Laying of an Information
| This page was last substantively updated or reviewed January 2022. (Rev. # 96585) |
General Principles
Either before or after arrest a peace officer can create a charge by laying of an information. It typically involves the officer, who has formed reasonable grounds to believe that a criminal offence has occurred, draft an information that will be presented to a justice of the peace along with a sworn summary of the evidence. Under s. 507 or 508 the justice of the peace will determine whether there is sufficient grounds to go forward with laying the sworn information and have the accused attend court. If there is sufficient grounds the justice will either issue a summons or a warrant, or simply confirm the appearance notice already served on the accused. This step is known as "issuing process". Once completed the accused will be required to attend court on the first appearance date. If not satisfied, the justice may cancel the appearance notice, promise to appear or recognizance.
An information must be sworn by an officer who has formed reasonable and probable grounds to believe that the offence described had been committed by the accused.[1] A failure to have the requisite grounds does not render the informations void ab initio.[2]
Charges can be laid before any justice within the province.[3]
- Consequences of Laying an Information
The swearing of information commences "criminal proceedings" against the accused.[4] The commencement of proceedings does not require the issuance of process.[5]
A person is not an "accused" until such time as the charges have been laid.[6]
- Form of Information
According to s. 506, the format for an information is taken from Form 2 of the Code:
- Form
506 An information laid under section 504 [receiving an information] or 505 [time within which information to be laid in certain cases] may be in Form 2 [forms].
R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]
- ↑ R v Awad, 2014 NSSC 44 (CanLII), per Edwards J
- ↑
R v Whitmore, 1987 CanLII 6783 (ONSC), 41 CCC (3d) 555, per Ewaschuk J aff’d 51 CCC (3d) 294
Awad, supra, at para 14 - ↑ R v Ellis, 2009 ONCA 483 (CanLII), 244 CCC (3d) 438, per Gillese JA
- ↑
R v Awad, 2015 NSCA 10 (CanLII), 1126 APR 116, per Beveridge JA, at para 49
R v Pardo, 1990 CanLII 10957, , 62 CCC (3d) 371, per Gendreau JA
R v McHale, 2010 ONCA 361 (CanLII), 256 CCC (3d) 26, per Watt JA, at para 85 ("Laying or receipt of an information commences criminal proceedings"
- ↑ Davidson v British Columbia (Attorney General), 2006 BCCA 447 (CanLII), 214 CCC (3d) 373, per Levine JA (3:0)
- ↑
Pardo, supra (“a person is an accused as of the laying of the information, which constitutes the beginning of the proceedings”)
R v Campbell v Ontario (Attorney General), 1987 CanLII 4333 (ON CA), 60 OR (2d) 617, per curiam
Indictable Offences
The main power to lay an information is found in s. 504, the provisions found in s. 505 to 510 are procedural provisions relating to getting the accused before the court.[1]
A peace officer may lay an information for an indictable offence (including hybrid offences) either before giving notice to the accused or afterward (see s. 505).
- ↑ R v Kennedy, 1983 CanLII 241 (BC CA), at para 11 ("The provisions for laying an information are contained in s. 455 of the Code. Section 455.1 through to 455.6 contain procedural provisions for getting an accused person before the court.")
Laying an Information Under s. 504
Under s. 504, where an accused person is charged with an offence, the Information detailing the charge will be sworn by a peace officer. An officer may only swear an information on the basis of personal information or upon reasonable and probable grounds.[1]
- In what cases justice may receive information
504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged
- (a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person
- (i) is or is believed to be, or
- (ii) resides or is believed to reside,
within the territorial jurisdiction of the justice;
- (b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;
- (c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or
- (d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.
R.S., c. C-34, s. 455; R.S., c. 2(2nd Supp.), s. 5.
Section 504 provides a preliminary "screen" of the case to only proceed where there is a prima facie case.[2]
The justice's function at this stage is "entirely ministerial or administrative."[3]
The process set out in s. 504 is mandatory without any discretion, even in the case of private prosecutions.[4] No additional steps, such as requiring leave before laying an information are permitted.[5]
If the justice affirms the information by signing it, then the information has been laid and the matter begins the prosecution. The judge then must go to the next stage under s. 507 (public prosecutions) or 507.1 (private prosecutions).[6]
Once an information is sworn and laid, there is no obligation on the part of police to seek a summons or arrest "immediately following" the laying of the information.[7]
- ↑ R v Kamperman, 1981 CanLII 3159 (NS SC), 48 NSR (2d) 317, 92 APR 317 (S.C.T.D), per Glube J
- ↑ R v Whitmore, 1989 CanLII 7229 (ON CA), 35 OAC 373, 51 CCC (3d) 294, per Grange JA ("In any event, the duty of the justice of the peace is, first, to determine if the information is valid on its face and secondly, to determine whether it discloses or there is disclosed by the evidence a prima facie case of the offences alleged.")
