Indictment
An indictment is the formal charging document used to bring an accused person to trial in the Superior Court of Justice for indictable offences. It is the Superior Court counterpart to the information used in the Ontario Court of Justice. Sections 574 to 584 of the Criminal Code set out the rules governing indictments.
Mass Tsang's criminal lawyers handle indictable trials across Ontario's Superior Court. For more on procedure, see our comprehensive guide for the accused.
Direct vs. preferred indictment
Most indictments are "preferred" after a preliminary inquiry — once the accused has been committed for trial, the Crown drafts the indictment that becomes the trial charging document. Less commonly, a "direct indictment" can be preferred by the Attorney General under section 577, bypassing the preliminary inquiry entirely. Direct indictments require ministerial consent and are used in exceptional cases — typically where a preliminary inquiry has resulted in discharge but the Crown believes there is still a case to be made, or where speed is essential.
Contents of an indictment
An indictment must adequately inform the accused of the charge they face. It must include: identification of the accused; a statement of the offence in ordinary, non-technical language; reference to the section of the Criminal Code (or other statute) that creates the offence; and sufficient particulars to permit the accused to make full answer and defence. Multiple counts can be joined in a single indictment where they meet the joinder rules.
Joinder of counts and accused
Counts can be joined where they arise out of the same transaction, are part of a series of similar offences, or involve a common set of facts. Multiple accused can be jointly indicted where they are alleged to have committed offences together. Severance — separation of counts or accused — can be ordered where joinder would prejudice the accused's right to a fair trial. Severance motions are common in multi-count and multi-accused cases.
Amendment and quashing
An indictment can be amended before or during trial where the amendment cures a defect and does not prejudice the accused. Where an indictment is fatally defective — failing to disclose an offence known to law, for example — it can be quashed on application. Quashing motions are rare but can be decisive where they succeed.
Strategic implications
The contents of the indictment shape the trial. Vague or overbroad counts give the defence latitude on cross-examination and submissions. Counsel scrutinize the indictment carefully, raise particulars where necessary, and challenge defects at the earliest opportunity. The drafting of the indictment is a Crown discretionary act with significant strategic implications.
Related glossary terms
