COURT OF APPEAL FOR ONTARIO
Sharpe, MacFarland and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Phuong Vuong
Appellant
Lawrence Ben-Eliezer, for the appellant
Frank Au, for the respondent
Heard: October 26, 2010
On appeal from the conviction entered on June 2, 2010 and sentence imposed on July 19, 2010 by Justice Norman S. Douglas of the Ontario Court of Justice.
1The appellant appeals his conviction for the offence of having care and control of a motor vehicle while having more that 80 mg of alcohol per 100 ml of blood. This was the appellant’s fourth drinking and driving conviction and he was sentenced to 16 months in custody and a lifetime driving prohibition. His appeal from that sentence was abandoned in oral argument.
2The primary ground of appeal is that the trial judge erred by failing to put the appellant to his election as required by s. 536(2) of the Criminal Code. The secondary ground of appeal is that the trial judge erred in several respects, essentially by misapprehending the evidence or failing to provide adequate reasons for the conviction.
FACTS
3I will briefly set out the essential facts relating to the appellant’s conviction here and below and will deal with the facts relating to the issue of the s. 536(2) election in my analysis of that issue.
4At the time of his arrest, the appellant, showing obvious signs of intoxication, was in the driver’s seat of his vehicle, parked at the side of a busy highway. A tow-truck driver testified that a few minutes earlier, he had seen the appellant get out of the driver’s seat of the vehicle at another point along the highway. The appellant testified and denied that he had been driving the vehicle. He testified that his wife had been driving, that when observed by the tow-truck driver he had exited from the rear seat of the car on the driver’s side, and that shortly before he was arrested he had got into the driver’s seat to check a problem with the car’s heating. The appellant’s wife also testified that she had been driving the car on the night in question.
5The trial judge gave some seven pages of oral reasons explaining why he accepted the Crown’s evidence, disbelieved the defence evidence, and found that on all the evidence, including the defence evidence, he was convinced beyond a reasonable doubt that the appellant had care and control of the vehicle.
ANALYSIS
1. Did the trial judge misapprehend the evidence or otherwise err in his reasons for conviction?
6We did not call upon the Crown to respond to the secondary ground of appeal. In my view the trial judge provided adequate reasons to explain why he was convinced beyond a reasonable doubt of the appellant’s guilt, and I see no error of law or fact in those reasons that would justify intervention by this court.
2. Did the trial judge err in law by failing to put the appellant to his election pursuant to the Criminal Code, s. 536(2)?
7I now turn to the primary ground of appeal relating to the failure to put the appellant to his election as required by the Criminal Code, s. 536(2):
If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:
You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
8It is clear from the record that the prescribed words of the formal election were never put to the appellant. The issue is whether the appellant, through his counsel, waived the formal election.
9To answer that question, it is necessary to set out in some detail the manner in which the case proceeded from initial appearance until trial.
10On March 30, 2009 the matter was spoken to before a justice of the peace. Mr. Nguyen, the appellant’s counsel at the time, attended to pick up the disclosure. The appellant was charged with a dual procedure offence and his counsel asked the Crown to make its election as to mode of trial. The Crown elected at that time to proceed by way of indictment and the presiding justice noted the Crown’s election on the information.
11Mr. Nguyen again appeared on April 24, 2009 and indicated that he was filing a counsel designation. The Crown again indicated that it was proceeding by indictment and the matter was adjourned to review disclosure and for a pre-trial. On May 22, 2009, Mr. Nguyen again appeared, this time to adjourn the matter for a “Crown resolution meeting”. The matter was again spoken to on June 19, 2009, when the appellant’s counsel indicated that he had had a pre-trial and asked for an adjournment to allow the appellant to consider whether to enter a guilty plea or set a trial date.
12The matter was next spoken to on July 17, 2009, when the parties were before a justice of the peace to set a date for either a preliminary hearing or a trial in the provincial court. The following exchange took place:
TRIAL COORDINATOR: This matter has been noted by indictment, Your Worship. I need to know the defence position.
MR. NGUYEN: Yes. I’m appearing today by way of designation.
THE COURT: Yes, and are you going to be electing a preliminary hearing or a trial?
MR. NGUYEN: No, a trial.
TRIAL COORDINATOR: Estimate of time?
MR. NGUYEN: Probably half a day. I have been discussing with the Crown, probably half a day.