- ↑ R v Lupyrypa, 2008 ABQB 427 (CanLII), 451 AR 245, per Burrows J, at paras 48 to 49
- ↑
R v Thorburn, 2010 ABQB 390 (CanLII), 500 AR 1, per Marceau J, at paras 56, 59
- ↑
Thorburn, ibid.
- ↑
Thorburn, supra, at para 59
- ↑
R v Worme, 2014 SKQB 383 (CanLII), per Zuk J, at para 33
Timing of Laying an Information
Section 505 addresses the timing in which the information should be laid before a justice. It states:
- Time within which information to be laid in certain cases
505 If an appearance notice has been issued to an accused under section 497 [appearance notice by peace officer], or if an accused has been released from custody under section 498 or 503 [taking person before justice after arrest], an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by them shall be laid before a justice as soon as practicable after the issuance or release, and in any event before the time stated in the appearance notice or undertaking for their attendance in court.
R.S., 1985, c. C-46, s. 505; 2019, c. 25, s. 218.
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This provision allows for the accused to be given an appearance notice or released from custody prior to the laying of an information. It is however necessary that the information be laid "as soon as practicable".
- Breach of "as Soon as Practicable" Requirement
Where the peace officer fails to comply with 505 by laying an information after the first court appearance does not result in a lack of jurisdiction over the offence or invalidate the information. [1]
There is no legal prohibition to an information being later than a "practicable" period of time after the service of a notice to appear.[2]
If the justice fails to determine whether to confirm the appearance notice in a "practicable" period fo time, it does not invalidate the information.[3]
If the time limitation is violated, the consequence is that the accused cannot be charged with failing to attend court as directed by the notice and there cannot be warrant issued.[4]
- ↑ R v Markovic, 2005 CanLII 36251, OJ No 4286 (ON CA), per Cronk JA
- ↑ R v Hrankowski, 1980 ABCA 196 (CanLII), per McGillivray CJ at pp. 180-1
- ↑ Hrankowski, ibid. at p. 181 ("If a Justice does not make a timely determination of whether an appearance notice should be confirmed or not, for the reason that the information is not put before him as soon as practicable, in my view, the information remains valid. As the accused here was before the Court, the fact that he might have ignored the appearance notice is, in my view, irrelevant.")
- ↑ R v Naylor, 1978 CanLII 2371 (ON CA), per Morden JA at p. 19 ("Are the time-limits in s. 455.1 mandatory? I think it is clear from the wording of the section that they are. If, therefore, the time-limits are not observed, and if the accused fails to appear pursuant to an appearance notice, promise to appear or recognizance, he cannot be charged with an offence under s. 133(5) [rep. & sub. 1974-75-76, c. 93, s. 7(1)]: ..., nor can a warrant be issued under s. 456.1(2)")
Issuing Process
Laying An Information by Phone
Under s. 508.1, an information can be laid before a justice of the peace by way of telecommunications including telephone. In this case the information provided by phone is deeded to be under oath (s. 508.1(2)).
- Information laid otherwise than in person
508.1 (1) For the purposes of sections 504 to 508 [provisions relating to laying informations], a peace officer may lay an information by any means of telecommunication that produces a writing.
- Alternative to oath
(2) A peace officer who uses a means of telecommunication referred to in subsection (1) [meaning of telewarrant] shall, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the officer’s knowledge and belief, and such a statement is deemed to be a statement made under oath.
1997, c. 18, s. 56.
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Laying an Information in Private Prosecution (s. 507.1)
Summary Offences
The process of laying charges for summary offences is similar to that of indictable offences. The procedure is set out in s. 788 to 795.
- Commencement of proceedings
788 (1) Proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] shall be commenced by laying an information in Form 2 [forms].
- One justice may act before the trial
(2) Notwithstanding any other law that requires an information to be laid before or to be tried by two or more justices, one justice may
- (a) receive the information;
- (b) issue a summons or warrant with respect to the information; and
- (c) do all other things preliminary to the trial.
