25
) DRAFTING OF COUNTS WITHIN INFORMATIONS AND INDICTMENTS BY TERRENCE J. MATCHETT II
)
DRAFTING OF COUNTS WITHIN INFORMATIONS AND INDICTMENTS
BY
TERRENCE J. MATCHETT
II
DRAFTING OF COUNTS WITHIN INFORMATIONS AND INDICTMENTS
INDEX
I. INTRODUCTION
II. GENERAL PROVISIONS AS TO COUNTS
III. CODE REQUIREMENTS AS TO SUFFICIENCY
IV. SINGLE TRANSACTION REQUIREMENT (CODE S. 510(1))
V. SUFFICIENCY OF THE STATEMENT OF THE OFFENCE (CODE S. 510(1))A. GENERALLYB. IN THE WORDS OF THE ENACTMENT DECLARING
THE MATTERS TO BE AN OFFENCEC. IN THE WORDS OF THE ENACTMENT DESCRIBING
THE OFFENCED. THE EFFECT OF REFERENCE TO THE STATUTORY
PROVISION CREATING THE OFFENCEE. LEGAL EFFECT OF AN INSUFFICIENT STATEMENT
OF THE OFFENCE
VI. SUFFICIENCY OF DETAILS (CODE S. 510(3)(a))A. GENERALLYB. GENERAL RULES AS TO DETAIL (CODE S. 512)C. LEGAL EFFECT OF AN INSUFFICIENT STATEMENT
OF DETAILS
VII. AMENDMENTS TO CURE VARIANCE BETWEEN CHARGE AND EVIDENCE
VIII. THE RULE AGAINST DUPLICITY
DRAFTING OF COUNTS WITHIN INFORMATIONS AND INDICTMENTS
I. INTRODUCTI ON
The rules regarding the wording of counts are the subject of an .
enormous body of case law. While many of the cases are difficult to reconcile
they do, when combined with the statutory provisions in the Code, provide us
with a comprehensive body of law from which guiding principles can be extracted..
The material presented in this paper does not purport to be an exhaustive review
of the relevant authorities in this area. Rather, it is hoped that the paper
provides a practical outline of the relevant principles which will be useful
j.) the criminal practitioner. In keeping with that desire, the paper will
address three common problem areas encountered with respect to the wording
contained within counts.
1. Suffi ci ency
2. Dupl icity
3. Amendments
II. GENERAL PROVISIONS AS TO COUNTS
A count is the part of the information or indictment which states
the charge alleged against the accused.
With the exception of a charge alleging murder (Code s. 518), any
number of counts alleging any number of offences may be joined in one
indictment or information provided that each offence is set out in a separate
count (Code ss. 520(1), 724(1)(b».The Court may however, where lithe ends of
justice require it", order severance and direct separate trials for one or
more of the counts. (Code ss. 520(3)(4)(5), 736(4».
The Code rules relating to sufficiency of counts (S5. 510, 512)
apply to both indictable and summary conviction offences (Code s. 729(1)).
However, rules relating to matters of duplicity and amendment contain certain
differences between summary and indictable matters (compare e.g. the amenqing
provisions in ss. 529 and 732).
III. CODE REQUIREMENTS AS TO SUFFICIENCY
The rules which determine the legal and factual allegations which
must be included in a valid count are contained in Section 510 of the Criminal
Code. That section provides initially that each count in an indictment shall,
in general, apply to 'a single transaction (Code s. 510(1)).
In addition to the 'single transaction rule', Section 510 articulates
three 'sufficiency' requirements:
1. "... each count ... shall contain and is sufficient ifit contains in substance a statement that the accusedcommitted an indictable offence therein specified.(s. 510(1))
2. The count shall contain sufficient detail of thecircumstances of the alleged offence to give to the
, accused reasonable information with res ect to theact or omission to be proved against him... s. 510(3))
3. A count shall contain sufficient detail of thecircumstances of the alleged offence to identify thetransaction referred to, ... " (s. 510(3)).
Many of the difficulties encountered in complying with Section 510
are compounded by two sources of confusion; firstly, the failure to distinguish
between the 'single transaction' rule and the 'rule against duplicity' and
secondly, the failure to distinquish between the 'sufficiency of statement'
requirements of Section 510(1) and the 'sufficiency of detail' requirements
of Section 510(3).
2.
IV. SINGLE TRANSACTION REQUIREMENT (CODE S. 510(1))
While Section 510(1) provides that a count 'shall in general apply
to a single transaction', it does not define what is meant by'transaction ' .
It is therefore necessary to refer to reported decisions for gUidance.
