|
Criminal - Elections
MORE CASES
Part 2
. R. v. Varennes
In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule.
Here the court considers these Charter and inherent jurisdiction exceptions to this statutory judge-jury elections rule:B. The Trial Judge Had Jurisdiction To Order a Judge-Alone Trial
[37] Under ss. 471 and 473 of the Criminal Code, all trials for offences listed in s. 469, including murder, must take place in a superior court before a judge and jury, unless the accused and Attorney General consent to a trial by judge alone. Section 473(1) states:473 (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction. [38] The key question in this appeal is: on what basis can a superior court judge order a judge-alone trial for an offence listed in s. 469, notwithstanding the Attorney General’s refusal to consent?[2]
[39] There are two recognized routes through which a trial judge can override a prosecutorial decision. First, superior courts have inherent jurisdiction to “control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner” (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18; see also R. v. Kahsai, 2023 SCC 20, at para. 36). Courts have inherent jurisdiction to review any prosecutorial decision for abuse of process. For decisions falling outside the core of prosecutorial discretion, a court may be able to review on a wider basis (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36). Second, judges have a constitutional duty to grant meaningful remedies in response to the violation of Charter rights. Courts can always review a prosecutor’s decision for compliance with the Charter (Anderson, at para. 45). Either framework — inherent jurisdiction or Charter — could allow a superior court to order a judge-alone trial in the circumstances of a given case (see, e.g., R. v. McGregor (1999), 1999 CanLII 2553 (ON CA), 43 O.R. (3d) 455 (C.A.)).
[40] My analysis continues as follows. First, I shall explain why the Attorney General’s decision under s. 473(1) of the Criminal Code is not core prosecutorial discretion and therefore could be reviewed under a superior court’s inherent jurisdiction on a standard less than abuse of process. Second, I shall address how the Crown’s refusal to consent to a judge-alone trial can be overridden by a court using the framework for ordering remedies under s. 24(1) of the Charter in anticipation of a rights violation. I end by applying that framework to the factual findings made by the trial judge.
(1) A Decision Under Section 473(1) Does Not Involve Core Prosecutorial Discretion
[41] The issue debated in this case — and at the appellate court level over three decades — is whether the Crown’s refusal to consent to a judge-alone trial under s. 473(1) lies within the core exclusive jurisdiction of the Attorney General and can only be reviewed under a court’s inherent jurisdiction to remedy an abuse of process. To resolve that debate, I turn to first principles and our jurisprudence.
(a) The Constitutional Role of the Attorney General
[42] The doctrine of core prosecutorial discretion derives from the Attorney General’s constitutional role as Chief Law Officer of the Crown (Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 45; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 34). The Attorney General has exclusive constitutional responsibility to determine whether to bring the weight of the state to bear in criminal prosecutions and is the “first representative of the Sovereign in the courts, in whose name nearly all criminal proceedings are conducted” (J. L. J. Edwards, The Law Officers of the Crown (1964), at p. 2; see also Wilkes v. The King (1768), Wilm. 322, 97 E.R. 123; Krieger, at para. 24; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at pp. 621-23).
[43] The provincial Attorneys General act under the provinces’ responsibility under s. 92(14) of the Constitution Act, 1867 for the administration of justice (see, e.g., Act respecting the Ministère de la Justice, CQLR, c. M-19, s. 4; Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5). In Quebec, the legislature has delegated the prosecutorial aspect of the Chief Law Officer role to the Director of Criminal and Penal Prosecutions, who serves “[u]nder the general authority” of the Attorney General of Quebec as their lawful deputy (Act respecting the Director of Criminal and Penal Prosecutions, CQLR, c. D-9.1.1, s. 1; see also Godbout v. R., 2017 QCCA 569, at para. 13). Crown prosecutors — here the prosecutors of the Director of Criminal and Penal Prosecutions — serve as agents of the Attorney General and bear the delegated role of the Chief Law Officer in individual prosecutions (Criminal Lawyers’ Association, at para. 37).
