Insufficient Particularity in the Information

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Date Retrieved:	2024-04-19
CLNP Page ID:	2008
Page Categories:	[POA General Defences]
Citation:	Insufficient Particularity in the Information, CLNP 2008, <>, retrieved on 2024-04-19
Editor:	Sharvey
Last Updated:	2022/09/20

R. v. Morschauser, 2006 ONCJ 88 (CanLII)

[33] The court in the Thoen decision said at paragraph 8: "it is apparent that no particular instances or allegations are specified which are said to form the basis of the complainant's fears. The defendant is not given enough basic information to identify the basis of the complaint against him and consequently does not put him on notice of the case he will have to meet. Was the complainant's fears brought about by an assault? By verbal threats? By written threats? By telephone threats? What are the personal injuries feared by the complainant? There should be more particulars as to where the offence took place other than to state that the offence took place at Saskatoon, Saskatchewan. I find that the information is defective in substance."

[34] The Crown argues that in the present case there are sufficient particulars, and that if you consider section 264, conduct other than verbal conduct can put fear into a complainant. The information in the present case states three types of conduct that form the basis of the complaint for a period of time between two dates in 2005, namely:

"will cause personal injury to or will damage the property of Elisabeth Bauer on account of a threat made between the 11 day of January 2005 and the 1 day of April 2005 at the City of Kitchener and Town of Baden in the words or to the effect following, that is to say, ...unwanted telephone calls, following, hiring private investigator..."

[35] In reference to the suggested forms of charges at the back of the 2006 Edition of Martin's Annual Criminal Code at page A/59, where short examples of wording are included for reference, I am satisfied that the short version of words used in the herein information are sufficient, and I accept the reasoning submitted by the Crown that this conduct could be threatening, such as would be contemplated in a section 264 charge, and can therefore form the basis of a section 810 fear.

[36] I am further satisfied that the words "unwanted telephone calls, following, hiring private investigator" together provide sufficient particularity as to distinguish this case from Thoen and, when combined with the range of dates and locations provided, gives the defendants enough information to identify the basis of the complainants fears.

[37] The second ground for declaring this information a nullity is therefore dismissed. The matter will be scheduled for a hearing on its merits against both defendants.

Hamilton (City) v. McNiven, 2018 ONCJ 974 (CanLII)

...

The Validity of the Information and Crown

Discretion in the Laying of Charges

I recognize that it would have been open to the prosecution to have laid a one-count information covering removal of all trees on the basis that the removal of all the trees, despite being distinct acts, form part of a single transaction. One can argue that in many cases involving the removal of trees, the prosecution could and would opt to proceed on a single global count because it would not be in a position to adequately differentiate among the trees removed and, therefore, to provide sufficient detail regarding which specific tree is at issue in each count.

However, in fact, that the prosecution could have prosecuted the accused on a single “global” count does not mean that it was somehow improper for the prosecution to have proceeded on separate counts. As stated in Ewaschuk, Criminal Pleadings and Practice in Canada, “Where a single transaction involves several incidences, the Crown may choose to charge only one count (eg. criminal negligence causing three deaths) or to charge separate counts in respect of each incident.

This subject was also referenced in R. v. Hulan [1969]. At paragraph 20 that honourable stated,

I do not think it necessary to discuss again the case referred to in R. v. Flynn, supra. I have recited the particulars which are above-quoted only to indicate the possibility of a count referring to more than one incident or occurrence is not of itself grounds for holding it to be bad. “Transaction” as used in s.492 is not synonymous with “incident” or “occurrence,” notwithstanding the fact that each of the incidences might, if the Crown so chose, have been the subject of a separate count.

The prosecution has a similar discretion in deciding how to lay charges in the Provincial Offences Act context, provided that the information complies with the requirements of s.25 of the POA. For example, Ontario (Labour) v. Black and McDonald Ltd., ONCA.

The appeal court judge was wrong to say that the trial judge had discretion to reduce the number of counts to one count against each defendant. No such discretion exists. A trial judge cannot collapse an information by dismissing some of the counts simply because those counts may overlap with other counts arising out of the same incident. To give a trial judge that discretion would improperly interfere with the Crown’s discretion to lay the charges it deems appropriate. The appeal court judge therefore erred in upholding the dismissals on counts one, two, and four.

Although not argued by the defendant, I believe it is important to address the issue of “stacking” counts. In a case where each offence is punishable by a mandatory minimum sentence (such as a minimum fine,) one could argue that it would be improper for the prosecution to artificially divide an offence into several separate offences in order to “stack” the minimum sentences.

It is quite obvious that the prosecution in proceeding on 56 separate counts, rather than a single global count, wanted to be in a position to seek a total fine higher than the $10,000 maximum that applies to each count. However, because proceeding on multiple counts only affects the maximum fine available, given that there is no minimum fine in this case, I retain full judicial discretion to impose what I consider to be an appropriate fine, taking into account the principle of totality.

I also believe it is important to address the sufficiency of the information at this point. I am satisfied that the information in this case does meet the requirements of a valid information, as set out in s.25 of the Provincial Offences Act. Each of the 56 counts on the information identifies that specific tree whose removal is the subject of that particular count. The defendant did not claim that the information fails to reasonable inform him of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial, R. v. Cotê and Vancouver (City) v. Wiseberg [2005] BCSC, where an information setting out 28 charges of removing a tree without a permit was found, on appeal, to be valid as the accused had received sufficient particulars to know which trees were the subject of the charges.