In R. vs. Canavan and Busby, [1970] 5 C.C.C. 15, Mr. Justice Schroeder
of the Ontario Court of Appeal discussed the meaning to be attributed to the
word at pages 18-19 C.C.C.:
II ••• 'transaction' is a word of quite comprehensiveimport which, so far as I am aware, has never beenthe subject of any exact legal definition. The wordhas been interpreted as the Justice of each casedemanded rather than by any abstract definition ...a transaction may and frequently does include aseries of occurrences extending over a length oftime ... 11
It is clear from the authorities that the phrase is not to be equated
with 'offence' or 'occurrence ' : R. vs. Flynn, 111 C.C.C. 129 (Ont. C.A.);
R. vs. Hulan, [1970] .1 C.t.C. 36 (Ont. C.A.).
Thus, a single transaction may encompass a number of occurrences each
in itself capable of constituting an offence. For example in R. vs. Zanal et al,
[1964] 1. C.C.C. 12, the Ontario Court of Appeal upheld an indictment alleging
rape by several men against -the same woman on the basis that although the indict
ment related to several offences, it referred to a single transaction because
the offences were so closely related as to time and place. Compare this decision
with that of the Manitoba Court of Appeal in R. vs. Patzer, Clark and Warren
(1965), 50 W.W.R. 58.
Several decisions have upheld counts in situations where the Crown
proves a series of acts or occurences over time having alleged a single trans
action in one count: Piquette vs. R. (1976),35 C.R.N.S. 388; Barnes vs. R.
(1975), 26 C.C.C(2d) 112; Kissinger and Voszler (1972), 6 C.C.C.(2d) 212.
3.
\)
Combining a number of occurrences into one count can be advantageous
to the Crown insofar as it expands the scope of admissible and relevant evidence.
It also enhances the chances of a conviction as proof of any of the acts falling
within a count will suffice: Barnes vs. R. (1975), 26 C.C.C.(2d) 112 (N.S.C.A.).
Generally speaking, the Courts have afforded the Crown considerable latitude in
deciding whether to treat matters as single or separate transactions provided
the Crown can establish a bond or nexus between the acts or occurrences contained
within the Count.
An example of a situation where the Court failed to find a sufficient
nexus to connect a series of occurrences to a single transaction can be found
in R. vs. Rafeal (1972), 7 C.C.C.(2d) 325, where Mr. Justice Arnup of the Ontario
Court of Appeal commented on the indictment as follows at page 329:
1I ••• The result therefore was that this became anindi ctment in whi ch twenty four persons were allegedto have been defrauded, on dates varying widely intime, by offences taking place at different localitiesand involving different amounts, but more importantly,involving quite different representations to theindividuals who were called as witnesses. II
When dealing with single transaction problems, it is helpful to
distinquish between the ·single transaction rule ' and the 'rul e against duplicity·.
Mr. Justice Kelly of the Ontario Court of Appeal clearly articulated that
distinction in R. vs. Hulan, [1970] 1 C.C.C. 36 at page 41:
1I ••• While it is common to refer to an indictmentas being bad for duplicity, the cases fall intodistinct categories. First, where the duplicityarises from the fact that the one count in anindictment charges two or more offences whichdiffer in their nature. The most common examplesof such duplicity have arisen in charges unders.221 of the Code dealing with driving 'recklesslyor in a manner dangerous to the publici. In suchtype of case the indictment is on its face objectionable. The other category of cases deals with thesituations where, notwithstanding that count, onits face, is not objectionable for duplicity, theevidence adduced at trial relates to the commission
4.
of one or more offences, anyone of which wouldsupport a conviction under the count. 1I
Thus, as the foregoing passage indicates, a violation of the single
transaction rule as set out in Section 510(1) will not usually be apparent until
after the Crown has adduced evidence either at the preliminary, trial, or'
through particulars.
Where a violation of the rule is revealed by the evidence, it is
open to defence counsel at any stage of the trial to make application to the
Court to amend or divide the count (Code s. 519(2)). The Court possesses
wide discretionary powers in that it can amend a count IIwhere it is satisfied
that the ends of justice require it ll (Code s. 519(3)).
It is clear from the authorities that the single transaction require
ments of Section 510 must be read in conjunction with the amending provisions
of Section 519(2). In the recent Supreme Court of Canada decision in R. vs.
Cotroni and Patalia, (1975) 45 C.C.C.(2d) 1, Mr. Justice Pigeon, after setting
out the single transaction provision of Section 510(1), continued at page 12:
1I ... 0ne should note in this enactment the words lingeneral I which indicate that this is not a rigid buta flexible rule, also the word 'transaction l whichhas no technical meaning in criminal law and cannotbe equated with 'offence'. The reason for thisindefiniteness in the rule is obvious: it is to beread with s.519 which governs its application, givingto the trial judge fairly complete discretion in thisrespect. He may at the request of the accused or ofhis own motion, at any stage of the trial divide adouble or multiple count. On the other hand, it isprovided that this will not be a cause of invalidity.1I
Professor J.J. Atrens, in the text, Criminal Procedure: Canadian Law
and Practice, edited by J.J. Atrens, P.T. Burns and J.P. Taylor, 1981, at
page X-89 observes that:
II ••• A substantial body of opinion supports thisapproach to s.519 and the single transaction problem.Authorities that have quashed indictments for violationsof the single transaction rule, and those that have
5.
quashed convictions where the alleged violation ofrule was raised for the first time on appeal areof doubtful validity. To quash a charge or convictionwhere the accused has not been unfairly prejudiced bythe alleged defect is, it is submitted, contrary toboth s.519 and the rationale behind the section."
