Chapter 8: Informations, Indictments, Arraignment & Plea

These flashcards cover key vocabulary from the lecture on criminal law, focusing on informations, indictments, arraignments, and the process of plea and prosecution.

Informations

A written complaint, sworn under oath, that formally commences most criminal proceedings.

Indictments

A written accusation of crime against one or more persons, used in superior court trials for indictable offences.

Private prosecutions

When an individual lays an information for a criminal offence without the involvement of the Crown.

Crown discretion

The authority of the Crown to choose whether or not to proceed with charges.

Stay of Proceedings

A direction by the Attorney General to suspend criminal proceedings.

Withdrawal of Charges

An action by the Crown negating the laying of the charges; it is as if the charges were never laid.

Call No Evidence

The process where the Crown proceeds to trial but calls no evidence, resulting in the acquittal of the accused.

Direct Indictment

A procedure where the Crown bypasses the preliminary inquiry and compels the accused to go directly to trial in superior court.

Section 504

The section of the Criminal Code that allows individuals to lay an information for an indictable offence.

Section 581

The section that sets rules for what must be contained in an indictment.

Personal knowledge

The requirement that the person swearing an information has firsthand knowledge or reasonable grounds for their belief.

Ex parte hearing

A legal proceeding where one party is not present, often conducted without the accused.

Endorsed Warrant

A warrant that allows an officer to release an arrested accused under certain conditions.

Summary conviction offence

A less severe crime prosecuted in a more straightforward manner than indictable offences.

Indictable offences

More serious criminal offences that require an indictment to proceed to trial.

Double jeopardy

The legal principle that an individual cannot be prosecuted for the same offence after a not guilty verdict.

Plea Bargaining

Negotiation between the prosecution and defendant where the defendant pleads guilty for a perceived benefit.

Autrefois Acquit

A special plea that indicates the accused has previously been acquitted of the alleged offence.

Autrefois Convict

A special plea indicating that the accused has previously been convicted of the same offence.

Pardon

A legal forgiveness for a crime that may prevent further prosecution.

Malicious Prosecution

A civil lawsuit where an accused sues for damages due to wrongful charges pursued by the Crown.

Abuse of Process

State conduct that compromises the fairness of a trial or undermines the integrity of the judicial process.

Trial Fairness Category

One aspect of the abuse of process involving the fairness of the accused's trial.

Residual Category

Another aspect of abuse of process concerning the integrity of the judicial process.

Sufficiency Principle

A legal standard requiring that the accused be reasonably informed of the charges against them.

Judicial Acceptance

The requirement for a judge to ensure a plea is voluntary and the accused understands the consequences.

Preliminary Inquiry

A hearing in provincial court to determine if sufficient evidence exists for a trial.

Provincial Court

The court that typically handles summary offences and preliminary inquiries.

Attorney General (AG)

The chief legal officer of a state or country, responsible for overseeing legal affairs.

Legislative Framework

The structure of laws and regulations that govern legal processes.

Justice Review

The duty of a justice to consider and assess allegations before proceeding with charges.

What was the historical context of prosecutions in early common law?

In early common law, prosecutions were primarily private, focusing on compensating the victim rather than punishing wrongdoers. This practice, where wrongdoers could often compensate victims to avoid prosecution, no longer exists due to modern Criminal Code sections.

s. 139 (Criminal Code):

Makes it a summary conviction offence to offer money to a witness or victim to influence them.

s. 143 (Criminal Code):

Makes it a summary conviction offence to publicly advertise a reward for lost/stolen items with 'no questions asked'.

s. 141 (Criminal Code):

Makes it an indictable offence to agree to conceal an indictable offence in exchange for valuable consideration, with an exception if consented to by the Attorney General or as part of a diversion program.

What is an 'Information' in Canadian criminal law?

A written complaint, sworn under oath, which formally commences most criminal proceedings by alleging the accused has committed a specific criminal offence.

Which sections of the Criminal Code govern Informations for different types of offences?

• s. 504 (Criminal Code) for indictable offences.

• s. 788 (Criminal Code) for summary conviction offences.

What are the requirements for swearing an Information, particularly regarding 'personal knowledge' and police officers?

The person swearing the information must have 'personal knowledge' or believe on 'reasonable grounds' that the accused committed the offence (s. 504 for indictable, s. 788 for summary). A police officer can swear an information 'second hand' based on reliable allegations.

How does the Criminal Code (s. 508.1) allow for laying an Information via telecommunications?

s. 508.1 permits peace officers to lay an information via telecommunications, and this is deemed to be made under oath (s. 508.1(2)).

What is the required form for an Information, including language, and how is it used in criminal proceedings?

Charges of indictable offences 'may' be in Form 2 (s. 506).