R.S., c. C-34, s. 723.
[annotation(s) added]
- Formalities of information
789 (1) In proceedings to which this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] applies, an information
- (a) shall be in writing and under oath; and
- (b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.
- No reference to previous convictions
(2) No information 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. 724.
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Under s. 795, the provisions of Parts XVI and XVIII, XVIII.1, XX and XX.1 apply equally to summary offences.
All summary offences can only be sworn less than 6 months after the date of the allegations. (s. 786(2))
- Timing of Laying Information
Section 786(2) requires that the laying of an information for a summary offence must be within 12 months of the alleged offence.[1]
Replacement Informations
523
[omitted (1)]
- When new information is received
(1.1) If an accused is charged with an offence and a new information, charging the same offence or an included offence, is received while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, section 507 [process on justice receiving an information] or 508 [justice to hear informant and witnesses], as the case may be, does not apply in respect of the new information and the order for detention, release order, appearance notice, summons or undertaking applies in respect of the new information. [omitted (1.2), (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
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Under s. 524(1.1) a court has "jurisdiction to receive and proceed on a relaid information nothwithstanding that the process has not been issued no that information."[1]
- New Charges
Section 523(1.1) does not apply for new charges before the court that does not have process.[2] However, where the accused and a new information without process are both before the court, the court has jurisdiction to deal with the information.[3]
- ↑
R v Brar, 2007 ONCJ 359 (CanLII), per Cowan J, at para 8
Re McCarthy and The Queen, 1998 CanLII 5749 (BC SC), 131 CCC (3d) 102, per Melnick J
- ↑
R v Dougan, 2012 YKSC 88 (CanLII), per McIntyre J, at para 19
- ↑
Dougan, supra, at para 19
McCarthy, supra, at paras 37 to 38
Direct Indictment Laid
523
[omitted (1) and (1.1)]
- When direct indictment preferred
(1.2) If an accused is charged with an offence, and an indictment is preferred under section 577 charging the same offence or an included offence while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, the order for detention, release order, appearance notice, summons or undertaking applies in respect of the indictment. [omitted (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) added]
Replacement Release Order
Section 523(2) and (3) relate to the vacating of a previous detention/bail order.
523
[omitted (1), (1.1) and (1.2)]
- Order vacating previous order for release or detention
(2) Despite subsections (1) [duration that release conditions apply on replacement information] to (1.2) [previous release mechanism transfers to direct indictment],
- (a) the court, judge or justice before which or whom an accused is being tried, at any time,
- (b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469 [exclusive jurisdiction offences], or
- (c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1) [consequences on new information is received], without such consent, at any time
- (i) where the accused is charged with an offence other than an offence listed in section 469 [exclusive jurisdiction offences], the justice by whom an order was made under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] or any other justice,
- (ii) where the accused is charged with an offence listed in section 469 [exclusive jurisdiction offences], a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or
- (iii) the court, judge or justice before which or whom an accused is to be tried,
- may, on cause being shown, vacate any order previously made under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] for the interim release or detention of the accused and make any other order provided for in this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
- Provisions applicable to proceedings under subsection (2)
(3) The provisions of sections 517 [Order directing matters not to be published for specified period], 518 [Inquiries to be made by justice and evidence] and 519 [release of accused after show cause hearing] apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2) [power to vacate previous orders], except that subsection 518(2) [release on guilty plea pending sentence] does not apply in respect of an accused who is charged with an offence listed in section 469 [exclusive jurisdiction offences].