In Cotroni, even though the Court found the count in question to
be duplicitous, this did not result in the count being invalid as no prejudice
had been occasioned the accused by the duplicity in the charge.
Particular difficulties are often encountered by the Crown in con
spiracy charges where the count alleges one conspiracy whereas the evidence
might disclose several. For an examination of the single transaction problems
peculiar to this offence see: R. vs. Cipolla, [1966] 1 C.C.C. 179 (C.A.),
affirmed [1966] 1 C.C.C. 205; R. vs. Greenfield, [1973] W.L.R. 1151; R. vs.
Cotroni (1979), 45 C.C.C(2d) 1 (S.C.C.) and McLean, "The Conspiracy Indictment"
(1978-79), 21 Crim.L.Q. 96.
V. SUFFICIENCY OF THE STATEMENT OF THE OFFENCE (CODE S. 510(1))
A. GENERALLY
Another essential' element of an indictment is that each count
contain, in substance, a statement that the accused committed an indictable
offence (Code s. 510(1)). This statement may be:
"1. In popular language without technical avermentsor allegations of matters that are not essentialto be proved,
2. In the words of the enactment that describes ordeclares the matters charged to be indictableoffences, or
3. In words that are sufficient to give the accusednotice of the offence with which he is charged. 1I
(Code s. 510(2)).
\
) 6.
Prior to this century, at common law, the indictment had become an
extremely technical document requiring meticulous drafting. Any omission or
slight defect was fatal to the indictment and resulted in impunity for the
accused. Many crimes were punished by death so that Courts sought to alleviate
the harshness of the law by seizing upon the slightest defect in an indictment
to declare it an nullity. The Code of 1892 finally enacted provisions aimed
at simplifying the fprm of Indictment and also gave the Courts extensive powers
to amend formal defects: Salhany, Canadian Criminal Procedure (3rd Edition)
at pages 139-40.
It is rare that the Crown attempts to state the offence by way of
the provisions contained in paragraphs 510(2)(a) and (c)~ As a consequence,
there is very little case law interpretting the vague requirements of these
paragraphs. Nevertheless, some examples where the Courts have relied on these
provisions are: Re Rand and Henyu (1979),48 C.C.C.(2d) 471 (B.C. C.A.);
Re C. and The Queen (1976),29C.C.C.(2d) 37 (Sask. Q.B.); R. vs. Prpich (1971),
4 C.C.C.(2d) 325 (Sask. C.A.)
The usual practice is for the Crown to state the offence in accord
ance with paragraph (b) of s. 510(2). That paragraph gives the Crown the
option of stating the offence
lI(a) in the words of the enactment that describes the offence, or
(b) in the words of the enactment that ... declares the matters
charged to be indictable offences. 1I
B. IN THE WORDS OF THE ENACTMENT DECLARING THE MATTERS TO BE AN OFFENCE
The leading authority regarding use of words declaring matters to
be an offence is R. vs. McKenzie (1971),4 C.C.C.(2d) 296, a decision of the
Supreme Court of Canada. The accused was charged that he:
7.
1I ••• at the City of Vancouver on the 31st day ofMarch, A.D. 1970, unlawfully did commit theft ofan approximate sum of $16.50, the property ofDominic Louis Christian, contrary to the form ofthe statute in such case made and provided. 1I
The evidence disclosed that the accused taxi driver failed, in
accordance with the terms of his employment, to report or pay over to his
emplayer all fares he had recei ved. The Crown I s theory was theft by failure
to account under Section 290 of the Code as opposed to the standard form of
theft described in Section 283. The majority of the British Columbia Court
of Appeal (1970), 2 C.C.C.(2d) 28 held that the form of the charge lacked
any averment of the essential ingredients of an offence under Section 290
and quashed the conviction of the lower Court.
The Supreme Court of Canada, in restoring the conviction, held that
the count contained an adequate statement of the offence (i.e. - did commit
theft) as it adopted the wording of Section 294 which declares theft to be
an indictable offence.
