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

Revised March 25, 2022

Table of Contents

1. Introduction

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), acting as the 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 "direct indictment".

2. Statement of policy

The DPP will exercise the discretion vested in the Attorney General under s. 577 of the Code in circumstances involving serious violations of the law and where it is the public interest to do so.

A direct indictment may be in the public interest where:

  1. The accused is discharged at a preliminary inquiry because of an error of law, jurisdictional error, or a palpable error on the facts of the case;Footnote 2
  2. The accused is discharged at a preliminary inquiry and new evidence is later discovered that would likely have resulted in an order to stand trial if it had been tendered at the preliminary inquiry;
  3. 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;
  4. The 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 immediately;
  5. There is a reasonable basis to believe that the lives, safety or security of witnesses, witnesses' 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
  6. Proceedings against the accused ought to be expedited to ensure public confidence in the administration of justice;
  7. 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
  8. The age, health or other circumstances relating to witnessesFootnote 5 require their evidence to be presented before the trial court as soon as possible, or present difficulties in having witnesses testify more than once;
  9. The holding of a preliminary inquiry would unreasonably tax the resources of the prosecution, the investigative agency or the court; or
  10. 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. Procedure

In cases where a prosecutor intends to seek a direct indictment, the prosecutor must:

  1. Inform their Chief Federal Prosecutor (CFP) or Deputy Chief Federal Prosecutor (DCFP) that they intend to seek a direct indictment as soon as possible.
  2. Prepare a memorandum containing:
    1. A concise statement of facts showing that there is a reasonable prospect of conviction and that the public interest is best served by a prosecution. If multiple accused are to be charged, the memorandum must demonstrate that there is sufficient evidence to implicate each accused individually. The statement of facts must also include:
      1. The name of the accused;
      2. Their citizenship, if the accused is not a Canadian;
      3. A list of the charges sought against the accused;
      4. A summary of the evidence; and
      5. The date by which the indictment is required.
    2. b. An analysis explaining:
      1. The strengths and weaknesses of the case;
      2. Any significant legal issues expected to be encountered and any issues of particular importance to the public interest;
      3. The reasons for requesting a direct indictment;
      4. The state of disclosure already given to the accused, the extent of the disclosure yet to be made, the anticipated timelines for completion of the disclosure process, and any anticipated disclosure problems or disputes; and
      5. The factors set out in this guideline, including a reasoned and objective assessment of the factors weighing both for and against a direct indictment.
    3. A copy of the approved prosecution plan, if any.
    4. An annex containing an indictment containing all charges for which the indictment is requested, with the following appearing at the end:
      • 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
  3. Provide this memorandum to the CFP or DCFP.
  4. Consider whether and when a section 13 notice pursuant to the Director of Public Prosecutions Act is appropriateFootnote 7, based on the particular circumstances of the matter at hand.

The CFP or the DCFP will:

  1. Inform the appropriate Deputy Director of Public Prosecutions (DDPP) of the intention to seek a direct indictment.
  2. Review the memorandum prepared by the prosecutor and, if they are satisfied that the factors are met and that a direct indictment is appropriate, endorse the memorandum and send it to the DDPP.

The DDPP will:

  1. Review the memorandum and conduct an objective assessment of the request. In this role, the DDPP exercises a challenge function.
  2. Advise the CFP or DCFP that no recommendation will be made to the DPP, if the DDPP concludes that a direct indictment is not appropriate in the circumstances.
  3. Endorse the recommendation and send it to the DPP, if the DDPP concludes that a direct indictment is appropriate.Footnote 8

Prosecutors must consult the DPP when an indictment has been preferred and they conclude that the charges (or any of them) should be withdrawn, stayed or reduced. These consultations should be routed via the CFP.

4. Re-elections

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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