Informations and Indictments: Difference between revisions
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; No reference to previous conviction | |||
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. | 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. | ||
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Revision as of 23:12, 24 January 2019
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
Section 2 defines "indictment" stating:
2
...
indictment includes
- (a) information or a count therein,
- (b) a plea, replication or other pleading, and
- (c) any record;
...
– CCC
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
Section 785 defines "information":
787 In this Part [Part XXVII - Summary Convictions, s. 785 to 840] "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)
...
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.
[annotation(s) added]
– CCC
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;[1]
- 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.
- ↑ R v Akey, 1990 CanLII 6755 (ON SC), [1990] OJ No 2205 (Gen. Div.), per Granger J, at para 6
Validity of the Information or Indictment
Sections 580 to 601 sets out the criteria for a valid information.
- Form of indictment
580 An indictment is sufficient if it is on paper and is in Form 4.
R.S., 1985, c. C-46, s. 580; R.S., 1985, c. 27 (1st Supp.), s. 117.
– CCC
An indictment should be in conformity with Form 4.[1]
The more modern approach to validity of an information is more focused on substance rather than technical form considered in the older approach.[2]
The date "is relevant and material only when the issue of limitation periods arises"[3] 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. [4]
It is often said that an information that contains on its face contained a contradiction that was an impossibility is a nullity. [5]
- Presumptions and Burdens
There is a rebuttable presumption that a justice of the peace will only operate within their authority.[6]
There is a presumption that an information is valid on its face.[7]
The onus is upon the accused to establish on a balance of probabilities that the information is defective.[8]
- ↑ see s. 580 "An indictment is sufficient if it is on paper and is in Form 4."
- ↑ R v Sault Ste. Marie (1978), 40 CCC (2d), 1978 CanLII 11 (SCC), per Dickson J (9:0), at 353
- ↑ R v Dean, 1985 CanLII 1142 (AB QB), (1985), 36 Alta. L.R. (2d) 8 (Q.B.), per McFadyen J
- ↑ R v Howell, 1978 CanLII 692 (AB QB), (1978), 14 A.R. 299, per Robotham J
- ↑ R v George, 1993 CanLII 4609 (NS SC), per MacLellan J
- ↑ R v Justice of the Peace; Ex Parte Robertson, [1971] 1 O.R. 12 (CA)(*no CanLII links)
- ↑
R v Kamperman, 48 N.S.R. (2d), 1981 CanLII 3159 (NS SC), per Glube J, 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 ")
- ↑
R v Awad, 2013 NSPC 82 (CanLII), per Whalen J, at para 51 aff'd at 2015 NSCA 10 (CanLII), per Beveridge JA
R v Peavoy, 15 CCC (2d) 97, 1974 CanLII 1665 (ON SC), per Henry J
R v Vanstone, 1982 Carswell Alta. 626(*no CanLII links) , at para 30
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 ")
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.
Types of Errors
Defects to the Jurat
A "jurat" is the part of an information where a judicial officer certifies the document.[1]
Where the jurat is missing, or where parts of the information were not seen by the judicial officer who certified the document, the result can be a nullification of the document.[2]
- Bilingualism
Under s. 841(3) the boiler-plate or pre-printed portion of the information or indictment must be in both french and english.[3] The document will be a nullity where the pre-printed portion is only in a single language.[4] There is some suggestion that it will only be a nullity where there is prejudice to the accused.[5]
Section 841 will not apply for summary proceedings.[6]
- Lost Information
A trial for a regulatory offence can still proceed despite the information having been lost. [7]
- Signatures
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.[8]
- ↑
http://www.duhaime.org/LegalDictionary/J/Jurat.aspx Duhaime's Law Dictionary: "jurat"
- ↑ e.g. R v Yerxa, 1991 CanLII 6234 (NB QB), per Dickson J
- ↑
cf. R v Shields, [1990] OJ No 2534 (Ont.Dist.Ct.)(*no CanLII links)
- information a nullity, suggests all document must be bilingual
R v Noiseux (1999) 135 CCC (3d) 225(*no CanLII links) - this also applies to release documents
- ↑
R v Goodine (1991), 68 CCC (3d) 366 (N.S.Co.Ct.), 1991 CanLII 11760 (NS SC), per MacDonnell J, overturned on other point at 71 CCC (3d) 146 (NSCA)
- ↑
R v Sorensen, 1990 CanLII 6852 (ON SC), (1990), 59 CCC (3d) 211 (Ont.Ct.(Gen.Div.)), per Then J
- ↑ R v Joudrey (1992), 309 A.P.R. 117 (NSPC)(*no CanLII links)
- ↑ R v City of Toronto, 2011 ONCJ 131 (CanLII), per Green J
- ↑ R v Welsford, 1967 CanLII 36 (ON CA), [1967] 2 O.R. 496, per McGillivray JA
Other Errors
- No reference to previous conviction
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.
R.S., c. C-34, s. 591.
– CCC
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.[1]
Absent an information being a nullity, s. 601 gives the judge powers to cure defects.[2]
- Corrections
Any amendment to fix a defect must be done before the conclusion of trial.[3]
- ↑
R v Vanstone, 1982 Carswell Alta. 626(*no CanLII links)
, at para 30
- ↑
R v Awad, 2015 NSCA 10 (CanLII), per Beverdige JA at para 15 citing trial judge
- ↑
Vanstone, supra, at para 30
See Topics
- Laying of an Information and Issuing Process
- Direct Indictments
- Form and Content of Charges
- Joinder and Severance of Charges
- Amendments to Charges