Direct Indictments

From Criminal Law Notebook

Preferring Indictments

Section 566, 574 and 576 refers to the "preferring" of an indictment.

Indictment

566 (1) The trial of an accused for an indictable offence, other than a trial before a provincial court judge, shall be on an indictment in writing setting forth the offence with which he is charged.

Preferring indictment

(2) Where an accused elects under section 536 [trial of absolute jurisdiction offences] or re-elects under section 561 [right of re-election] to be tried by a judge without a jury, an indictment in Form 4 may be preferred.

What counts may be included and who may prefer indictment

(3) Section 574 and subsection 576(1) [no indictment can be preferred except within Code] apply, with such modifications as the circumstances require, to the preferring of an indictment pursuant to subsection (2) [preferring indictment on judge-alone election].

R.S., 1985, c. C-46, s. 566; R.S., 1985, c. 27 (1st Supp.), s. 111; 1997, c. 18, s. 67.
[annotation(s) added]

– CCC

Note up: 566(1), (2) and (3)

Prosecutor may prefer indictment

574 (1) Subject to subsection (3) [judicial consent required for private prosecution], the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of

(a) any charge on which that person was ordered to stand trial; or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial.
Preferring indictment when no preliminary inquiry

(1.1) If a person has not requested a preliminary inquiry under subsection 536(4) [request for preliminary inquiry] or 536.1(3) [request for preliminary inquiry – Nunavut] into the charge or was not entitled to make such a request, the prosecutor may, subject to subsection (3) [judicial consent required for private prosecution], prefer an indictment against a person in respect of a charge set out in an information or informations, or any included charge, at any time after the person has made an election, re-election or deemed election on the information or informations.

Preferring single indictment

(1.2) If indictments may be preferred under both subsections (1) [power of prosecutor to prefer indictment] and (1.1) [preferring indictment when no preliminary inquiry], the prosecutor may prefer a single indictment in respect of one or more charges referred to in subsection (1) [power of prosecutor to prefer indictment] combined with one or more charges or included charges referred to in subsection (1.1) [preferring indictment when no preliminary inquiry].

Consent to inclusion of other charges

(2) An indictment preferred under any of subsections (1) to (1.2) [means of preferring an indictment] may, if the accused consents, include a charge that is not referred to in those subsections, and the offence charged may be dealt with, tried and determined and punished in all respects as if it were an offence in respect of which the accused had been ordered to stand trial. However, if the offence was committed wholly in a province other than that in which the accused is before the court, subsection 478(3) [offence committed entirely in one province – ordered into custody] applies.
[omitted (3)]
R.S., 1985, c. C-46, s. 574; R.S., 1985, c. 27 (1st Supp.), s. 113; 2002, c. 13, s. 45; 2019, c. 25, s. 263.
[annotation(s) added]

– CCC

Note up: 574(1), (1.1) and (2)

Indictment

576 (1) Except as provided in this Act, no indictment shall be preferred.

Criminal information and bill of indictment

(2) No criminal information shall be laid or granted and no bill of indictment shall be preferred before a grand jury.

Coroner’s inquisition

(3) No person shall be tried on a coroner’s inquisition.

R.S., 1985, c. C-46, s. 576; R.S., 1985, c. 27 (1st Supp.), s. 114.

– CCC

Note up: 576(1), (2) and (3)

The preferring of an indictment occurs when it is "lodged" with the superior court at the opening of trial.[1]

Once an indictment has been preferred, any defect arising from the arrest, summoning, or preliminary inquiry will not invalidate the indictment.[2]

An indictment has been preferred once an accused has been arraigned and plead not guilty. At this point the indictment cannot be quashed.[3]


  1. ↑ R v Chabot, 1980 CanLII 54 (SCC), [1980] 2 SCR 985, per Dickson J
    R v Tippett, 2010 NLCA 49 (CanLII), 259 CCC (3d) 396, per Green CJ
  2. ↑ Chabot, ibid.
    R v Dowson, 1983 CanLII 59 (SCC), [1983] 2 SCR 144, per Lamer J
    Tippett, supra, at para 16
  3. ↑ R v Tippett, 2010 NLCA 49 (CanLII), per Green CJ
    R v Pike, 1992 CanLII 7129 (NL CA), 77 CCC (3d) 155, per Steele JA

Direct Indictment

A "direct indictment" is an indictment that has been put before a Superior Court Justice without there having been an information from which the accused would have had an option of a preliminary inquiry.

