Patrick J Ducharme

Patrick Ducharme

For purposes of challenging an order of committal for trial, it is necessary to know when the possibility of challenge has ended. For this reason a court is sometimes required to determine when the actual moment of preferment takes place. For the purposes of ending possible challenges and proceeding to trial in the Superior Court, our courts have interpreted preferment to take place when the indictment is lodged with the trial court and the trial is ready to proceed. The definition of when an indictment is “preferred” comes from R. v. Chabot1. The distinction is important because once an indictment has been preferred, any challenge to the proceedings, such as a motion to quash the order to stand trial made following a preliminary hearing, can no longer proceed.
Continue reading “When the Indictment is Preferred”

Patrick Ducharme

In circumstances where the accused has not had the opportunity to request a preliminary hearing, or, a preliminary hearing has commenced but has not been concluded, or, a preliminary hearing has completed but the accused has been discharged, the prosecutor may only prefer an indictment by obtaining the consent of the Attorney General or the Deputy Attorney General. In the rare instances where a case is prosecuted by someone other than the Crown, referred to as a private prosecution, the written consent of a Judge of the Superior Court is required to proceed.1 The indictment is considered to be direct in the sense that the accused proceeds directly to the Superior Court without the benefit of a preliminary hearing.
Continue reading “Direct Indictments”

Patrick J Ducharme

An indictment is not a sworn document, but is signed by the prosecutor who prefers the indictment. The act of preferring an indictment is the act of presenting the indictment to the court. This act of preferring an indictment is considered complete when the document is before the court and the matter is ready to proceed to trial.
Continue reading “Preferred Indictments”