COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Horton, 2014 ONCA 414
DATE: 20140521
DOCKET: C56728
Goudge, van Rensburg and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
George Horton
Appellant
Peter Copeland, for the appellant
Amy Alyea, for the respondent
Heard: January 23, 2014
On appeal from the conviction entered on May 15, 2012 and the sentence imposed on September 28, 2012 by Justice Beverly A. Brown of the Ontario Court of Justice.
Goudge J.A.:
INTRODUCTION
[1] On May 15, 2012, after a trial in the Ontario Court of Justice, the appellant was convicted of the offences of assaulting a peace officer and intimidating a justice system participant. He was acquitted of the offence of wilfully obstructing a peace officer. He was sentenced on September 28, 2012.
[2] He appealed both his convictions and his sentence to this court. In order to do so, he obtained an order under s. 675(1.1) of the Criminal Code, with the consent of the Crown, to have the appeal from his summary conviction for assaulting a peace officer heard by this court together with his appeal from his conviction for intimidating a justice system participant, an indictable offence.
[3] However, the appellant raises a preliminary issue in this court. He submits that his appeal must be quashed because this court has no jurisdiction to hear it. He argues that at his trial the Crown elected to proceed summarily on all three charges before the Ontario Court of Justice. He says that this is therefore an appeal from two summary convictions, which must be appealed to a summary conviction appeal court, not this court.
[4] If this argument succeeds, he asks that, pursuant to s. 13 of the Courts of Justice Act, a single judge of this court sit as the summary conviction appeal court to hear his appeal. On that appeal, he intends to argue, that his conviction for intimidating a justice system participant must be quashed because he was tried summarily on an indictable offence. He would also address the substantive issues raised by his convictions.
[5] This panel heard argument only on the appellant’s preliminary challenge to the jurisdiction of this court. We are not seized of any further issues.
[6] For the reasons that follow, I would dismiss the appellant’s jurisdictional challenge.
BACKGROUND
[7] A brief history of the proceedings is essential context to resolve the preliminary issue.
[8] The appellant was charged in an information containing nine offences arising out of a demonstration on June 26, 2010, during the G20 Summit in Toronto. All are either hybrid offences, where the Crown can chose to proceed either by indictment or summarily, or offences where the Crown can only proceed by indictment.
[9] Prior to the appellant’s appearance in the Ontario Court of Justice on August 26, 2011, the Crown advised the appellant that it elected to proceed by indictment on all of the hybrid offences. As a consequence, on August 26 the appellant elected trial by judge and jury and a preliminary hearing was scheduled to begin in the Ontario Court of Justice on November 23 and to continue on November 29.
[10] On November 23, before the preliminary inquiry began, counsel for the appellant (not Mr. Copeland) requested an adjournment because of recent disclosure by the Crown of further evidence. Counsel also advised that, since the Crown had decided it would be seeking committal for trial on additional charges that could arise from the evidence in the preliminary inquiry, the appellant now wished to re-elect to be tried on all charges in the Ontario Court of Justice, in order to limit his jeopardy to the nine charges in the information. The Crown refused to consent to the re-election. Therefore counsel also wanted an adjournment to consider bringing an application to the Superior Court for an order allowing the appellant to re-elect. The Ontario Court of Justice judge adjourned the proceeding to November 29 to permit counsel to consider such an application and to allow him and the Crown to engage in discussions “to figure what makes the most sense” as the judge put it.
[11] On November 29, the Crown told the court that “we have achieved a lot of time saving agreements between counsel”. The Crown advised the court that the appellant would be pleading guilty to four of the charges, that the appellant wished to re-elect to have a trial that day in the Ontario Court of Justice on three of the charges, and that the Crown consented to this. Counsel for the appellant confirmed that this was so. The remaining two charges were eventually withdrawn.
[12] Following his guilty plea to four of the charges, the appellant was arraigned on the three charges on which he was to be tried in the Ontario Court of Justice. These were assaulting a peace officer (a hybrid offence), intimidating a justice system participant (an indictable offence), and obstructing a peace officer (also a hybrid offence). The appellant pleaded not guilty to all three charges. That was immediately followed by this exchange:
CLERK OF THE COURT: And the Crown elects to proceed?
THE COURT: Have a seat. All right, thank you. So, we are going to embark on a trial with respect to those three counts, is that correct?
THE CROWN: That is right.
[13] The trial then proceeded for the balance of that day. It resumed on December 22 when the evidence was concluded and counsel for the appellant began his submissions. Since he had not concluded by the end of that day, the trial judge asked both counsel to make submissions in writing and adjourned the proceedings to February 14, 2012.
[14] On February 14, having received the written submissions, the trial judge invited both counsel to make further oral submissions. The trial judge then adjourned the matter to May 15 when she delivered reasons for judgment convicting the appellant of assaulting a peace officer and intimidating a justice system participant but acquitting him of the third charge, obstructing a peace officer.
[15] On August 9, the trial judge heard submissions on sentence from both counsel and on September 28 delivered her reasons for sentence.
