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The Federal Prosecution Service DESKBOOK

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Part V
PROCEEDINGS AT TRIAL AND ON APPEAL
Chapter 21

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21 WAIVER OF CHARGES

21.1 Introduction

Offences are normally tried in the judicial district where they are alleged to have been committed. Waiver of charges between jurisdictions gives rise to important policy considerations. This section sets out the policy on when the Attorney General of Canada will consent to waivers.

Section 479 of the Criminal Code governs “intra-provincial” waivers of charges -- waivers from one judicial district to another in the same province. Subsection 478(3) governs “inter-provincial” waivers -- waivers from one province to another. Both types of waivers must meet the following requirements:

• the offence must not be a section 469 offence¹;
• the proceedings must have been instituted at the instance of the Government of Canada and conducted by or on its behalf;
• the Attorney General of Canada must consent to the waiver; and
• the accused must have agreed to plead guilty to the charge being waived.

21.2 Statement of Policy

In general, the Attorney General will, upon the request of the accused, together with an undertaking to plead guilty, consent to a waiver of charges from one jurisdiction to another. However, where on the facts of a case or the circumstances surrounding it, a proposed waiver will not be in the public interest, consent should be refused.

In deciding whether a waiver is in the public interest, the following considerations, among others, are relevant:

1. Does the accused have substantial ties with the jurisdiction to which it is proposed that the charge be waived (the “receiving” jurisdiction)?
2. Are the sentencing practices and precedents in the receiving jurisdiction reasonably consistent with those of the jurisdiction from which the charge is to be waived (the “originating” jurisdiction)?
3. Is there a significant public interest in the case such that it ought to be disposed of in the community where the offence occurred?
4. Is a waiver likely to result in undue delay, or has undue delay already occurred?
5. Is there a reasonable basis to believe that once the charge is waived the accused may withdraw the undertaking to plead guilty to the offence, thereby requiring the charge to be returned to the originating jurisdiction?
6. Despite the undertaking to plead guilty, are significant aggravating or mitigating facts likely to be in issue, thus requiring the Crown to call viva voce evidence from the originating jurisdiction under the rule in R. v. Gardiner²?

The Attorney General's consent to the waiver may be given by the FPS Director in the originating jurisdiction pursuant to the general policy dealing with decisions made in the Attorney General’s name³. Reasons for a refusal to consent should, in general, be provided in writing by the FPS Director to counsel for the accused, or to the accused personally if he or she has not retained counsel.

In the case of an inter-provincial waiver of charges, the “receiving” Regional Office or prosecuting agent may not reduce the charge to a lesser included offence without first consulting the “originating” Regional Office. The “originating” office should advise the “receiving” office of any discussions with respect to sentencing that took place prior to the waiver; however the “originating” office should not dictate a sentence recommendation to the receiving office.

Where the waiver of charges involves a provincial prosecution service, the process must respect the protocol adopted by the Federal/Provincial/Territorial Heads of Prosecution on transfer of charges. The protocol appears as Appendix “D” to this chapter.

21.3 Procedure⁴

The Application for Waiver⁵, signed by the accused, must state the following:

1. the full name of accused;
2. the current location of the accused;
3. a description of the offence, to make clear which charge(s) is the subject of the request;
4. an undertaking by the accused to plead guilty in the receiving jurisdiction to the charge(s) for which waiver is sought;
5. the originating and receiving judicial districts; and
6. the specific level of court to which the charge(s) is sought to be waived and the specific level of court from which the charge(s) is waived. (See Appendix “B” for a list of equivalent court levels for each province and territory.)

The Consent to the Transfer of Charges⁶ should include the following:

1. a description of the offence, including the name of the substance if an illegal substance is involved;
2. the date and place where the offence is alleged to have occurred;
3. a reference to the accused's undertaking to plead guilty;
4. the name and current location of the accused; and
5. the signature of the FPS Director of the originating Regional Office.

Besides the Consent to the Transfer, the “receiving” court generally requires the following documents:

1. the original information/indictment sworn in respect of the offence(s);
2. a summary of the facts alleged in support of the charge(s);
3. a copy of the accused's criminal record (if any);
4. a copy of the accused's application for waiver;
5. a copy of the Certificate of Analyst and the Notice of Intention, if the charge(s) is under the Controlled Drugs and Substances Act (if necessary); and
6. a copy of the Notice to Seek Greater Punishment (if applicable) and other documents associated with impaired driving offences, if the charge(s) is under section 253 of the Criminal Code.

