COURT OF APPEAL FOR ONTARIO

DATE: 20000629

DOCKET: C29837

MCMURTRY C.J.O., MORDEN AND CHARRON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

• and -

SHELTON BROWN
Appellant

Christopher Hicks
for the appellant

Catherine Galligan
for the respondent

Heard: March 22 and 23, 2000

On appeal from the conviction of Whealy J. dated May 5, 1998.

MORDEN J.A.:

[1] Shelton Brown appeals from his convictions imposed by Whealy J., sitting without a jury, of trafficking in cocaine contrary to s.4(1) of the Narcotic Control Act and of possession of the proceeds of property obtained by the commission of an offence under s.4(1) contrary to s.19.1(1)(a) of that Act. . He also commenced an appeal from the fifteen month sentence of imprisonment imposed by Whealy J. but, because the sentence had expired before the hearing on appeal, the appellant did not proceed with this appeal.1

[2] The only ground of appeal from convictions which was argued before us was that the appellant was wrongly denied his right to a jury trial.

[3] The appellant did not argue before us an additional ground relating to the trial judge’s treatment of certain defence evidence. With respect to this ground I can say, briefly, that there was ample evidence which reasonably supported the trial judge’s finding of guilt and that the trial judge’s consideration of the defence evidence discloses no material error.

[4] With respect to the denial of the appellant’s right to a jury trial two issues are raised. First, the appellant submits that Paisley J., who considered the matter of the appellant’s right to a jury under s.598(1) of the Criminal Code, as a pre- trial judge, erred in concluding that the appellant had no “legitimate excuse” within the meaning of this term in s.598(1) for his failure to attend for his trial by jury. Second, the appellant submits that Whealy J. erred in failing to reconsider the issue under s.598(1) when it was raised before him on the new trial date. Before considering these issues I shall briefly outline what took place in this proceeding before the matter came before Paisley J.

The Proceedings which Took Place before the Section

598(1) Hearing on February 13, 1998

[5] The appellant was charged with the trafficking in cocaine and possession of the proceeds of crime offences on April 2, 1996. On February 28, 1997 he appeared at assignment court in the General Division. On May 27, 1997 the trial date for September 29, 1997 was set. At the appellant’s request this date was changed to November 5, 1997.

[6] The appellant did not appear on November 5, 1997. Madam Justice Dunnet issued a bench warrant and the surety bail of $2,000.00 was noted for estreat. Eight days later, on November 13, 1997, the appellant appeared before the court in custody. He was remanded in custody to November 14, 1997. On this date, he was released by Madam Justice Dunnet on the same terms as his previous bail. On January 27, 1998, February 13, 1998 was set for the hearing of the appellant’s s.598(1) application and a new trial date was set.

The Hearing before Paisley J.

[7] Section 598 (1) of the Code reads:

(1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless (a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or (b) the Attorney General requires pursuant to section 568 or 569 that the accused be tried by a court composed of a judge and jury.

[8] On the hearing before Paisley J. the only evidence called was that of the appellant. I will not relate it in detail. Much of what the appellant said in chief was changed during cross- examination. The result was a position somewhat lacking in coherence.

[9] The appellant testified that he felt ill the day before the trial and worse on the day of the trial. At 10:00 a.m. on that day, November 5, 1997, he took a taxi from his home to his doctor’s office. He estimated that the doctor’s office was about a ten minute taxi ride away from his home. He estimated the taxi ride to the court house to be about thirty to forty minutes. The doctor “give [him] some pill and Gravol and whatever” and he returned home around noon.

[10] When the appellant was asked whether he got in touch with his lawyer on November 4, he indicated that he had contacted Mr. Adams (his counsel at trial, on November 5, 1997) in the afternoon to say that he was ill. In reply to the question of what Mr. Adams had told him he testified: “Well, he said you are supposed to be in court today and I said I know, but I wasn’t feeling well at all so I wouldn’t make it.”

[11] He said that he spoke to Mr. Adams on Mr. Adams’ cell phone November 5 at about 2:30 – 3:00 p.m. He had not called him from the doctor’s office or when he got home because he was waiting for Mr. Adams to leave court. He agreed that the bench warrant was issued against him at 3:00 p.m. because that’s what Mr. Adams had told him. Notwithstanding his conversation with Mr. Adams and knowing that a bench warrant was outstanding, the appellant only turned himself in eight days later, on November 13.