In Regina vs. Peebles (1975), 24 C.C.C(2d) 144 the accused was
charged that he did "unl awfully traffic in an narcotic ... contrary to the
provisions of the. Narcotic Control Act. II . The British Columbia Court of Appeal
in following McKenzie stated at page 146:
"... the offences were described exactly as the statuteprovided and the place and time and the nature of thenarcotics involved in both cases were given. In myopinion that is sufficient and it is not necessary toinclude in a charge the particular method of traffickingalleged, whether it be sale or gift or transportation orotherwise as provided in the definition. That might besubject of a demand for particulars at an appropriatetime, but that is not what we have to decide here. 1I
There are, of course, other sections of the Code in which an act
is defined or described in one section and declared to be an offence in a
separate section. For examples; murder is defined in Sections 212, 213 and
8.
declared to be an offence in Section 218, robbery is defined in Section 302
and declared in Section 303, forgery is defined in Section 324 and declared
in Section 325.
On the basis of the foregoing authorities, there are obvious
advantageous to the Crown in wording a count in the words of the section
that declare it to be an offence as the Crown will clearly satisfy the
requirements relating to sufficiency of the statement of the offence. The
Crown's task will also be simplified at trial insofar as it is entitled to
a conviction if it establishes anyone of the various modes of committing
the offence. See: e.g. R. vs. Govedarov et al (1974),25 C.R.N.S. 1 (Ont.C.A.);
R. vs. Luckett (1980), 50 C.C.C.(2d) 489 (S.C.C.).
C. IN THE WORDS OF THE ENACTMENT DESCRIBING THE OFFENCE
Where the particular provision which the Crown is charging does not
have separate defining and declaring provisions, the Crown must outline the
offence in the words of the provision which describes it. As an example, there
is no provision in the Code which declares break and enter to be .an offence,
so that the Crown must describe in an information one of the several offences
described in Section 306. Obviously more care is required in drafting the
indictment as the count must allege and prove each essential ingredient
contained in the description of the offence: Livingston and The Queen (1975),
29 C.C.C.(2d) 557 (B.C.S.C.); R. vs. Chapin (1978),41 C.C.C.(2d) 300 (Alta. C.A.)
R. vs. Sloan (1974), 19 C.C.C.(2d) (B.C.C.A.)
9.
D. THE EFFECT OF REFERENCE TO THE STATUTORY PROVISION CREATING THE OFFENCE
There is no rule of law requiring that the statute in question or
the section number of the offence be stated within a count. The Code provides
however in Section 510(5):
"... a count may refer to any section, subsection,paragraph or subparagraph of the enactment thatcreates the offence charged, and for the purposeof determining whether a count is sufficient,cons i derati on 'iii 11 be gi ven to any such reference."
In R. vs. Struk, [1970] 4 C.C.C. 183, a charge of perjury omitted
the words 'knowing that the evidence is false'. Chief Justice Culliton, in
delivering the Judgment of the Saskatchewan Court of Appeal said at page 184:
" ... 1 agree that an information must contain anallegation of all of the essential ingredientsnecessary to constitute the offence. In myrespectful view, in the determination of whetheror not the present information does so containthe essential ingredients, reference may properlybe made to s. 492(5) [510(5)]. When this is done,in my opinion, the omission of the words complainedof is not a matter of substance, when due weight isgiven the whole of the information and to all of thecircumstances."
When, however, the Saskatchewan Court of Appeal dealt with the
same kind of issue in R. vs. Cote (1974), 21 C.C.C.(2d) 4?4, they did so in
quite a different fashion. The accused was charged in that case with refusing
a breathalyzer demand. The charged followed the wording of Section 235(2) but
omitted to state that the refusal was 'without reasonable excuse'. However,
the count concluded that the offence was 'contrary to Section 235(2) of the
Criminal Code.' The Court of Appeal quashed the conviction on the ground that
'without reasonable excuse' was an essential ingredient of the offence. The
Court made no reference to Section 510(5), nor did it refer to its earlier
decision in Struk.
The Crown appealed to the Supreme Court of Canada which restored
10.
the conviction: 33 C.C.C.(2d) 353. Mr. Justice deGrandpre, writing for a
unanimous Court, held that the words 'without reasonable excuse' were brought
to the attention of the accused by the specific reference to the section in
the Code. He concluded is judgment by stating at page 357:
1I ••• The golden rule is for the accused to be reasonablyinformed of the transaction alleged against him, thusgiving him the possibility of a full defence and a fairtrial. When, as in the present case, the informationrecites all the facts and relates them to a definiteoffence identified by the relevant section of the Code,it is impossible for the accused to be misled. To holdotherwise would be to revert to the extreme technicalityof the old procedure. 1I
Cote is considered the leading authority with respect of Section
510(5} and has been followed in a number of subsequent decisions: R. vs.
Aronec (1979), 47 C.C.C.(2d) 180 (B.C.S.C.); R. vs. Deal (1978), 38 C.C.C.
(2d) 425; Bolduc vs. Attorney General of Quebec et al (1982), 68 C.C.C.(2d)
413 (S.C.C.); R. vs. Petersen (1980),4 S.R. 357 (Sask. C.A.).
