Form and Content of Charges: Difference between revisions

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{{CanLIIRP|Canadian National Railway Co.|1k4wj|2005 MBQB 71 (CanLII)|, 2005 M.J. No. 104}}{{perMBQB|Suche J}}{{atsL|1k4wj|41| to 42}} <br>
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{{CanLIIRP|Hawkshaw|1fttg|1986 CanLII 68 (SCC)|, [1986] 1 SCR 668 (CanLII)}}{{perSCC|McIntyre J}}{{atL|1fttg|10}}("The surplusage rule -- by which a word or words in an indictment are said to be surplus in the sense that they need not be proved in order to procure a conviction -- may not be applied where it would prejudice an accused….")<Br>
{{CanLIIRP|Hawkshaw|1fttg|1986 CanLII 68 (SCC)|, [1986] 1 SCR 668 (CanLII)}}{{perSCC|McIntyre J}}{{atL|1fttg|10}}("The surplusage rule -- by which a word or words in an indictment are said to be surplus in the sense that they need not be proved in order to procure a conviction -- may not be applied where it would prejudice an accused….")<Br>
''R v Lowry'' (1970), [http://canlii.ca/t/htvgb 1970 CanLII 1098] (MB CA), 2 CCC (2d) 39{{perMBCA|Guy JA}}{{AtL|htvgb|19}}("Undoubtedly, everything which is essential to be proved by the prosecution must be alleged in the count but it does not necessarily follow that everything which is alleged must be proved. An unnecessary allegation may be treated as surplusage if the essential allegations are made and established….")
{{CanLIIR-S|Lowry|htvgb|1970 CanLII 1098 (MB CA)|, 2 CCC (2d) 39}}{{perMBCA|Guy JA}}{{AtL|htvgb|19}}("Undoubtedly, everything which is essential to be proved by the prosecution must be alleged in the count but it does not necessarily follow that everything which is alleged must be proved. An unnecessary allegation may be treated as surplusage if the essential allegations are made and established….")
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Revision as of 15:54, 1 March 2021

General Principles

An information must provide sufficient detail to identify the transaction which gives rise to the criminal liability so that the accused can make full answer and defence.[1]

Where the charge is particularized beyond the essential elements, the Crown must prove the transaction delineated in the wording of the charge.[2]

It is a fundamental principle of criminal law that the particularized form of the charge must be proven.[3] The defence is not expected to ask questions of events outside of the range of the date particularized consequently should not be convicted on such evidence.[4]

Substance of offence

581 (1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

Form of statement

(2) The statement referred to in subsection (1) [substance of offence – single transaction and specific] may be

(a) in popular language without technical averments or allegations of matters that are not essential to be proved;
(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or
(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

[omitted (3) and (4)]

Reference to section

(5) A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for the purpose of determining whether a count is sufficient, consideration shall be given to any such reference.

General provisions not restricted

(6) Nothing in this Part relating to matters that do not render a count insufficient shall be deemed to restrict or limit the application of this section.
R.S., 1985, c. C-46, s. 581; R.S., 1985, c. 27 (1st Supp.), s. 118; 2018, c. 29, s. 63.
[annotation(s) added]

– CCC

Note up: 581(1), (2), (5), and (6)

A Count

A count is the specific wording of the charge itself. It sets out the specifics of the allegation. For a count to be valid under s. 581 it must apply to a single transaction and must contain a statement that the accused committed the offence specified.

s. 2
...
 "count" means a charge in an information or indictment; (chef d’accusation)...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

– CCC

Note up: 2


Number of Offences in a Count

A crown cannot join two or more offences into a single count on an information.[5]

