Canadian Criminal Procedure and Practice/Charges

Form and Content of a Charge
An information must provide sufficient detail to identify the transaction which gives rise to the criminal liability so that the accused can make full answer and defence.

Where the charge is particularized beyond the essential elements, the Crown is still bound to prove the transaction delineated in the charge.

A count is the specific wording of the charge itself. It sets out the specifics of the allegation.

For a count to be valid under s. 581 it must apply to a single transaction and must contain a statement that the accused committed the offence specified.

A crown cannot join two or more offences into a single count on an information.

Duplicity and Multiplicity
A charge should only set out one offence. At common law, a charge is invalid where it violates the rule rule of duplicity, setting two offences in a single count, and rule against multiplicity, setting out more than two offences in a single count. The purpose of this rule is so that the accused may know the charge against him and, once a verdict is given, that he know what his conviction is exactly for. This is particularly relevant where the accused may later wish to rely upon a plea of autrefois acquit/convict.

However, the common law rules against duplicity and multiplicity has been modified to be less stringent. A "double or multifarious" count is a defect in form, but not necessarily void.

Further, s. 590 sets out that:

In such cases, both the defence (590(2)) or the judge (590(3)) have the ability to amend the count into multiple counts on the information.

The primary test applied is to ask "does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?"

A charge is not duplicitous because the range of offence dates cover a period of time where the relevant available defence changed in law.

Sufficiency of Count
The indictment should contain “sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence". The information necessary will vary depending on the facts of the case and the nature of the offence.

Parties The common law does not generally distinguish between the principle and an aider or abettor for the purpose of the indictment. There is however a distinction between principles and accessories. Counselling can fall within either an accessory or as a aider or abettor.

Charge Surplusage
Surplusage within the charge refers to non-material or "non-essential averments". Surplusage need not be strictly proved where the accused is not misled or prejudiced.

Amendments to Charges
Amendments to an indictment are addressed in s. 601:

Mistakes to heading of indictment will not affect its validity.(s. 601(8))

Joinder
Under s. 591(1), any counts can be joined onto the same indictment. A party may apply to the court join charges on separate informations where the offences relate. . The judge further has the power to hear evidence concurrently on a summary and indictable matter where the offences relate. The consequence of this is that an otherwise summary offence matter can be tried and disposed of by a Justice of a Superior Court where the offence relates to a indictable matter that the Justice is hearing evidence on.

See also: R. v. Dardon, 2004 ABQB 14

Severance of Charges
A motion to sever co-accused can be brought under s. 591(3)(b) of the Criminal Code:

The "interest of justice" is determined based on the balance of “prejudice to the accused and the public interest in a single trial”. This includes the interests of those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge shall weigh the competing interests and will sever only if satisfied that severance is required. The applicant must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together. The crown has the option to indict the accused separately or jointly, and the discretion so exercised is entitled to great weight.

The factors to consider include:
 * the general prejudice to the accused;
 * the legal and factual nexus between the counts;
 * the complexity of the evidence;
 * whether the accused intends to testify on one count but not another;
 * the possibility of inconsistent verdicts;
 * the desire to avoid a multiplicity of proceedings;
 * the use of similar fact evidence at trial;
 * the length of the trial having regard to the evidence to be called;
 * the potential prejudice to the accused with respect to the right to be tried within a reasonable time;
 * and the existence of antagonistic defences as between co-accused persons
 * expense and convenience of witnesses;

Severance will be granted where:
 * the defendants have antagonistic defences;
 * the important evidence in favour of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial;
 * the evidence which is incompetent against one defendant is to be introduced against another, and that it would work prejudicially to the former with the jury;
 * a confession made by one of the defendants, if introduced and proved, would be calculated to prejudice the jury against the other defendants; and
 * one of the defendants could give evidence for the whole or some of the other defendants and would become a competent and compellable witness on the separate trials of such other defendants.

See also:R. v. Tymchyshyn et al., 2011 MBQB 261 (rejected)