Direct indictments

577. Despite section 574 [authority to prefer an indictment], an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or
(b) in any other case, a judge of the court so orders.

R.S., 1985, c. C-46, s. 577; R.S., 1985, c. 27 (1st Supp.), s. 115, c. 1 (4th Supp.), s. 18(F); 2002, c. 13, s. 46.
[annotation(s) added]

– CCC

Note up: 577

A direct indictment may be commenced by the Attorney General of Canada as well as the provincial Attorney General.[1]

Where a direct indictment has been preferred the accused is deemed to have waived the preliminary inquiry and has made an election of trial by judge and jury (565).

Direct indictments can be used even where there was already an election to provincial court.[2] It can also be used where the offence is one of absolute jurisdiction under s. 553[3]

Direct Indictments are most frequently used where:[4]

  1. delays in the trial could deprive the accused of the right to be tried within a reasonable time;
  2. the physical or psychological health of witnesses, their age, their safety or that of their relatives, and the difficulties involved in having witnesses testify more than once;
  3. preservation of the integrity of the Crown’s evidence by, for example, protecting informants and ongoing police investigations;
  4. a risk that evidence could be destroyed;
  5. public safety reasons;
  6. the need to avoid multiple proceedings caused, for example, by delays in making arrests;
  7. the accused was wrongly discharged following the preliminary inquiry because of errors, or new evidence has been discovered;
  8. a preliminary inquiry would be unreasonably costly, complex or long, or would be inappropriate because of the nature of the issues or the evidence;
  9. the alleged offence is so controversial that it is in the public interest to try the case as quickly as possible; and
  10. certain guidelines set out additional, broader criteria, such as the need to maintain public confidence in the administration of justice, the public interest, or the fact that the case is notorious or of particular importance to the public, that the direct indictment is the most appropriate procedure in the circumstances, or that there is a special need to expedite proceedings.

The Attorney General does not need to give reasons for deciding to prefer a direct indictment.[5]

The power under s. 577 is a discretionary power of the Crown.[6] However, it is reviewable for violations of the Charter. [7]

The consent of the Attorney General should generally be found on the direct indictment with a signature. However, may still be valid by attaching a letter from the Attorney-General consenting to the indictment.[8]

The "recommendation package" addressed to the Attorney General setting out a recommendation for laying a direct indictment is privileged and not disclosable.[9]

No New Bail Hearing

The filing of a direct indictment does not create a new right to a second bail hearing for an accused held in custody.[10]

  1. ↑ R v Trang, 2001 ABQB 106 (CanLII), per Binder J
  2. ↑ Sher v The Queen, 2012 ONSC 4783 (CanLII), per Rutherford J, at para 14
    R v Poloni, 2009 BCSC 629 (CanLII), per Leask J (“[the case law] all unequivocally state that the Attorney General has jurisdiction to directly indict an accused person who previously elected trial in provincial court.”)
  3. ↑ R v Beaudry, 1966 CanLII 537 (BCCA), [1967] 1 CCC 272 (BCCA), per Bull JA
  4. ↑ R v SJL, 2009 SCC 14 (CanLII), per Deschamps J, at para 38
  5. ↑ Sher, supra, at paras 27, 29
  6. ↑ Ertel, supra
  7. ↑ R v Dallas, Hinchcliffe & Terezakis, 2001 BCSC 77 (CanLII), [2001] BCTC 77, per Curtis J, at para 21
  8. ↑ See R v L'Henaff, 1999 SKQB 259 (CanLII), per Gerein J for form of indictment
  9. ↑ R v Ahmad, 2008 CanLII 27470 (ONSC), per Dawson J
    see also Solicitor Client Privilege
  10. ↑ R v Codina #7, 2018 ONSC 1096 (CanLII), [2018] OJ No 964, per Molloy J, at para 58

Constitutionality of s. 577

Section 577 was found to be constitutional despite its effect of removing the right to a preliminary inquiry.[1]

It is not necessary to rely on unwritten constitutional principles to determine whether the use of s. 577 complies with the Charter.[2]