[44] The Attorneys General exercise their constitutional Chief Law Officer function independently of partisan considerations and make prosecutorial decisions without interference from their cabinet colleagues (see generally Krieger, at para. 30; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 47). Individual Crown prosecutors must also consider the broader public interest throughout the conduct of criminal proceedings (R. v. Thursfield (1838), 8 Car. & P. 269, 173 E.R. 490; R. v. Puddick (1865), 4 F. & F. 497, 176 E.R. 662). In Canada, Rand J. famously explained the Crown’s responsibilities in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24:It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. More recently, this Court has held that it is a principle of fundamental justice within s. 7 of the Charter that prosecutors must serve the public interest and not act “for the good of the government of the day” (R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at paras. 26-28).[45] When a prosecutor exercises discretion, they are presumed to do so in good faith, consistent with their Boucher responsibilities (Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 95). To respect the separation of powers and prerogatives of the Attorney General, courts must adopt a posture of deference whenever reviewing a decision by a prosecutor or considering making an order that would have the effect of overriding a prosecutor’s decision.
(b) Core Prosecutorial Discretion
[46] Given the distinct constitutional role and responsibilities of the Attorney General as Chief Law Officer, this Court has recognized that certain decisions by Crown prosecutors, as their agents, must be immune from a court’s inherent judicial review jurisdiction except in cases of an abuse of process. These decisions lie within the inherent prosecutorial jurisdiction of the Attorney General and go to “the nature and extent” of the prosecution of criminal offences that come before the judge (Krieger, at para. 47). These decisions constitute “core prosecutorial discretion”.
[47] The use of the word “core” to qualify prosecutorial discretion does not imply that this is a narrow category (Anderson, at para. 41). Rather, core prosecutorial discretion encompasses prosecutorial decisions derived from the core constitutional authority inherent to the Attorney General (Krieger, at paras. 43 and 49). Anderson confirmed Krieger and the criteria that applied to such discretion. Although Anderson suggested that the use of the word “core” had caused some confusion, in my view it helpfully distinguishes discretionary decisions that engage the inherent jurisdiction of the Chief Law Officer from other discretionary decisions that prosecutors make in the conduct of proceedings. Indeed, this Court has continued to refer to “core prosecutorial discretion” since Anderson (see, e.g., Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 62, per Moldaver J.; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 161, per Moldaver J.; Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 S.C.R. 607, at paras. 126-30, per Côté J.). Parliament has codified some core prosecutorial decisions in statute (Anderson, at para. 44). But what qualifies these decisions as core prosecutorial discretion is not their statutory nature, but their connection to the Attorney General’s inherent constitutional function.
[48] In Krieger, this Court wrote that what unites instances of core prosecutorial discretion “is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for” (para. 47 (emphasis in original); see also R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 30). Both Krieger and Anderson note that core prosecutorial discretionary decisions impact the “nature and extent” of the criminal proceedings. They confirm that such decisions do not encompass those that impact how the proceedings will be conducted (see, e.g., Anderson, at para. 60, citing R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83). Rather, they involve decisions that fall outside the judiciary’s role in adjudicating matters on their merits. Anderson provides a list of examples of core prosecutorial discretion: whether to repudiate a plea agreement, to pursue a dangerous offender application, to prefer a direct indictment, to charge multiple offences, to negotiate a plea, to proceed summarily or by indictment, and to initiate an appeal (para. 44). Anderson also determined that a decision on whether to provide a notice that would increase penal jeopardy is an instance of core prosecutorial discretion (para. 63).
[49] What is common to these examples is that they directly impact the nature and extent of the criminal jeopardy to which the accused will be subjected. These decisions are within the core constitutional jurisdiction of the Attorney General acting as the Chief Law Officer. Judicial deference to these decisions therefore respects the separation of powers and the constitutional role of the Attorney General (Krieger, at paras. 45-46). It also has the effect of serving the public good (Miazga, at para. 47).
[50] While core prosecutorial discretion demands strong deference, it does not demand absolute immunity from review.
[51] This Court has long recognized that the actions of the executive are subject to judicial review. This principle is most often invoked in judicial review of the executive’s exercise of authority delegated by the legislature. But this Court has also held that the judiciary can review the executive’s exercise of its inherent constitutional authority and prerogatives and order remedies for arbitrary, abusive, or unconstitutional acts (R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 131-37; Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170; Air Canada v. British Columbia (Attorney General), 1986 CanLII 2 (SCC), [1986] 2 S.C.R. 539, at p. 545; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at paras. 36-37).
[52] The abuse of process doctrine reflects the necessarily high threshold for the judiciary to invoke its inherent jurisdiction and intrude on the Attorney General’s core prosecutorial discretion.
[53] The doctrine of abuse of process applies in various fields of law and “engages the inherent power of the court to prevent misuse of its proceedings in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute” (Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, at paras. 33-36). Courts must remedy an abuse of process because to allow trials to proceed in such circumstances “would tarnish the integrity of the court” (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).