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
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The judge must be satisfied that that "cause" has been shown before they may vacate the old order and make any new one.[1]
The ability to seek an order under 523(2) will depend on the stage of proceedings. An application can be made when:
- during trial (523(2)(a))
- upon "completion of the preliminary inquiry", except when it is a 469 offence (523(2)(b))
- with consent of Crown and defence (523(2)(c)); or
- if no consent, then "any time" so long as it is an order under (1.1) [ie. Replacement information] and the application is before any judge or justice (for a non 469 offence) or, if it is a 469 offence, it must be before a superior court of criminal jurisdiction;
A judge should only interfere where there has been a "material change in circumstances."[2]
Merely being committed to trial after a preliminary inquiry does not amount to "cause."[3]
Exclusive jurisdictions Offences under s. 469 do not apply to these orders under 523(2) and (3).[4]
- ↑ See s. 523(2) "on cause being shown"
- ↑
R v McDonell, 2012 ONSC 2567 (CanLII), per Hourigan J, at para 17
- ↑
McDonell, ibid., at para 19
- ↑ See 523(3)
Transferring the Accused's Matter to the Proper Jurisdiction
- Remand Where Offence Committed in Another Jurisdiction
- Order that accused appear or be taken before justice where offence alleged to have been committed
543 (1) If an accused is charged with an offence alleged to have been committed out of the limits of the jurisdiction in which they have been charged, the justice before whom they appear or are brought may, at any stage of the inquiry after hearing both parties, order the accused to appear or, if the accused is in custody, issue a warrant in Form 15 [forms] to convey the accused before a justice who, having jurisdiction in the place where the offence is alleged to have been committed, shall continue and complete the inquiry.
- Transmission of transcript and documents and effect of order or warrant
(2) Where a justice makes an order or issues a warrant pursuant to subsection (1) [order that accused appear or be taken before justice where offence alleged to have been committed], he shall cause the transcript of any evidence given before him in the inquiry and all documents that were then before him and that are relevant to the inquiry to be transmitted to a justice having jurisdiction in the place where the offence is alleged to have been committed and
- (a) any evidence the transcript of which is so transmitted shall be deemed to have been taken by the justice to whom it is transmitted; and
- (b) any appearance notice, undertaking or release order issued to or given or entered into by the accused shall be deemed to have been issued, given or entered into in the jurisdiction where the offence is alleged to have been committed and to require the accused to appear before the justice to whom the transcript and documents are transmitted at the time provided in the order made in respect of the accused under paragraph (1)(a) [x].
R.S., 1985, c. C-46, s. 543; 2019, c. 25, s. 245.
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Confirming Attendance
Once the accused attends for the first time in court, the authority of the justice of the peace or peace officer is complete and only the judge may compel future attendance. The purpose of a promise to appear, summons, or any other tool to ensure attendance is to secure attendance for the first time. After the initial appearance the promise to appear is irrelevant.[1]
Whenever a judge had an information before him, he must comply with section 508. Section 508(b)(i) would appear to require that judges confirm that the notice, promise to appear or recognizance remains in effect and then endorse the information.[2]
However, case law has been divergent on the issue of whether the failure to confirm the order to return to court creates a nullity, invalidating the information. While there are a number of cases supporting the nullity effect on the lack of confirmation,[3] there is a growing line of cases that see it as having no effect on the validity of the charge.[4]
- ↑
R v Oliveira, 2009 ONCA 219 (CanLII), 243 CCC (3d) 217, per Doherty JA at 30
- ↑ R v Key, 2011 ONCJ 780 (CanLII), per Robertson J - detailed review of cases
- ↑
eg. R v Koshino, [1991] OJ No 173 (Gen. Div.)(*no CanLII links)
R v Sandoval, [2000] OJ No 5591 (SCJ)(*no CanLII links)
R v Smith, 2008 CanLII 3410 (ONSC), [2008] OJ No 381 (SCJ), per Belobaba J
R v Pilieci, 2010 ONSC 3606 (CanLII), 257 CCC (3d) 541, per Lauwers J - ↑
R v Rennie, [2004] OJ No 4990 (SCJ)(*no CanLII links)
R v Pavlick, [2008] OJ No 2114 (SCJ)(*no CanLII links)
R v Sullivan, [2009] OJ No 5075 (SCJ)(*no CanLII links)
R v Duran, 2011 ONSC 7346 (CanLII), 285 CCC (3d) 46, per Trotter J
R v Morton, 1992 CanLII 7818 (ONSC), 70 CCC (3d) 625, per Then J, affirmed, 83 CCC (3d) 95, 1993 CanLII 8575 (ON CA), per curiam
R v Matykubov, 2010 ONCJ 233 (CanLII), per Armstrong J
See also R v Wetmore, 1976 CanLII 1358 (NSCA), (1976), 18 NSR (2d) 292 (NSCA), per MacKeigan CJ
Confirming Attendance After Conviction and Before Sentencing
732.2
[omitted (1), (2), (3), (4) and (5)]
- Compelling appearance of person bound
(6) The provisions of Parts XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] and XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) [probation order – changes to order] and (5) [vary or cancel probation order on breach conviction].
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).
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