[12] In his reasons Paisley J. paraphrased s.598(1) of the Code and then, after quoting from a portion of R. v. Harris (1991) 66 C.C.C. (3d) 536 (Ont. C.A.), to which I shall refer shortly, he said:

This accused says that on the date of his trial he was ill. He took a cab to his doctor’s office which was about ten minutes away from his home. He cites a doctor’s note, but no doctor has been called. He says that he called his counsel sometime later that day and did not surrender until several days later. He has a number of convictions for failing to appear. 1977 and 1992 is conceded that he had been convicted for failing to appear. I do not believe the accused. I think he must have had the ability to present himself to the court. If he is well enough to go to a doctor’s office by cab, he would have been well enough to come to court by cab, if only for the purpose of presenting himself so that the trial judge could have had an opportunity to determine whether the case could proceeded later that week. I think this accused is simply using his alleged medical condition as a pretense to avoid the consequences of his trial. That was his intention at the time. He has lied to me today on this point. I do not believe him. His election of trial by jury is therefore vacated and he will be tried by judge alone.

[13] The appellant submits that the evidence before Paisley J. was not sufficient to meet the test in Harris and that the trial judge’s rejection of the appellant’s evidence was unreasonable. In R. v. Harris, supra, this court said at p. 539:

In our view, nothing less than an intentional avoidance of appearing at trial for the purpose of impeding or frustrating the trial or with the intention of avoiding its consequences, or failure to appear because of a mistake resulting from willful blindness, should deprive an accused of his constitutional right to trial by jury guaranteed by s. 11(f) of the Canadian Charter of Rights and Freedoms.

[14] I do not read Harris as laying down a general proposition respecting what the Crown must show for an accused to be deprived of his or her right to a jury trial under s.598(1). It is clear from the terms of s.598(1) that it is the accused’s failure to appear at trial that will deprive him or her of the right to a jury trial “unless…he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear…for his trial.” The onus is on the accused to satisfy the judge that there was “a legitimate excuse” for his or her failure to appear.

[15] The proposition in Harris was directed to the meaning of “legitimate excuse” and the court held, quite simply, that the judge of first instance in that case erred in holding that an honest mistake as to the trial date was not a legal excuse. On the evidence before him, the essence of which is set forth in his reasons, it was open to Paisley J. to reject the appellant’s evidence that illness was the reason he did not attend for his trial and, hence, to conclude that the s.598(1) onus on the appellant had not been satisfied. I would not give effect to this ground of appeal.

[16] Before dealing with the next ground of appeal, I should mention that no objection was made to our jurisdiction to consider the correctness of Paisley J.’s decision on the appellant’s appeal from conviction. In fact, the respondent submitted that we could consider it under s.686(1)(a)(iii) of the Code – “on any ground that there was a miscarriage of justice”. We received no real argument on our jurisdiction and I prefer not to express a final opinion on the question. I would observe, however, that statements in the following decisions appear to support our jurisdiction: R. v. Mills (1986), 1986 17 (SCC), 26 C.C.C. (3d) 481 (S.C.C.) at 498; R. v. Meltzer (1989), 1989 68 (SCC), 49 C.C.C. (3d) 453 (S.C.C.) at 461; R. v. Primeau (1995), 1995 143 (SCC), 97 C.C.C. (3d) 1 (S.C.C.) at 6; and R. v. Noel (1996), 1996 6553 (QC CA), 110 C.C.C. (3d) 168 (Que. C.A.) per Nuss J.A. at 178. In R.v. Charest (1990), 1990 3425 (QC CA), 57 C.C.C. (3d) 312 (Que. C.A.) at 349-350, on an appeal from conviction, the court treated a challenge to a pre-trial order dismissing an application to change the venue of the trial as a proper ground of appeal.

The Failure of the Trial Judge to Reconsider the

s.598(1) Issue.

[17] Following the decision of Paisley J. the matter came on for trial before Whealy J. on April 27, 1998. At the opening of the trial proceeding and before the appellant had been arraigned, the appellant made a motion to have Whealy J. review Paisley J.’s decision. Whealy J. refused to do this. He said that he had no jurisdiction to “sit in appeal of the order of Paisley J.”

