You Cannot Have a Trial on both Provincial Offences and Criminal Offences

You Cannot Have a Trial on both Provincial Offences and Criminal Offences

Criminal Code proceedings are commenced by laying an information under oath alleging the commission of an offence. The same procedure applies whether the offence charged is an indictable or hybrid offence or a summary conviction offence.

In a Criminal Code information that charges indictable offences (subject to an exception) any number of indictable offences may be included, provided each is contained in a separate count.

 See s. 789(1)(b) of Criminal Code.

Likewise, the Criminal Code expressly permits the inclusion of several summary conviction offences in separate counts in a single information.

See  s. 591 (1) of Criminal Code.

The Criminal Code contains no provision that expressly permits or prohibits joinder of indictable and summary conviction offences as separate counts in the same information.

Offences charged in separate informations must be capable of being joined in a single information before a single trial on those separate informations may be conducted.  Further, the joinder must be in the interests of justice.

R. v. Clunas, 1992 CanLII 127 (SCC),
[1992] 1 S.C.R. 595

But provincial offences and Criminal Code offences cannot be joined together in a single information for the following reasons:

·         A Criminal Code information can include, as separate counts, several offences. It is of no moment whether those offences are exclusively indictable offences, exclusively summary conviction offences, or offences triable either way at the option of the Crown. Although the term “offence” is not defined in or for the purposes of the Criminal Code, it is self-evident that the term, as used in the joinder provisions of ss. 591(1) and 789(1)(b), refers to offences created and punished by the Criminal Code.  The Criminal Code applies to the trial of all indictable and summary conviction offences “created by an Act of Parliament”.

·         The POA also permits joinder of several offences in a single information. The POA defines “offence” as “an offence under an Act of the Legislature”. From the application of this definition to the joinder provisions of the POA, it follows that a POA information cannot include counts charging Criminal Code offences, which are created by Acts of Parliament.

·         The joint trial of offences within the exclusive jurisdiction of one court with those in the exclusive jurisdiction of another is not permissible.  For instance, you could not have the trial court acting as “summary conviction court” under Part XXVII of the Criminal Code and also a “provincial offences court” for the purposes of the POA.

R. v. Sciascia, 2016 ONCA 411 (CanLII).

See also, R. v. S.J.L., 2009 SCC 14 (CanLII), [2009] 1 S.C.R. 426: a joint trial of offences that required trial by a youth court under the Youth Criminal Justice Act with offences tried under the Criminal Code would have combined in a single proceeding two criminal justice systems that Parliament had made it clear were to be kept separate.

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