  1. ↑ R v Saunders, 1990 CanLII 1131 (CanLII), per McLachlin J}
    R v Jimmy, 2004 BCSC 997 (CanLII), , [2004] BCJ No. 1555, per Allan J
    R v Gauthier, 1995 CanLII 1329 (BC CA), , 1995 BCJ No. 1527 (C.A.), per Prowse JA
    R v Katsiris, 2008 BCCA 351 (CanLII), per Donald JA
  2. ↑ see R v Rai, 2011 BCCA 341 (CanLII), per Hall JA, at para 16 referring to s. 581
  3. ↑ see Saunders, supra, at para 5, 56 CCC (3d) 220
    R v Cockell, 2013 ABCA 112 (CanLII), per Bielby JA, at para 49
  4. ↑ Cockell, supra, at para 49
  5. ↑ R v City of Sault St. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J
    R v Barnes, 1975 CanLII 1346 (NS CA), (1975) 26 CCC (2d) 112 (NSCA), per Cooper JA

Single Transaction Rule

As stated in s. 581(1), "each count in an indictment shall in general apply to a single transaction".

The rule set out in s. 581 is of general application only and "may not apply in all cases".[1] Exception is sometimes applied for historical cases, such as historical sexual assaults, where exact dates and other details are simply impossible to ever recall.[2]

A "single transaction" can include a "number of occurrences, each in themselves capable of constituting an offence, where the acts relate to a similar activity or involve a similar course of conduct."[3]

A single transaction may span across several incidences over a period of time.[4] This means "several acts", such as several acts of violence upon the same person, can amount to a single transaction.[5]

Where the acts are "successive and cumulative", they may be treated as a single transaction.[6]

  1. ↑ R v PEL, 2017 BCCA 47 (CanLII), per Newbury JA, at para 44
    R v Hulan, 1969 CanLII 306 (ON CA), , [1970] 1 CCC 36 (Ont. C.A.), per Kelly JA
  2. ↑ PEL, supra, at para 44
    Hulan, supra
  3. ↑ PEL, supra, at para 45
    R v GLM, 1999 BCCA 467 (CanLII), ,, per Ryan JA
  4. ↑ R v Sandhu, 2009 ONCA 102 (CanLII), per Laskin JA, at para 19
  5. ↑ Sandhu, supra, at para 19 - concerned domestic violence over 4 years
  6. ↑ Sandhu, at para 22
    GLM, supra

Duplicity and Multiplicity

A charge should only set out one offence.[1] At common law, a charge is invalid where it violates the rule rule of duplicity, setting two offences in a single count, and rule against multiplicity, setting out more than two offences in a single count. [2] The purpose of this rule is so that the accused may know the charge against him and, once a verdict is given, that he knows what his conviction is exactly for. This is particularly relevant where the accused may later wish to rely upon a plea of autrefois acquit/convict.[3]

However, the common law rules against duplicity and multiplicity has been modified to be less stringent. A "double or multifarious" count is a defect in form, but not necessarily void.[4]

Further, s. 590 sets out that:

Offences may be charged in the alternative

590 (1) A count is not objectionable by reason only that

(a) it charges in the alternative several different matters, acts or omissions that are stated in the alternative in an enactment that describes as an indictable offence the matters, acts or omissions charged in the count; or
(b) it is double or multifarious.

[omitted (2) and (3)]
R.S., c. C-34, s. 519.

– CCC

Note up: 590(1)

In such cases, both the defence (590(2)) or the judge (590(3)) have the ability to amend the count into multiple counts on the information.

The primary test applied is to ask "does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?"[5]

A charge is not duplicitous because the range of offence dates cover a period of time where the relevant available defence changed in law.[6]

Other Consequences

Any time there are multiple charges aimed against a single transaction, there are potentially negative consequences including:[7]

  1. unnecessarily prolonging a trial thereby creating undue delay
  2. a longer, more complicated, repetitive and potentially confusing jury charge
  3. inconsistent verdicts
  4. the need for Kienapple submissions.
  1. ↑ e.g. see s. 789 regarding summary offences
    see also s. 581 ("Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.")
  2. ↑ R v Archer, 1955 CanLII 2 (SCC), , [1955] SCR 33, per Kerwin CJ
  3. ↑ R v Sault Ste. Marie (City), 1978 CanLII 11 (SCC), , [1978] 2 SCR 1299, per Dickson J
  4. ↑ R v Neville, 1981 CanLII 210 (CanLII), per Lamer J
    R v Cotroni; R v Papalia, 1979 CanLII 38 (SCC), , [1979] 2 SCR 256, per Dickson J
  5. ↑ Sault Ste. Marie (City), supra, per Dickson J, at p. 1308
  6. ↑ R v Katigbak, 2011 SCC 48 (CanLII), per McLachlin CJ and Charron J
  7. ↑ Judicial Pre-Trial Conferences (Re), 2016 ONSC 6398 (CanLII), per Hill J, at para 30
    See Also Right to a Trial Within a Reasonable Time

