HOW TO CLASSIFY A CRIMINAL OFFENCE
Criminal trials for adults (people age 18 or over) in Ontario, are carried out in two trial courts, the Ontario Court of Justice and the Superior Court of Justice. Trials taking place in the Ontario Court of Justice are presided over by a lone judge, while those taking place in the Superior Court of Justice are heard by a lone judge or by a judge and jury.
Criminal procedure against “young persons” under the age of 18 but older than the age of 12 are conducted under the Youth Criminal Justice Act (YCJA), including charges laid under the Criminal Code (Code), and any other Act of Parliament.” The YCJA grants the “youth court” exclusive jurisdiction in respect of “any offence” alleged to have been committed by a person “while he was a young person”. There are two types of charging documents, the “information” and the “indictment”.
As a sworn document, the information states the charge or charges against the accused. Such a document is used in the Ontario Court of Justice for both adult and youth proceedings. An informant swears before a justice of the peace that the accused committed a criminal offence. When the informant does not have personal knowledge, the person swears that on reasonable and probable grounds of belief the accused committed the offence. This document is in court each time the accused appears and it is used to record the progress of the case. It is marked with details such as:
- whether the accused was released on bail;
- what sort of release the accused was given;
- how the accused pleaded;
- the disposition of the case if it was tried in the Ontario Court of Justice;
- the outcome of the preliminary inquiry if the accused elected trial in the Superior Court of Justice; and
- the time and date of every appearance in court.
On each occasion, the court clerk records the names of the court reporter, the clerk, the prosecutor, defence counsel, and the initials of the presiding justice of the peace.
It is the charging document used in the superior court of criminal jurisdiction which, in Ontario, is the Superior Court of Justice. There is a form prescribed by the Criminal Code for the indictment. Usually, an indictment is a written accusation signed by an agent of the Attorney General, the Crown counsel in most instances. As in the information, the indictment contains the charge or charges against the accused, records all of the court appearances in the Superior Court of Justice, and records the disposition of the case, including any penalty. It is not necessary for all criminal charges to be presented before the Superior Court of Justice, but for those that do an indictment will be used. Indictments after drafting and signing are preferred, meaning filed, which in Ontario is with the Superior Court of Justice. Almost all indictments are preferred after the accused has been committed to stand trial following a preliminary inquiry in the Ontario Court of Justice or after having waived the right to a preliminary inquiry.
The Attorney General or the Deputy Attorney General in a few cases prefer an indictment where a preliminary inquiry was not held or the accused was not committed for trial following a preliminary inquiry. This type of indictment is called “direct” indictment, and is exercised in exceptional circumstances. This extraordinary power depriving the accused of a preliminary inquiry has been used in Ontario, when the security of witnesses is likely to be jeopardized by lengthy proceedings; when there is good reason to believe that the accused will abuse the process by causing delay; and such other extraordinary circumstances.
Offences in the Criminal Code fall into three categories.
Summary conviction offences are the least serious offences and attract the lowest penalties. For these offences, the Criminal Code sets out the general penalty provision as: “Except where otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than two thousand dollars or to imprisonment for six months or to both.”
The most serious offences are indictable offences, and they carry with them the most severe penalties upon conviction. There are specific penalty provisions in the sections of the Criminal Code creating “pure” indictable offences , and in cases like manslaughter, the maximum penalty could be as high as life imprisonment.
“Crown elect” offences or “hybrid” offences are the majority of offences in the Criminal Code. Here, the Crown has the choice as to whether to proceed summarily or by way of indictment. If it is indictment, there are specific penalty provisions stating the maximum penalties applicable to all hybrid offences. In the event of no specific penalty provision for the Crown to proceed summarily, the general penalty section for summary offences is applicable. The Parliament has provided for many hybrid offences maximum penalties. For example, the maximum penalty on summary conviction for forcible confinement is 18 months.
Four Substantive Requirements
Indictment and information is subject to a number of Criminal Code provisions, failing to go by which would result in an order quashing the information or indictment, or an order amending the indictment. The emphasis is on ensuring that the charging document provides the accused with sufficient information to appreciate the charge and to be able to prepare a full answer and defence to the allegation. The purpose is also to ensure that cases are tried on their merits and are not lost through pure technicality. There are four basic rules/requirements:
- Must stem from a single transaction;
- An offence known to law;
- Only one offence per count; and
- The act or omission must be identified.
A single transaction could also mean a series of related acts, like someone regularly stealing small amounts from office petty cash. It would be a single count of theft.
The alleged offence is to be defined under a statute or can be expressed in common language so that the accused understands the charge.
There is to be only one offence in a single count. Fraud and theft is not to be clubbed together and is to be counted separately.
That the offence is due to such act or acts or failures to act, also known as omissions, and is to be clearly stated.
Being charged with a criminal offence in Ontario is difficult both technically and emotionally. Retaining a lawyer is almost a must, especially if your freedom is on the line. Contact the Lawyers at Levy Zavet PC the moment you are charged or have knowledge of the possibility of being charged with a criminal offence.