Informations and Indictments

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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;

...


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] "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. [Annotations Added]


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]

  1. to commence the proceedings until the accused is arraigned or the charges dismissed;
  2. to inform the accused of the allegations against him or her;
  3. to indicate that an allegation has been made under oath before a justice of the peace; and
  4. 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.
  1. ↑ R v Akey, 1990 CanLII 6755 (ON SC), [1990] O.J. No. 2205 (Gen. Div.) 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.


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]

  1. ↑ see s. 580 "An indictment is sufficient if it is on paper and is in Form 4."
  2. ↑ R v Sault Ste. Marie (1978), 40 CCC (2d), 1978 CanLII 11 (SCC), at 353
  3. ↑ R v Dean, 1985 CanLII 1142 (AB QB), (1985), 36 Alta. L.R. (2d) 8 (Q.B.)
  4. ↑ R v Howell 1978 CanLII 692 (AB QB), (1978), 14 A.R. 299
  5. ↑ R v George, 1993 CanLII 4609 (NS SC)
  6. ↑ R v Justice of the Peace; Ex Parte Robertson, [1971] 1 O.R. 12 (CA)(*no CanLII links)
  7. ↑ R v Kamperman, 48 N.S.R. (2d)(*no CanLII links) 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 ")
  8. ↑ R v Awad, 2013 NSPC 82 (CanLII), at para 51 aff'd at 2015 NSCA 10
    R v Peavoy, 15 CCC (2d) 97(*no CanLII links)
    R v Vanstone, 1982 Carswell Alta. 626(*no CanLII links) at para 30
    R v 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 offcier 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]


  1. ↑ http://www.duhaime.org/LegalDictionary/J/Jurat.aspx Duhaime's Law Dictionary: "jurat"
  2. ↑ e.g. R v Yerxa, 1991 CanLII 6234 (NB QB)
  3. ↑ c.f. R v Shields, [1990] O.J. 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
  4. ↑ R v Goodine (1991), 68 CCC (3d) 366 (N.S.Co.Ct.)(*no CanLII links) overturned on other point at 71 CCC (3d) 146 (NSCA)
  5. ↑ R v Sorensen, 1990 CanLII 6852 (ON SC), (1990), 59 CCC (3d) 211 (Ont.Ct.(Gen.Div.))
  6. ↑ R v Joudrey (1992), 309 A.P.R. 117 (NSPC)(*no CanLII links)
  7. ↑ R v City of Toronto, 2011 ONCJ 131 (CanLII)

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.


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]

  1. ↑ R v Vanstone, 1982 Carswell Alta. 626(*no CanLII links) at para 30
  2. ↑ R v Awad, 2015 NSCA 10 (CanLII) at para 15 citing trial judge
  3. ↑ R v Vanstone, supra at para 30

See Topics

Case Digests

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