COURT OF APPEAL FOR ONTARIO

DATE: 20000407

DOCKET: C32441

RE: HER MAJESTY THE QUEEN (Appellant) v. ALEC HYNES

(Respondent)

BEFORE: DOHERTY, ROSENBERG and SHARPE JJ.A.

COUNSEL: Alec M. Hynes

in person

Laurie Lacelle

for the respondent

HEARD: April 6, 2000

On appeal from the order of Justice J.B. Allen dated June 11, 1999.

E N D O R S E M E N T

[1] The Crown appeal must succeed.

[2] The indication in the Crown charge screening form that the Crown would proceed summarily on the assault charge was an administrative error. The charge had been laid outside the limitation period applicable to summary proceedings. The indication of the Crown’s intention in the charge screening form was not an election by the Crown.

[3] The Crown’s subsequent decision to proceed by indictment caused no prejudice or hardship to the accused, much less the level of prejudice or hardship that would justify a stay of proceedings. This is particularly true given the fact that the Crown offered to proceed summarily if the accused was prepared to give the required consent.

[4] The principles set down by this court in R. v. Belair (1988), 1988 7110 (ON CA), 41 C.C.C. (3d) 329 and R. v. Kelly (1998), 128 C.C.C. (3d) 207 were applicable. The contrary authority, R. v. Boutilier (1995), 104 C.C.C. (3d) 329 (N.S.C.A.), relied on by Justice Allen was specifically rejected in R. v. Kelly.

[5] The appeal must be allowed, and the stay of proceedings set aside. The matter is remitted to the Ontario Court of Justice.