[54] In the criminal law context, abuse of process targets egregious conduct that threatens an accused’s right to a fair trial or undermines the integrity of the justice system (R. v. Brunelle, 2024 SCC 3, at para. 27; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31). This Court has called the threshold for finding an abuse of process in a criminal case “notoriously high” and stated that “successful reliance upon the doctrine will be extremely rare” (Nur, at para. 94; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 42). That said, abuse of process can exist even absent prosecutorial misconduct. I agree with the intervener the Attorney General of Ontario that this Court has recognized abuses of process in situations of both improper intent and abusive effects (I.F., at paras. 12-13; see also R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657; Babos, at para. 37).
[55] In sum, where the Attorneys General or their agents make decisions that directly affect the nature and extent of the criminal jeopardy a person may face, these constitute decisions of core prosecutorial discretion and a court may not interfere under its inherent jurisdiction except to remedy an abuse of process.
[56] In addition to decisions directly affecting the jeopardy of an accused, prosecutors make a wide variety of discretionary decisions every day that do not fall within core prosecutorial discretion. Krieger and Anderson recognized that prosecutors make decisions relating to “tactics or conduct before the court”, which cover a wide range of decisions within the proceedings, including which charges to prioritize for limited court dates, what witnesses to call, what questions to ask, and how to present an opening or closing address — decisions that do not directly change the criminal jeopardy an accused may face (Krieger, at para. 47; Anderson, at paras. 57-61; see also R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 14 and 21). The term “tactics” does not mean that these discretionary decisions are unimportant. Rather, Krieger and Anderson used “tactics or conduct before the court” to reflect that these discretionary decisions do not attract the same separation of powers imperative as core prosecutorial discretion, since they do not tread on the core of the constitutional role of the Chief Law Officer.
[57] While courts may review or override non-core prosecutorial discretion on a less demanding standard than an abuse of process, deference will generally still be warranted (Anderson, at paras. 59-61). Like any litigant, the Crown will necessarily know many circumstances outside the purview of the trial judge. As made clear by this Court in Boucher, the Crown must use its knowledge to act in the public interest. And, as a practical matter, intrusive judicial oversight of prosecutorial decision making would grind the criminal justice system to a halt (Smythe v. The Queen, 1971 CanLII 831 (SCC), [1971] S.C.R. 680, at p. 686; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 410-11). Because these non-core decisions cover a broad range — from the everyday issues that form part of a litigant’s conduct of a trial to decisions authorized under statute — the standard for a judge to override a Crown decision will vary with the circumstances. The precise standard in a given case will depend on the nature of the Crown conduct, the presence or absence of statutory authority, the impact on trial fairness, and any other relevant interest (see, e.g., R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at paras. 61-62; R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71, at paras. 19-26; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 36-37). As I shall explain, the fact that a non-core prosecutorial decision is made pursuant to statutory authority will require that deference feature prominently in the analysis.
(c) A Decision Under Section 473(1) of the Criminal Code Does Not Fall Within Core Prosecutorial Discretion
[58] This is a question of first instance for our Court. For at least 30 years, appellate courts have differed on whether a Crown’s decision to refuse to proceed by judge alone — under s. 473(1) or similar provisions — engages core prosecutorial discretion, and on which standard to apply when reviewing the decision. Some cases have clearly characterized a Crown’s refusal to consent as core prosecutorial discretion (R. v. E. (L.) (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.); R. v. Ng, 2003 ABCA 1, 173 C.C.C. (3d) 349; R. v. Effert, 2011 ABCA 134, 276 C.C.C. (3d) 487; R. v. Matthews, 2022 ABCA 115, 41 Alta. L.R. (7th) 30; Lufiau (2022)). Others have not characterized the decision and have simply stated that the threshold for overriding the Crown’s decision will be high (R. v. Khan, 2007 ONCA 779, 230 O.A.C. 179, at paras. 13-16; R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431). Still others have held that the decision falls outside of core prosecutorial discretion altogether (R. v. R. (J.S.), 2012 ONCA 568, 112 O.R. (3d) 81, at para. 127; St-Pierre v. R., 2016 QCCA 545, at para. 25). All have recognized that the standard is demanding.