13After some discussion as to the number of witnesses the parties intended to call, the presiding justice decided that a judicial pre-trial was required. The matter was adjourned for that purpose to September 4, 2009. On that day, presumably after the judicial pre-trial had been conducted, it was determined that a full day would be needed for the trial. The matter was spoken to before a justice of the peace to set the trial date. The justice of the peace asked “Have elections been made, Madam Clerk?” and the clerk responded “By indictment.” Nothing was said as to the appellant’s election under s. 536(2). The justice of the peace set the matter down for a one-day trial on June 2, 2010.
14The case came on for trial on the appointed day. The appellant was now represented by a different counsel. After some discussion about the arrangements that had been made for an interpreter, the appellant was arraigned and pleaded not guilty. The trial commenced with no reference to an election pursuant to s. 536(2).
15The appellant submits that the failure to put him to his election as required by s. 536(2) is fatal, as without the election the trial judge had no jurisdiction to try the appellant. The respondent submits that the appellant waived the election.
16The starting point for analysis is the judgment of Doherty J.A. in R. v. Mitchell (1997), 1997 6321 (ON CA), 36 O.R. (3d) 643 (C.A.). That case holds that allegations of procedural error can be analyzed in three parts:
i. Was there a failure to comply with a statutory procedural requirement?
ii. If there was a non-compliance, is it rendered harmless by s. 686(1)(b)(iv) of the Criminal Code?
iii. If there was non-compliance and s. 686(1)(b)(iv) cannot be applied, did the appellant waive compliance with the procedural requirement?
17It is common ground that there was a failure to comply with the statutory procedural requirement. Section 536(2) of the Criminal Code directs that “the justice shall” put the accused to his election in the words as set out in that subsection, and the election was never put.
18Mitchell holds that as failure to comply with s. 536(2) goes to the jurisdiction of the trial court, and that as the curative proviso in s. 686(1)(b)(iv) only applies to errors committed by a court having “jurisdiction over the class of offence”, the proviso is not available to cure an error with respect to the accused’s s. 536(2) election.
19This takes us to the third step of the Mitchell analysis and the issue of whether the provincial court had jurisdiction to try the appellant because he had waived compliance with the procedural requirement laid down by s. 536(2).
20While the language of s. 536(2) is mandatory, it is well-established that the requirement it lays down for a formal election as to mode of trial can be waived by the accused: Mitchell; R. v. Pulles, 2007 ONCA 519. A leading case on waiver, cited in Mitchell, is Korponay v. A.G. (Canada), 1982 12 (SCC), [1982] 1 S.C.R. 41. Korponay dealt with the related issue of a re-election for a judge-alone trial after the accused had elected trial by judge and jury. The accused, following local practice, informed a court clerk that he wished to re-elect and appeared on the trial date ready to proceed with a judge-alone trial. The accused was not put to his re-election as required by s. 492(1). (see now s. 561(7).) When asked for his plea, counsel for the accused said “judge alone”. The trial proceeded and the accused was convicted. He appealed his conviction, inter alia, on the ground that he had not been put to his re-election as required by s. 492(1). Writing for the Court, Lamer J. stated at p. 49 that the validity of a waiver depended upon it being
clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. [Emphasis in original.]
21Lamer J. held at p. 52 that what had occurred satisfied that requirement:
The judge had before him an attorney whose knowledge of the law and of the practice of the criminal law does not appear to be in issue. He was, in my view, amply justified in assuming, since everyone was there to proceed with the trial, that the attorney had discussed the matter with Korponay and that Korponay made an informed decision, on the advice of his attorney, to proceed to trial, not before a jury, but before that judge sitting without a jury, and that the attorney was fully authorized to do anything necessary to that end. The judge was therefore in my view amply justified in considering that the attorney’s saying “judge alone” was an informed waiver of the requirement of putting to his client the words of the section. The accused’s attorney knew what those words were, he knew what they meant and what effect his answer “judge alone” would have on his client’s rights.
22The respondent submits that, as in Mitchell and Korponay, the appellant waived the procedural right accorded by s. 536(2).
23The respondent places heavy reliance on the exchange that occurred on July 17, 2009 when the appellant’s counsel appeared to set a date and, when asked by the presiding justice “are you going to be electing a preliminary hearing or a trial”, responded “No, a trial.”
24I agree with the appellant that, standing on its own, that exchange did not amount to a waiver of the procedural requirement laid down by s. 536(2). The appellant’s counsel was asked how he was going to elect, not how he did elect, and it is telling that the presiding justice did not endorse an election on the information, suggesting that he did not perceive the exchange to have amounted to a waiver.
