Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Election deemed to be waived

• 598 (1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless

  • (a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or

  • (b) the Attorney General requires pursuant to section 568 or 569 that the accused be tried by a court composed of a judge and jury.

• Marginal note:Election deemed to be waived

  (2) An accused who, under subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 or 536.1 to be tried without a jury by a judge of the court where the accused was indicted and section 561 or 561.1, as the case may be, does not apply in respect of the accused.

Change of Venue

Marginal note:Reasons for change of venue

• 599 (1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if

  • (a) it appears expedient to the ends of justice; or

  • (b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held.

• (2) [Repealed, R.S., 1985, c. 1 (4th Supp.), s. 16]

• Marginal note:Conditions respecting expense

  (3) The court or judge may, in an order made on an application by the prosecutor under subsection (1), prescribe conditions that he thinks proper with respect to the payment of additional expenses caused to the accused as a result of the change of venue.

• Marginal note:Transmission of record

  (4) Where an order is made under subsection (1), the officer who has custody of the indictment, if any, and the writings and exhibits relating to the prosecution, shall transmit them forthwith to the clerk of the court before which the trial is ordered to be held, and all proceedings in the case shall be held or, if previously commenced, shall be continued in that court.

• Marginal note:Idem

  (5) Where the writings and exhibits referred to in subsection (4) have not been returned to the court in which the trial was to be held at the time an order is made to change the place of trial, the person who obtains the order shall serve a true copy thereof on the person in whose custody they are and that person shall thereupon transmit them to the clerk of the court before which the trial is to be held.

Marginal note:Order is authority to remove prisoner

600 An order that is made under section 599 is sufficient warrant, justification and authority to all sheriffs, keepers of prisons and peace officers for the removal, disposal and reception of an accused in accordance with the terms of the order, and the sheriff may appoint and authorize any peace officer to convey the accused to a prison in the territorial division in which the trial is ordered to be held.

Amendment

Marginal note:Amending defective indictment or count

• 601 (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.

• Marginal note:Amendment where variance

  (2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and

  • (a) a count in the indictment as preferred; or

  • (b) a count in the indictment

    • (i) as amended, or

    • (ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.

• Marginal note:Amending indictment

  (3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

  • (a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;

  • (b) that the indictment or a count thereof

    • (i) fails to state or states defectively anything that is requisite to constitute the offence,

    • (ii) does not negative an exception that should be negatived,

    • (iii) is in any way defective in substance,

    and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or

  • (c) that the indictment or a count thereof is in any way defective in form.

• Marginal note:Matters to be considered by the court

  (4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

  • (a) the matters disclosed by the evidence taken on the preliminary inquiry;

  • (b) the evidence taken on the trial, if any;

  • (c) the circumstances of the case;

  • (d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and

  • (e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

• Marginal note:Variance not material

  (4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

  • (a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or

  • (b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

• Marginal note:Adjournment if accused prejudiced

  (5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

• Marginal note:Question of law

  (6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.

• Marginal note:Endorsing indictment

  (7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.

• Marginal note:Mistakes not material

  (8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.

• Marginal note:Limitation

  (9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 50, 51 and 53.

• Marginal note:Definition of court

  (10) In this section, court means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on indictment.

• Marginal note:Application

  (11) This section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require.