[59] In this case, the Court of Appeal followed the line of jurisprudence that characterized the Crown’s refusal to consent to a judge-alone trial as core prosecutorial discretion. The court then asked whether the decision was an abuse of process because of its direct or anticipated effects on the right of the accused (C.A. reasons, at para. 27). It concluded that the trial judge erred in law by characterizing the decision as falling outside of core prosecutorial discretion and by using a broader standard of review than abuse of process (para. 24).
[60] With respect, I disagree. A decision under s. 473(1) affects the identity of the fact finder and the mode of trial. It does not impact the nature and extent of the criminal jeopardy facing the accused. It relates to how the proceedings will be conducted and not to whether a prosecution will be brought, or what the prosecution will be for. While the jury system is obviously a key feature of our criminal justice system, a trial by judge alone or a trial by judge and jury are two comparable routes to a fair trial of the charges laid by the prosecutor. As such, the Attorney General’s decision under s. 473(1) does not engage their core, inherent constitutional role as Chief Law Officer of the Crown.
[61] However, the Attorney General’s decision is made pursuant to statute, which engages the separation of powers imperative of parliamentary sovereignty (Canada (Attorney General) v. Power, 2024 SCC 26, at para. 49). Parliament has exclusive jurisdiction to make policy decisions relating to criminal procedure (Criminal Lawyers’ Association, at para. 28; Constitution Act, 1867, s. 91(27)). Courts must be respectful of Parliament’s legislative decision, made pursuant to its constitutional authority, to vest these responsibilities in prosecutors and the accused rather than the courts.
[62] This said, courts have a constitutional duty to review the executive’s exercise of delegated authority for legality and compliance with the Constitution (Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, at p. 360; Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 140). Further, statutes cannot abrogate the inherent jurisdiction of a superior court, which includes jurisdiction to ensure that trials operate fairly and efficiently (Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291, at paras. 65 and 68, per Côté and Martin JJ., at paras. 232 and 234, per Wagner C.J., and at para. 301, per Abella J.). At a minimum, courts can still review decisions taken by prosecutors under delegated statutory authority for abuse of process.
[63] Here, Parliament determined that the mode of trial would be judge and jury, unless both the accused and the Attorney General consent to judge alone. It is not appropriate in this case to decide generally how a superior court, acting under its inherent jurisdiction, should approach trial fairness when faced with a statutory decision by the Crown that does not fall within the core of prosecutorial discretion. The parties and interveners focused their arguments on whether s. 473(1) engaged core prosecutorial discretion. The Crown made no submissions on what standard to apply if the decision fell outside the core. The appellant relied on the trial judge’s selection of “unfair or unreasonable” as the basis to override the decision.
[64] I need not decide what precise standard would be required for a court to review, under inherent jurisdiction, such a non-core prosecutorial decision made pursuant to statute, in the absence of full argument from the parties, given that the remedial jurisdiction under the Charter also applies in this case.
[65] In addition to inherent jurisdiction, the appellant invoked s. 24(1) of the Charter in his motion. The trial judge’s reasons for ordering a judge-alone trial related primarily to the risk of unreasonable delay.
[66] Delay that does not constitute an abuse of process can still violate s. 11(b) of the Charter. A trial judge’s discretion to remedy unreasonable delay under s. 24(1) of the Charter is therefore broader than it is under inherent jurisdiction (see generally R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at pp. 635-36, per La Forest J.; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 45-49). I thus turn now to the framework for a trial judge’s remedial jurisdiction under s. 24(1) of the Charter. . R. v. Zock
In R. v. Zock (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here where the primary issue was "that he received ineffective assistance from his trial counsel regarding the mode of trial that was chosen".
Here the court considered 'mode of trial election' issues:[4] Election of the mode of trial is a fundamental defence decision. It is one that must be made by the accused person. The role of defence counsel in respect of that type of decision is to give competent advice and act on proper instructions, not to make the election without such instructions. Where the accused person’s right to elect the mode of trial is lost because counsel exercised it without informed instructions, a new trial may be ordered if, in the circumstances, the loss of the right to choose the mode of trial amounted to a miscarriage of justice.
[5] The appellant has shown on a balance of probabilities that he was never told by trial counsel that he had a right to a jury trial, that he never gave instructions to elect trial by judge-alone, and that the election of a judge-alone trial was made by trial counsel without the appellant’s instructions. I prefer the evidence of the appellant on these issues to that of trial counsel whose assertion that he gave undocumented advice and received undocumented instructions on the mode of trial is unsupported by any notes and is contradicted by an express statement he made to the court, after the date he says he received instructions, that he still needed instructions to elect the mode of trial.
