ONTARIO COURT OF JUSTICE
DATE: 2026 July 2
B E T W E E N:
HIS MAJESTY THE KING
— AND —
KYLE JEFFREY BULLOCH
Before Justice David Rose
MOTION TO ELECT TO HAVE A TRIAL IN THE ONTARIO COURT
SUMMARY DISMISSAL RULING
Reasons for Judgment released on July 2, 2026
Ms. Courtney Cottle ………………………………………………counsel for the Crown
Mr. Victor O'Brien ………………………………counsel for the accused Kyle Bulloch
1Mr. Bulloch stands charged with: Impaired and 80 plus operation causing bodily harm, Fail to Stop at an Accident causing bodily harm; and Drive prohibited. The date of the offence is said to be October 2, 2021.
2When this case appeared before me on June 5, 2026 in Kingston I saw the within application, which had not been adjudicated. From my review of it I asked Mr. O'Brien to make submissions as to why the Application should not be summarily dismissed. He refused, saying he was not ready. I then gave him until June 22, 2026 to make short written submissions on the issue of summary dismissal. Given the extreme datedness of this case, it was my determination that the Application needed to be adjudicated promptly because it was holding up setting dates. From the materials filed it is clear that the defence wanted trial dates in the OCJ, and the Crown wanted preliminary hearing dates.
3Mr. O’Brien delivered a Motion for Recusal which was dismissed for oral reasons on July 2, 2026. Mr. O’Brien vigorously opposes summary dismissal, and for that reason I would give these reasons more length.
The election – Superior Court with a Preliminary Hearing
4On March 26, 2025 Mr. Bulloch appeared before Mme. Justice Wheeler in Kingston Provincial Court. At that time Mr. O'Brien appeared and told the Court:
Mr. O'Brien: He's electing trial in the Superior Court. He wants a preliminary inquiry.
The Court: Okay, trial in the Superior Court by?
Mr. O'Brien: Judge alone.
5At that time Mr. Bulloch was read the standard election by the Clerk of the Court. My review of the transcript permits a finding that the election read to Mr. Bulloch conformed with s. 536 (2) of the Criminal Code. After having the standard language from s. 536(2) read to him, the exchange in Court was:
Mr. Bulloch: I want to be tried or elected.
Clerk: All right.
Mr. Bulloch: Sorry.
The Court: Do I understand your election is to be tried in the Superior Court...
Mr. Bulloch: Yes.
The Court: ... judge alone, having had a preliminary hearing in this court first?
Mr. Bulloch: Yes.
The Court: All right, and you have discussed those options? You have had legal advice about those options?
Mr. Bulloch: Yes, I have.
The Court: Okay, very good. We will record that election then.
The Clerk: Its judge alone?
The Court: Judge alone in the Superior Court with a preliminary hearing.
The Clerk: Thank you.
6The Court then proceeded to have judicial pre-trial discussions. Mr. O'Brien indicated that committal would be in issue. As he said,
Mr. O'Brien: The Crown has to call whatever witnesses they want Your Honour to prove their case to get over committal. So yes, he's not admitting anything.
7He told the Court there would be no admissions. The Crown indicated it would be proceeding by s. 540 (7). Mr. O'Brien indicated that he would be making an application under s. 540(9). The balance of the transcript records some of the witnesses that Mr. O'Brien wanted to hear from at the Preliminary Hearing.
8The Court Information duly records Mr. Bulloch having elected a trial in the Superior Court, and requested a preliminary hearing on March 26, 2025.
9The Court Information records that December 8 - 12, 2025 were held for a "self-rep trial" as well as February 23 - 27, 2026 "if represented by counsel". On October 27, 2025 a Designation was filed appointing Mr. Victor O'Brien as counsel for this case.
10From this exchange it is unclear how Mr. Bulloch or Mr. O’Brien could be under any real impression that the case was proceeding other than to preliminary hearing, as suggested in the defence Application. The Information was marked “TR” and there may have been set dates for a ‘trial’, but both the accused and his counsel were present to make the election on March 26, 2025. They were the ones who told the Court that Mr. Bulloch wanted a preliminary hearing.