[18] In his submission that Whealy J. erred in refusing to reconsider the s.598(1) issue, the appellant relies upon the judgment of the Supreme Court of Canada in R. v. Litchfield (1994), 1993 44 (SCC), 86 C.C.C. (3d) 97 and the judgment of this court in R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331, aff’d (1997), 119 C.C.C. (3d) 1 (S.C.C.). The appellant said that Litchfield held that all motions in a criminal case should be heard by the trial judge and that, accordingly, on the facts of the present case Paisley J. did not have jurisdiction but that Whealy J. did.

[19] I do not think that Litchfield supports the appellant’s submission. In Litchfield, the issue was whether a pre-trial order, which severed and divided the counts alleged against the accused, could be reviewed by the trial judge and, on appeal, by an appellate court. Iacobucci J. for the court, in addressing this question, began his consideration with whether “the rule against collateral attack” stood in the way of this review. He said at p. 109:

This rule holds that “a court order, made by a court having jurisdiction to make it”, may not be attacked “in proceedings other than those whose specific object is the reversal, variation, or nullification of the order of judgment”: R. v. Wilson (1983), 9 C.C.C. (3d) 97 at p. 117, 1983 35 (SCC), 4 D.L.R. (4th) 577, [1983] 2 S.C.R. 594, per McIntyre J. The lack of jurisdiction which would oust the rule against collateral attack would be a lack of capacity in the court to make the type of order in question, such as a Provincial Court without the power to issue injunctions.

[20] He held at p. 110 that “this is not the case for strict application of a rule against collateral attack …” and that “the principles [to which he had referred] behind the rule against collateral attack are not applicable in a case of a pre-trial division and severance order.”

[21] Iacobucci J. then said at pp. 110-111:

A pre-trial division and severance order does not govern the conduct of the parties but rather regulates the judicial process itself. Such an order is purely related to the procedure of an accused’s trial. Another way of stating the matter is that a pre-trial division and severance order is only concerned with a court’s controlling its own process within the confines of the same litigation. Therefore, to allow a collateral attack at trial before a superior court on a pre-trial division and severance order made by a superior court would not jeopardize the rule of law or damage the repute of the administration of justice. Further, if the order had been made by a trial judge, it would have been subject to review by appellate courts along with the verdict. To permit an order to stand which is so erroneous that it results in a trial process that is fundamentally flawed would result in procedure governing substance, a result that cannot be accepted.

Accordingly, in the narrow circumstances of this case, I would recognize some flexibility in the rule against collateral attack and hold that the pre-trial division and severance order was liable to be reviewed and, if made erroneously, set aside by the trial judge. The failure of the trial judge to refuse to follow the pre-trial division and severance order, if erroneous, would constitute an error of law reviewable on appeal to this court.

As the next portion of my reasons will show, there should be little occasion for this exception to the rule against collateral attack to be applied in the future since I am of the opinion that only the trial judge ever has jurisdiction to issue a division and severance order.

[22] Following this, at pp. 111-115 Iacobucci J. gave reasons for his conclusion that “no one but the trial judge has jurisdiction to issue a severance order”.

[23] Having regard to the terms of s.598(1) of the Code set forth above, which confers jurisdiction on “a judge of the court in which he [the accused] is indicted”, I do not think it can be said that the trial judge has exclusive jurisdiction under that provision. Indeed, there would appear to be practical reasons relating to the requirements of efficient court administration why it would make sense that an accused’s right to a jury trial be decided sometime in advance of the trial.

[24] Accordingly, I do not think that the reasoning in Litchfield, which turned essentially, on a pre-trial judge’s lack of jurisdiction to make the severance order, is applicable.

[25] I should mention that the appellant places substantial emphasis on a part of the reasons in Litchfield at pp. 110-111 which I have quoted, that reads:

A pre-trial division and severance order does not govern the conduct of the parties but rather regulates the judicial process itself. Such an order is purely related to the procedure of an accused’s trial. Another way of stating the matter is that a pre-trial division and severance order is only concerned with the courts controlling its own process within the confines of the same litigation.

[26] The appellant submits that this reasoning is applicable to the order in this case. With respect I do not think that it is. In my view, an order which holds that the accused is not entitled to a jury trial is, in the sense that the words were used in Litchfield, not one that is “purely related to the procedure of an accused’s trial”. The facts which bear upon the denial of an accused’s right to a jury trial are all completely in the past and the function of the judge under s.598(1) is to assess them in light of the terms of that provision. The trial judge is in no better position than a pre-trial judge to perform this function. On the other hand, because a division and severance order will clearly have an impact on the nature and course of the trial to be held, it is understandable why this should be thought to be solely a trial judge function.

