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Pro Se Litigant

Preliminary Inquiry:  Connected Acts

Mere Nexus in Time and Space Not Sufficient

FBI Profiling of Connected Acts

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:

  • proximity in time;
  • proximity of location;
  • whether the acts are similar in nature or circumstances;
  • similar characteristics of victims;
  • whether the motive or recompense is similar;
  • whether the perpetrator left a unique signature;
  • whether the same evidence or witnesses will be used to prove both acts.

R. v. Stewart (1988) ONCA 44 C.C.C. (3d) 109

Mere Nexus in Time and Space Not Sufficient Connection

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.

Gratton v. Quebec (1994) QueCA 6101

Crown Must List Similar-Fact Evidence on the Information

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.

R. v. Manasseri (2011) ONSC 4128

Invalid Evidence:  History of the Parties

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.

R. v. G.L.M. (1999) BCCA 467

Valid Evidence:  Pursuing an Established Routine

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.

R. v. Horsland (1995) BCSC 1317

Crown Must Provide Sufficient Detail of Charges

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


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.

Adjudication and Recognizances

Order to Stand Trial or Discharge

CCC s 548. (1)  –  When all the evidence has been taken by the justice, he shall:

  1. if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
  2. discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia

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Queen’s Bench Courthouse

Saskatoon, Canada

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