E. LEGAL EFFECT OF AN INSUFFICIENT STATEMENT OF THE OFFENCE
The most common error which befalls the Crown in attempting to
comply with. Section 510(1) is the omission of an essential averment in an
attempt to follow the wording of the section describing the offence. Assuming
that the defect is not remedied by reference to the statutory provision creating
the offence, defence counsel can raise a valid objection to the defect.
In making that objection, regard must be had to the provisions of
the Code which provide that an objection for a defect apparent on the face of
the count (a defect in stating the offence clearly falls within this category:
R. vs. Wixalbrown and Schmidt [1964] 1 C.C.C. 29 (B.C.C.A.)) shall be taken
by motion to quash the count or indictment before the accused has pleaded and
thereafter only with leave of the Court or Judge before whom the trial takes
11.
place (Code SSe 529(1), 732(1)). Broad powers of amendment are also conferred
upon the Court within these provisions.
With respect to summary conviction proceedings, it has been held that
the Court has no power to amend an information prior to plea. These decisions
essentially hold that Section 732 only provides for amendment 'upon the trial
of an Information I , whereas a trial does not begin until after plea.
In R. vs. Sweezey (1983), 24 S.R. 212, Mr. Justice Gerein of the
Saskatchewan Court of Queen's Bench, after reviewing the relevant authorities
made the following observations at page 221:
Ill. That a summary conviction Court does not haveauthority to amend an information except at thetrial after hearing the evidence. See: s.732(2)of the Criminal Code; R. vs. King; R. vs. Bates;R. vS. Lynn; R. vS. J.D. Irving Limited; andR. vS. Deal.
2. That various Courts have adopted the position thatthere does not have to be strict compliance withS. 732(2) of the Criminal Code. As a resultapproval has been given to the procedure wherebyamendments have been effected prior to the hearingof evidence. However, in each instance the amendment was effected after the commencement of thetrial. See: R. vs. Fiore; R. vs. Deal; andR. vs. Griffin.
3. I have not been able to find any' authority, otherthan Sisko vS. A.G.B.C., for the proposition thatan amendment may be made prior to the trial. 1I
His Lordship went on to intimate that to extend the power of amendment to any
time prior to trial would be to ignore the clear meaning and intent of Section
732(2) .
Thus, it would appear that where the accused objects prior to plea
on the basis of insufficiency of statement of the offence in a summary
conviction matter, the Court would have no alternative but to quash the
information. If the limitation period had expired, the Crown would be
precluded from laying a new information.
12.
It seems clear that, with respect to summary conviction counts, it
is necessary that the Crown establish an eVidentiary basis prior to making
any application to the Court to amend the information to include the omitted
averment (Code SSe 732(2), 732(3)(b)(iii)).
With respect to indictable offences there is some conflict in the
authorities with respect to whether an objection can be made before a Court
other than one having trial jurisdiction. Nevertheless, most deciSions seem
to make the assumption that the Justice holding a preliminary inquiry has
jurisdiction to decide the sufficiency of the charge: R. vs. Jones (1978),
2 W.C.B. 472 (B.C.S.C.); Rexrel Fraser vs. Meisner (1955), 113 C.C.C. 394
(N.S.S.C.). It is arguable that where objection is successfully raised at
this level, the only course open to the Magistrate is to quash the charge
as Section 529 appears to give no power of amendment to any Court or Judge
other than a Judge of the trial Court. At that point, the Crown can either
seek a remedy by way of mandamus (R. vs. McAuslane et al (1971),5 C.C.C.(2d)
54) or it may simply relay a corrected information.
The scope of the Court's power to amend an indictable offence
prior to plea remains unclear. If the power of amendment contained in
Section 529(1) must be read subject to the requirements of Section 529(2)
and 529(3)(b), the Court would have no power to amend unless the Crown had
established an evidentiary basis for the amendment. Presumably, if the
missing essential had been disclosed in evidence at the preliminary, this
would provide a sufficient evidentiary basis for the amendment.
While defence counsel may be somewhat dissatisfied with the
practical result of a well founded objection based on the omission of an
essential averment (Court amends or Crown lays new charge), there would not
appear to be any legal advantageous in withholding an objection until a later
13.
,"
stage in the proceedings. In Re Regina and Henyu (1980), 48 C.C.C.(2d) 471,
the accused moved in the trial Court, before plea, to quash an indictment on
the basis that the information had been a nullity because of the omission of
an essential ingredient. It was argued further that since the Magistrate, had
no' basis for his jurisdiction, the preliminary inquiry itself was a nullity.