[27] Before turning to R. v. Allen, supra, I would not wish to exclude the possibility of a second application under s. 598(1) if it were not a simple challenge to the correctness of the first decision but were based on new circumstances. Cf. R. v. Daniels (1997), 1997 3670 (ON CA), 119 C.C.C. (3d) 413 (Ont. C.A.). This was not the basis for the application before Whealy J. As I read the record of the proceedings before him, the basis was, simply, that under Litchfield, Paisley J. did not have jurisdiction but that Whealy J. did. As I have indicated, I do not think that Litchfield is applicable to the present case.

[28] In R. v. Allen, part way through the trial the accused brought a motion before the trial judge seeking a stay of proceedings on the basis that his right to a trial within a reasonable time under s.11(b) of the Charter had been infringed. The trial judge held that he should not hear the motion. It was heard by another judge who decided that the accused’s right under s.11(b) had been infringed and he stayed the proceeding. The Crown appealed from this order to the Court of Appeal.

[29] Doherty J.A. at pp. 343-44 dealt with the jurisdictional issues as follows:

Preliminary Issues

Before turning to the substantive submissions made by the Crown, I will address two preliminary matters, one raised by the court, and the other by the respondent. At the outset of the oral argument, the court questioned its jurisdiction to hear the appeal. Ferguson J. was not the trial judge. In ordering a stay he acted under s.24(1) of the Charter and not under the authority of the Criminal Code. Ferguson J. was, however, a judge of the court in which the respondent was being tried, and was, therefore, “a trial court” for the purposes of s. 676(1)(c) of the Criminal Code. Since his order directed a stay of proceedings, the Crown had a statutory right of appeal under s. 676(1)(c). Mr. Butt, for the Crown, also noted that Sheppard J., the trial judge, in effect adopted the ruling of Ferguson J. on October 5th when he acknowledged the order and said “So this case is stayed. Mr. Registrar, secure all exhibits.” Mr. Butt submits on the authority of R. v. Litchfield (1993), 86 C.C.C. (3d) 97 (S.C.C.) at 110-111, that Sheppard J., as the trial judge, could have set aside the order of Ferguson J. Mr. Butt further contends that the failure of Sheppard J. to do so is reviewable on appeal by the Crown under s.676(1)(c). That review of necessity turns on the correctness of the order made by Ferguson J. I accept this submission and it provides an alternative basis for this court’s jurisdiction to hear this appeal.

[30] The appellant relies on the reasons in the second paragraph in this passage. I do not think that they are applicable to the present case. In Allen the jurisdiction to order the stay was conferred by s.24(1) of the Charter and not by a provision of the Criminal Code. Even though a pre-trial judge may have had the power to make the order sought, it is clear that the trial judge also had this power. (Later in these reasons, at p. 351, Doherty J.A. said that a “trial judge is in the best position to assess that kind of prejudice [resulting from a delayed trial] claimed”.) Further, in Allen the trial judge “in effect adopted the ruling” of the other judge.

[31] Even if Allen were applicable, I do not think that it would affect the result in this appeal. Doherty J.A. said that the failure of the trial judge to review the order of the other judge was reviewable on appeal by the Crown under s.676(1)(c) and that “[t]he review of necessity turns on the correctness of the order made by Ferguson J.” Applying this reasoning to the present case, because I have found no error in the decision of Paisley J., I could not conclude that Whealy J.’s refusal to reconsider it resulted in any error that would justify interference by this court.

[32] For these reasons I would dismiss the appeal.

Released: June 29, 2000

“J.W. Morden J.A.”

“I agree R. McMurtry C.J.O.”

“I agree Louise Charron J.A.”

1 The appellant addressed no argument with respect to the s.19.1(1)(a) offence, submitting in his factum that the trial judge, in his reasons for judgment, made no finding with respect to this count. The respondent did not take issue with this. The endorsements on the indictment, however, show that the trial judge convicted the appellant on both counts and sentenced the appellant to 3 months imprisonment on the s.19.1(1)(a) count, to be served concurrently with the 15 month sentence. While the trial judge did not refer specificially to s.19.1(1)(a) in his reasons, he clearly found that the appellant was in possession of a $20.00 marked bill which was the proceeds of the alleged trafficking. This was a crucial underlying fact for both offences. The appellant appeals against both convictions in his notice of appeal and, accordingly, I shall deal with the appeal as being against both convictions.