• Charges of summary offences 'shall' be in Form 2 (s. 788(1)).

• Preprinted parts of the form must be in both English and French (s. 849).

Informations are the charging document for all trials in Provincial Court and for preliminary inquiries.

What is a Justice's initial duty upon receiving an Information?

Upon receiving an Information sworn by a peace officer, public officer, or AG/AG agent (s. 507, s. 508), a Justice has the duty to 'hear and consider' the allegations and any 'desirable or necessary' evidence. The process cannot be a mere 'rubber stamp'; the Justice cannot sign a summons or warrant in blank (s. 507(5)).

What is the nature of the hearing for a Justice to consider an Information, and has its constitutionality been upheld?

This hearing is conducted ex parte (without the accused present). Its constitutionality has been upheld (e.g., Southam Inc. 1990).

Under what conditions does a Justice compel attendance, and by what means?

If a case is 'made out' (s. 507(4)), the Justice shall compel attendance by:

• Issuing a summons.

• Issuing a warrant for arrest, if 'necessary in the public interest'.

What is an 'Endorsed Warrant' (s. 507(6)) and what does it permit?

An Endorsed Warrant (s. 507(6)) allows the Justice to pre-authorize the officer to release an arrested accused under s. 499 (except for s. 469 offences). An endorsed warrant can also authorize enforcement in other jurisdictions.

What are the timing requirements for laying an Information if a suspect was already released (s. 505)?

If the suspect was already released (e.g., via appearance notice or undertaking), the information must be laid 'as soon as practicable' or 'before the time stated' for court attendance (s. 505).

What is the Justice's duty regarding the review of release if no case is made out for compelling attendance (s. 508)?

If no case is made out for compelling attendance, the Justice 'shall cancel the appearance notice or undertaking and cause the accused to be notified forthwith' (s. 508(1)(c)).

What is an Indictment?

An Indictment is a written accusation of crime against one or more persons, used to commence trials for indictable offences in superior court.

How is an Indictment used in trials for indictable offences?

Trials for an indictable offence, other than those before a provincial court judge, 'shall' be on an indictment (s. 566 and Form 4).

What is the nature of an Indictment as a charging document?

An Indictment is a charging document for Superior Court trials, and it is not sworn under oath.

How does an Indictment structurally differ from an Information?

Unlike an Information, which is sworn under oath by an informant, an Indictment is a document preferred by the Crown and is not under oath.

Who can 'prefer' an Indictment according to s. 574 of the Criminal Code?

An indictment is lodged with the trial court by the Attorney General or a prosecutor as an agent of the AG. No one else may prefer an indictment except with the written order of a judge of the court (s. 574(3)).

What is the purpose of an Indictment after a preliminary inquiry?

If an accused is ordered to stand trial after a preliminary

What characterizes 'Extreme Technicality' in historical English indictments?

Historically, English indictments, as exemplified by R. v. Radbourne (1787), were exceedingly technical, requiring exhaustive details such as specific names, aliases, status (e.g., 'widow,' 'servant'), location, mandatory moralistic language ('instigation of the devil'), precise weapons, exact wound dimensions, and specific dates of injury and death.

What was the primary purpose behind the rigid precision of historical common law indictments?

This rigid precision allowed courts to find minor technical defects to overturn charges, thereby mitigating the harshness of common law punishments (e.g., the death penalty for felonies).

Sufficiency Principle (s. 581, Criminal Code)

Under the Criminal Code, this principle dictates that an indictment (or information) is sufficient if it provides the 'substance of a statement' in popular language that gives the accused notice of the offence (s. 581), ensuring the accused is 'reasonably informed' for a full defence and fair trial (Coté, 1978).

How much detail is required in modern Canadian charging documents according to s. 581(3) of the Criminal Code?

While simplified, it must provide 'sufficient detail to give the accused reasonable information to enable him or her to identify the transaction or event.' Lack of certain details (e.g., name of injured person) will not render it insufficient if s. 581 requirements are met (s. 583).

Correction of Defects (s. 601, Criminal Code)

Refers to the wide powers given to Canadian courts to amend defective charging documents during trial to remedy a defect or conform to the evidence. This means technical errors typically do not invalidate a charge, and objectio

Application of s. 581 rules to summary conviction proceedings

Section 795 of the Criminal Code stipulates that the rules outlined in s. 581 concerning the requirements for indictments also apply to informations used in summary conviction proceedings.

Particulars (s. 587, Criminal Code)

Additional details that an accused may apply to the court to order the Crown to provide in the context of charging documents.

What is the primary purpose of requesting 'Particulars' in criminal proceedings?

To enable the accused to make full answer and defence.

Which section of the Criminal Code governs the application for 'Particulars'?

