R v Beauchamp, 2014 ABPC 113
[9] The Attorney General’s power to‘withdraw’ a charge or information is an incident of the Crown prerogative. It pre-dates the enactment of the Criminal Code and is not expressly referred to therein. Notwithstanding that absence, however, there is no doubt that the power not only exists but is exercised by Crown Prosecutors on a daily basis. As Watt J.A. recently commented in R v McHale, 2010 ONCA 361; leave denied [2010] 3 S.C.R. vi (‘McHale’) (at para.32):
Despite the absence of express or necessarily implied authority in the Criminal Code, it is well‑established that the Attorney General has the authority to withdraw an information prior to plea ...
See also: R v Karpinski, 1957 CanLII 9 (SCC), [1957] S.C.R. 343 (per Kerwin C.J.C. at p.343) and, more generally, Criminal Procedure in Canada, Penney, et al, LexisNexis Canada Inc. 2011, at pp.453-5; Criminal Pleadings & Practice in Canada, 2nd ed., Ewaschuk, Canada Law Book, 12:7040.
[10] Subsection 8(2) C.C. provides that:
8.(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.
This is the statutory source of a Crown Prosecutor’s power to withdraw charges. Unfortunately, it provides little guidance with respect to the procedure governing the exercise of this power. Courts have had to look to the common law when developing procedures for its implementation. “The precise contours of the common law power of the Attorney General to withdraw an information are not expressly defined, or for that matter fully developed.” McHale, per Watt J.A. at para.36, emphasis added.
[11] It is clear that the power to withdraw charges is that of the Attorney General; not the court. See: R v Garcia and Silva, 1969 CanLII 450 (ON CA), [1970] 3 C.C.C. 124 (Ont.C.A.). Judicial regulation of the process is limited in scope. In R v Osborne (1975), 1975 CanLII 1357 (NB CA), 25 C.C.C. (2d) 405 (N.B.C.A.) The court was moved to comment in that regard (at pp.411-12):
I would point out the refusal of the trial Judge to permit a withdrawal of the original information for assault before any evidence is adduced is an usurpation by the Court of the administrative function of the Crown prosecutor and the Attorney‑General to determine who and for what offence any person should be prosecuted. Case law clearly indicates the Courts should distinguish between private prosecutions and those carried on by the Crown. They show the Courts should not interfere with the administration of justice by making the matter of withdrawal a means of controlling the Crown's discretion to prosecute and thereby bring the executive and judicial branches of government into conflict. They point out and emphasize that the business of withdrawals is strictly that of the Attorney‑General or his agents before the Court. They equate the right of withdrawal to the right to grant a stay of proceedings. The Crown prosecutor is in a better position than the Judge to know how serious any particular case is. Further the prosecutor is the representative of The Queen and it is inconceivable the Court should refuse the right of Her Majesty to withdraw an information or stay a prosecution.
[12] The timing of an application to withdraw charges may determine whether the court has any role to play. A Crown Prosecutor’s right to withdraw charges before plea is unfettered. There is no application to withdraw the charge at that stage; the charge is withdrawn by executive direction. This dynamic was noted by the court in Re Forrester and the Queen, 1976 CanLII 1433 (AB KB), 33 C.C.C. (2d) 221 (Alta.S.C.T.D.) (‘Forrester’) where Quigley J. stated:
In the present case the Crown appeared to apply for a withdrawal but in effect it need not have had to frame its intentions by way of a request, and in any event the Provincial Judge clearly stated the effect of what transpired when he said "... the charge is withdrawn by the Crown"
[13] After plea, however, it is incumbent upon a Crown Prosecutor to seek leave of the court before withdrawing a charge. The court in Re Blasko and the Queen (1975), 1975 CanLII 1405 (ON SC), 29 C.C.C. (2d) 321 (Ont.H.C.) referenced that caveat in these terms:
Prior to the preferring of an indictment or the entering of a plea and the tendering of evidence, an information may be withdrawn without the leave of the Court. Where a Crown Attorney has tendered evidence after the taking of a plea, the trial Judge is seized with jurisdiction and the information cannot be withdrawn without the consent of the trial Judge.
The need for such a limitation no doubt arises from the fact that the accused who has entered plea is often considered, from that point in time, to be in jeopardy. See, for example, R v Petersen, 1982 CanLII 200 (SCC), [1982] 2 S.C.R. 493.
