Joining Summary Conviction Offences with Indictable Offences on the Same Information


There is nothing procedurally wrong with including a summary conviction offence under the same information with an indictable offence.

[31] 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 (s. 504) or a summary conviction offence (s. 788(1)).  

[32]   In a Criminal Code information that charges indictable offences, subject to an exception that has no place here, any number of indictable offences may be included, provided each is contained in a separate count: s. 591(1). Likewise, s. 789(1)(b) expressly permits the inclusion of several summary conviction offences in separate counts in a single information.

[33]   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.

R v Sciascia, 2016 ONCA 411 (CanLII) per Watt J.A. (leave to appeal granted 2016 CanLII 82903 (SCC)). [Appeal expected to be heard by the Supreme Court of Canada in April 2017].

Accused Elects on Information as a Whole

Where the information includes more than one count, absent an application to sever a count in the information, an accused is required to make his election on the information as a whole, not an election on each count in the information:

See R v Shrader (1991), 1992 CanLII 8296 (SK CA), 69 CCC (3d) 380 (Sask CA); R v Garcia (1990), 1990 CanLII 216 (BC CA), 75 CR (3d) 250 (BCCA); and Okell v Saskatchewan (Minister of Justice), 2006 SKCA 34 (CanLII), 279 Sask R 64).



Joinder Permissible if in the Interests of Justice

The possibility of including summary conviction offences and indictable offences on the same information leads to the result that summary conviction offences can be tried together with indictable offences, provided it is in the interests of justice and the charges could initially have been jointly charged.

See R v Clunas, 1992 CanLII 127 (SCC), [1992] 1 SCR 595 at 610.



Procedural Impediments to Joinder of Offences

Regarding the joinder of summary conviction and indictable offences, the difference in process between the two types of offences must be kept in mind such that it may not always be possible to try the two types of offences jointly. There are at least two procedural impediments to jointly trying summary conviction offences and indictable offences:

1.      the indictable offence must on some occasions, and may in others, be tried by a judge and a jury; and

2.      a preliminary inquiry is available for most indictable offences.

When Joinder is Appropriate

Summary conviction offences should be joined with indictable offences only where the accused has

·         waived the right to be tried in a higher court (either with or without a jury), and

·         has also foregone his or her right to a preliminary inquiry. 

The waiver by the accused to a preliminary inquiry must be informed, clear and unequivocal.

See Korponay v Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 SCR 41).

Summary Conviction or Indictable Offence Procedure?

In the event of any conflict as to the applicable procedure, Lamer C.J. in Clunas directed that indictable offence procedures should apply.


Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more