Particulars

From Criminal Law Notebook
Revision as of 10:57, 27 February 2021 by Admin (talk | contribs) (Text replacement - "\'\'R v ([^\']+)\'\', \[http:\/\/canlii.ca\/t\/([^\s]+) ([0-9]{4} [^\s]+ [0-9]+)\] \(([^\)]+\))([^\{]+)\{" to "{{CanLIIRP|$1|$2|$3 ($4|$5}}{")

General Principles

An accused can apply for an order requiring the Crown to provide particulars. Section states:

What may be ordered
What may be ordered

587 (1) A court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality of the foregoing, may order the prosecutor to furnish particulars

(a) of what is relied on in support of a charge of perjury, the making of a false oath or a false statement, fabricating evidence or counselling the commission of any of those offences;
(b) of any false pretence or fraud that is alleged;
(c) of any alleged attempt or conspiracy by fraudulent means;
(d) setting out the passages in a book, pamphlet, newspaper or other printing or writing that are relied on in support of a charge of selling or exhibiting an obscene book, pamphlet, newspaper, printing or writing;
(e) further describing any writing or words that are the subject of a charge;
(f) further describing the means by which an offence is alleged to have been committed; or
(g) further describing a person, place or thing referred to in an indictment.
Regard to evidence

(2) For the purpose of determining whether or not a particular is required, the court may give consideration to any evidence that has been taken.

Particular

(3) Where a particular is delivered pursuant to this section,

(a) a copy shall be given without charge to the accused or his counsel;
(b) the particular shall be entered in the record; and
(c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular.

R.S., 1985, c. C-46, s. 587; R.S., 1985, c. 27 (1st Supp.), s. 7.

– CCC

Note up: 587(1), (2) and (3)

The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary".[1]

The dual purpose of particulars is to 1) ensure the defence's "ability to make full answer and defence" and 2) facilitate the administration of justice.[2]

There is no absolute right to particulars.[3] The burden is upon the applicant to establish on the balance of probabilities that the "necessity" to "understand and appreciate that which is alleged against him so as to enable him to adequately prepare and defend against said allegations".[4]

The purpose of orders for particulars is: (1) "to give exact and reasonable information to the accused respecting the charges before the court"; and (2) to "facilitate the administration of justice." [5]

The applicable factors to ordering particulars are set out as follows:[6]

  1. The purpose of particulars in a criminal trial is twofold. The first is to give exact and reasonable information to the accused respecting the charge against him as will enable him to establish his defence.[7]

The second purpose is to facilitate the administration of justice.[8]

  1. To facilitate the administration of justice, it is essential that the trial judge has sufficient information before him or her by means of particulars as to what the Crown intends to prove against the accused in order that the trial judge may make “proper, adequate and expeditious rulings on the admissibility or otherwise of evidence sought to be deduced”[9]
  2. In the event a preliminary inquiry was held, particulars and related information available from the transcript thereof are to be taken into account in applications for particulars[10]
  3. The defence carries the burden of satisfying the court that the particulars sought are necessary for a fair trial.
  4. An order for particulars is a discretionary power of the court and not an absolute right of the accused[11]
  5. Section 587 does not require the Crown to give specific details of acts and omissions relevant to the offence charged, save where the same is clearly necessary for the purposes of a fair trial[12]

The request should be granted when the ability to mount a proper defence or the fairness of trial are impacted.[13]

The application should be considered in light of the amount and coverage of the disclosure already provided.[14]

After the rules provided in Stinchcombe requests for particulars has become far less frequent.[15]

The application should not be aimed at discovering the Crown's theory.[16] It should not be used to bind the Crown in preventing them from pursuing one theory or method of proof over another.[17]

Particulars have the effect of forming "part of the indictment and like the other elements of the indictment, must be proven beyond a reasonable doubt".[18]