25What occurred on July 17, 2009 may be contrasted with the exchange considered in Mitchell and found to have amounted to a waiver:
CROWN COUNSEL: Your Honour, I know that the Information doesn’t appear - I don’t believe it has an indication of an election being made. To avoid any problems in the future he should be put to his election today - if it is going to be put to court the next time or a preliminary hearing. I am quite content that a formal arraignment be waived, but an election be made and put on the record.
THE COURT: Put to 205 court today to set a date.
CROWN COUNSEL: Can we place the election before we do that?
COUNSEL FOR THE ACCUSED: Trial.
CROWN COUNSEL: By provincial court judge?
COUNSEL FOR THE ACCUSED: By provincial court judge.
CROWN COUNSEL: If that could be put on the Information today, please? [Emphasis in Mitchell.]
26In Mitchell, Crown counsel explicitly asked that the accused be put to his election and, after defence counsel stated “[t]rial”, Crown counsel asked that the election be endorsed on the information. In the case at bar, the appellant, through his counsel, clearly indicated that it was his present intention to elect trial in the provincial court, but there was no mention made of putting the appellant “to his election today” and no request to formalize matters by having an election endorsed on the information.
27I conclude that on July 17, the appellant did not waive his election under s. 536(2). What occurred on that day left it open to the appellant to change his mind later and to elect to have a preliminary inquiry and trial in the superior court.
28However, this does not end the inquiry. While I certainly do not condone the lack of attention given to the requirements of s. 536(2) in this case, I conclude that when the July 17 indication of the appellant’s then-present intention to elect trial in the provincial court is considered together with his subsequent appearances and actions, it can properly be concluded that the appellant waived a formal s. 536(2) election.
29At no time after telling the court on July 17 of the appellant’s present intention to elect trial in the provincial court, whether during in-court appearances or, so far as the record discloses, during out-of-court pre-trial discussions, did the appellant or his counsel give any indication of a change as to the appellant’s choice of mode of trial. On the contrary, every action taken by the appellant, through his counsel, was consistent with an election to proceed with a provincial court trial and inconsistent with any equivocation as to that choice. The appellant’s counsel participated in a judicial pre-trial on September 4 and on that same day appeared in court to set a date for trial. This was explicitly done on the basis that the matter was to be tried in the provincial court. When the question of elections was raised by the presiding justice, the appellant’s counsel remained silent. Nine months later, on the appointed trial date, the appellant appeared with a different counsel fully prepared for the trial. There is no suggestion that the counsel who represented the appellant throughout these proceedings were incompetent or that they provided him with inadequate assistance. There is no suggestion that the appellant did not understand his right to elect a preliminary inquiry and trial in the superior court and no suggestion that he was in any way prejudiced by the failure to put the formal election to him as required by s. 536(2).
30In my view, when the words spoken by the appellant’s counsel on July 17 are considered together with what transpired thereafter, it was, to paraphrase Korponay, clear and unequivocal that the appellant was waiving the procedural safeguard contained in s. 536(2) and that he did so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver would have on those rights in the process.
31It may well be the case that in earlier days, what transpired in this case would be regarded as a fatal procedural defect, but rather than “revert to the extreme technicality of the old procedure”(R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8 at p. 13), it is more in keeping with the modern approach that emphasizes substance over form to hold that the appellant did waive the right to the s. 536(2) election.
32I repeat and adopt the observation of Doherty J.A. in Mitchell at pp. 655-656:
Some who read this judgment may suggest that it condones sloppy practice and undermines important procedural safeguards. I do not intend to convey any such message. The provisions in the Criminal Code should be followed. Deviations from those procedures put the end product of the proceeding in doubt.
33What occurred in this case was sloppy. It is certainly not in the best interests of the orderly administration of justice to run the risk of having convictions set aside because of procedural defects that can arise from failure to follow the dictates of jurisdiction-conferring requirements of the Criminal Code. Efficient scheduling of court time is undermined as it is open to an accused who has only expressed an intention to elect a trial in provincial court to elect another mode of trial at the very last minute. This case suggests that in the rush of current day-to-day practice, involving numerous pre-trial appearances and extensive pre-trial discussions and proceedings, adequate heed is not always paid to the mandatory language of s. 536(2). If that is so, steps should be taken to ensure that at some appropriate point in the proceedings, the demands of s. 536(2) are satisfied in a manner that is consistent with both the efficient scheduling of court time and the observance of the right of the accused to be apprised of the right to elect the mode of trial.
CONCLUSION
34For these reasons, I would dismiss the appeal. The sentence appeal is dismissed as abandoned.
“Robert J. Sharpe J.A.”
“I agree J. MacFarland J.A.”
“I agree Paul Rouleau J.A.”
RELEASED: November 25, 2010