To ensure that the receiving court acquires these documents, the Regional Office in the originating jurisdiction must ensure that:

1. the clerk of the originating court is asked to transfer the information/indictment to the receiving court;
2. Crown counsel appearing in the receiving court obtains a prosecution brief including sufficient particulars about the offence to support the Crown's case and to enable the court to accept a plea of guilty;
3. Crown counsel appearing in the receiving court receives a copy of any correspondence or notes made by the counsel previously handling the file about any agreement with defence counsel on sentencing submissions; and
4. the investigating agency in the originating jurisdiction is advised of the transfer.

21.4 Additional Matters

For an inter-provincial waiver of charges, the receiving Regional Office should advise the originating Regional Office of the date the accused pleaded guilty and the sentence imposed. Upon receiving this information, the originating office should advise the investigative agency.

Where the accused fails to appear in the receiving court or refuses to plead guilty, the Regional Office which authorized the waiver must arrange for the clerk of the receiving court to return the information to the originating court. The accused must then re-appear before the originating court. If the accused fails to appear before the originating court, a warrant should be requested.

21.5 References

R. v. Parisien (1971), 3 C.C.C. (2d) 433 (B.C.C.A): It is in the interest of the public that justice be speedily administered and that all known charges against an accused be disposed of as early as possible. Where the authorities of a province in which there are outstanding charges against an accused know that the accused is facing other charges or is imprisoned in another province, the authorities in the first province should take steps to ensure that the accused is aware of the outstanding charges. This would allow the accused to take advantage of subsection 478(3) of the Criminal Code.

R. v. Phillip (1989), 51 C.C.C. (3d) 488 (B.C.S.C.): The provincial court is a statutory court and there is no statutory or common law authority in a provincial court to stay execution of out-of-province warrants.

R. v. Fleming (1992), 72 C.C.C.(3d) 133 (Man.Q.B.): The Courts will not interfere with the Attorney General’s refusal to consent to a transfer unless it is arbitrarily exercised.

21.6 Appendix A

APPLICATION FOR WAIVER OF CHARGES

UNDER SUBSECTION 478(3) or SECTION 479 OF THE CRIMINAL CODE

DATE

I, [name of accused] hereby advise that I am in custody in [institution, city, province or territory] (or I presently reside at [street, city, province or territory]). I wish to avail myself of the provisions of subsection 478(3) [or section 479] of the Criminal Code in respect of the following outstanding charge(s) against me:

[list charge(s) with full particulars as to date, place, etc.]

I wish to have the above charges transferred to [level of court, city, province or territory] from [level of court, city, province or territory] in order that I may plead guilty to the charge(s) in accordance with subsection 478(3) (or section 479) of the Criminal Code.

__________________________

(Applicant’s signature)

21.7 Appendix B

EQUIVALENT COURT OF EACH PROVINCE AND TERRITORY

Province/ Territory	Provincial Court	Superior Court	Youth Court
Alberta	Provincial Court (Criminal Division)	Court of Queen’s Bench	Provincial Court (Family and Youth Division)
British Columbia	Provincial Court	Supreme Court	Youth Court
Manitoba	Provincial Court	Court of Queen’s Bench	Provincial Court (Youth Court)
New Brunswick	Provincial Court	Court of Queen’s Bench	Provincial Court (Youth Court)
Newfoundland	Provincial Court	Supreme Court, Trial Division	Provincial Court (Youth Court)
Nova Scotia	Provincial Court	Supreme Court	Provincial Court (Family Division)
Ontario	Ontario Court of Justice	Superior Court of Justice	Youth Court
Prince Edward Island	Provincial Court	Supreme Court Trial Division	Youth Court
Quebec	Court of Quebec (Criminal and Penal Division)	Superior Court of Quebec	Court of Quebec(Youth Division)
Saskatchewan	Provincial Court	Court of Queen’s Bench	Youth Court
Yukon Territory	Territorial Court	Supreme Court	Youth Court
Northwest Territories	Territorial Court	Supreme Court	Youth Court
Nunavut	Court of Justice	Court of Justice	Court of Justice (Youth Court)

21.8 Appendix C

CONSENT TO THE TRANSFER OF CHARGES

I have been informed by [name of defence counsel] that [name of accused] has the following charge(s) outstanding against her/him in the _____________[name of province or territory]

[list charge(s) with full particulars as to date, place, etc.]

I have further been informed that [name of accused] is incarcerated [resides] at [location] and desires, in accordance with subsection 478(3) (or section 479) of the Criminal Code, to transfer this charge(s) to [level of court, city, province or territory] from [level of court, city, province or territory] in order to plead guilty to the charge(s);

I consent to [name of accused] appearing before a Judge in [level of court, city, province] to signify her/his consent to plead guilty and to plead guilty to the charge(s).

