B. Laying Charges

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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It is easy to see the laying of an information as simply a technical requirement among so many other particular rules that must be followed in the course of criminal proceedings. In one sense that view is correct, but at the same time it is important to recognize the wider significance. The time when an information is laid before a justice marks a momentous occasion: it is the point at which some person passes from being a "suspect" to being an "accused." That transition has great consequences for the individual, for their family, for the victim of the offence, for the criminal justice system, and for society as a whole. It means, for the most part, that the system has stopped trying to discover who committed an offence, and will, from that point forward, be focused on proving the guilt of one particular person. Such a step should not be taken lightly.

The process of laying a charge consists of both a "ministerial" (administrative) and a judicial function. Under section 504 of the Code, the justice will perform the essentially bureaucratic and non-discretionary function of receiving the information. That step alone is of no consequence, however, unless the judge then takes discretionary and judicial action under section 507. It is worth looking at the two steps separately and in detail.

With the exception of direct indictments, indictable offences are charged when an information is sworn, received, and approved by a judicial officer, in accordance with sections 504 and following of the

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Criminal Code.1This procedure applies equally to offences prosecuted by summary proceedings under Part XXVII.2When acting under section 504, the justice acts in a ministerial fashion and has no discretion over whether to receive the information.

An information may be sworn by any person who has reasonable grounds to believe that an offence has been committed. No person may be considered an accused person in the absence of a charge and, correspondingly, no court can have jurisdiction over the prosecution of an accused person in the absence of a charge.3In Canada, public prosecutions begin when an information is laid by a public officer. In some Canadian jurisdictions, charges are laid by peace officers, while in others they are laid by prosecutors after they have reviewed reports from the police or other authorities.4But, whether the informant is a peace officer, prosecutor, or private prosecutor, section 504 of the Code states some elementary requirements that must be met before a justice may receive and consider an information:

504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside, within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

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(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

Thus, an information must be in writing and under oath and it must allege the commission of an offence by an identifiable person. It also must contain...

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