Governed by s. 587 of the Criminal Code

What is the effect if the court orders the Crown to provide 'Particulars' (s. 587(3))?

If ordered, the trial proceeds 'as if the indictment had been amended to conform with the particular[s],' meaning the Crown must then prove those particulars.

An example is Thatcher (1987), where the court refused to order particulars on specific means of murder.

Right to Lay Information (s. 504)

Section 504 of the Criminal Code allows any individual with reasonable grounds to believe an indictable offence was committed to lay an information. The definition of 'prosecutor' in s. 2 includes individuals who lay a private information.

What is the initial judicial procedure for an information laid by a private citizen?

Informations laid by a private citizen are referred to a Provincial Court judge (or Court of Quebec judge), who holds an ex parte pre-inquiry (pre-enquete) where the named person is not entitled to appear.

Ex parte pre-inquiry (s. 507.1)

A pre-inquiry procedure for privately laid informations where the judge hears and considers allegations and evidence without the accused present.

The judge may only issue process if satisfied 'a case for doing so is made out' and the provincial Attorney General received a copy and was given an opportunity to attend, cross-examine, and call witnesses.

How does Crown Intervention (s. 579) affect private prosecutions?

The Attorney General (AG) may intervene and take control of the prosecution at any time. When the Crown takes over, it often results in a stay of proceedings, effectively discontinuing the private prosecution.

What is a key controversy surrounding private prosecutions?

While private prosecutions reinforce democratic values, they may be subject to abuse of process if used merely as a forum for political views, rather than to pursue a genuine criminal outcome (e.g., Davidson, 2005).

What is a common outcome when the Crown intervenes in a private prosecution, as seen in Judgement at Stoney Creek?

Generally, the Crown takes over private prosecutions. The Crown then decides whether to stay the charge (discontinue) or proceed with a conventional prosecution.

This is exemplified by Judgement at Stoney Creek.

Abuse of Process in Private Prosecutions

Private prosecutions will be stayed or dismissed if determined to be an Abuse of Process due to an improper motive, such as using the criminal procedure as a forum for political views rather than pursuing a genuine criminal outcome.

Why did the B.C. Supreme Court dismiss Gail Davidson's private prosecution against George W. Bush in Davidson (2005)?

The B.C. Supreme Court dismissed Davidson's appeal on the basis of Abuse of Process because she intended to use the criminal procedure as a 'forum to express her political views' rather than seeking a genuine criminal outcome, as she stated she was 'not asking at any time for process to issue'.

Law Reform Commission (1986c) on Private Prosecutions

The Law Reform Commission (1986c) favoured retaining private prosecutions, viewing them as a way to reinforce democratic values by allowing citizens to access the justice system when the Crown chooses not to proceed.

What is the core philosophy behind criminal charge screening in Canada?

Criminal law is viewed as a 'blunt and costly instrument' and an 'instrument of last resort'.

This system maintains a clear division where police investigate, and prosecutors screen and prosecute.

Post-Charge Screening

A screening process (e.g., in Ontario) where police lay charges first, then the Crown prosecutor decides whether to proceed or stay.

The federal standard requires:

1. A 'reasonable prospect of conviction' and

2. that 'public interest requires a prosecution'. (considering factors like offence seriousness and resources).

Pre-Charge Screening

A screening practice (e.g., in BC, QC, NB) where prosecutors must pre-approve charges before the police lay an information.

What is the standard for prosecutors in British Columbia?

There must be a 'substantial likelihood of conviction' and the public interest must be considered.

Attorney General (AG) Consent Requirement

For specific serious or sensitive offences (s. 83.3 Criminal Code), the explicit consent of the Attorney General is required before charges can be laid, ensuring high-level political accountability for serious or sensitive charges.

What are the three core methods by which the Attorney General can discontinue a prosecution?

1. Stay of Proceedings,

2. Withdrawal of Charges, and

3. Call No Evidence.

Stay of Proceedings (s. 579(1) Criminal Code)

A direction by the Attorney General to suspend criminal proceedings. The Crown can reactivate the charge within one year (s. 579(2)); if not, it's as if the proceedings were never commenced.

Withdrawal of Charges by the Crown

An action where the Crown negates the laying of charges, making it as if they were never laid. New charges must be laid to recommence proceedings if Crown wishes to pursue them.

Call No Evidence (Crown's action)

A process where the Crown proceeds to trial but formally declines to present evidence, resulting in the acquittal of the accused. The Crown cannot recommence proceedings for the same offence (due to autrefois acquit), but can appeal the acquittal.

What is a Direct Indictment?

A procedure under s. 577 of the Criminal Code where the Crown bypasses a preliminary inquiry and compels the accused to go directly to trial in superior court.

