You Cannot Have a Trial on both Provincial Offences and Criminal Offences
Criminal
Code proceedings
are commenced by laying an information under oath alleging the commission of an
offence. The same procedure applies whether the offence charged is an
indictable or hybrid offence or a summary conviction offence.
In a Criminal Code information
that charges indictable offences (subject to an exception) any number of
indictable offences may be included, provided each is contained in a separate
count.
See s. 789(1)(b) of Criminal Code.
Likewise, the Criminal
Code expressly permits the inclusion of several summary conviction offences in
separate counts in a single information.
See s. 591 (1) of Criminal Code.
The Criminal Code contains
no provision that expressly permits or prohibits joinder of indictable and
summary conviction offences as separate counts in the same information.
Offences
charged in separate informations must be capable of being joined in a single
information before a single trial on those separate informations may be
conducted. Further, the joinder must be in the interests of justice.
R.
v. Clunas, 1992 CanLII 127 (SCC), [1992] 1 S.C.R.
595
But provincial offences
and Criminal Code offences cannot be joined together in a single information
for the following reasons:
·
A Criminal Code information can include,
as separate counts, several offences. It is of no moment whether those offences
are exclusively indictable offences, exclusively summary conviction offences,
or offences triable either way at the option of the Crown. Although the term
“offence” is not defined in or for the purposes of the Criminal Code, it is
self-evident that the term, as used in the joinder provisions of ss. 591(1) and 789(1)(b), refers to
offences created and punished by the Criminal Code. The Criminal Code applies to the trial of all
indictable and summary conviction offences “created by an Act of Parliament”.
·
The POA also permits joinder of
several offences in a single information. The POA defines “offence” as “an
offence under an Act of the Legislature”. From the application of this
definition to the joinder provisions of the POA, it follows that a POA information
cannot include counts charging Criminal Code offences, which are created by
Acts of Parliament.
·
The joint trial of offences within the
exclusive jurisdiction of one court with those in the exclusive jurisdiction of
another is not permissible. For
instance, you could not have the trial court acting as “summary conviction
court” under Part XXVII of the Criminal Code and also a “provincial offences
court” for the purposes of the POA.
R. v. Sciascia,
2016 ONCA 411 (CanLII).
See
also, R. v. S.J.L., 2009 SCC 14 (CanLII), [2009] 1 S.C.R.
426: a joint trial of offences that required trial by a
youth court under the Youth Criminal
Justice Act with offences tried under the Criminal Code would have combined in a single proceeding two
criminal justice systems that Parliament had made it clear were to be kept
separate.
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