In rejecting this argument, the Court held that,even assuming that the infor
mation in question lacked an essential element, this did not render it a
nullity. ~lr. Justice Seaton, in the course of his Judgment, stated at pages
474-75:
"...Many provlslons in the Criminal Code - s. 529(3)(b)(i)is the one applicable to the County Court trial - providefor amendment of indictments, even where one fails tostate things required to constitute the offence. How isa Court to amend if the whole of its proceedings are void?It necessarily follows from those provisions of the Codethat whatever is happening is not a nullity. A power toamend is inconsistent with the statement that a valid chargeis a condition precedent to jurisdiction. 1I
Similarly, where the accused raises the objection for the first
time on appeal, the Courts have held that the failure of the accused to raise
the issue as required by Section 529(1) or Section 732(1) bars the accused
from raising the issue on appeal unless he establishes that lie It/as m'isled or
prejudiced: R. vs. Leclair (1956), 115 C.C.C. 297; R. vs. Breland and George,
1964 3 C.C.C. 370.
VI. SUFFICIENCY OF DETAILS (CODE S. 510(3)(a))
A. GENERALLY
Section 510(3) of the Code imposes two further mandatory requirements
insofar as it provides that a count shall contain sufficient detail of the
circumstances of the alleged offence:
14.
"... to give to the accused reasonable informationwith res~ect to the act or omission to be provedagainstim and to identify the transaction referredto. II
The leading case interpretting Section 510(3) is
Brodie and Barrett vs. The King (1936), 65 C.C.C. 289, where the charge'
alleged essentially that during September and October 1933 at Quebec City
and elsewhere in Quebec, A and B were party to a seditious conspiracy in
conspiring with 0, E, F, G, and also with persons unknown, thereby committing
the crime of seditious conspiracy. The Supreme Court of Canada quashed the
indictment on the basis that it failed to furnish sufficient details to apprise
the accused of precisely what transaction was alleged to constitute the offence.
In the Courtls view, the description of the offence was insufficient to raise
the offence from the general to the particular in that it merely indicated the
type of offence charged.
A similar view was taken by the Saskatchewan Court of Appeal in
Shumiatcher vs. The Attorney General for Saskatchewan et al (1962), 133 C.C.C.
69, where the accused stood charged that they:
1I ••• un l awfully did conspire and agreed together tocommit an indictable offence, to .wit, unlawfully,by deceit, falsehood or other fraudulent means,defraud the puplic of property, money or valueablesecurities contrary to the Criminal Code of Canda."
The Court quashed the information on the basis that it was completely lacking
in any detail of the circumstances of the alleged offence and precluded the
accused from identifying the transaction referred to.
While Section 510 does not demand absolute precision on matters of
detail, it does require the Crown to provide sufficient detail with respect
to factual allegations (i.e. - matter, time, place, victim, means) to enable
the accused to identify the conduct which formed the basis of the offence
alleged against him. What constitutes sufficient information to comply with15.
Section 510(3) will necessarily vary from case to case depending primarily on
the nature of the charge. Many offences provide considerable factual elements
while others present more difficulties in this regard. Conspiracy counts are
particularly vulnerable to objection on this basis: R. vs. Miron and D1Amour
(1974),28 C.R.N.S. 261 (Ont. C.A.); R. vs. Marcoux and Desfosses (1974), 13
C.C.C.(2d) 222; Re Deaken and Lombaert and The Queen (1975), 29 C.C.C.(2d) 247
(Man. Q.B.); R. vs. Scherbank, [l967j 2 C.C.C. 279 (Ont. C.A.); R. vs. Cywink
(1975),28 C.R.N.S. 314 (Ont. C.O.Ct.); R. vs. Bach (1975) 28 C.R.N.S. 259
(Ont. C.A.); Re Regina vs. Gralewicz et al (1979), 45 C.C.C.(2d) 188 (Ont. C.A.);
R. vs. Bengert et al (No.5) (1980), 53 C.C.C.(2d) 481.
There are specific provisions in the Code which apply only in the
case of indictments or counts alleging particular offences:
1. Treason and Sabotage (ss. 47, 49-53, 510(4))
2. High Treason and First Degree Murder (s. 511)See: Liebel (s. 513)
3. Perjury and Related Offences (s. 514)
4. Fraud and Related Offences (s. 515)
B. GENERAL RULES AS TO DETAIL (CODE S.512)
Section 512 of the Code provides that the absence of certain details
will not render a count insufficient so long as the count otherwise satisfies the
requirements of Section 510. The rules contained within this section apply
to all indictments or counts irrespective of the particular offence of which
the accused is charged. The following summary provides an index to judicial
interpretation of the provisions of Section 512.
1. Failure to name victim (s. 512(a)).
R. vs. Kozodoy (1957), 117 C.C.C. 315 (Ont. C.A.)
R. vs. Austin (1955) , 113 C.C.C. 95 (Ont. C.A.)16.
R. vs. Vogelle and Reid, [1970] 3 C.C.C. 171 (Man. C.A.)
R. vs. Miron (1975),28 C.R.N.S. 261 (Ont. C.A.)
2. Failure to name owner of property (s. 512(b))
R. vs. Van Hees, [1958] 27 C.R. 14
R. vs. McDavell, [1970] 5 C.C.C. 374 (Ont. C.A.)
R. vs. Gowing and Johnson (1971), 2 C.C.C.(2d) 105 (Alta. C.A.)
R. vs. Vogelle and Reid, [1970J"3 C.C.C. 171 (Man. C.A.)
R. vs. Tiemessen and Jensen (1976), 25 C.C.C.(2d) 91 (Alta. C.A. )
R. vs. Halliday (1976), 25 C.C.C.(2d) 131 (N.S. C.A.)
Little and Wolski vs. The Queen (1974), 19 C.C.C.(2d) 385 (S.C.C.)