11It is also clear that the Crown does not provide its consent to re-elect from a Superior Court trial to an Ontario Court trial.
THIS APPLICATION
12On February 24, 2026 Mr. Bulloch, by counsel, filed a Notice of Application. It said "This is an application to adjourn a hearing regarding Mr. Bulloch's election on February 24, 2026 and in the alternative for equitable relief permitting him to elect (or re-elect) to have a trial in the Ontario Court.”
13In its application the defence was clear that, "The Defence resists the Crown position that Mr. Bulloch elected to have a trial in the Superior Court of Justice on March 25, 2026". It takes the position that the time leading up to the February 23 - 27, 2026 dates there was reference to a trial. It takes the position that there has been a substantial change in the Crown's case so that the accused's initial election became uniformed. In support of the claimed weakening in the Crown's case is new disclosure and the accumulated delay of 52 months. Notably, the Application asserts, at par. 13, "That Mr. Bulloch no longer wishes to have a 5-day contested preliminary hearing". Forcing Mr. Bulloch to have a preliminary hearing he does not want will unreasonably delay the case.
14Notably, the defence application is:
- That the Crown's exercise of discretion on whether or not to consent to an accused's re-election is reviewable where it is exercised in a manner that amounts to an "abuse of process".
15The defence application therefore objects to the Crown withholding its consent to re-elect to a trial in the Ontario Court of Justice, and seeks judicial review and an order that the trial will proceed in the Ontario Court of Justice so that he can immediately pursue third party records, and proceed to trial.
16The Crown in its responding material indicates that there has been no abuse of process. It initially sought to have the February 24 adjournment portion of the defence application dismissed as abandoned. Given that the February 23 - 27 "trial" dates have long come and gone, any adjournment application of those days is now moot.
17In its responding factum the Crown takes the position that it would consent to a re-election if the defence conceded various things, and waived its s. 11 (b) rights flowing from the adjournment.
18In his written submission resisting summary dismissal Mr. O’Brien offers a variety of procedural objections to this procedure. He argues that it is improper to even consider summary dismissal of the Application. I disagree. Aside from the procedural arguments, counsel argues that “Mr. Bulloch has advanced several well-established legal grounds in support of his election/re-election application, which are supported by binding case law from the highest courts in the land”.
19In support of that he offers R. v. M.F. 2007 CanLII 37017, and R. v. Ruston (1991), 1991 CanLII 2758 (MB CA), 63 C.C.C. (3d) 419 (Man.C.A.). His reliance of R. v. E.L. (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.) is discussed below and is also of no assistance to the Applicant. Both M.F. and Ruston are cases about re-election at the Superior Court to have a jury or not. In M.F. the case is a consideration of the impact of the Youth Criminal Justice Act while the case is before the Superior Court. Ruston is about changing the election after a preliminary hearing to have a jury trial when the case against the accused changes. Both are appeals from Superior Court decisions when the Superior Court is the trial court. None of the cases stand for the proposition that a provincial court judge can judicially review Crown conduct on Charter principles when the trial election is in the Superior Court of Justice.
20There is therefore no such binding authority which has been provided by counsel, or that I am aware of, which permits a preliminary hearing judge to embark on a Charter Application.
Discussion
First Problem with the Defence Application – the Code does not permit it
21Section 536 of the Criminal Code is clear about how a defendant may re-elect mode of trial on an Indictable matter. Having made an initial election
561 (1) Right to re-elect
An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect,
(a) if the accused is charged with an offence for which a preliminary inquiry has been requested under subsection 536 (4),
(i) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge, at any time before the completion of the preliminary inquiry or before the 60th day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge, and
(ii) on or after the 60th day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor; or
(b) if the accused is charged with an offence for which they are not entitled to request a preliminary inquiry or if they did not request a preliminary inquiry under subsection 536 (4),
(i) as of right, not later than 60 days before the day first appointed for the trial, another mode of trial other than trial by a provincial court judge, or
(ii) any mode of trial with the written consent of the prosecutor.
