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Canadian Criminal Procedure and Practice/Pre-Trial Matters/Withdraw and Dismissal of Charges

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Withdraw and Dismissal of Charges

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The crown can withdraw a charge at any time prior to plea. Otherwise, it must be with leave of the court and will sometimes require consent of defence. There is a limited exception for abuse of process.

When an election to Superior Court court has been made, the charge can be withdrawn up until a preliminary inquiry is complete.

Dismissal for Want of Prosecution

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A judge may make an order dismissing charges for "want of prosecution" resulting in the cessation of the proceedings.

The order can be made at any point up until the commencement of trial.

An applicant can make a motion seeking the dismissal of the charges. Typically, this will arise where a matter cannot proceed any further such as where:

  1. the judge has refused to adjourn a matter
  2. the Crown elects to "offer no evidence"
  3. the crown has failed to attend or is otherwise incapable of moving a prosecution forward

The authority to dismiss charges is discretionary.[1]

A judge cannot make an order to dismiss for want of prosecution where the prosecutor is late in attending court.[2] And particularly where a guilty plea has already been entered.[3]

A charge that is dismissed for want of prosecution may be recommenced with the laying of a new information or direct indictment only with written consent of the Attorney General or Deputy Attorney General (485.1).

  1. ↑ R. v. Fletcher and Smith 1990 CanLII 2507 (NS CA), (1990), 99 N.S.R. (2d) 258 at p. 260, para. 7
  2. ↑ R. v. Moreland, 1994 CanLII 1016 (BC SC)
  3. ↑ R. v. Siciliano, 2012 ONCA 168
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