Difference between revisions of "Criminal Charges (1:IV)"
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Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea or, with leave of the court, afterwards (''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it doesn't adequately state the charge, doesn't include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled. The court will generally amend an Information if the defects are in form only. ''R v Stewart'' (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)). | Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea or, with leave of the court, afterwards (''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it doesn't adequately state the charge, doesn't include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled. The court will generally amend an Information if the defects are in form only. ''R v Stewart'' (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)). | ||
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! style="font-style: italic;text-align: left;" | Practice Recommendation - Challenging an Information | |||
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| Although the court rarely strikes down an Information due to technical errors, at trial Crown must prove the offence as alleged in the Information. They must prove beyond a reasonable doubt the identity of the accused, the location of the crime (British Columbia), the physical criminal act, and a guilty mind. Despite the very broad power to amend an Information to cure technical defects prior to the end of the trial, amendments after the defence has closed its case are less likely to be granted. This is because once defence counsel has closed its case – based on a flawed Information, and with a view to a closing argument that Crown has not proven the Information as alleged – the accused is prejudiced by any subsequent amendment of the Information. Hence a possible strategy on a case where there is an error in the Information is to wait out the Crown’s case, close the defence case, and then argue reasonable doubt on the offence as alleged. | |||
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==== e) If the Information is struck down ==== | ==== e) If the Information is struck down ==== | ||