When a person is put on trial for an offence, there must be some particular document specifying the charge against that person. Initially, charges are laid by means of an information,1which was discussed in Chapter 6. When an accused is tried by a provincial court judge that information is the relevant document, whereas when the accused is
not tried by a provincial court judge a different document-an indict-ment-is prepared.2Most commonly, the indictment is prepared following the preliminary inquiry and can include any charge on which the person was ordered to stand trial, or any charge founded on the facts disclosed at the preliminary inquiry.3
That latter rule, that an indictment can be preferred on a charge where the facts making it out are disclosed at the preliminary inquiry, does not allow a prosecutor to prefer an indictment on the very charge for which the accused is discharged. Rather, that power is intended to allow the preferment of charges for other offences that are disclosed at the preliminary inquiry.4It does not follow, however, that a prosecutor can never lay an indictment concerning offences for which an accused has been discharged. In fact, section 577 permits exactly that.
Section 577 allows for "direct indictments," which permit the prosecutor to prefer an indictment when the accused has not been given the opportunity to request a preliminary inquiry, when the preliminary inquiry has been commenced but not concluded,5or when the accused was discharged following the preliminary inquiry. This power also applies where a committal for trial has been quashed,6or where a trial judge has specifically declined to order an accused to stand trial on a charge not laid but disclosed in the evidence at the preliminary.7As it is a special power, in effect overriding procedures the accused would otherwise be entitled to benefit from, a Crown prosecutor can only prefer a direct indictment with the personal consent in writing of the attorney general or deputy attorney general.8The attorney general’s power to authorize a direct indictment cannot be reviewed by a court.9It does not violate the Charter, provided that the accused receives full disclosure and nothing else in the cir-
cumstances makes the action an abuse of process.10Indeed, the power is seen as having potentially beneficial effects, such as protecting an accused’s right to a trial within a reasonable time, protecting the physical or psychological health of witnesses, preserving Crown evidence, avoiding multiple proceedings when there are co-accused, and so on.11Once it is preferred, the indictment provides a fresh starting point upon which the future proceedings are based, and an accused is no longer entitled to look behind it, for example to attempt to quash by certiorari the committal for trial. The indictment is preferred, and therefore acts as a type of barrier, once it is lodged with the trial court at the start of the accused’s trial, in front of a court ready to proceed.12Whether the trial proceeds by information or indictment, it is the starting point for the trial and sets out the case the accused has to meet. The rules set out in Parts XVI and XX of the Criminal Code that govern compelling appearance and jury trials also apply to summary conviction offences by virtue of section 795, with only minor variations, so the requirements for informations and indictments can be discussed together. The Supreme Court has stressed the importance of this document, holding that "it is fundamental to a fair trial that an accused know the charge or charges he or she must meet."13As we will see, though, the general tenor of recent cases has been to considerably downplay the significance of the technical requirements for these documents or any failures to comply with those requirements.
Although many rules surrounding indictments were originally developed to a great extent at common law, they are now primarily set out
in the Code. There are many rules in the Code and there has been a good deal of litigation over these issues, but a good general guideline is that relatively few firm limitations are imposed on the structure of indictments. An indictment (Form 4 from the Code) can contain any number of "counts."14Each count is to cover a single transaction, though this rule is specifically said to apply "in general" and the concept of a "single transaction" is given a broad interpretation.15Further, although for many years a trial could not concern more than one indictment, more recently the Court has relaxed that requirement. It is now possible to hold a trial on one or more indictments simultaneously, provided that the accused consents, or the trial judge feels that it is in the interests of justice and the charges could have been jointly charged in a single indictment.16This latter requirement imposes few restrictions.17Section 589 prevents any charge from being joined with murder, though even this rule is subject to exceptions if the other offence arises out of the same transaction or the accused consents to the joinder.18Summary conviction and indictable offences can be tried together, provided the accused consents and the accused’s election and the other procedures make it possible to do so.19Otherwise, the limits on joinder of counts are case-by-case, according to the criteria in section 591(3) of the Code. That provision allows a judge to order an indictment to be severed in order to send some counts or some co-accused to a separate trial.
The Code gives little in the way of guidance regarding severance decisions, stating only that the court may do so where "the interests of justice so require."20A preliminary inquiry judge does not have jurisdiction to sever, it must be done by the trial judge.21The judge’s decision is subject to review on appeal, but it is not to be interfered with unless the judge has acted unjudicially or the ruling resulted in an
injustice.22The former question looks at the circumstances at the time the ruling was made, while the latter takes into account as well the unfolding of the trial and of the verdicts.23Normally, an application to sever is made on a pre-trial basis because the decision will dictate the course of the trial.24However, section 591(4) permits the order to be made before or during the trial, with the jury being discharged with regard to any counts or accused that are severed during trial.
Courts have developed considerations to take into account when deciding whether to sever counts. These 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 coaccused persons.25
Because society has an interest in avoiding a multiplicity of proceedings, the onus is on the accused, on a balance of probabilities, to show that separate trials should be held.26The obvious risk in holding a joint trial is that evidence admissible on only one count will affect the decision on another count. A trial judge can give a limiting instruction about the appropriate use of evidence to the jury, but if that was seen as always being a sufficient safeguard then prejudice would essentially cease to be a relevant factor in the analysis.27Further, trial judges must take great care in distinguishing the two issues of severability and similar fact evidence, particularly as the onus is on the accused for the first, but on the Crown for the second.28Where an application to sever is made later in the trial, it ought to be based on some prejudice that was not apparent at the start.29For example, an accused could decide at the close of the Crown’s case that
the Crown’s witnesses were not credible on some counts. The accused might therefore feel that it was not necessary to take the stand with regard to those counts, but that it was necessary to testify with regard to other counts. In such circumstances the accused’s fair trial right and right to silence may be brought into conflict if the counts were not severed. At such a late stage, however, the burden on the accused is very heavy and an assertion that the accused wished to testify on some counts but not on others would not be sufficient. The accused would be required to outline the basic nature of the proposed defence to justify severance and the consequent re-trial on the severed charges.30
Similar considerations arise in deciding whether to sever multiple accused from the same indictment and hold separate trials, though there are additional issues. Even more strongly in these circumstances, the practical goal of avoiding multiple proceedings favours not holding separate trials over the same facts unless it is necessary. The general rule is that accused who are alleged to have committed a crime together should be tried together.31This principle is adhered to quite firmly. When co-accused blame one another, they might be able to cross-examine one another in ways not available to the Crown, with regard to propensity or similar issues, for example.32This could result in the fair trial right of one accused...