Backgrounder - DIRECT INDICTMENTS
Direct indictments fall under Section 577 of the Criminal Code, which outlines how the Attorney General or the Deputy Attorney General may send a case directly to trial without a preliminary inquiry or after an accused has been discharged at a preliminary inquiry.
Direct indictments recognize the ultimate constitutional responsibility of the Attorney 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.
The controlling factor in all instances is whether the public interest requires a departure from the usual procedure of indictment following an order to stand trial made at a preliminary inquiry.
The public interest may require a direct indictment in circumstances which include (but are not restricted to) 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;
- 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 significant delay in bringing the matter to trial resulting, for instance, from persistent collateral attacks on the pre-trial proceedings, has led to the conclusion that the right to trial within a reasonable time guaranteed by section 11(b) of the 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 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;
- where proceedings against the accused ought to be expedited to ensure public confidence in the administration of justice – for example, where the determination of the accused’s innocence or guilt is of particular public importance;
- 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;
- where the age, health or other circumstances relating to witnesses requires their evidence to be presented before the trial court as soon as possible; and
- where the holding of a preliminary inquiry would unreasonably tax the resources of the prosecution, the investigative agency or the court.
The circumstances in a case for which a direct indictment is recommended must meet the charge approval standard – namely, that there is a reasonable prospect of conviction at trial, and the public interest requires a prosecution to be pursued.
Federal Prosecution Service Deskbook
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