CONSOLIDATED STATUTES OF CANADA
PART XX PROCEDURE IN JURY TRIALS AND GENERAL PROVISIONS
Joinder or Severance of Counts
Application to amend or divide counts
(2) An accused may at any stage of his trial apply to the court to amend or to divide a count that
(a) charges in the alternative different matters, acts or omissions that are stated in the alternative in the enactment that describes the offence or declares that the matters, acts or omissions charged are an indictable offence, or
(b) is double or multifarious,
on the ground that, as framed, it embarrasses him in his defence.
(3) The court may, where it is satisfied that the ends of justice require it, order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
R.S., c. C-34, s. 519.
Joinder of counts
591. (1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4.
Each count separate
(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.
Severance of accused and counts
(3) The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts; and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
Order for severance
(4) An order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts
(a) on which the trial does not proceed; or
(b) in respect of the accused or defendant who has been granted a separate trial.
(5) The counts in respect of which a jury is discharged pursuant to paragraph (4)(a) may subsequently be proceeded on in all respects as if they were contained in a separate indictment.
(6) Where an order is made in respect of an accused or defendant under paragraph (3)(b), the accused or defendant may be tried separately on the counts in relation to which the order was made as if they were contained in a separate indictment.
R.S., 1985, c. C-46, s. 591; R.S., 1985, c. 27 (1st Supp.), s. 119.
Joinder of Accused in Certain Cases
Accessories after the fact
592. Any one who is charged with being an accessory after the fact to any offence may be indicted, whether or not the principal or any other party to the offence has been indicted or convicted or is or is not amenable to justice.
R.S., c. C-34, s. 521.
Trial of persons jointly for having in possession
593. (1) Any number of persons may be charged in the same indictment with an offence under section 354 or paragraph 356(1)(b), notwithstanding that
(a) the property was had in possession at different times; or
(b) the person by whom the property was obtained
(i) is not indicted with them, or
(ii) is not in custody or is not amenable to justice.
Conviction of one or more
(2) Where, pursuant to subsection (1), two or more persons are charged in the same indictment with an offence referred to in that subsection, any one or more of those persons who separately committed the offence in respect of the property or any part of it may be convicted.
R.S., c. C-34, s. 522.
594. to 596. [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 120]
Proceedings when Person Indicted is at Large
597. (1) Where an indictment has been preferred against a person who is at large, and that person does not appear or remain in attendance for his trial, the court before which the accused should have appeared or remained in attendance may issue a warrant in Form 7 for his arrest.
(2) A warrant issued under subsection (1) may be executed anywhere in Canada.
(3) Where an accused is arrested under a warrant issued under subsection (1), a judge of the court that issued the warrant may order that the accused be released on his giving an undertaking that he will do any one or more of the following things as specified in the order, namely,
(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating with any witness or other person expressly named in the order except in accordance with such conditions specified in the order as the judge deems necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; and
(f) comply with such other reasonable conditions specified in the order as the judge considers desirable.
Discretion to postpone execution
(4) A judge who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(5) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed.
R.S., 1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997, c. 18, s. 68.
Election deemed to be waived
598. (1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless
(a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or
(b) the Attorney General requires pursuant to section 568 that the accused be tried by a court composed of a judge and jury.
(2) An accused who, pursuant to subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 to be tried by a judge of the court in which he is indicted without a jury and section 561 does not apply in respect of the accused.
R.S., 1985, c. C-46, s. 598; R.S., 1985, c. 27 (1st Supp.), ss. 122, 185(F), 203(E).
Change of Venue
Reasons for change of venue
599. (1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if
(a) it appears expedient to the ends of justice; or
(b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held.
(2) [Repealed, R.S., 1985, c. 1 (4th Supp.), s. 16]
Conditions respecting expense
(3) The court or judge may, in an order made on an application by the prosecutor under subsection (1), prescribe conditions that he thinks proper with respect to the payment of additional expenses caused to the accused as a result of the change of venue.
