3.6 Direct Indictments
Public Prosecution Service of Canada Deskbook
Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act
December 18 2018
Table of Contents
- 1. Introduction
- 2. Statement of Policy
- 3. Procedure
- 4. Re-elections
Section 577 of the Criminal Code (Code) permits the Attorney General or the Deputy Attorney General to send a case directly to trial without a preliminary inquiry or after an accused has been discharged at a preliminary inquiry. The object of the section has been described by Southin J.A. of the British Columbia Court of Appeal in the following terms:
In my opinion, Parliament intended, by this section, to confer upon the Attorney General or his Deputy the power to override the preliminary inquiry process. It is a special power not to be exercised by Crown counsel generally but only on the personal consideration of the chief law officer of the Crown and his or her deputy.
Such a power is recognition of the ultimate constitutional responsibility of Attorneys General to ensure that those who ought to be brought to trial are brought to trial. There are many reasons why an Attorney General or a Deputy Attorney General might consider a direct indictment in the interests of the proper administration of criminal justice. Witnesses may have been threatened or may be in precarious health; there may have been some delay in carrying a prosecution forward and, thus, a risk of running afoul of s. 11(b) of the Canadian Charter of Rights and Freedoms; a preliminary inquiry, in, for instance, cases essentially founded on wire-tap evidence, may be considered by the Attorney General to be expensive and time consuming for no purpose. These are simply illustrations. It is neither wise nor possible to circumscribe the power of the Attorney General under this section.Footnote 1
This guideline outlines the criteria applied by the Director of Public Prosecutions (DPP) in his or her capacity as Deputy Attorney General of Canada when determining whether to consent to the preferring of an indictment pursuant to this provision. It also describes the procedure for Crown counsel and agents to follow when making a recommendation for a
2. Statement of Policy
The discretion vested in the Attorney General under s. 577 of the Code will be exercised only in circumstances involving serious violations of the law and where it is the public interest to do so.
Circumstances where it is in the public interest include the following:
- where the accused is discharged at a preliminary inquiry because of an error of law, jurisdictional error, or palpable error on the facts of the case;Footnote 2
- where the accused is discharged at a preliminary inquiry and new evidence is later discovered which, if it had been tendered at the preliminary inquiry, would likely have resulted in an order to stand trial;
- where the accused is ordered to stand trial on the offence charged and new evidence is later obtained that justifies trying the accused on a different or more serious offence for which no preliminary inquiry has been held;
- where delay (actual or anticipated) in bringing the matter to trial, has led to the conclusion that the right to trial within a reasonable time guaranteed by s.11(b) of the Canadian Charter of Rights and Freedoms may not be met unless the case is brought to trial forthwith;
- where there is a reasonable basis to believe that the lives, safety or security of witnesses or their families, informers, or justice system participants may be in peril, and the potential for interference with them can be reduced significantly by bringing the case directly to trial without preliminary inquiry;Footnote 3
- where proceedings against the accused ought to be expedited to ensure public confidence in the administration of justice;
- where a direct indictment is necessary to avoid multiple proceedings, for example, where one accused has been ordered to stand trial following a preliminary inquiry, and a second accused charged with the same offence has just been arrested or extradited to Canada on the offence;Footnote 4
- where the age, health or other circumstances relating to witnessesFootnote 5 requires their evidence to be presented before the trial court as soon as possible, or presents difficulties in having witnesses testify more than once;
- where the holding of a preliminary inquiry would unreasonably tax the resources of the prosecution, the investigative agency or the court; and
- where a direct indictment is necessary to protect ongoing police investigations, operations and security where the requirement for such protection is of importance and can be significantly demonstrated.
3.1. Regional Offices
The Chief Federal Prosecutor (CFP) shall give notice to the appropriate Deputy Director of Public Prosecutions (Deputy DPP) of the intention to seek a direct indictment and must ensure preparation of the following:
- a legal memorandum containing a concise description and analysis of the available evidence, demonstrating how that evidence results in a reasonable prospect of conviction with respect to each accused on each count, and addressing why the public interest requires a prosecution. The memorandum must include the names of the accused, the charges, and the date, if any, for which the indictment is required. The memorandum should highlight the strengths and weaknesses of the case, as well as any significant legal issues expected to be encountered, and any issues of particular importance to the public interest. The memorandum should explain the reasons for requesting the direct indictment, address the considerations set out in this guideline, and include a reasoned and objective assessment of the factors weighing both for and against a direct indictment. The memorandum should also include a copy of the approved prosecution plan, if any;
- an assessment of the state of disclosure already given to the accused, the extent of the disclosure yet to be made, an anticipated timeline for completion of the disclosure process, and an analysis of any disclosure problems or disputes anticipated; two original indictments containing all charges for which the indictment is requested. Both should be signed in the usual way by the person normally signing indictments in the Regional Office. Below that, the following should appear:
I hereby consent to the preferring of this indictment pursuant to section 577 of the Criminal Code.Footnote 6 Dated at Ottawa, Ontario, this_____ day of _____ , _____ .
Director of Public Prosecutions and Deputy Attorney General of Canada
The CFP shall review the recommendation and, if satisfied that the case is appropriate for a direct indictment, send it to the appropriate Deputy DPP.
The Deputy DPP conducts an objective assessment of the request to determine whether a direct indictment will be recommended. In this role, the Deputy DPP exercises a challenge function. If the Deputy DPP recommends that a direct indictment be preferred, the recommendation will be forwarded to the DPP for consideration.Footnote 7 If the Deputy DPP concludes that a direct indictment is not appropriate in the circumstances, the Deputy DPP will advise the CFP that no recommendation will be made to the DPP.
If the DPP accepts the recommendation, one of the original indictments, signed by the DPP, is sent to the Regional Office. The second signed original is filed in the DPP’s office at Headquarters.
In cases where an indictment has been preferred and Crown counsel later concludes that the charges (or any of them) ought to be withdrawn, stayed or reduced, the appropriate Deputy DPP should first be consulted.
Once the trial has been completed, the CFP must report the outcome to the appropriate Deputy DPP.
Counsel should consider whether and when a section 13 notice pursuant to the Director of Public Prosecutions Act is appropriateFootnote 8, based on the particular circumstances of the matter at hand.
The Attorney General may, at any time, determine that a different course should be taken and issue a directive in writing and published in the Canada Gazette.
Where an indictment has been preferred under s. 577, the accused is deemed under s. 565(2) to have elected to be tried by a court composed of a judge and jury. Under that same section, however, the accused may re-elect for trial by a judge without a jury. The procedures necessary to give effect to the re-election are described in s. 565(3) and (4), and s. 561(6) and (7).
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