ANALYSIS
[16] In this court, the appellant’s argument on the preliminary jurisdictional issue hinges on the meaning to be given to the Crown’s response to the clerk’s question on November 28, 2011, quoted above. The appellant says it was a re-election by the Crown to proceed summarily on all three charges.
[17] Based on this, he argues that this court has no jurisdiction to hear this appeal since it purports to be from the summary trial of all three charges.
[18] The appellant further submits that this court cannot apply the proviso in s. 686(1)(b)(iv) to cure the re-election to proceed summarily on the indictable offence because that re-election was not simply a procedural irregularity. Rather, he argues, the re-election deprived the Ontario Court of Justice of jurisdiction because that court cannot summarily try an indictable offence.
[19] In sum, the appellant submits that since this court cannot hear an appeal of an entirely summary proceeding and since the error causing that to happen cannot be cured, this appeal must be quashed.
[20] The cornerstone of the appellant’s position is that in answering “summarily” to the question from the clerk of the court, the Crown was purporting to re-elect to proceed summarily on all three charges. In other words, the appellant contends, the Crown’s response meant “summarily on all three offences”. If the appellant’s interpretation of the Crown’s answer is incorrect, the balance of his argument on this preliminary issue falls away.
[21] To determine what the Crown meant by its response, an examination of the full record is necessary. R. v. Mitchell, [1997] 121 C.C.C. (3d) 139 (Ont. C.A.) is an analogous case in which this court did much the same thing. In that case, the appellant was tried in the Ontario Court (Provincial Division) as the Ontario Court of Justice was then called. He was tried on six charges, five of which were hybrid, or dual procedure offences, and one of which was an indictable offence. Unfortunately, the Crown failed to expressly indicate the manner in which it chose to proceed on the charges. The relevant question in that case was whether the Crown elected to proceed summarily or by indictment on the five hybrid charges. This court answered that question by a careful examination of the entire record. In the same manner, I think that is what must be done here.
[22] In my view an examination of the entire record in the present case leads to the conclusion that the meaning of the Crown’s answer to the clerk’s question on November 29 was that the Crown was electing to proceed summarily on the two hybrid offences only. In other words, when informed by the entirety of the record, the Crown’s response can only have meant “summarily on the two hybrid offences”. The Crown did not mean nor was understood to mean “summarily on all three offences.” Throughout the record there are a number of indicators that point to this meaning.
[23] At the appellant’s November 23 appearance, the Crown told the court that the Crown always intended to elect to proceed by indictment on the hybrid offences. It obviously was unnecessary to indicate how the Crown elected to proceed on the indictable offences since no election was required for those offences. The proceeding could only be by indictment.
[24] On the November 29 appearance, the Crown told the court of the agreement reached with appellant’s counsel. The primary objective of that agreement was to have a trial of all three charges that day in the Ontario Court of Justice. To do that, the appellant re-elected from a trial by judge and jury to a trial in the Ontario Court of Justice, and the Crown consented to that. No change in the Crown’s method of proceeding either with the indictable offence or with the two hybrid offences was necessary to achieve this objective.
[25] The November 29 agreement between counsel also had a secondary consequence, namely to reduce the sentencing jeopardy to which the appellant would be exposed if convicted of either hybrid offence. As I will indicate, this is confirmed later in the record. This consequence, presumably intended as part of the agreement between counsel, required the Crown to re-elect to proceed summarily on those two hybrid offences.
[26] These two aspects of the agreement reached between counsel strongly suggest that the Crown’s response to the clerk’s question meant that the Crown was re-electing only for those offences that were to be proceeded with summarily, in order to fulfill the agreement.
[27] The appellant’s position, that the Crown was electing to proceed summarily on all three charges is also inconsistent with fundamental principles of criminal procedure. To suggest that what the Crown meant was that it proposed to proceed summarily with all three offences including the indictable offence, requires an assumption that the Crown simply forgot or overlooked the basic criminal law principle that it cannot proceed summarily to try an indictable offence.
[28] Equally, since counsel for the appellant offered no objection, he must have suffered the same mental lapse. Likewise, if the Crown was truly proposing by its response to proceed summarily with all three charges, including the indictable offence, this very experienced trial judge must be taken to have also made the same fundamental criminal law error. There is nothing in the record to support the assumption that all three made this mistake.
[29] Moreover, the court’s response to the Crown’s answer was to confirm that it was immediately to embark on a trial of all three charges. Had the understanding actually been that the Crown was purporting to proceed summarily on all three charges, there would have been no need for the judge to confirm that a trial was to begin, as only a trial could take place in a summary conviction proceeding. In other words, by asking that question, the judge was confirming that a trial was going forward on the indictable offence, reflecting an awareness that one offence was proceeding by indictment.
