Pro Se Litigant
The same modus operandi must run through connected acts before the law calls the acts a ‘single transaction.’ The court compares the same factors that are used in FBI profiling:
Had Parliament wished to confer on a Preliminary Inquiry Judge the power to bind a defendant over for trial based on ‘any offence disclosed by the evidence,’ it could easily have done so in clear terms. The failure to specify such power is not due to inadvertence.
Canada has seen too many wrongful convictions. Parliament amended the Criminal code to circumscribe the powers of a Preliminary Inquiry justice, who may only commit a defendant for trial on any other indictable offence in respect of the same transaction. Is that wording a technicality? Far from it. It is significant enough to affect a defendant's very right to a fair trial.
The definition is as broad as possible: A single transaction may validly encompass a number of incidents, providing they relate to a similar activity or a similar course of conduct. The acts may be successive and cumulative over a lengthy time and in various locations. But the series of acts must still fall within the single transaction rule.
The Golden Rule of a Charging Document is whether the defendant was reasonably informed of the transaction alleged against him, so he may prepare a full answer and defence. The test continues to be whether the Information provides sufficient detail so that the defendant and his attorney are not left scrambling after the Preliminary Inquiry opens.
The accused must not be misled. Each count on the Information (the charging document) must recite the full facts and relate them to a definite section of the Criminal Code. This gives an accused person – who may be innocent – time to locate and interview witnesses; time to process the police reports; time to study case law; time to submit exhibits to experts for testing.
Some offences permit greater descriptive precision than others. Assessing the reasonableness of the Information depends upon the nature and legal character of the offence charged. Canadian courts now consider the following as settled law:
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. Participation of the accused in this series of connected acts may be sufficient to put him on trial for the offence charged, or it may not.
The evidence may be sufficient to put the accused 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.
A mere nexus in time and space is not sufficient. Instead, the second offence must be a component part of the transaction set out for the first offence. CCC section 548(1) merits a restrictive approach because it has the potential of placing an accused in jeopardy for offences which have not been charged, and potentially for offences more serious than the ones actually charged.
How do we test whether two separate offences are ‘in respect of the same transaction’? What is the standard to be met? One condition is that the second offence must be closely interwoven with the offence charged in the Information. That is a necessary condition, but it is not by itself sufficient. It is not the whole of the test.
The focus of the test is whether the proposed additional offence is a component part of the transaction for the original charge.
In this precedent, there were two assaults. The accused was charged with the assault that occurred later in time. Although the initial assault may well have been part of the narrative, it did not form part of a ‘series of connected acts’ that the Crown relied upon to prove the commission of the offence charged in the Information.
The judge concluded that an assault on a person other than the victim named in the charge, even when evidence of the other assault was part of the narrative of events concerning the primary assault, was not ‘in respect of the same transaction.’ The order to stand trial on the additional assault was quashed.
An additional offence, closely interwoven with or related to the offence charged in the Information, is not necessarily part of the same transaction.
The appellant had every reason to believe, when he appeared for his Preliminary Inquiry, that he had to face 3 specific charges relating to 3 incidents that occurred on 3 separate dates, and that the evidence to be taken at the inquiry would relate to these specific incidents.
Instead, despite objection from the defence attorney, the accused was committed to trial not only on the offences charged in the Information, but on 2 additional and entirely separate offences as well.
The additional counts, and the original counts, both reflect the same general pattern in the accused's relationship with the victim. But that does not mean they form part of the ‘same transaction.’ There is a difference between a pattern of independent and unconnected acts, and a series of connected, interwoven acts which form part of the same event or transaction.
Each act or transaction alleged in the counts is quite specific and independent. Each stands alone, although it may, of course, reflect the same attitude on the part of the accused.
The new counts did not form part of the same transaction as the original counts in the information. The appellant could not, on this Preliminary Inquiry, be committed to Trial on them. In ordering the appellant to stand Trial on the two additional counts, the Judge went far beyond the transactions alleged in the Information before him. The application for Certiorari was therefore granted. The order for trial was quashed.
Evidence adduced solely to show that the accused is the ‘sort of person’ likely to have committed an offence is called similar-fact evidence. In the majority of court cases, it is inadmissible. The probative value must be very high to outweigh the prejudicial effect.
The word transaction is found in several sections of the Criminal Code, and has been the subject-matter of a great deal of jurisprudence. It can be defined broadly or narrowly, depending on the context. A review of the case law shows:
Transaction – Interpreted in a broad manner in the context of CCC section 589 (murder cases) because that section contains other protections.
Transaction – Interpreted in a narrow manner at a Preliminary Inquiry. CCC section 535 governs how evidence is taken: the Preliminary Inquiry Judge ‘shall inquire into the offence charged and any other indictable offence, in respect of the same transaction.’ Identical words appear in CCC section 548(1) which governs when an accused can be bound over for Trial. In both sections, 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 or Indictment.
A mere nexus in time and space will not, by itself, be sufficient at a Preliminary Inquiry. Instead, the second offence must be a component part of the transaction set out for the first offence. CCC section 548(1) merits a restrictive approach because it has the potential of placing an accused in jeopardy for offences which have not been charged, and potentially for offences more serious than the ones actually charged.
An accused has a right to full answer and defence.; to locate and interview witnesses; to read police records. Even with cooperation from the Crown – rare – it can take months for a defence attorney to process the Disclosure and research case law. The defence has a hopeless task if the Crown will not even state the crime until the Preliminary Inquiry is underway.
In R. v. Manasseri, the court rejected the Crown's argument that ‘the same transaction’ could encompass occurrences that simply form an essential part of the history of events. Instead the court ruled: Acts upon which the second count are based must be so interwoven with the first charge that they will be a part of the res gestae.
Res gestae means the events, circumstances, or remarks which constitute the admissible evidence for a particular case in a court of law.
Acts that are successive and cumulative over a lengthy time and in many locations are still not allowed to offend the single transaction rule.
A single transaction may validly encompass a number of occurrences, each in themselves capable of constituting an offence, where the acts relate to a similar activity or involve a similar course of conduct. Thus, a count will not necessarily offend the single transaction rule even when it spans a lengthy period of time and involves a number of separate incidents in a variety of locations.
The classic analysis of the ‘single transaction’ rule is in R. v. Hulan (1970) ONCA which ruled: Several acts involving the same parties, at successive times, are capable of being treated as one transaction. The pursuing of an established routine indicates the validity of associating the several acts as a single transaction.
This early precedent said: Some offences permit greater descriptive precision than other offences. Assessing the reasonableness of the Information depends upon the nature and legal character of the offence charged.
The legal term transaction lacks an exact legal definition. In its ordinary sense, it 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. It is not required to state the timeframe with exact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in time that arises.
The test continues to be whether the Information contains sufficient detail to give to the accused reasonable information with respect to the charge and to identify the transaction referred to therein.
Canadian Criminal Code
Procedure on Preliminary Inquiry
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.
Adjudication and Recognizances
CCC s 548. (1) – When all the evidence has been taken by the justice, he shall:
Tuum Est - It Is Up To You
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