For instance, if I am arrested and charged for crimes A, B, C.

Then the only possible outcomes for which I can be found guilty are some combination of those crimes - such as A, B, C or A, B or just A, correct?

There would never be a scenario where the charges of A, B, C are dismissed mid-trial and I am convicted of X, Y, Z instead, right?

If the prosecutors want to pursue different charges against me, would they need to initiate a new case, or can they simply replace the original charges with new ones?

1 Answer 1


Amending the indictment

Section 601 of the Criminal Code allows a court to amend the indictment to conform to the evidence that has come out in trial.

In making the decision to amend, the court should consider whether the accused has been prejudiced in their defence by any omission and whether the amendment can be made without any injustice being done. For example, if the accused had already started to present their defence, based on the understanding that they were charged with X, but in doing so they hampered a potential defence with respect to not-yet-charged Y, it would likely be an injustice to amend the indictment to charge Y. Usually, the amendment is to alter the particularization of the charge (e.g. broadening the charge from an assault of a specific individual to an assault of a "female person": R. v. Ferguson-Cadore, 2020 ONSC 7094).

But there is also limited case law suggesting it is okay to swap in an entirely new charge (R. v. Bidawi, 2018 ONCA 698; R. v. Irwin (1998) 123 C.C.C. (3d) 316: "I see no useful purpose in absolutely foreclosing an amendment to make a charge conform to the evidence simply because the amendment will substitute one charge for another").

So, the final convictions do not need to be a subset of the initial indictment, but where there is a deviation, it is because a subsequent amendment has been made.

Lesser included offences

There is also the possibility that one would be convicted of a "lesser included" offence. The indictment is understood to include offences that are lesser included offences (s. 662). E.g a charge for aggravated assault includes the possibility of conviction for plain assault even if not explicitly stated.

  • Could you explain what "accused has been prejudiced in their defense by any omission and whether the amendment can be made without any injustice being done" means to a lay person?
    – AlanSTACK
    Nov 30, 2022 at 18:04
  • 2
    @AlanSTACK: The defense will try to build a narrative to show that the defendant is innocent. If "surprise" charges are added in the middle or end of the trial, the defense won't have a chance to weave mitigating evidence into this narrative (and calling witnesses back to the stand will render the defense less coherent). Also, the opening statement, which may hint at which types of testimony deserves special attention, won't address the "surprise" charges, so the jury may unintentionally ignore mitigating evidence as irrelevant.
    – Brian
    Nov 30, 2022 at 18:56
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    FWIW, Canadian law on this point is for practical purposes very similar to U.S. law, except that in federal criminal cases, the indictment requirement has U.S. Constitutional dimensions (something that is not true in U.S. state courts unless a state constitution requires it).
    – ohwilleke
    Dec 1, 2022 at 18:33

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