DATED at the City of ________ in the Province of /or Territory of ________ , this ____day of ______ , ___ .

[name of the Attorney General of Canada],

Attorney General of Canada,

per: (signature of FPS Director)

21.9 Appendix D - F/P/T Protocol on the Inter-Provincial Transfer of Criminal Charges

This protocol addresses the definition of responsibilities and accountability between transferring and recipient provinces, territories, and the Federal Prosecution Service under s.478 of the Criminal Code.

Statement of Principle

It is understood that an originating jurisdiction, in agreeing to transfer of a charge to another, is effectively waiving control over that charge, subject to the provisions of this protocol.

Reduction/Withdrawal of Charges

Reduction of charges or withdrawal of multiple counts (i.e. s.334/s.355; s.253(a); s.253(b)) should be delineated by the originating jurisdiction prior to transfer. The receiving jurisdiction should consult with the originating jurisdiction regarding any proposed reduction or withdrawal of a transferred charge.

Sentencing Representations to the Court

While the receiving jurisdiction will take into consideration any recommendations as to sentence offered by the originating jurisdiction, the position to be taken on sentencing will be determined by the receiving jurisdiction [in accordance with the sentencing regime of the receiving jurisdiction]. The Crown in the originating jurisdiction should communicate to defence counsel and unrepresented applicants for transfers in the originating jurisdiction that any recommendation on sentence agreed to before transfer will not be binding in the receiving jurisdiction.

The Decision to Appeal

The decision to appeal a sentence rests with the receiving jurisdiction. That jurisdiction may seek input from the originating jurisdiction in this regard, but shall be guided by the principles and ranges, as established by that jurisdiction's appellate courts.

Limitation on Transfer Requests

Generally, only one request for the transfer of charges between jurisdictions will be considered, subject to any exceptional circumstances which may exist. This should be communicated to applicants for transfer by the originating jurisdiction.

Victims/Victim Impact Statements

In considering whether or not to transfer a charge, the originating jurisdiction must consider the interests of the victim, as well as the offender. Should the Crown in the originating jurisdiction receive an indication from the victim that he/she wishes to participate in person in the sentencing proceeding, this position should be considered prior to transferring the criminal charge. Where a charge is transferred, Victim Impact Statements which have been prepared will be provided in separate sealed envelopes to the receiving jurisdiction along with the charges and other related documentation.

Where the matter is sensitive and has significant public interest and concern, the originating jurisdiction should advise victims that the matter is being waived and that the ultimate control over the filing of Victim Impact Statements will be subject to the policies and practices of Crown counsel in the receiving jurisdiction. Victims in these circumstances will be provided a telephone number or other contact means to reach the Crown in the receiving jurisdiction in order to express their concerns about the filing of victim impact information. Otherwise, the filing of victim impact information should be at the discretion of the receiving Crown, with the benefit of recommendations from the originating jurisdiction but based on the receiving jurisdiction's policies and practices.

Documentation

All receiving jurisdictions will attempt to provide certified copies of sentencing documentation to the originating jurisdiction.

Determination of the Facts

Crown counsel in the originating jurisdiction should ensure that a summary of the facts is included in the documentation transferred to the receiving jurisdiction. Save in exceptional circumstances, Crown counsel in the receiving jurisdiction, in making representations to a Court, should not vary from the facts as determined by the Crown in the originating jurisdiction. This protocol does not provide for witnesses to travel from the originating jurisdiction to the receiving jurisdiction to establish the facts. Where it is proposed to vary from the facts as submitted by the originating jurisdiction, Crown Counsel in the receiving jurisdiction is encouraged to contact the Crown in the originating jurisdiction. A dispute as to the facts which cannot be resolved by Crown counsel in the receiving jurisdiction will result in the return of the file to the original jurisdiction for its attention.

Charges Under the Controlled Drugs and Substances Act

Currently, the Federal Prosecution Service, New Brunswick, Quebec, and Alberta [with respect to proceedings respecting youth, only] undertake the prosecution of CDSA charges. These jurisdictions may refer such charges to either a provincial prosecuting agency which undertakes such prosecutions, or to the FPS for disposition.

Where these matters fall within the prosecutorial responsibility of the Attorney General of Canada, prosecutors or standing agents engaged by the Federal Prosecution Service will generally conduct such transferred proceedings in the receiving jurisdiction, unless the FPS opts to request the involvement of a provincial prosecution service.

Administration

All jurisdictions are encouraged to have one office to coordinate transfers to and from that jurisdiction. In any jurisdiction where this is not feasible, that jurisdiction will provide all jurisdictions with a list of those individuals within that prosecution service who are responsible for transfer of criminal charges.

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Date Modified:

2008-12-24