What is Direct Indictment?

The traditional process for the treatment of serious criminal charges in Canada involves a multi-step process..

For the more serious crimes, one of these steps involves a preliminary inquiry, at which time the prosecution must show the judge that there is a bare minimum of evidence to justify a full-fledged trial (a prima facie case). In practise, this is often the defence lawyer's first chance to see just how good a case the prosecution has and so it may be the time and place to plead guilty or fish for a plea bargain.

The Criminal Code of Canada provides for a preliminary inquiry in all cases involving serious crimes.

In each province, most criminal matters are brought by lawyers employed by the government known as Crown counsel, attorney or prosecutor or just "the Crown".

The Criminal Code (section 577) permits the Attorney General or Deputy Attorney General to send a case directly to trial:

  • If the accused has not been given the opportunity to request a preliminary inquiry, or
  • If a preliminary inquiry has commenced but not been concluded, or
  • After an accused has been discharged at a preliminary inquiry.

This power is an extraordinary one and is used infrequently in Canada.

Generally, counsel may make a request for the Attorney General’s consent to a direct indictment where there exist compelling circumstances which require, in the interests of justice, that the matter be brought to trial forthwith, bearing in mind the strength of the Crown’s case and the seriousness of the charge.

Before requesting the Attorney General or Deputy Attorney General’s consent, Crown counsel must have concluded that there is a reasonable prospect of conviction and that the continuation of the prosecution is not contrary to the public interest.

Also referred to as a “preferred indictment.”

As Attorney Generals are politicians, appointed to their respective cabinets, there may be times where an Attorney General leaves his political office between the time of the signature on the preferred indictment and the date of the trial. In these cases, the approval of his or her successor is presumed. Also, the Attorney General does not have to appear before the court in person, only sign the indictment. Nor is there any right to a hearing before the Attorney General in making the decision to prefer indictment.

The judge has no choice about the matter; if the Attorney General prefers an indictment, it goes to trial.

Examples of circumstances where it is in the public interest to give consent include the following:

  1. Where there is significant danger of harm to a witness, whether psychological or physical. This includes cases where the witnesses are children and it can be demonstrated that they would likely suffer trauma if forced to participate in multiple judicial proceedings.
  2. Where the public interest requires a solution to serious logistical problems such as an absconding co-accused or a complex case involving numerous witnesses and lengthy testimony or international complications.
  3. Where it is likely that a preliminary inquiry would cause such delay that the trial process would become impossible or result in a successful application for a judicial stay of proceedings under the Charter of Rights and Freedoms
  4. Where a judge at a preliminary inquiry has made a decision which is clearly unreasonable in that it is either not supported by the evidence or based on a clear error in law and results in a failure to commit on a particular charge which the public interest requires to be prosecuted.
  5. Where the Crown has led evidence at the preliminary inquiry and has been unsuccessful in obtaining admissions of fact from the accused for the purposes of the preliminary inquiry on easily proven matters, and the cost of a full preliminary inquiry would be substantial and unreasonable.
  6. Where after a full preliminary inquiry, the committal order may be invalid due to procedural error.
  7.  Where the Crown erred in failing to call important available evidence at a preliminary inquiry resulting in a discharge on a serious matter and where the evidence is still available for trial.
  8. Where significant new evidence has become available after a discharge at preliminary inquiry and the public interest requires a trial (for instance, where similar fact evidence arises linking the charge to a subsequent charge or DNA evidence now supports a substantial likelihood of conviction).
  9.  Where significant new evidence becomes available after committal on a lesser charge and the public interest requires a prosecution on a more serious charge.
  10. Where significant new evidence from an additional complainant becomes available after committal and, taking into account the law on similar fact and severance, it is in the public interest that a trial be conducted on all charges together by direct indictment and not be delayed for a preliminary inquiry on the new complaint. Consideration must be given, inter alia, to trial delay issues and factor #1 described above.
  11. To protect the identity of an informant.
  12. Where the public interest requires an expedited trial date for reasons such as: serious health problems of an accused or an essential witness; the likelihood that hostile Crown witnesses will change their evidence in the near future; or similar developments of an urgent nature.
  13. To protect ongoing police investigations, operations and security where the requirement for such protection is of importance and can be significantly demonstrated.
  14. Where a major case involving substantial civil disobedience poses significant problems of court room security, including the safety of the public and those involved in the administration of justice.

Under a direct indictment, the accused is deemed to have elected to be tried by judge and jury. However, that can be changed to judge alone with consent from the Crown prosecutor.


Last updated on: 2013-08-22 | Link to this page