[6] The Crown properly concedes that if the appellant was never told that he had the right to a jury trial, and a judge-alone trial was chosen without his informed instructions, trial counsel’s performance fell below the acceptable level of performance required of defence counsel.
[7] The appellant has also established, on a balance of probabilities, that had he been told of his right to elect, there is a reasonable possibility he would have chosen trial by jury. The loss of the right to elect trial by jury in this case constitutes a miscarriage of justice.
[42] Certain fundamental decisions relating to the defence of a criminal matter are the client’s to make. A number of related consequences flow from this that are germane to a claim of ineffective assistance of counsel. First, because “the right to make these decisions belongs to the client, counsel cannot make them alone”: R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at para. 49. Second, in respect of such decisions, counsel’s responsibility is to provide competent advice and act on proper instructions: R. v. K.K.M., 2020 ONCA 736, at para. 91; Trought, at para. 50. In other words, on such matters, counsel must provide advice, obtain instructions that reflect the client’s decision, and follow those instructions. Counsel would not act properly on such matters if they discerned the client’s wishes and then acted against them, or if they failed to discern the client’s wishes and acted without instructions at all: R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 247, at para. 78.
[43] The right to elect the mode of trial by waiving trial by jury, where the option is available, has long been recognized as a decision that must be made by the client: see the discussion in Trought, at paras. 46-48. The Supreme Court of Canada has confirmed that the ability to elect the mode of trial is (i) an important right, and (ii) one that should be exercised by the accused person: R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 5. Counsel may, of course, communicate the accused person’s election, after having been appropriately instructed to do so. But the election of the mode of trial is not something that counsel may exercise without any instructions to do so, because it “is one of those fundamental rights that counsel cannot take from a client and on which the client is entitled to be adequately advised by counsel”: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 18.
[44] It follows that in this case, if trial counsel failed to discuss and obtain instructions on the fundamental decision of the election of the mode of trial, the appellant will have established on a factual basis that he received ineffective assistance from trial counsel: see White, at paras. 4-6. The Crown concedes that “if the appellant was never told that he could have a jury trial, this would fall below the broad spectrum of reasonable professional judgment”.
[45] But as White makes clear, it is not enough that the appellant, through ineffective assistance of counsel, was deprived of the important right to elect the mode of trial. A new trial on the basis of ineffective assistance of counsel will only be ordered if the appellant also demonstrates that the loss of the right to elect gave rise to a miscarriage of justice: White, at para. 6. The appellant must establish a reasonable possibility that he would have acted differently if he had received effective assistance from trial counsel; in other words, he must establish a reasonable possibility that he would have elected trial by jury: White, at paras. 6-9.
....
[61] In White, the Supreme Court held that simply showing that counsel elected the mode of trial without instructions was not sufficient to warrant a new trial – the loss of the right to elect was not, on its own, the equivalent of a miscarriage of justice that made the trial process unfair. A miscarriage of justice required evidence of something more, which was lacking in White. In particular, the court pointed out that Mr. White did not say in his evidence that he would have made a different election if he had been given the choice, nor did he say that if given a new trial he would elect a mode of trial different than the one that resulted in his conviction. Analogizing to R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, a case where an accused challenged a guilty plea on the basis that he was not aware of a relevant collateral consequence, the court stated that a showing of subjective prejudice – a reasonable possibility that the accused would have behaved differently if properly advised – is necessary to establish a miscarriage of justice. . R. v. R.W.
In R. v. R.W. (Ont CA, 2023) the Court of Appeal considers the law of criminal 'elections', including that of Crown consent to a re-election:C. The Appellant’s election as to mode of trial
(1) Introduction
[5] I will discuss the law of elections in greater detail below, but in order to understand what went wrong in this case, it is necessary to briefly mention the limitations that are placed on an accused person’s ability to re-elect their mode of trial.
[6] The appellant initially elected to be tried by a court composed of a judge and a jury. At the relevant time, s. 561(1)(b) of the Criminal Code provided that the appellant had the right to re-elect to be tried by a judge of the Superior Court without a jury, as of right, until the fifteenth day after the completion of the preliminary inquiry. After that, the consent of the Crown is required.[2]
[7] In this case, the notice of re-election was not filed on time. However, on its Pre-Trial Form signed by the Crown, one day after the deadline to re-elect, the Crown answered the questions – “Is there any prospect of a re-election” and “Will the Crown consent?” – in the affirmative. By the time of the Pre-Trial Conference, the Crown had changed its mind. As explained below, the missed deadline was the fault of trial counsel; the reason for the Crown’s withdrawal of its consent to the appellant’s re-election is unknown.
