Canadian Criminal Procedure and Practice/Informations and Indictments
Informations and Indictments edit
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.
An information is an 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;
- to commence the proceedings until the accused is arraigned or the charges dismissed;
- to inform the accused of the allegations against him or her;
- to indicate that an allegation has been made under oath before a justice of the peace; and
- 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.
- R. v. Akey,  O.J. No. 2205 (Gen. Div.) at para. 6
Laying of an Information and Issuing Process edit
Once an accused is arrested he is given an appearance notice. The peace officer will then create the 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.
The format for an information is taken from Form 2 of the Code.
Validity of the Information edit
Chief Justice Dickson, in R. v. Sault Ste. Marie (1978), 40 C.C.C.(2d), 1978 CanLII 11 (SCC), at 353, considered the evolution of the validity of informations, where in modern times substances rules over formality.
The date "is relevant and material only when the issue of limitation periods arises" 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. 
There is a rebuttable presumption that a justice of the peace will only operate within their authority.
It is often said that an information that contains on its face contained a contradiction that was an impossibility is a nullity. 
Motion to Quash the Information edit
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.
Amendments to Information edit
Under s. 601(3)(b) and (c), the court may amend the form or substance of an information at any stage of the proceeding.
Amendments prior to the defendant electing to call evidence will often be permitted.
Amendments to an information is a question of law (s. 601(6)).
Conforming to the Evidence at Trial or Preliminary Inquiry edit
Where a trial or preliminary inquiry has commenced, the crown or judge may amend the information under s. 601(2) to conform to the evidence as it comes out.
See also s. 601(b)(i)
Under s.601(4.4), variations between the evidence and the time or jurisdiction set out in the information are not materials where the indictment was preferred within the limitation period or where the matter arose in the geographical jurisdiction of the court.
Factors to Consider edit
Section 601(4) sets out factors the court should consider:
Matters to be considered by the court
(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider
- (a) the matters disclosed by the evidence taken on the preliminary inquiry;
- (b) the evidence taken on the trial, if any;
- (c) the circumstances of the case;
- (d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
- (e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
An amendment will not be granted where the defence is prejudiced by the amendment. To be "prejudiced", the amendment must be create an offence the accused was unaware of or alter the manner in which the defence is conducted.
An amendment may not substitute completely separate charges or otherwise "fundamentally" change the case against the accused.
However, a correction in the section number alone is permissible at any point prior to the conclusion of trial.
Under s. 601(5), where an accused is prejudiced by "a variance, error or omission" the court may adjourn the proceedings.
Preferred and Direct Indictments edit
Sections 574 and 577 under Part XX of the Criminal Code address the ability to prefer indictments.
Prosecutor may prefer indictment
574. (1) Subject to subsection (3), 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 requested
(1.1) If a person has not requested a preliminary inquiry under subsection 536(4) or 536.1(3) into the charge, the prosecutor may, subject to subsection (3), 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) and (1.1), the prosecutor may prefer a single indictment in respect of one or more charges referred to in subsection (1) combined with one or more charges or included charges referred to in subsection (1.1).
Consent to inclusion of other charges
(2) An indictment preferred under any of subsections (1) to (1.2) 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) applies.
R.S., 1985, c. C-46, s. 574; R.S., 1985, c. 27 (1st Supp.), s. 113; 2002, c. 13, s. 45.
The preferring of an indictment occurs when it is when the indictment is "lodged" with the superior court at the opening of trial.
Once an indictment has been preferred, any defect arising from the arrest, summoning, or preliminary inquiry will not invalidate the indictment.
Direct Indictment edit
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.
577. Despite section 574, 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.
Section 577 was found to be constitutional despite its effect of removing the right to a preliminary inquiry. However, where the preferring of a direct indictment is combined with inadequate disclosure on the new charge(s), then it could result in a breach of the right to full answer and defence under s. 7 of the Charter.
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 are most frequently used where:
- delays in the trial could deprive the accused of the right to be tried within a reasonable time;
- 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;
- preservation of the integrity of the Crown’s evidence by, for example, protecting informants and ongoing police investigations;
- a risk that evidence could be destroyed;
- public safety reasons;
- the need to avoid multiple proceedings caused, for example, by delays in making arrests;
- the accused was wrongly discharged following the preliminary inquiry because of errors, or new evidence has been discovered;
- a preliminary inquiry would be unreasonably costly, complex or long, or would be inappropriate because of the nature of the issues or the evidence;
- the alleged offence is so controversial that it is in the public interest to try the case as quickly as possible; and
- 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.
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. There is a high standard to warrant such disclosure requiring evidence of mala fides or "flagrant impropriety". Further, the applicant must show that the documents fall under an exception to solicitor-client privilege.
The exercise of power under s. 577 can be reviewed as an abuse of process.
To warrant a remedy, it must be shown "that a discretion was exercise for improper or arbitrary motives". There must be "clear and convincing evidence supporting the allegations before the Court."
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.
R. v. Ertel (1987) 35 CCC (3d) 398
Re Regina and Arviv 1985 CanLII 161 (ON CA), (1985), 19 C.C.C. (3d) 395
see also R. v. Charlie1998 CanLII 4145 (BC CA), (1998), 126 C.C.C. (3d) 513 (BCCA)
- Arviv at para. 26
Sher v. The Queen, 2012 ONSC 4783 at para. 14
R v Poloni, 2009 BCSC 629 (“[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.”)
- R. v. Beaudry,  1 C.C.C. 272 (BCCA)
- R. v. S.J.L., 2009 SCC 14 (CanLII),  1 SCR 426 at para. 38
- Sher v .The Queen, 2012 ONSC 4783 at para. 27, 29
- R. v. Ertel (1987) 35 CCC (3d) 398
- R. v. Dallas, Hinchcliffe & Terezakis, 2001 BCSC 77 (CanLII) at para. 21
R v Durette, 1992 CanLII 2779 (ON CA), (1992), 72 C.C.C. (3d) 421 - judge declined to order statements from prosecutors but ordered sealed copies of relevant documents
- R. v. Chan, 2003 ABQB 169 - application for disclosure denied
- R. v. Trang, 2002 ABQB 744 (CanLII) at para. 419
- e.g. R. v. Trang, 2002 ABQB 744 at para. 369
- R. v. Beare 1988 CanLII 126 (SCC)
- R. v. Dallas, Hinchcliffe & Terezakis, 2001 BCSC 77 at para. 21
- See R. v. L'Henaff, 1999 SKQB 259 for form of indictment