DSB wrote:Hello,
I contacted an outfit in Ontario and this is the reply that I got.
If it has not yet been filed then you are home and free as the officer has seven days to file his copy. Although you should be aware that the officer also has up to six months to re-lay the charge under a Part 3.
The Charter is part of the Constitution and any provision of any Act that is inconsistent with the Constitution is of no force and effect.
Section 11(a) of the Charter articulates that any person charged with an offence must be informed without reasonable delay of the specific offence.
Section 34 of the Provincial Offences Act allows them to amend the information or certificate as may be necessary if it appears that the information or certificate,(a) fails to state or states defectively anything that is requisite to charge the offence; (b) does not negative an exception that should be negatived; or (c) is in any way defective in substance or in form.
However, in my view, if challenged, s. 34 might be unconstitutional in some if not all circumstances. You must be informed without delay of the offence you are charged with. The court providing an accused an adjournment after amending an information or certificate is irrelevant, as s. 11(a) of the Charter requires you to be informed of the specific offence without delay. Amending the offence months later in trial is a major delay.
It also violates 11(b), which provides you the right to be tried within a reasonable time.
The six month limitation under Part V of the Provincial Offences Act (not Part III) also, in my view, violates the Charter, if the information was already within the knowledge of the police.
The police cannot sit on information; they must proceed immediately with laying charges. For example, the Criminal Code has a six month statute of limitation for laying summary conviction charges, and no limitation on indictable offences, however, if the police are aware an offence was committed and dont lay charges for months or years, they are barred from proceeding. Offences occurring under the Provincial Offences Act are no different.
A cop cannot relay the charge under Part III, as you were incorrectly advised, unless consent of the Attorney General or his or her agent is given.
Provincial Offences Act Commencement of proceeding by information
21. (1) In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate, a proceeding in respect of an offence may be commenced by laying an information. R.S.O. 1990, c. P.33, s. 21 (1).
Exception
(2) Where a summons or offence notice has been served under Part I, no proceeding shall be commenced under subsection (1) in respect of the same offence except with the consent of the Attorney General or his or her agent.
Amendment of information or certificate
34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,
(a) fails to state or states defectively anything that is requisite to charge the offence;
(b) does not negative an exception that should be negatived; or
(c) is in any way defective in substance or in form.
Idem
(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.
Variances between charge and evidence
(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,
(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or
(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.
Considerations on amendment
(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendants defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
Amendment, question of law
(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law. R.S.O. 1990, c. P.33, s. 34 (1-5).
Endorsement of order to amend
(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended. R.S.O. 1990, c. P.33, s. 34 (6); 1993, c. 27, Sched.
Limitation 76. (1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.
Criminal Code 786. (1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.
Limitation
(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree.