....
[20] Before applying these factors, it is helpful to consider the elemental nature of the right to elect the mode of trial. It has long been recognized in Canadian criminal law that the right of an accused person to elect their preferred mode of trial is of critical importance. This view crystallized in G. Arthur Martin’s famous essay, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12 Crim. L.Q. 376 at pp. 387-388, in which he identified three decisions in a criminal case that are so fundamental that the lawyer cannot make them on behalf of their client: (1) the election as to mode of trial; (2) how to plead; and (3) whether to testify: see also R v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 17-18; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 56-57; and R. v. McDonald, 2022 ONCA 838, 164 O.R. (3d) 321, at paras. 31 and 35.
[21] In Stark, a case that also concerned an election as to the mode of trial, Lauwers J.A. described the decision as “whether to waive trial by jury where that is permissible”: at para. 17. This approach highlights the constitutional nature of the decision. As he wrote, at para. 19:Parliament has chosen to give accused who are charged with the more serious crimes a choice as to the mode of trial. That right is partly constitutionalized in s. 11(f) of the Charter, which guarantees a right to trial by jury for offences punishable by a sentence of five years or more. The exercise of the right to choose the mode of trial is integral to the court's jurisdiction over an accused and is essential to the fairness of the proceeding. [22] The Crown does not take issue with the fundamental nature of the right to elect the mode of trial. However, she submits that the same values do not attach to re-election decisions. I disagree. The right to re-elect is an extension of the original right to choose one’s mode of trial. Parliament has provided a limited right to re-visit the original election. It is part and parcel of the same fundamental decision.
....
[31] The Crown’s decision to withhold its consent to a re-election is a matter of prosecutorial discretion, reviewable on the basis of an abuse of process standard. In R. v. E.(L.), (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), Finlayson J.A. said, at p. 241: “I think that there would have to be some showing before the trial judge that the crown had exercised its discretion arbitrarily, capriciously or for some improper motive so as to invite an examination as to whether there was an abuse of process under Section 7 of the Charter” or when “constitutional considerations are engaged”: see also R. v. McGregor (1999), 1999 CanLII 2553 (ON CA), 43 O.R. (3d) 455 (C.A.), at p. 457-458, R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 83, and R. v. Ng, 2003 ABCA 1, 327 A.R. 215, leave to appeal refused [2004] S.C.C.A. No. 33, at paras. 56-68.
[32] Moreover, because the Crown is not required to provide reasons for its refusal to consent, “it is extraordinarily difficult for an accused to make out an abuse of process claim on this basis”: see Steven Penney, Vincenzo Rondinelli, and James Stribopoulos, Criminal Procedure in Canada, 3rd ed. (Toronto: LexisNexis, 2022), at §9.02.
[33] It is difficult to gauge whether the appellant’s motion would have been successful had it not been abandoned. The Crown’s change of position may have increased the appellant’s chances of success. If the motion had been brought but was unsuccessful, trial counsel’s mistake in missing the deadline would have been cemented, making the IAC claim even stronger.
[34] But the appellant should not be in a weaker position by making or acquiescing in the decision not to pursue the motion – it was predicated on erroneous legal advice. In R. v. K.M.M., 2020 ONCA 736, the court considered inadequate advice in the context of the accused person’s decision whether to testify. As Doherty J.A. said, at para. 91:An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. [Emphasis added.] The same principles apply in this case.
[35] The last factor to consider on the IAC claim is whether the appellant has established that the shortcomings in trial counsel’s representation resulted in a miscarriage of justice. As noted above, the Supreme Court of Canada in White held that the mere loss of the right to elect one’s mode of trial does not necessarily amount to a miscarriage of justice. An appellant must demonstrate subjective prejudice. The claim in White failed on this basis. As Karakatsanis J. said, “Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial.”
[36] That is not the situation here. The appellant was adamant in his desire to be tried by a court composed of a judge sitting without a jury. The Crown submits that, if he was sincere, he should have followed through with his motion, but he did not do so. But as I have explained above, the appellant was not provided with proper advice about his options to rectify the predicament created by trial counsel’s initial misstep in missing the deadline, and the Crown’s curious change of position and subsequent intransigence on the issue.
|