Defence Amendments to Charges

590
[omitted (1)]

Application to amend or divide counts

(2) An accused may at any stage of his trial apply to the court to amend or to divide a count that

(a) charges in the alternative different matters, acts or omissions that are stated in the alternative in the enactment that describes the offence or declares that the matters, acts or omissions charged are an indictable offence, or
(b) is double or multifarious,

on the ground that, as framed, it embarrasses him in his defence.

Order

(3) The court may, where it is satisfied that the ends of justice require it, order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
R.S., c. C-34, s. 519.

– CCC

Note up: 590(2) and (3)

Sufficiency of Count or Charge

Section 581 states:

581
[omitted (1) and (2)]

Details of circumstances

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.
[omitted (4), (5) and (6)]

– CCC

Note up: 581(3)

Certain omissions not grounds for objection

583 No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 581 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that

(a) it does not name the person injured or intended or attempted to be injured;
(b) it does not name the person who owns or has a special property or interest in property mentioned in the count;
(c) it charges an intent to defraud without naming or describing the person whom it was intended to defraud;
(d) it does not set out any writing that is the subject of the charge;
(e) it does not set out the words used where words that are alleged to have been used are the subject of the charge;
(f) it does not specify the means by which the alleged offence was committed;
(g) it does not name or describe with precision any person, place or thing; or
(h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained.

R.S., c. C-34, s. 512.

– CCC

Note up: 583

An information or indictment must provide enough information on the offence to "lift it from the general to the particular".[1]

The indictment should contain “sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence".[2] The information necessary will vary depending on the facts of the case and the nature of the offence.[3]

The requirement of specificity of a charge is a "fundamental principle of our law". The indictment "must charge an offence in such a manner as clearly to bring home to an accused an accurate knowledge of the offence with which he is charged".[4]

Section 581(3) is considered "converse of the rule about surplusage".[5]

Generally, time does not need to be precise unless it is an essential part of the offence. A charge will generally be made out if the evidence establishes the offence within the range of dates specified.[6]

An information should always have a time, place and matter. However, there is no strict rule on the level of detail necessary. The main criteria is whether the information contains sufficient detail to allow for a full answer and defence.[7]

The decision on the validity of a charge is only to be made by the trial judge unless on appeal.[8]

Parties

The common law does not generally distinguish between the principle and an aider or abettor for the purpose of the indictment. There is, however, a distinction between principles and accessories.[9] Counselling can fall within either an accessory or as a aider or abettor.[10]

Where there is no difference between principals and parties, there is no need to specify the accused's "precise mode of participation in the alleged crime".[11]