[30] The trial of these three charges then commenced on November 29 but did not conclude that day. It resumed on December 22 when the evidence was completed and submissions by counsel for the appellant began. In the course of these submissions, counsel referred to the maximum penalty of 14 years imprisonment provided by the Criminal Code for the offence of intimidating a justice system participant. This greatly exceeds the maximum sentences prescribed for summary conviction offences. Under s. 787(1) of the Criminal Code the general maximum sentence for summary conviction offences is six months imprisonment. Even those extraordinary summary conviction offences in the Criminal Code with prescribed maximum sentences of more than six months range from only 12 months to two years less a day. Counsel’s acknowledgment of the 14 year sentence therefore clearly signals counsel’s understanding that the Crown had proceeded on this offence by way of indictment. Since neither the Crown nor the trial judge offered any comment or correction about this submission, it suggests that they too shared this understanding.
[31] The written reasons for conviction offer another signal of the shared understanding of the trial judge, appellant’s counsel and the Crown that the Crown was proceeding summarily on the two hybrid offences but by indictment on the purely indictable offence. While the trial judge began her reasons by saying that the Crown proceeded “summarily”, this was in my view simply repeating the answer given by the Crown to the clerk on November 29. As I have indicated, in my view the trial judge took this to mean that the Crown proceeded summarily on the two hybrid offences only. This is confirmed later in her reasons for conviction where she explicitly describes the offence of intimidating a justice system participant as an indictable offence. I do not accept that this experienced trial judge wrote these reasons thinking that the Crown had proceeded summarily to try an indictable offence.
[32] At the sentencing stage, there is yet further confirmation that what the Crown meant on November 29 was that it was proceeding summarily on the two hybrid offences only, and that counsel and the court understood this to be the case.
[33] On August 9, 2012, having referred to the 14 year maximum sentence for intimidating a justice system participant, the Crown sought a sentence of one year in jail for the appellant’s conviction on this offence. The Crown’s reference to the potential 14 year sentence exceeds the maximum sentences for summary conviction offences, and its request for a sentence over the general six month maximum under s. 787(1), strongly suggest that the Crown did not consider that it had re-elected to proceed summarily on this offence.
[34] For the same reason, sentencing submissions by trial counsel for the appellant clearly imply the same understanding. He acknowledged the 14 year maximum sentence for the indictable offence, but proposed an eight month jail sentence, which is in excess of the six month general maximum sentence under s. 787(1).
[35] Finally, on September 28, 2012 the trial judge delivered her reasons for sentence. She set out the maximum jail sentences for the offences before her, including: six months for assaulting a peace officer and 14 years for intimidating a justice system participant. This reflects the understanding that the Crown had re-elected to proceed summarily on the assault peace officer offence but had proceeded by indictment on the intimidate justice system participant charge.
[36] In the end, the trial judge imposed concurrent sentences of ten months for both offences. In my view, this inadvertent error seems to have arisen because the trial judge had just concluded that the assault peace officer offence was distinct from the intimidate justice system participant offence, but the sentences ought to be concurrent. In any event, in this court the Crown concedes that the sentence for assaulting a peace officer ought to be varied to six months since the Crown had re-elected to proceed summarily on that charge.
[37] Notwithstanding the Crown’s ambiguous response to the clerk, all of the aspects of the record discussed so far indicate a mutual understanding by the parties and the court that the Crown was electing to proceed summarily on the two hybrid offences, and that the charge of intimidating a justice system participant was proceeding by indictment. There are only two indications in the record that point in the opposite direction. The first is on the information, where the court clerk checked the box marked “Summarily”, indicating how the Crown elected to proceed. The second is on the warrant of committal where again the court clerk checked the box marked “Summary Conviction Offence”, indicating the offences for which the appellant was convicted at trial. In my view these indicators carry little weight, reflecting nothing more than what the clerk heard the Crown say in its one-word response on November 29.
[38] In summary, a careful review of the record yields the clear conclusion that in delivering its ambiguous response, “summarily”, when asked by the court clerk on November 29 how it elected to proceed, the Crown meant, and was understood by everyone involved to mean, that it was re-electing to proceed summarily on the two hybrid offences only. It was continuing to proceed by indictment on the offence of intimidating a justice system participant. The Crown did not mean, and was not understood to mean that it was proceeding summarily on all three offences including the indictable offence of intimidating a justice system participant.
[39] The result of the trial proceeding on this shared understanding of the Crown’s re-election on November 29 is that both the Crown and the appellant got what they wanted and expected: an immediate trial in the Ontario Court of Justice at which the appellant’s maximum exposure remained 14 years in jail for intimidating a justice system participant, but was limited to six months on the two hybrid offences including the one he was convicted of, namely assaulting a peace officer. Neither the Crown nor the appellant were prejudiced in any way.
[40] In light of the conclusion I have reached about the meaning to be given to the Crown’s re-election on November 29, 2011, there is no need to examine whether s. 686(1)(b)(iv) of the Criminal Code is applicable. There was no procedural irregularity.
[41] The appellant’s jurisdictional challenge to this court hearing his appeal is dismissed. His appeal will proceed in this court.
Released: May 21, 2014 (“S.T.G.”)
“S.T. Goudge J.A.”
“I agree. K. van Rensburg J.A.”
“I agree. G. Pardu J.A.”