[14] The act of withdrawing a charge may take different forms. Perhaps the easiest and most efficient method of doing so is to withdraw the charge ex facie curiae. Crown Counsel, “ ... does this very simply by not bringing the accused and the charge into Court,” R v Grocutt (1977), 1977 CanLII 2058 (AB KB), 35 C.C.C. (2d) 76 (Alta.S.C.T.D.). Quigley J. expressed the same view in Forrester, when he stated:
Where the agent of the Attorney‑General knows in advance that he will withdraw an information he can cause the information to be delivered to him prior to Court and then simply refrain from placing that information before the trial Judge. The information is literally "withdrawn". The trial Judge having no information before him has no jurisdiction over the offence.
[15] Where Crown Counsel is aware of the fact that charge(s) are to be withdrawn before plea, there is nothing to prevent her or him from contacting the Clerk of the Court to instruct that withdrawal. If possible, those instructions should be given well before proceedings commence (in person or in writing) so as not to inconvenience the accused, counsel or the court. Even on a docket or trial day, some economy can be achieved by pre-court instruction to the Clerk of the Court that charge(s) are withdrawn.
[16] The efficacy of proceeding in that fashion can be seen in the operation of the ‘Alternative Measures Program’ (‘AMP’). See: s.717 C.C. Where the accused has agreed to participate in AMP (with the consent of the Attorney General), no plea to the charge is entered. Rather, the entry of plea is adjourned for a number of months in order to afford the accused an opportunity to meet the conditions of the AMP agreement. If those conditions are met by the return date, charge(s) are withdrawn, usually with the accused in attendance.
[17] Given the foregoing discussion, every effort should be made to determine compliance with the AMP agreement well before the return date. If there is compliance, the accused (and/or counsel acting on the accused’s behalf) should be advised before the return date that the charge(s) will be withdrawn and that (s)he need not attend court. If, for some reason, this cannot be communicated before the return date, it ought to be undertaken ex facie curiae on the return date itself.
[18] This manner of proceeding is not unique or even unusual. An identical process is currently in operation where the Attorney General elects to exercise another of its prerogative powers (now statutorily codified), viz. the stay of proceedings. See: s.579 C.C.
Effect of Withdrawing Charges
[19] What effect does the withdrawal of a charge have on any legal process (such as an arrest warrant) which has already been issued in relation to that charge?
[20] In R v Stewart (1978) 1978 CanLII 2443 (ON SC), 42 C.C.C. (2d) 62 (Ont.H.C.) the accused elected to be tried in a superior court of criminal jurisdiction on an information alleging a single crime. After a hearing, he was denied bail. On the date set for preliminary inquiry, a second information was present in court charging the same crime as the first information plus an additional count. No bail hearing was held in relation to that second information. The accused was ordered to stand trial on the second information and the first information was ultimately withdrawn.
[21] The accused thereafter applied for habeas corpus on the basis that the detention order made on the first information was of no force or effect from the time that information was withdrawn. Linden J. agreed. He ruled (at para.5):
I hold that a detention order springs from the information, not from the offence itself. Once an information is withdrawn or declared void, then I believe that any detention order based upon that information must also fall.
[22] A similar result follows when the Attorney General elects to enter a stay of proceedings. Subsection 579(1) C.C. provides that:
579. (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
(emphasis added)
[23] While s.579(1) C.C. makes reference only to “any recognizance”, it is clear that any order of detention or release relating to the relevant charge or information is terminated once a stay of proceedings is entered. See: R v Jones (1997), 1996 CanLII 12421 (ON CA), 113 C.C.C. (3d) 225 (Ont.C.A.). Even ‘restraint orders’ (s.462.33 C.C.) issued in relation to the stayed charge or information cease to have effect. See: R v De Trang, 2004 ABCA 246. The court in R v Smith (1992), 1992 CanLII 325 (BC CA), 79 C.C.C. (3d) 70 (B.C.C.A.) succinctly stated that (at para.20): “Without a Charter consideration, it is clear that once the Crown exercises its s.579 right to direct a stay be entered, the judge hearing the prosecution is functus and without jurisdiction to proceed further.”
[24] Both common law and the Criminal Code give the Attorney General special powers to halt proceedings before a criminal court. The weight of authority supports the position that all process or orders associated with those proceedings are also (and automatically) terminated by the exercise of those powers. It is worth noting that it is invariably in the accused’s own best interests that the legal force of orders interfering with her or his liberty interests be terminated once the criminal or quasi-criminal proceeding itself has been lawfully terminated. Accordingly, an arrest warrant issued on the basis of an information ceases to have any force or effect from the moment that the information is lawfully withdrawn.
[25] Criminal Code and common law provisions relating to the withdrawal or staying of charges apply both to proceedings by indictment and proceedings by summary conviction. See: s.795 C.C. And those provisions apply, mutatis mutandis, to proceedings governed by the Provincial Offences Procedure Act, R.S.A. 2000, c.P-34 (‘POPA’). See: POPA, s.3.
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