Transmission of record
(4) Where an order is made under subsection (1), the officer who has custody of the indictment, if any, and the writings and exhibits relating to the prosecution, shall transmit them forthwith to the clerk of the court before which the trial is ordered to be held, and all proceedings in the case shall be held or, if previously commenced, shall be continued in that court.
(5) Where the writings and exhibits referred to in subsection (4) have not been returned to the court in which the trial was to be held at the time an order is made to change the place of trial, the person who obtains the order shall serve a true copy thereof on the person in whose custody they are and that person shall thereupon transmit them to the clerk of the court before which the trial is to be held.
R.S., 1985, c. C-46, s. 599; R.S., 1985, c. 1 (4th Supp.), s. 16.
Order is authority to remove prisoner
600. An order that is made under section 599 is sufficient warrant, justification and authority to all sheriffs, keepers of prisons and peace officers for the removal, disposal and reception of an accused in accordance with the terms of the order, and the sheriff may appoint and authorize any peace officer to convey the accused to a prison in the territorial division in which the trial is ordered to be held.
R.S., c. C-34, s. 528.
Amending defective indictment or count
601. (1) An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court before which the proceedings take place, and the court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.
Amendment where variance
(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and
(a) a count in the indictment as preferred; or
(b) a count in the indictment
(i) as amended, or
(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.
(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears
(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;
(b) that the indictment or a count thereof
(i) fails to state or states defectively anything that is requisite to constitute the offence,
(ii) does not negative an exception that should be negatived,
(iii) is in any way defective in substance,
and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or
(c) that the indictment or a count thereof is in any way defective in form.
Matters to be considered by the court
(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count thereof under subsection (3), consider
(a) the matters disclosed by the evidence taken on the preliminary inquiry;
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
Variance not material
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to
(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or
(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.
Adjournment if accused prejudiced
(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
Question of law
(6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.
(7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.
Mistakes not material
(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.
(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 49, 50, 51 and 53.
Definition of "court"
(10) In this section, "court" means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on indictment.
(11) This section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123.
602. [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 124]
Inspection and Copies of Documents
Right of accused
603. An accused is entitled, after he has been ordered to stand trial or at his trial,
(a) to inspect without charge the indictment, his own statement, the evidence and the exhibits, if any; and
(b) to receive, on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the province, a copy
(i) of the evidence,
(ii) of his own statement, if any, and
(iii) of the indictment;
but the trial shall not be postponed to enable the accused to secure copies unless the court is satisfied that the failure of the accused to secure them before the trial is not attributable to lack of diligence on the part of the accused.
R.S., 1985, c. C-46, s. 603; R.S., 1985, c. 27 (1st Supp.), s. 101(E).
604. [Repealed, 1997, c. 18, s. 69]
Release of exhibits for testing
605. (1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, after three days notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.
(2) Every one who fails to comply with the terms of an order made under subsection (1) is guilty of contempt of court and may be dealt with summarily by the judge or provincial court judge who made the order or before whom the trial of the accused takes place.
R.S., 1985, c. C-46, s. 605; R.S., 1985, c. 27 (1st Supp.), s. 203.
606. (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.
Refusal to plead
(2) Where an accused refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty.
(3) An accused is not entitled as of right to have his trial postponed but the court may, if it considers that the accused should be allowed further time to plead, move to quash or prepare for his defence or for any other reason, adjourn the trial to a later time in the session or sittings of the court, or to the next of any subsequent session or sittings of the court, on such terms as the court considers proper.
Included or other offence
(4) Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the court shall find the accused or defendant not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125.
607. (1) An accused may plead the special pleas of
(a) autrefois acquit;
(b) autrefois convict; and
In case of libel
(2) An accused who is charged with defamatory libel may plead in accordance with sections 611 and 612.
CONSOLIDATED STATUTES OF CANADA
PART XX PROCEDURE IN JURY TRIALS AND GENERAL PROVISIONS
Joinder or Severance of Counts