  1. ↑ R v Brodie, 1936 CanLII 1 (SCC), , [1936] SCR 188, per Rinfret J at 194, 198
  2. ↑ R v Douglas, 1991 CanLII 81 (SCC), , [1991] 1 SCR 301, 63 CCC (3d) 29, per Cory J, at para 24
    R v Saunders, 1990 CanLII 1131 (CanLII), per McLachlin J
    R v Martin, 2006 YKTC 36 (CanLII), per Ruddy J
  3. ↑ Douglas, supra
  4. ↑ R v Cisar, 2014 ONCA 151 (CanLII), per Rosenberg JA, at para 11
    R v Toth, 1959 CanLII 111 (ON CA), , [1959] O.R. 137 (C.A.), per Schroeder JA
  5. ↑ R v McMillan, 2015 YKTC 31 (CanLII), per Ruddy J, at para 35
  6. ↑ Douglas, supra
    R v B(G), 1990 CanLII 114 (SCC), , [1990] 2 SCR 30, per Wilson J citing Ewaschuk, (stating that the common law rule is that "the Crown need not prove the alleged date unless time is an essential element of the offence or unless there is a specified prescription period")
  7. ↑ R v Ryan, 1985 CanLII 3653, , 23 CCC (3d) 1 (Ont. C.A.), per Thorson JA
  8. ↑ R v Jarman, 1972 CanLII 1307 (ON CA), (1972) 10 CCC (2d) 426 (Ont. C.A.), per Schroeder JA
  9. ↑ R v Thatcher, 1987 CanLII 53 (CanLII), per Dickson CJ
  10. ↑ R v Fitur and Maldonado, 2012 MBQB 5 (CanLII), per Greenberg J
  11. ↑ R v NTJ, 2017 NSCA 64 (CanLII), per Beveridge JA ("Because of the parity among principals and aiders where the offence is committed, there is no legal requirement for the Crown to specify in the Information the accused’s precise mode of participation in the alleged crime...")

Charge Surplusage

The "surplusage rule" releases the Crown from proving certain elements found within a charge.[1] Surplusage within the indictment refers to non-material or "non-essential averments". Surplusage need not be strictly proved where the accused is not misled or prejudiced.[2]

By function of s. 794, any offence including the requirement that the offence be committed "without lawful excuse" does not put the persuasive burden on the Crown and so it does not need to be included in the form of the charge. Any reference to "reasonable excuse" is surplusage.[3]

  1. ↑ see e.g. R v Nikkel, 2007 MBQB 290 (CanLII), per Oliphant ACJ, at paras 121 to 122 ("What has been referred to as the “surplusage rule” is stated in E.G. Ewaschuk’s, Criminal Pleadings and Practice in Canada, Second Edition, Canada Law Book, at p. 9–49:...If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e., a non-necessary which need not be proved.")
  2. ↑ R v Vezina, 1986 CanLII 93 (CanLII), per Lamer J, at para 46 ("Similarly, "the surplusage rule", which, as noted above, is the converse of s. 510(3), must also be seen as subject to the proviso that the accused not be prejudiced in his or her defence") and later ("It is of course time that immaterial or non-essential averments in indictments need not be strictly proved if no prejudice results to the accused.")
    R v Canadian National Railway Co., 2005 MBQB 71 (CanLII), , 2005 M.J. No. 104, per Suche J, at paras 41 to 42
    R v Hawkshaw, 1986 CanLII 68 (SCC), , [1986] 1 SCR 668 (CanLII), per McIntyre J, at para 10("The surplusage rule -- by which a word or words in an indictment are said to be surplus in the sense that they need not be proved in order to procure a conviction -- may not be applied where it would prejudice an accused….")
    R v Lowry, 1970 CanLII 1098 (MB CA), per Guy JA, at para 19("Undoubtedly, everything which is essential to be proved by the prosecution must be alleged in the count but it does not necessarily follow that everything which is alleged must be proved. An unnecessary allegation may be treated as surplusage if the essential allegations are made and established….")
  3. ↑ Hundt v Alberta (Attorney General), 1971 ALTASCAD 22 (CanLII), per Allen JA
    R v Sisko, 1977 CanLII 292 (BC SC), per Murray J, at paras 27 to 28

Essential Avernments

The Crown must prove the exact elements as specified by the Charge unless it is surplusage.

In a drug case, a distinction between the drug name on the certificate of analysis and the charge will be fatal.[1]

  1. ↑ R v Elewonibi, 2010 BCPC 160 (CanLII), per Chen J - certificate had slight difference from charge named chemical

First Degree Murder

See also: Murder (Offence)

The Code specifically addresses forming the charge for first degree murder:

High treason and first degree murder

582 No person shall be convicted for the offence of high treason or first degree murder unless in the indictment charging the offence he is specifically charged with that offence.
R.S., c. C-34, s. 511; 1973-74, c. 38, s. 4; 1974-75-76, c. 105, s. 6.

– CCC

Note up: 582

See Also

Case Digests

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