M. O'Hearn

Six accused persons charged with offences under the Controlled Drugs and Substances Act and related Criminal Code firearms charges made dissimilar elections as to mode of trial.

Some accused elected trial by judge and jury, while others elected trial by provincial court judge.

Some accused subsequently re-elected without obtaining written Crown consent as required by statute.

The court addressed whether a justice presiding at a preliminary inquiry has residual jurisdiction to remedy or disregard recorded elections to avoid a multiplicity of proceedings.

The court held that elections and re-elections as recorded must stand, and that a justice has no power to strike down or disregard a recorded election after the fact.

The Crown applied pursuant to section 672.12(3)(b) of the Criminal Code for an order to assess whether the accused was not criminally responsible on account of mental disorder (NCRMD).

The accused had been ordered to undergo a fitness assessment, which found him fit to stand trial but raised concerns about potential NCRMD.

The court dismissed the Crown's application as premature, holding that the Crown may only raise the NCRMD issue at two specific junctures: when the accused puts mental capacity into issue, or after a finding of guilt but before conviction.

The application was brought before trial, violating the principles established in R. v. Swain.