It is one of the fundamental rights of all Canadians as set forth in Section 11(a) of the Charter of Rights and Freedoms:any person charged with a criminal offence has the right to be informed without unreasonable delay of the specific offence they are charged with. If you have been arrested and are being charged with a crime, you and your criminal defence lawyer need to have a full understanding of what you are being accused of and what law you allegedly broke.As the Supreme Court of Canada held in R v Côté, the accused is entitled “to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial.”
After an arrest, most individuals will find out what criminal offence they are being charged with in the form of an “information.” An information is a sworn statement, usually given by a police officer before a justice of the peace or judge that sets out the particulars of the offence. The information frames the Crown’s prosecution of the case until the charges are disposed of or a criminal indictment is filed in more serious cases.
It is critically important to have a criminal defence lawyer at this point in the proceedings, as the information may lack sufficient detail or fail to set forth a specific offence “known to law” that can actually be prosecuted under the Criminal Code. In that instance, the defence lawyer may be able to quash the information and have the case dismissed.
The standards for what a valid information must contain are set forth in Section 581 of the Criminal Code which provides that it “shall contain in substance a statement that the accused or defendant committed an offence therein specified.” That statement can be:
- in popular language without technical averments or allegations of matters that are not essential to be proved;
- in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or
- in words that are sufficient to give to the accused notice of the offence with which he is charged.
As for the detail and specificity that is needed in an information, the Code provides that it “shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to.”
Courts Can Find a Flawed Information to Be a “Nullity”
There have been many cases in which a court has invalidated a charging document or declared it a “nullity” because it did not specify exactly how the accused violated the law or crucial elements of the alleged offence were omitted from the charging document:
- In R v Allan, the Court overturned a conviction on the basis that the words “without lawful excuse” did not appear in the charge and were an “essential ingredient of the crime alleged, and the omission of such words from the charge means that the appellant has been convicted of an offence not known to the law. Such a conviction is a nullity.”
- The Court in R v Hennebury, upheld the trial judge’s finding of not guilty based on the fact that the information, which used the word “unlawfully” instead of “without reasonable excuse” was not an offence known to law.
- In Regina v Fremeau, the Alberta Court of Appeal found that a count in an information did not disclose an offence known to law when it charged that an accused sold “a drug listed or described in Schedule F of the Food and Drug Regulations.” The regulation in question did not proscribe selling such drugs, rather, it proscribed selling “a substance containing a drug” listed in that Schedule.
When you are charged with a criminal offence, Crown prosecutors have many obligations and duties they must perform to ensure that defendants are afforded the protections they are entitled to under the Charter of Rights and Freedoms. Clearly and specifically informing individuals why they are being prosecuted is one of them. A good criminal defence lawyer will be able to determine whether the Crown has met its obligations in this regard, and if it has not, advise you as to how to proceed.
Ottawa Criminal Defence Firm Engel & Associates Defends Against Even The Most Complicated Charges
Criminal lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.
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