DATE: 20040914

DOCKET: C33150

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – NEVILLE HUNTER (Appellant)

BEFORE: WEILER, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Maureen D. Forestell

for the appellant

Jennifer Woollcombe for the respondent

HEARD: September 8, 2004

RELEASED ORALLY: September 8, 2004

On appeal from the conviction entered by Justice Nola E. Garton of the Superior Court of Justice, sitting without a jury, dated June 17, 1998 and the sentence imposed by Justice Garton dated July 14, 1998.

E N D O R S E M E N T

[1] The appellant was convicted of perjury on June 17, 1998 and sentenced to one year imprisonment consecutive to a substantial sentence he was already serving.

[1] The appellant originally appealed against both conviction and sentence. The sentence appeal is moot as the appellant has served his sentence and this ground of appeal was abandoned. A further ground of appeal relating to whether the charge was particularized and not proven as particularized was not pursued at the hearing of this appeal. The only ground of appeal is whether Garton J. erred in refusing to allow the appellant to change his election from trial by judge alone back to trial by judge and jury.

[2] The facts are as follows: the perjury alleged against the appellant was that he knowingly made a false statement in an affidavit that had been sworn in support of an application to vary his bail conditions. In that affidavit the appellant swore that he had lost his job at 3-D Metals because of the strict conditions imposed in his bail.

[3] At the outset of his trial on the perjury charge, the appellant re-elected trial by judge alone. The appellant intended to defend and did defend the perjury charge on the basis that the affidavit was drafted in error by an articling student at the appellant’s lawyer’s firm and never read by or to the appellant. On June 23, 1997 the trial judge declared a mistrial because he was concerned that the appellant’s evidence created a conflict of interest for the appellant’s then counsel.

[4] During this first trial the Crown called a representative of 3-D Metals who testified that there was a person working at 3-D Metals under the name of Neville Hunter, but that this person was not the appellant.

[5] On the re-trial before Garton J. the appellant wanted to change his election and to re-elect trial by judge and jury. Section 561(1) (c) of the Criminal Code provides that:

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

(c) on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor.

[6] On July 21, 1997 it appears that the appellant’s then counsel gave oral notice to the Crown that he wanted to change his election. Written notice of the appellant’s wish to change his election was not given until the notice was filed in September 1997. Both notices were more than 15 days after the preliminary inquiry and more than 15 days after the mistrial was declared.

[7] Before Garton J. the appellant nevertheless argued that he was entitled to re-elect the mode of his trial because there had been a substantial change in the Crown’s case against him.

[8] In Regina v. Ruston (1991), 1991 2758 (MB CA), 63 C.C.C. (3d) 419 (Man. C.A.), the court considered the issue of whether, in light of s. 11(f) of the Charter, an accused person has a right to re-elect mode of trial more than 15 days after the completion of the preliminary inquiry. In that case, the Crown had withheld its consent to re-election, but the accused argued that his right under s. 11(f) of the Charter had been denied because it was only after the preliminary inquiry that the Crown gave him notice of its intention to adduce similar fact evidence. The Court noted that while the benefit of s. 11(f) may be waived, the waiver must be an “informed” one. Because an accused must have knowledge of the substance of the case against him, the court ruled that in cases in which there arises additional evidence that constitutes a substantial change in the case against the accused, it is appropriate for a trial judge to override the Crown’s discretion and to permit re-election as to the mode of trial.

[9] Garton J. held that the Crown’s case had not changed substantially from the time of the appellant’s initial election and refused to override the Crown’s discretion and to allow the appellant to change his election.

[10] We agree with the trial judge that that there was no substantial change in the Crown’s case. The charge was still the same. In both situations the Crown sought to prove that the appellant lied in relation to his employment in order to obtain a variation of the conditions respecting his bail. One of the ways of proving that the appellant lied was to show that he had never held this job in the first place.

[11] Even if there was a substantial change in the Crown’s case, the attempted re- election was out of time. No satisfactory explanation for the delay has been presented.

[12] The appellant does not allege an abuse of the court’s proceedings by the Crown or that the Crown acted arbitrarily, capriciously, or with some improper motive in refusing to allow the re-election. In these circumstances and in the absence of any constitutional considerations, a trial judge cannot substitute his or her discretion for that of the Crown and consent to a late re-election. See R. v. L.E. (1994) 1994 1785 (ON CA), 94 C.C.C. (3d) 228 at pages 241-243.

[13] Accordingly, the appeal is dismissed.

“Karen M. Weiler J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”