CRIM 330 Lecture Notes - Lecture 4: Private Prosecution, Summary Offence, Indictable Offence

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iii. Laying the Charge, Arraignment and Plea
1. Introduction
- Formal prosecution process commences with the laying of the charge
- A charge is laid by means of:
o An information (for some offences)
o An information followed by an indictment (for some other offences)
- After the charge has been laid the accused makes an early court appearance (arraignment)
at which the charge is read to the accused and the accused enters a plea
2. Laying the Charge: Informations, and Indictment
(a). Informations: sections 504-504, s.788, Form 2
- An information may be referred to as a charging document
- It is a written statement/complaint made under oath
- Sworn before a “justice”
- Can be sworn by anyone (usually a peace officer)
o Having reasonable grounds to believe an indictable offence was committed:
s.504
o Summary conviction offence: s.788
- Justice must “hear and consider” the allegations on an ex parte basis (public prosecutions
only): s.507
- Where the justice considers the case to be made out, will issue summons or arrest
warrant: s.507/778
- ex parte basis: (one side only - the side the offence has been committed - usually the
state/the officer)
FORM 2 - INFORMATION
(b) Indictments: s.566, 581, Form 4
- An information is the charging document for:
o All offences tried in provincial court (553 indictables, summary conviction,
hybrids prosecuted as summary conviction)
o Indictable offences
- Up to the end of the preliminary hearing (for trial in superior court)
- In combination with an indictment (for trial in provincial court)
- An indictment is the charging document for all indictable offences (other than 553) after
the end of the preliminary hearing OR in cases of direct indictment
- An indictment is “preferred” by the Attorney General or the agent of the A-G (Crown
prosecutor) “preferred = issued”
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- It is different from the information:
o The information is sworn document (indictment isn’t)
o The indictment is filed by the Crown before or at the beginning of the trail (not
the moment the charge is laid)
- Content of the indictment (s. 581, Form 4):
o Key is accused needs to be able to know what is alleged in order to allow “full
answer and defence”
o Jurisdiction and name of accused
o Note how the signature is of the AG or AG’s agent (not a Justice)
o Statement of allegations
FORM 4 - HEADING OF INDICTMENT
(c) Amending an Information or Indictment: s. 601
- Crown or accused may make motion to amend an information or indictment before the
accused enters a plea
- After the accused has entered a plea the motion to amend can only be brought with leave
of the court
3. The Decision to Lay the Charge
(a) Public vs. Private Prosecution
- Vast majority of prosecutions are public (conducted by Crown counsel)
- However, anyone may swear an information… and anyone who has sworn an
information comes within the definition of “prosecutor” in CCC s.2:
2. In this Act,
“Prosecutor” means the AG or, where the AG does not intervene, means the person who
institutes proceedings to which this Act applies, and includes counsel acting on behalf of either
of them;
- Further, a “prosecutor” may prefer an indictment, but in a private prosecution the
indictment can only be preferred with the written order of a judge: s.574(1) & 574(3)
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…
(3) In a prosecution conducted by a prosecutor other than the AG and in which the AG
does not intervene, an indictment may not be preferred under any of subsections (1) to (1.2)
before a court without the written order of a judge of the court
- So note that private prosecutions can only proceed of the AG (Crown) neglects or refuses
to prosecute
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