  1. ↑ R v Hynes, 2001 SCC 82 (CanLII), per McLachlin CJ, at para 33
  2. ↑ R v McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII), per Derrick J, at para 7
    R v Canadian General Electric Co., [1974] OJ No 13 (HCJ), 1974 CanLII 1540 (ON SC), per Pennell J, at paras 33 and 35
  3. ↑ R v Hunter, Goshinman and Anderson (1986), 23 CCC (3d) 331 (Alta. C.A.), 1985 ABCA 301 (CanLII), per Lieberman JA, at para 33
  4. ↑ R v McLaren, 1995 CanLII 6031 (SK QB), per Grotsky J
  5. ↑ Canadian General Electric, supra, at para 35
  6. ↑ R v Imperial Tobacco Co. et al., [1940] 1 DLR 397, 1 W.W.R. 124, 73 CCC 18 (Alta. T.D.), 1940 CanLII 238 (AB QB), per McGillivray J
    Canadian General Electric, supra
    R v Cominco Ltd. et al., (1978), 91 DLR (3d) 541, 41 CCC (2d) 514, 13 A.R. 106 (Alta. T.D.), 1978 CanLII 1997 (AB QB), per Brennan J
    cf. R v McGavin Bakeries et al. (1950), 99 CCC 330, 1 W.W.R. (N.S.) 129, 11 C.R. 227 (Alta. T.D.), 1950 CanLII 372 (AB QB), per McBride J
    see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003), at pp. 9-41
  7. ↑ Canadian General Electric, supra, at p. 443
  8. ↑ R v Adduono, 1940 CanLII 109 (ON CA), , [1940] 1 DLR 597, 73 CCC 152 (Ont. C.A.), per Masten JA
    See also R v Côté, 1977 CanLII 1 (SCC), , [1978] 1 SCR 8, at p. 13, (1977), 73 DLR (3d) 752, 2 W.W.R. 174, 33 CCC (2d) 353, per de Grandpré J
  9. ↑ Cominco, supra, at para 15
    R v General Electric, supra, the secondary purpose of particulars was illustrated as follows at 443 (CCC): ". . .When a conspiracy count involves an alleged widespread complicated conspiracy for the accomplishment of a purpose going beyond the performance of individual acts, the particulars furnished will assist the Judge in ruling on the relevancy of the evidence. To adopt a homely form of words, at trial circumscribed by particulars will not wander all over the shop and will foreclose an unreal controversy."
  10. ↑ McGavin Bakeries, supra; R v Cominco; R v Leverton, [1917] 2 W.W.R. 584, 34 DLR 514, 28 CCC 61 (Alta. C.A.), 1917 CanLII 378 (AB CA), per Harvey CJ, at pp. 519-22 (DLR)
  11. ↑ R v Griffin, [1935] 2 DLR 503, 63 CCC 286 (N.B.S.C.), 1935 CanLII 279 (NB CA), per Grimmer JA
    R v Hunter, 1986 ABCA 81 (CanLII), , (1986), 23 CCC (3d) 331 (Alta. C.A.), per Stevenson J, at p. 338
  12. ↑ McGavin Bakeries, supra
    Cominco, supra
  13. ↑ R v Violette, 2008 BCSC 185 (CanLII), per Romilly J, at para 50
  14. ↑ Violette, ibid., at para 50
    R v Cargill Limited -Cargill Limitee, 2000 ABPC 96 (CanLII){, per Stevenson J, at para 14
  15. ↑ e.g. see R v Dalton (R.C.), 1999 CanLII 19775 (NL SCTD), per Halley J, at para 12
    R v Badry, 2000 ABPC 126 (CanLII), per Norheim J
  16. ↑ R v Sharpe, 2004 BCSC 241 (CanLII), per Edwards J, at paras 8 to 11
    R v Thatcher, 1987 CanLII 53 (CanLII), per Dickson CJ
  17. ↑ Thatcher, ibid., at paras 60, 61
  18. ↑ McCarthy's Roofing, supra, at para 8
    R v Saunders, 1990 CanLII 1131 (SCC), , [1990] 1 SCR 1020 (CanLII), per McLachlin J, at paras 5 and 6
    R v Dalton (R.C.), 1999 CanLII 19775 (NL SCTD), per Halley J, at para 11

Qualified Expert

See also: Procedure for Calling Expert Evidence#Other Remedies for Inability to Respond to Expert

Where a party has given notice under s. 657.3(3) to call expert evidence, the responding party may seek an order for particulars under s. 657.3(5).

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Particulars&oldid=62350"