  1. ↑ R v Ertel, 1987 CanLII 183 (ONCA), 35 CCC (3d) 398, per Lacouricere JA
    Re Regina and Arviv, 1985 CanLII 161 (ONCA), 19 CCC (3d) 395, per Martin JA, appeal ref’d [1985] 1 SCR v,
    see also R v Charlie, 1998 CanLII 4145 , per Southin JA
  2. ↑ R v Ahmad, 2008 CanLII 54312 (ONSC), per Dawson J

Failure to Complete Disclosure

Preferring a direct indictment where disclosure obligations have not been met may breach the right to full answer and defence under s. 7 of the Charter as it removes the ability to cross-examine witnesses prior to trial.[1] This proposition may not still apply given later developments in case law.[2]

  1. ↑ R v Rosamond, 1983 CanLII 2576 (SKQB), 5 CCC (3d) 523 (Q.B.), per Vancise J
    Re Regina and Arviv, 1985 CanLII 161 (ONCA), 19 CCC (3d) 395, per Martin J, at para 26
    R v Sterling, 1993 CanLII 9146 (SK CA), 84 CCC (3d) 65 (Sask CA), per Bayda CJ
    see also: R v Chan, 2003 ABQB 169 (CanLII), per Sulyma J
    cf. R v Bjelland, 2009 SCC 38 (CanLII), per Rothstein J
  2. ↑ The case law on this point re-dates the conclusions drawn from Bjelland, supra, at paras 32 to 36 and R v SJL, 2009 SCC 14 (CanLII), per Deschamps J, at para 21 which stated that the discovery function of the preliminary inquiry has a reduced importance.


History of Section 577

Prior to the 2002 amendments to s. 577, the provision read:

Direct indictments

577. In any prosecution,

(a) where a preliminary inquiry has not been held, an indictment shall not be preferred, or
(b) where a preliminary inquiry has been held and the accused has been discharged, an indictment shall not be preferred or a new information shall not be laid

before any court without,

(c) where the prosecution is conducted by the Attorney General or the Attorney General intervenes in the prosecution, the personal consent in writing of the Attorney General or Deputy Attorney General, or
(d) where the prosecution is conducted by a prosecutor other than the Attorney General and the Attorney General does not intervene in the prosecution, the written order of a judge of that court.

R.S., 1985, c. C-46, s. 577; R.S., 1985, c. 27 (1st Supp.), s. 115, c. 1 (4th Supp.), s. 18(F).

– CCC

Prior to the 1985, s. 577 was found at s. 504.[1]

  1. ↑ See Table_of_Concordance_(Criminal_Code)

Proper Use of Discretion and Abuse of Process

The exercise of power under s. 577 can be reviewed as an abuse of process.[1]

To warrant a remedy, it must be shown "that a discretion was exercise for improper or arbitrary motives".[2] There must be "clear and convincing evidence supporting the allegations before the Court."[3]

The defence may be able to have the court order evidence be taken from the justice system participants involved in the decision and the documents related to the decision to direct the indictment.[4] There is a high standard to warrant such disclosure requiring evidence of mala fides or "flagrant impropriety".[5] Further, the applicant must show that the documents fall under an exception to solicitor-client privilege.[6]

Filing a direct indictment mid-trial may be the basis of finding an abuse of process.[7]

Procedural Impasses

The use of a direct indictment as a means to "break the procedural impasse" is considered acceptable.[8]

Protecting the Well-being of Witnesses

The laying of a direct indictment for the purpose of protecting the mental and physical well-being of witnesses, especially sexual assault complainants, is a valid exercise of Crown discretion.[9]

Timely Adjudication of Case

The Crown should give "very serious consideration" to direct indictments in order to ensure that cases are tried on their merits.[10]

