.ca/t/1fsvd 1990 CanLII 1131] (SCC){{perSCC|McLachlin J}}, at paras 5 and 6 <Br> | ||
R v Dalton (R.C.), [http://canlii.ca/t/fwwgs 1999 CanLII 19775] (NL SCTD), at para 11<br> | R v Dalton (R.C.), [http://canlii.ca/t/fwwgs 1999 CanLII 19775] (NL SCTD){{perNLSC|Halley J}}, at para 11<br> | ||
</ref> | </ref> | ||
Revision as of 22:48, 13 November 2018
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.
– CCC
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] OJ No 13 (HCJ), 1974 CanLII 1540 (ON SC), per Pennell J, at para 33 and 35
- ↑ R v Hunter, Goshinman and Anderson (1986), 23 CCC (3d) 331 (Alta. C.A.), 1985 ABCA 301 (CanLII), 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] 1 DLR 397, 1 W.W.R. 124, 73 CCC 18 (Alta. T.D.), 1940 CanLII 238 (AB QB), per McGillivray J
R v Canadian General Electric Co. Ltd. et al., supra
R v Cominco Ltd. et al., (1978), 91 DLR (3d) 541, 41 CCC (2d) 514, 13 A.R. 106 (Alta. T.D.), 1978 CanLII 1997 (AB QB), per Brennan J
c.f. R v McGavin Bakeries et al. (1950), 99 CCC 330, 1 W.W.R. (N.S.) 129, 11 C.R. 227 (Alta. T.D.), 1950 CanLII 372 (AB QB), per McBride J
see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003), at p. 9-41
- ↑ R v Canadian General Electric at p. 443
- ↑
R v Adduono, 1940 CanLII 109 (ON CA), [1940] 1 DLR 597, 73 CCC 152 (Ont. C.A.), 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 W.W.R. 174, 33 CCC (2d) 353, per de Grandpré J - ↑ R v 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."
- ↑ R v McGavin Bakeries supra; R v Cominco; R v Leverton, [1917] 2 W.W.R. 584, 34 DLR 514, 28 CCC 61 (Alta. C.A.), 1917 CanLII 378 (AB CA), per Harvey CJ at pp. 519-22 (DLR)
- ↑
R v Griffin, [1935] 2 DLR 503, 63 CCC 286 (N.B.S.C.), 1935 CanLII 279 (NB CA), per Grimmer JA
R v Hunter, 1986 ABCA 81 (CanLII), (1986), 23 CCC (3d) 331 (Alta. C.A.), per Stevenson J at p. 338
- ↑ R v 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){, per Stevenson J at para 14 - ↑
e.g. see R v Dalton (R.C.), 1999 CanLII 19775 (NL SCTD), per Halley J at para 12
R v Badry, 2000 ABPC 126 (CanLII), per Norheim J
- ↑
R v Sharpe, 2004 BCSC 241 (CanLII), per Edwards J at para 8 to 11
R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ
- ↑
Thatcher, ibid. at para 60, 61
- ↑
McCarthy's Roofing at para 8
R v Saunders, [1990] 1 SCR 1020, 1990 CanLII 1131 (SCC), per McLachlin J, at paras 5 and 6
R v Dalton (R.C.), 1999 CanLII 19775 (NL SCTD), per Halley J, at para 11