3. Failure to name the victim of fraud (s. 512(c))
R. vs. Park (1937), 67 C.C.C. 295 (Alta. C.A.)
Rex v. Leverton, 28 C.C.C. 61 (Alta. C.A.)
4. Failure to set out writing or words (s. 512(d)(e))
Pratte vs. Maher and The Queen, [1965] 1 C.C.C. 77 (Que. Q.B.,
Appea 1 Si de)
R. vs. Bainbridge (1918), 30 C.C.C. 214 (Ont. C.A.)
Rex. vs. Trainor (1917), 27 C.C.C. 232
5. Failure.to specify means (s. 512(f))
R. vs. Borek, [1979] 1 W.W.R. 709 (B.C. C.A.)
R. vs. Dugdale and Leullier (1979),49 C.C.C.(2d) 555 (B.C. C.A.)
Re Regina vs. Gralewicz et al (1979), 45 C.C.C.(2d) 188 (Ont. C.A.)
6. Failure to properly describe person, place or thing (s. 512(g))
(a) Place
R. vs. Whynott (1975), 27 C.C.C.(2d) 321 (N.S. C.A.)17.
\)
+-=-.,.
Re The Queen and Smith (1973), 16 C.C.C.(2d) 11
R. vs. Nadin (1971),3 C.C.C.(2d) 221 (B.C. C.A.)
but see contra; Bubovitch vs. The Queen (1969), 8 C.R.N.S.
280 (N. B. C. A. )
See Code s. 732(4) respecting summary conviction offences.
(b) Date
R. vs. Pawlin (1973), 13 C.C.C.(2d) 356 (Sask. C.A.)
R. vs. Green (1962), 133 C.C.C. 294
(c) Time
R. ys. Labine (1975), 23 C.C.C.(2d) 567 (Ont. C.A.)
R. vs. Nadin (1971), 3 C. C. C. (2d) 221 ( B. C. C.A. )
See Code s .. 732(4) respecting summary conviction offences.
C. LEGAL EFFECT OF AN INSUFFICIENT STATEMENT OF DETAILS
Given that the failure to comply with the requirements of SectionI
510(3) constitutes a defect in substance, apparent on the face of the count,
the consequence of a defect are the same as a failure to comply with Section
510(2) previously discussed. A defect of this nature is governed as well by
the provisions of Sections 529 and 732. Thus, the rules respecting timing of
objections, quashing," amendments and powers of Appellate Courts are the same
for both types of insufficiency. It is clear that once the Crown has alleged
details in the count, the failure to prove all of those essential details
wi 11 be fa ta1 to thei r case unless an amendment is granted to cure the
variance between the allegations in the charge and the evidence. The failure
to amend would entitle the defence to a directed verdict or successful appeal:
R. vs. Austin, [1955] 113 C.C.C. 95.18.
The legal consequences of the Crown including a non-essential detail
but failing to prove it at trial is an unsettled area of the law. Some cases
have dismissed charges in such a situation: R. vs. Tremblay and Chartrand
(1961), 40 C.R. 382 (Alta. S.C.). On the otherhand there are cases holding
that an unnecessary allegation is surplusage so that a failure to prove the
allegation does not prevent conviction: R. vs. Lowry, Lepper and MacKie (1976),
2 C.C.t.(2d) 39 (Man. C.A.).
VII. AMENDMENTS TO CURE VARIANCE BETWEEN CHARGE AND EVIDENCE
(1980), 14 C.R.(3d) 289 (Ont. H.C.); R. vs. Cousineau (1983), 1 C.C.C.(3d) 293
(Ont. C.A. ) .
Any possible prejudice to the accused occasioned by an amendment can
also be dealt with by the Court by way of adjournment (ss. 529(5) and 732{6)).
An amendment pursuant to Section 529(2) of Section 732(2) can be made
at any time prior to verdict: R. vs. Clark (1974), 19 C.C.C.(2d) 445 (Alta. S.C.).
A trial Judg~ may, ex mero motu amend an information to conform with
the evidence: R. vs. Powell, [1965] 4 C.C.C. 349 (B.C. C.A.). However, he
is under no duty to do so: R. vs. Greene (1976), 33 C.C.C.(2d) 251 (Nfld. C.A.).