22What can be seen is that, having elected a trial in the Superior Court, any re-election must conform with s. 561. With no consent by the Crown forthcoming, as is necessary by s. 561 (a) (1), there is no legal pathway to re-election in the OCJ. Had Parliament intended to permit a provincial court judge to order a trial in the Provincial Court instead of the Superior Court in the absence of the consent of the prosecutor it would have said so.
Second Problem with the Defence Application – No Charter Jurisdiction on a Preliminary Hearing Judge.
23There is a second problem with the defence application. The defence seeks review of the Crown's conduct as an abuse of process, see paras 18 - 21 of the Notice of Application. Judicial Review of Crown discretion sounds in s. 7 of the Charter as an abuse of process, see R. v. E.L. (1994), 1994 CanLII 1785 (ON CA), 75 O.A.C. 244 (CA) at par 27, R. v. Hynes 2001 SCC 82 at par. 33. A judge presiding over a preliminary hearing is not a court of competent jurisdiction for purposes of granting Charter relief under s. 24. R. v. Mills (1986), 1986 CanLII 17 (SCC), 52 C.R. (3d) 1 (S.C.C.) remains controlling authority. Simply put, once Mr. Bulloch elected trial in the Superior Court he denied the Ontario Court of Justice jurisdiction to hear allegations on Charter violations. The Superior Court of Justice is the court of competent jurisdiction for purposes of granting Charter remedies in this case. To suggest otherwise is simply wrong in law.
Third Problem with the Defence Application – Equitable Relief
24A third insurmountable legal hurdle to the defendant is his request for "equitable relief". The Ontario Court of Justice is statute barred from granting equitable remedies, see Court of Justice Act R.S.O. 1990, c. C.43, s. 96 (3).
Summary Dismissal
25Summary dismissal of Applications is a rare procedure. It may only be employed where the application is manifestly frivolous, in other words,
... an application will only be manifestly frivolous where there is a fundamental flaw in the application's legal pathway: the remedy cannot be reached. For example, an application may be manifestly frivolous because the judge has no jurisdiction to grant the requested remedy (see, e.g., R. v. Lehr 2018 NLSC 249 at paras. 27-32).
See R. v. Haevischer 2023 SCC 11 at par. 85
Emphasis and neutral citation for R. v. Lehr added
26This is one of those rare moments when the defence application must be dismissed summarily. It is manifestly frivolous, and is holding up the progress of this case. Jurisdiction cannot be created out of whole cloth. As the Court of Appeal said in N. (J.) v. Durham Regional Police Service 2012 ONCA 428,
The law has long been clear, however, that jurisdiction is fundamental to a court or tribunal's authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered:
27For the above reasons there is no jurisdiction on this Court to grant the relief requested. This Application is summarily dismissed. It was doomed to fail.
Does Mr. Bulloch want a Preliminary Hearing or not?
28The manufactured complexity of this begs a return to what is really in issue here. In his Application Mr. Bulloch now explicitly resiles from his original request on March 26, 2025 to hold a preliminary hearing. He is not required to have one. He can waive his preliminary hearing and proceed straight to trial in the Superior Court if he wishes. That is a routine, brief, procedure which can be accomplished by having the Information brought forward at any time. An Application such as this is unnecessary to waive the preliminary hearing and proceed to trial. Submissions, adjudication and the ensuing delays are similarly unnecessary to achieve that. But it is for Mr. Bulloch to decide. If he does not formally waive his preliminary hearing, a preliminary hearing date must be set. Because of the ambiguity of his position he can either waive the preliminary hearing immediately, or if he still wants one his position must be formalized in a Statement of Issues filed with the Court no later than July 9, 2026 at 4:30pm.
Released: July 2, 2026
Signed: Justice Rose