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Criminal - Elections (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:[1] When an accused is charged with an indictable offence listed in s. 469 of the Criminal Code, R.S.C. 1985, c. C‐46 — including murder — the trial shall take place before a judge and jury. Section 473(1) of the Criminal Code provides an exception if both the accused and the Attorney General consent to a judge-alone trial.
[2] This appeal asks when a superior court judge can order a judge-alone trial for a murder charge, despite the prosecution’s refusal to consent under s. 473(1).
[3] The appellant, Pascal Varennes, was charged with the second degree murder of his spouse. His trial was scheduled for September 2020, during the COVID-19 pandemic. In June 2020, he requested a judge-alone trial under s. 473(1). He argued, among other reasons, that pandemic-related delays to jury trials risked breaching his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.
[4] The prosecution refused to consent to a judge-alone trial. It asserted that the public interest favoured a jury trial for a murder charge in a domestic violence context in a small community and that pandemic-related restrictions would not clearly delay the trial.
[5] The appellant filed a motion seeking an order to proceed by judge alone. Concerned that pandemic-related restrictions would likely delay the trial, the trial judge found that the Crown’s refusal to consent was [translation] “unfair or unreasonable in the circumstances” and ordered a judge-alone trial (2020 QCCS 2734, at para. 50). After trial, she acquitted the appellant of second degree murder and convicted him of manslaughter.
[6] The Crown appealed the acquittal. It argued that the trial judge applied the wrong standard in overriding its refusal to consent. The Court of Appeal of Quebec concluded that the Crown’s decision whether to consent to a judge-alone trial under s. 473(1) constitutes prosecutorial discretion, which is reviewable only for abuse of process. Finding that this high threshold was not met, the Court of Appeal declared the judge-alone trial a “nullity”, and ordered a new trial.
[7] Before this Court, the parties disagree on whether the Crown can challenge an order relating to the mode of trial in an appeal against an acquittal, and on the standard a trial judge must apply when deciding whether to order a judge-alone trial. On the first issue, I agree with the Crown that the Court of Appeal had jurisdiction to hear the appeal. On the second issue, I conclude the Court of Appeal erred by requiring proof of an abuse of process.
[8] Our law recognizes two distinct paths for superior courts to review decisions taken by prosecutors, such as a refusal to consent under s. 473(1). First, superior courts have inherent jurisdiction, including to review core prosecutorial discretion for abuse of process and other prosecutorial decisions on a lower standard. Second, superior courts may order an “appropriate and just” remedy for a rights violation pursuant to s. 24(1) of the Charter, including in anticipation of probable future breaches. Such s. 24(1) remedies can have the effect of overriding a prosecutor’s decision.
[9] Either legal framework — inherent jurisdiction or s. 24(1) — could empower a superior court to order a judge-alone trial for an offence listed under s. 469. The Court of Appeal focused on whether inherent jurisdiction applied in this case, but did not consider s. 24(1) as a separate font of jurisdiction.
[10] Like the trial judge, I conclude that the Crown’s decision whether to consent to a judge-alone trial is not a decision engaging core prosecutorial discretion, and so could be reviewed by the trial judge under her inherent jurisdiction on a standard lower than abuse of process. I also conclude that the trial judge found that proceeding with a jury trial would likely lead to unreasonable delay, and so had jurisdiction to grant her order as a Charter remedy.
[11] Reading the trial judge’s reasons as a whole, I would review her decision as an application of remedial jurisdiction under s. 24(1). The trial judge found as fact that without intervention, the appellant’s Charter rights were at substantial risk. Given the pandemic emergency, she concluded that proceeding with a jury trial would likely breach the appellant’s right to be tried within a reasonable time, and so violate s. 11(b). I decline the Crown’s invitation to disturb this finding as speculative or to view it with hindsight. These were the early days of the pandemic, marked by uncertainty and isolation, before even the development of a vaccine. As my colleague Rowe J. points out, in 2020 there was an extreme public health crisis, and jury trials posed a grave health risk to jurors; proceeding with a jury trial under these circumstances would have burdened an already overtaxed justice system. Public health restrictions prevented large gatherings, to limit the grave risk of infection. Yet the jury selection process necessarily required gathering hundreds of people together indoors. Even if a jury could be selected, any infection amongst the jurors could derail the trial. With a second wave of infections approaching, there was sound reason to believe that a jury trial would not proceed in fall 2020, and for an indeterminate period thereafter. In this extraordinary situation, the trial judge’s findings of fact established an anticipated breach of s. 11(b) of the Charter.
[12] In considering whether to override the Crown and order a judge-alone trial under s. 24(1) of the Charter, trial judges must consider “the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system” (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69). The judge must weigh the importance of vindicating Charter rights and ensuring state compliance with the Charter against countervailing considerations, including the public value in jury trials and respect for the separation of powers.
[13] By ordering a judge-alone trial, the trial judge prevented a probable s. 11(b) breach and avoided a stay of proceedings, thus protecting the appellant’s rights while also respecting the Crown’s decision to prosecute the charge on its merits. Based on her findings of fact, I conclude that the order for a judge-alone trial was an appropriate and just s. 24(1) remedy. The Court of Appeal erred in ordering a new trial. I would allow the appeal.
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