The power to amend a variance does not extend so far as to allow the
substitution of a completely different offence: Dumont vs. The Queen (1958),
28 C.R. 146 (Que. C.A.).
The Court does, however, clearly have power to amend essential allegations:
R. vs. Wildefong (1970), 1 C.C.C.(2d) 45; R. vs. Bengert Robertson et al (1980),
15 C.R.(3d) 114 (B.C. C.A.).
A trial Courtls refusal to grant an amendment is a question of law
and therefore appealable (Code s. 529(5)).
The recent Supreme Court of Canada decision in R. vs. Geauvreau (l982) ,
66 C.C.C.(2d) 375, appears to have settled the issue with respect to the powers
of amendment possessed by the Court of Appeal. The Court held that a Court
of Appeal has no power. under Section 610(3) to amend an information by sub
stituting one essential element of the offence for another and then dismissing
the accused's appeal. The Court's power is rather, to quash the conviction
and allow the appeal and order a new trial pursuant to the authority contained
in Section 613(l)(a) and Section 613(2)(b) of the Code, and thereafter,
pursuant to the authority contained in Section 613(8) to make any order that
justice requires including an order directing a new trial on an amended
information. 20.
VIII. THE RULE AGAINST DUPLICITY
Acount contained within an information or indictment which charges
two or more offences is said to be duplicitous. The standard definition of
duplicity was articulated in Rex vs. Surry Justices, Ex parte Witherick,
[1932] 1 K.B. 450, wherein Avory, J., stated at page 452:
" ... It is·not necessary to give illustrations ofhow a man may be driving with due care and attention,so far as his own safety is concerned, and yetdriving without reasonable consideration for otherpersons, but, if a person may do one without theother, it follows as a matter of law that aninformation which charges him in the alternativeis bad ... lt is an elementary principle that aninformation must not charge offences in thealternative since the defendant cannot thenknow with precision with what he is charged andof what he is convicted and may be prevented ina future occasion from pleading autre foisconvi ct. II
The rule against duplicity is codified in modern law with respect
to summary conviction offences under Section 724(1)(b) of the Code. The
~ode has no comparable position with respect to indictable offences, but the
rule is presumed to apply in that it is implicit in the wording of Section
527(1) and presumably is preserved as a common-law rule by virtue of Section
7(2).
A breach of the rule is most commonly encountered where the Crown
attempts to follow the wording of a provision dealing with several matters.
The section in question must then be examined to determine whether it is
intristically duplicitous. In otherwords, does the section refer to two or
more offences or to alternate modes of committing the same offence. If a
section creates two or more offences, a count which follows its wording will
be duplicitous: Archer vs. The Queen, [1955] 110 C.C.C. 321 (S.C.C.).
If, however, the section merely provides alternate modes of21.
committing the same offence, the count is not duplicitous: R. vs. Brunet
(1968), 4 C.R.N.S. 202 (S.C.C.).
As Mr. Justice Dickson pointed out in R. vs. City of Sault Ste.
Marie (1978),40 C.C.C.(2d) 353 (S.C.C.) at page 361:
1I ••• The primary test should be a practical one basedon the only valid justification for the rule againstduplicity: does the accused know the case he has tomeet,or is he prejudiced in the preparation of hisdefence by ambiguity in the charge. 1I
Given that duplicity is considered to be a defect in form apparent
on the face of the count, it is governed by Section 732(1) and therefore objection
on this ground should be taken by motion to quash before plea: R. vs. Walker
(1955), 113 C.C.C. 120 (Ont. C.A.); R. vs. Toth (1959), 123 C.C.C. 292 (Ont.
C.A.); Sisko vs. A.G. of British Columbia (1978),8 C.R.(3d) 372 (B.C. C.A.).
Because duplicity is considered a formal defect, the Crown can move
to cure the defect by amendment prior to plea (Code ss. 732(3)(c), 529(3)(c)).
The Court can also put the Crown to its election as to which offence it desires
to proceed upon and delete the other offence: Edwards vs. Jones [1947] K.B.
659; R.vs. Baldassara (1973),.11 C.C.C.(2d) 17.
A Court is unlikely to quash an information based upon a valid
duplicity obj~ction, unless the Crown insists that the charge is valid without
amendment as occurred in Re R. and Hibbs (1973), 10 C.C.C.(2d) 513 (Alta. S.C.).
From a defence point of view, the practical remedy when faced with
a duplicitous charge, is to make an application pursuant to Section 519(2)
to have the count amended or divided into two or more counts.
An accused who raised a duplicity question for the first time on
appeal will not be successful unless he can establish that the defect misled
or prejudiced him. Presumably, he would have to further establish that there
has been a substantial wrong or miscarriage of justice caused by the defect.22.
If there had not been, the Crown would be granted leave to amend the count in
the Court of Appeal: R. vs. City of Sault Ste. Marie (1976), 30 C.C.C.(2d)
257 (Ont. C.A.).
23.
