An objection to an indictment or to a count in an indictment for a defect apparent on the face of it, must be taken by motion to quash the indictment or count before the accused has pleaded and thereafter only by leave of the court. The court that receives the objection may, if it considers it necessary, order the indictment or count to be amended to cure the defect.1 When a count in an information or indictment is so deficient that it is quashed by the court, the order may, in effect, end the prosecution, either because the limitation period for prosecuting the matter has expired, or, because further prosecution may be stayed as an abuse of process pursuant to section 7 of the Charter or because of unreasonable delay pursuant to section 11(b) of the Charter. The recent trend in law, however, is not to quash but to amend. The strict rules of pleading in criminal law have given way to a less rigid interpretation of those rules, as evidenced by many recent cases rejecting objections based on duplicity and the single transaction rule. A Justice presiding at a preliminary inquiry may now also make amendments pursuant to section 601 of the Code.
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Organizations: Failure to Appear or Attend
Because organizations cannot appear personally in court, the Code provides in subsection 556(1) that an organization, which includes a corporation, may appear by counsel or agent, and, if it fails to do so, and it is proved that a summons was served properly on the organization, the Judge may either conduct an ex parte trial or a preliminary inquiry depending on the nature of the charge.
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Failure to Appear
If an accused fails to appear for his/her jury trial, subsection 598(1) of the Code provides that the accused loses the right to be tried by a Judge and jury. At a subsequent trial date the accused (if and when he/she re-appears) may be required to proceed on the basis of a trial before a Judge sitting without a jury unless the accused satisfies the court that there was a legitimate excuse for his/her earlier non-appearance, or, the Attorney General requires that the trial proceed before a jury pursuant to section 598.
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