3.9 Waiver of Charges

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

Offences are normally tried in the judicial district where they are alleged to have been committed.Footnote 1 This guideline sets out the policy on when the Director of Public Prosecutions (DPP) will consent to waivers of charges (i) from one judicial territorial jurisdiction to another in the same province (“intra-provincial” waivers of charges, s. 479 of the Criminal Code (Code)) and (ii) from one province to another (“inter-provincial” waivers, s. 478(3) of the Code).

2. Statement of Policy

Both inter-provincial and intra-provincial waivers must meet the following requirements for consent from the DPP:

Upon the request of the accused, together with a written undertaking to plead guilty, the DPP, or his or her delegate, generally will consent to a waiver of charges from one jurisdiction to another if the transfer of charges is in the public interest.Footnote 3 The following considerations, among others, are relevant in assessing public interest:

  1. Does the accused have substantial ties with the jurisdiction to which the charge would be waived (the “receiving” jurisdiction)?
  2. Are the offences of such a nature that we should expect that the victim (and/ or members of the victims family) may want to participate in or attend the sentencing hearing?
  3. Would the waiver create inconveniences for the victim (and/ or for members of the victims’ family) to attend or participate in the sentencing hearing?
  4. 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)?
  5. Is there a significant public interest in the case such that it ought to be disposed of in the community where the offence occurred?
  6. Is a waiver likely to result in undue delay, or has undue delay already occurred?
  7. Will splitting up proceedings cause undue complexity, for example where outstanding forfeiture hearings or other ancillary proceedings remain in the originating jurisdiction?
  8. 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?
  9. 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 Gardiner?Footnote 4

3. ProcedureFootnote 5

An accused requesting a waiver must deliver a signed Application for Waiver,Footnote 6 to the appropriate Public Prosecution Service of Canada (PPSC) Regional Office,Footnote 7 along with a written undertaking to plead guilty in the receiving jurisdiction to the charge(s) for which waiver is sought. The Application for Waiver must state the following:

  1. the full name of accused;
  2. the current location of the accused;
  3. a description of the offence and a copy of the relevant information(s), to make clear which charge(s) is the subject of the request;
  4. the name of the originating and receiving judicial districts; and
  5. 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.Footnote 8

If the waiver request is approved, Crown counsel must prepare a written Consent to the Transfer of ChargesFootnote 9 which must 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 Chief Federal Prosecutor (CFP) (inter-provincial waivers) or Crown counsel (intra-provincial waivers) of the originating Regional Office.

In addition to the Consent to the Transfer, the Regional Office in the originating jurisdiction must transmit to the “receiving” court 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 undertaking to plead guilty;
  6. a copy of the Certificate of Analyst and the Notice of Intention, if the charge(s) is under the Controlled Drugs and Substances Act (CDSA) (if necessary); and
  7. 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 s. 253 of the Code.

To ensure that the receiving court receives the above documents, the Regional Office in the originating jurisdiction must:

  1. ask the clerk of the originating court to transfer the information/indictment to the receiving court;
  2. provide Crown counsel appearing in the receiving court with 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. provide Crown counsel appearing in the receiving court with a copy of any correspondence or notes made by the counsel previously handling the file in respect of any agreement with defence counsel on sentencing submissions; and
  4. inform the investigating agency in the originating jurisdiction of the transfer.

The CFP in the originating jurisdiction, or persons the DPP has specifically delegated for this purpose, may consent to the waiver of charges on behalf of the DPP.Footnote 10 Where the waiver request is refused, as a general rule, the Regional Office should provide written reasons to counsel for the accused, or to the accused personally if he or she has not retained counsel.

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.

In serious cases involving victims, Crown counsel should notify victims in advance of the pending transfer. While the decision whether to waive is ultimately that of the DPP or his or her delegate, the CFP or Crown counsel should take into consideration the interests of the victim in making the decision.

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 (Appendix “C”).

4. Outstanding Charges in Different Locations

It is in the public interest that justice be administered speedily and that all known charges against an accused be disposed of as early as possible. Whenever practicable, Crown counsel should ask the appropriate police authorities to verify whether an accused has any outstanding charges in other jurisdictions. Where Crown counsel knows that the accused is facing additional charges in another jurisdiction, he or she should advise defence counsel of the outstanding charges. In the case of interprovincial charges, the accused may wish to take advantage of s. 478(3) of the Code.Footnote 11 Where charges to which the accused has not submitted an Application for Waiver are identified, a remand may be necessary so that the accused can consider whether to amend the Application for Waiver to include consent to plead guilty to the additional charges.

Where the accused has outstanding charges in different locations within the same province, waiver may not be appropriate unless the accused agrees to waive all of the charges.Footnote 12

Crown counsel and defence counsel in the originating jurisdiction are to settle any factual disagreements with respect to the allegations underpinning the offence(s) to which the accused will plead guilty prior to transferring the file. Transfers should not require formal hearings on the facts in the receiving jurisdiction.

5. Post-Waiver

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.

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 in writing 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.Footnote 13

Where an accused who has consented to the waiver of charge to another jurisdiction “refuses to admit the factual allegations” underlying the offence, the indictment should be returned to the province where the offence was committed.Footnote 14

Appendix A – Application for Waiver of Charges

APPLICATION FOR WAIVER OF CHARGES
UNDER SECTION 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 section 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, name of the receiving judicial district] from [level of court, name of the originating judicial district] in order that I may plead guilty to the charge(s) in accordance with section 478(3) (or section 479) of the Criminal Code.



__________________________
(Applicant’s signature)

Appendix B – 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 section 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 ______ , ___ .



______________________________
(Chief Federal Prosecutor’s or Crown counsel’s signature)

Appendix C – 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 PPSC under s. 478 of the Criminal Code (of the Code).

(a) 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.

(b) Reduction/Withdrawal of Charges

Reduction of charges or withdrawal of multiple counts (i.e., ss. 334, 355, 253(a) and 253(b) of the Code) 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.

(c) 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.

(d) 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.

(e) 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.

(f) Victims/Victim Impact Statements

In considering whether 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.

(g) Documentation

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

(h) 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.

(i) Charges under the Controlled Drugs and Substances Act (CDSA)

Currently, the PPSC and the provincial prosecution agencies of 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 PPSC for disposition.

Where these matters fall within the prosecutorial responsibility of the Director of Public Prosecutions, on behalf of the Attorney General of Canada, prosecutors or standing agents engaged by the PPSC will generally conduct such transferred proceedings in the receiving jurisdiction, unless the PPSC opts to request the involvement of a provincial prosecution service.

(j) 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.

Appendix D – Equivalent Court of Each Province and Territory

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 and Labrador Provincial Court Supreme Court, Trial Division Provincial Court (Youth Court)
Nova Scotia Provincial Court Supreme Court Provincial Court (Family Division)
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 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)

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