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Preliminary Inquiry:  The Same Transaction Rule

The Queen v. Côté (1977) SCC 1

Format of the Charging Document

In criminal law, the charging document may be an Information or an Indictment. On that document, the charges are itemized into specific counts. A count will refer to the section, subsection, paragraph or subparagraph of the enactment that created the offence charged. The enacting statute is the Canadian Criminal Code. To determine whether a count is sufficient, we must compare it to the wording and terms in the relevant section of the Criminal Code.

The Golden Rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair hearing. When the charging document recites all the facts and relates them to a definite offence identified in a section of the Criminal Code, it is impossible for the accused to be misled.

R. v. Chabot (1980) SCC 54

Preliminary Inquiry:  Rules of Relevancy

A Judge conducting a Preliminary Hearing may commit an accused for trial only for an offence charged in the Information or for an included offence, but cannot commit for any other offence disclosed by the evidence adduced at the Preliminary Hearing.

There is no authority, express or implied, in the Criminal Code to commit on other offences disclosed by the evidence, whether these offences are related or unrelated to the original charge, unless it is an included offence. Had Parliament wished to confer on a magistrate the power to commit an accused for any offence disclosed by the evidence, it could easily have done so in clear terms.

The powers of a magistrate acting under the Criminal Code are circumscribed by the provisions of the Code. Although a preliminary hearing is not a trial it must be conducted in a judicial manner. The rules of evidence relating to relevancy apply to preliminary hearings in the same manner as to trials. We properly question the relevance, and the admissibility, of evidence relating to a charge other than that formally spelled out in the Information.

The Code does not authorize an inquiry at large into not only the offence specifically charged but also all areas in which the Crown may choose to lead evidence. An accusation does not exist in latent form. A person is charged or he is not. The charges into which a Judge may inquire must be in existence at the time the preliminary inquiry commences.

The Power to Commit to Trial Cannot be Larger
than the Power to Inquire

The scope of the inquiry is limited to the charge as laid in the Information; otherwise one would have a situation in which an accused would be asked to answer the charges when in reality he was in danger of being committed for another offence. Such an inquiry must be limited to charges in Informations outstanding against the accused at the time of the inquiry. This view is consistent with basic principles of criminal law which require that a warrant should issue for arrest on a specific charge, that the arrest should be executed on that basis, and that the charge be specified with particularity in the Information so that the accused knows the charge against him and what he has to meet.

If the scope of the preliminary inquiry were extended beyond actual charges to include rumor or accusations, these basic principles of our law would be subverted. A preliminary inquiry is not, and should not become, an inquisition into any and all misdeeds of the accused, whether ‘charged’ against him or not.

Logically, the power to commit to trial cannot be larger than the power to inquire. If a Judge is entitled to inquire into a specific charge, then he must commit on that charge or not at all.

McKibbon v. R. (1984) SCC 67

Supreme Court Upholds Single Transaction Rule

Questions about the relevance and the admissibility of evidence associated with a charge other than that contained in the Information, will always constitute a serious problem for the Crown. The issue will only yield fruit in those cases where the additional counts disclosed by the evidence form an integral part of the offence with which the accused is charged; in other words, they are really a part of the same transaction.

The acts upon which these counts are based must be so closely interwoven with the offence facing the accused on the preliminary inquiry that they will be a part of the res gestae.

Res gestae means things done – words and actions that occur so close in time and substance to each other that they are considered part of the same happening, event or transaction.

In McKibbon, the added counts fell within the same transaction, but the Supreme Court was still split in its decision:

  • Three judges ruled as above.
  • The remaining two judges were stricter. In a dissenting opinion they said the Information should not be expanded to include any new counts at all.

With that on record, the Supreme Court surely would not allow counts to be added if they fell outside the given transaction.

R. v. Goldstein (1988) ONCA 64 C.R. (3d) 360

Parliament Weighs In

In 1985, the Criminal Law Amendment Act re-enacted the sections of the Criminal Code relating to the conduct of Preliminary Hearings. CCC section 475 (now 548) was changed to read: A justice may commit an accused for trial on the offence charged or any other indictable offence in respect of the same transaction.

Parliament did not give a justice the power to commit for any other offence disclosed by the evidence. Rather, it restricted the power of committal to any other indictable offence in respect of the same transaction.

Section 463 (now 535) was amended in parallel to read: Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

The word transaction is not a new word in the Criminal Code. It appears in section 510 (now 581) which requires that each count in an Indictment shall in general apply to a single transaction.

In its ordinary sense, transaction is understood to mean the doing or performing of some matter of business between two or more persons. A transaction may and frequently does include a series of occurrences extending over a length of time.

The phrase the same transaction means the series of connected acts extending over a period of time which the Crown alleges prove the commission of the offence charged in the Information. The participation of the accused in this series of connected acts or activity may be sufficient to permit the justice to put him on trial for the offence charged, or it may not. In addition, it may be sufficient to permit the justice to put him on trial for some other indictable offence. If it is, the other offence will of necessity be closely interwoven with or related to the offence charged in the Information.

R. v. Selles (1997) ONCA 1150

Successive and Cumulative Acts

Each count in an Indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

A single transaction is not synonymous with a single incident, occurrence or offence. Separate acts which are successive and cumulative and which comprise a continuous series of acts can be considered as one transaction.

Canadian Criminal Code
Procedure on Preliminary Inquiry

Jurisdiction

Inquiry by Justice

CCC s 535  –  If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

Canadian Criminal Code
Procedure in Jury Trial and General Provisions

General Provisions Respecting Counts

CCC s 581 (1)  –  Each count in an Indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

CCC s 581 (2)  –  The statement referred to in subsection (1) may be:

  1. in popular language without technical averments or allegations of matters that are not essential to be proved;
  2. in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or
  3. in words that are sufficient to give to the accused notice of the offence with which he is charged.

CCC s 581 (3)  –  A count 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, but otherwise the absence or insufficiency of details does not vitiate the count.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

Copyright © 2008-2018 Georgena Sil. All Rights Reserved.