  1. ↑ e.g. R v Trang, 2002 ABQB 744 (CanLII), per Binder J, at para 369
  2. ↑ R v Beare, 1988 CanLII 126 (SCC), per L Forest J
  3. ↑ R v Dallas, Hinchcliffe & Terezakis, 2001 BCSC 77 (CanLII), [2001] BCTC 77, per Curtis J, at para 21
  4. ↑ R v Durette, 1992 CanLII 2779 (ONCA), per Finlayson JA (2:1) - judge declined to order statements from prosecutors but ordered sealed copies of relevant documents
  5. ↑ R v Chan, 2003 ABQB 169 (CanLII), 172 CCC (3d) 349, per Sulyma J - application for disclosure denied
  6. ↑ R v Trang, 2002 ABQB 744 (CanLII), per Binder J, at para 419
  7. ↑ R v JSG, 2020 SKQB 164 (CanLII), 391 CCC (3d) 404, per Danyliuk J
  8. ↑ R v Thomas, 2017 BCSC 841 (CanLII), per Baird J, at para 18
  9. ↑ R v CMM, 2017 MBCA 105 (CanLII), per Mainella JA, at para 13 ("It is entirely appropriate for the proper administration of justice for the Crown to exercise its direct indictment power under section 577 to protect the physical or psychological health of a witness, such as a sexual assault complainant, from the difficulties involved in testifying more than once or to prevent or remedy a wrongful discharge arising from a legal error made by a preliminary inquiry judge")
    R v SJL, 2009 SCC 14 (CanLII), per Deschamps J, at para 38
  10. ↑ CCM, supra, at para 14
    R v Manasseri, 2016 ONCA 703 (CanLII), per Watt JA, at para 376

Procedure

Where an indictment is preferred, the accused may be compelled to attend by way or summons or warrant for arrest, as the case may be, under s. 578, which states:

Summons or warrant

578 (1) Where notice of the recommencement of proceedings has been given pursuant to subsection 579(2) [crown directed stay of proceedings – recommencement] or an indictment has been filed with the court before which the proceedings are to commence or recommence, the court, if it considers it necessary, may issue

(a) a summons addressed to, or
(b) a warrant for the arrest of,

the accused or defendant, as the case may be, to compel him to attend before the court to answer the charge described in the indictment.

Part XVI to apply

(2) The provisions of Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (1) [procuring attendance on re-commencement of charges].
R.S., 1985, c. C-46, s. 578; R.S., 1985, c. 27 (1st Supp.), s. 116.
[annotation(s) added]

– CCC

Note up: 578(1) and (2)

No Right for Accused to Participate

The accused has no right to participate in the process of exercising Crown discretion in laying a direct indictment despite Crown policy recommending notice to defence.[1]

  1. ↑ R v Papasotiriou-Lanteigne, 2016 ONSC 6145 (CanLII), per Nordheimer J, at paras 57 to 61

Timing of Preferring an Indictment

The fact that a direct indictment was laid during a preliminary inquiry does not constitute interference with judicial independence.[1]

  1. ↑ R v Codina #7, 2018 ONSC 1096 (CanLII), [2018] OJ No 964, per Molloy J, at para 88

Deemed Election

565
[omitted (1)]

When direct indictment preferred

(2) If an accused is to be tried after an indictment has been preferred against the accused on the basis of a consent or order given under section 577 [direct indictments[1]], the accused is, for the purposes of the provisions of this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] relating to election and re-election, deemed to have elected to be tried by a court composed of a judge and jury and not to have requested a preliminary inquiry under subsection 536(4) [request for preliminary inquiry] or 536.1(3) [request for preliminary inquiry – Nunavut], if they were entitled to make such a request, and may re-elect to be tried by a judge without a jury without a preliminary inquiry.

Notice of re-election

(3) If an accused intends to re-elect under subsection (2) [deemed election on direct indictment], the accused shall give notice in writing to a judge or clerk of the court where the indictment has been filed or preferred. The judge or clerk shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or clerk any indictment, appearance notice, undertaking or release order given by or issued to the accused, any summons or warrant issued under section 578 [procuring attendance on re-commencement of charges] and any evidence taken before a coroner that is in the possession of the first-mentioned judge or clerk.

[omitted (4)]
R.S., 1985, c. C-46, s. 565; R.S., 1985, c. 27 (1st Supp.), s. 111; 1999, c. 3, s. 46; 2002, c. 13, s. 41; 2008, c. 18, s. 23; 2019, c. 25, s. 260.

– CCC

Note up: 565(2) and (3)

Right to Re-Elect

See also: Defence Re-Election

Where a direct indictment has been preferred, he accused has a right to re-elect without the consent of the Crown.[2] However, the right of election does not extend into the jury trial tiself. It may be necessary that there be at least 60 days notice before the commencement of jury selection.[3]

  1. ↑ Found elsewhere in this same page.
  2. ↑ R v Conway-McDowall, 2019 ABQB 11 (CanLII), per Henderson J
    R v Perdomo, 2019 ABQB 415 (CanLII), per Neufeld J
  3. ↑ Perdomo, ibid., at para 49
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