Purpose of a Direct Indictment

The primary purpose is to allow the Crown to proceed directly to trial in superior court, bypassing the preliminary inquiry.

Mechanism for Direct Indictment (s. 577)

The Crown may prefer a direct indictment either before/during a preliminary inquiry, or after an accused has been discharged at a preliminary inquiry.

Who authorizes a Direct Indictment?

It requires the 'personal consent in writing' of the Attorney General or the Deputy Attorney General, as per s. 577 of the Criminal Code.

Alternative Bypass for Preliminary Inquiry

A preliminary inquiry can also be bypassed by a 'written order' from a superior court of criminal jurisdiction (s. 577(b)).

Charter Challenges to s. 577

Section 577 has faced challenges under s. 7, 9, and 15 of the Charter, but courts of appeal have consistently upheld its constitutionality.

Rationale for using Direct Indictments

Direct indictments are reserved for 'rare and extraordinary circumstances' and when in the public interest (Public Prosecution Service of Canada, 2014) for reasons such as:

• Notoriety of the case requiring a quick trial.

• Long, complex cases involving many accused.

• Accused intending to disrupt a preliminary hearing.

• Preservation of Crown's case or security of witnesses.

• Avoiding multiplicity of proceedings/unconscionable delay.

• Accused discharged at a preliminary inquiry due to an error of law

What are the three main ways to control prosecutorial discretion and misconduct?

1. Application for a remedy based on a Crown abuse of process

2. Lawsuit for malicious prosecution

3. Complaint to a provincial law society

How can an 'Application for a remedy based on a Crown abuse of process' control prosecutorial misconduct?

This mechanism controls prosecutorial discretion by allowing an accused to seek a stay of proceedings from the court. This remedy is granted when state conduct compromises trial fairness or undermines judicial integrity, and is rooted in s. 7 of the Charter.

What is 'Malicious Prosecution' as a control over prosecutorial misconduct?

A civil lawsuit (a tort action) that controls prosecutorial misconduct by allowing an accused to sue prosecutors for damages when charges are pursued improperly and with malice.

How does a 'Complaint to a provincial law society' control prosecutorial misconduct?

Posecutors are members of self-regulating provincial law societies and fall under their professional disciplinary jurisdiction. If a complaint is substantiated, they can face disciplinary actions, including fines, reprimands, or even disbarment for unethical conduct.

Abuse of Process

State conduct that compromises an accused's trial fairness (the Trial Fairness Category)

or risks undermining the integrity of the judicial process (the Residual Category), as defined in Babos (2014, para. 31). This principle is rooted in s. 7 of the Charter.

What is the primary judicial remedy for Abuse of Process?

The primary judicial remedy is a stay of proceedings, granted only in the 'clearest of cases' when state conduct has severely compromised trial fairness or judicial integrity.

Prejudice (First Part of Babos Test for Stay of Proceedings)

It requires prejudice to the accused's right to a fair trial or to the integrity of the justice system that 'will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome'.

No Alternative Remedy (Second part of Babos Test for Stay of Proceedings)

There must be 'no alternative remedy capable of redressing the prejudice'

Balancing (Third part of Babos Test for Stay of Proceedings)

If steps (1) and (2) leave uncertainty, a balancing of society's interest in a final decision on the merits against the interest in denouncing misconduct and preserving integrity is required.

• In favor of stay: Denouncing misconduct and preserving integrity.

• Against stay: Society's interest in having a final decision on the merits.

Residual Category Test for Abuse of Process

Clarified in Babos (2014, para. 35) and rooted in s. 7 of the Charter, refers to state conduct that is both

1. offensive to societal notions of fair play and decency'

2. 'harmful to the integrity of the justice system' if the trial were to proceed.

Meeting this two-fold test is required for a Stay of Proceedings.

What was the main purpose and outcome of R. v. Babos (2014)?

The Supreme Court clarified the two-fold test for granting a Stay of Proceedings based on the 'Residual Category' of abuse of process. Despite allegations of Crown intimidation, police collusion, and improper record acquisition, the Court found the conduct did not meet the high threshold, therefore a Stay of Proceedings was not merited.

Babos (2014) Allegations

The accused in R. v. Babos (2014) claimed abuse of process based on allegations including Crown intimidation (threatening additional charges), police collusion (misleading the court about a firearm seizure), and the Crown allegedly obtaining medical records through improper means.

Judge-Shopping (R. v. Regan, 2002)

In Regan (2002), the Supreme Court of Canada (SCC) deemed 'judge-shopping' unacceptable, stating it is unfair to the accused and tarnishes the justice system's reputation. However, the evidence in this specific case was insufficient to grant a stay on this ground.