WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.M.E., 2014 ONCA 496

DATE: 20140626

DOCKET: C57252 & M42947

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. M. E.

Appellant

James R. Smith, Alexandrina Valova and Peter M. Callahan, for the appellant

Grace Choi, for the respondent

Heard: February, 24, 2014

On appeal from the sentence imposed on June 19, 2013 by Justice Dale F. Fitzpatrick of the Superior Court of Justice, sitting without a jury and on motion brought by the Crown to quash the appeal.

Watt J.A.:

[1] Our criminal law has its chameleons. Take hybrid offences, for example. Sometimes, indictable. Other times, summary conviction. But capable of change.

[2] Sexual assault, sexual exploitation, failure to comply with undertakings and recognizances are hybrid offences. In this case, as is their wont, each began as an indictable offence. Each remained that way until the trial date when the Crown asked and was permitted to re-elect to proceed by summary conviction.

[3] The re-election was followed by an arraignment. And the arraignment, by pleas of guilty. And the pleas of guilty, by convictions. And the convictions, by sentences that included a term of imprisonment, a period of probation and several ancillary orders.

[4] D. M. E. says that the proceedings that followed the trial Crown’s re-election of summary conviction as the mode of proceeding were vitiated by jurisdictional error. He submits that the sentences imposed should be quashed and the case remitted to the Ontario Court of Justice for plea and sentence.

[5] These reasons explain why I would allow the appeal, quash the sentences imposed in the proceedings below, and remit the case to the Ontario Court of Justice at Milton to be dealt with according to law.

THE BACKGROUND

[6] The circumstances of the offences D. M. E. is alleged to have committed are beside the point for the purposes of this appeal against sentence only. Our concern is with the procedural course the proceedings followed to arrive at their final destination.

The Charges

[7] In an information sworn on August 6, 2009, D. M. E. was charged with one count of each of sexual assault and sexual exploitation. While this information was before the Ontario Court of Justice, D. M. E. was charged in another information, sworn on August 29, 2009, with two counts of breaching the undertaking on which he had been released on the earlier charges.

[8] About six months later, D. M. E. was charged in a third information with a single count of failure to comply with the recognizance on which he had been released on the second set of charges.

The Original Election of the Crown

[9] On February 7, 2011 all three informations were before a judge of the Ontario Court of Justice. The Crown (not Ms. Choi) elected to proceed by indictment on all charges. D. M. E. elected trial by a court composed of a judge and jury and requested a preliminary inquiry.

The Committal for Trial

[10] On September 16, 2011, more than two years after the first information was sworn, a judge of the Ontario Court of Justice ordered that D. M. E. stand trial on all the charges contained in the three separate informations.

The Indictment

[11] On October 5, 2011 an indictment was filed in the Superior Court of Justice at Milton charging D. M. E. with each offence on which he had been ordered to stand trial.

The Appearances in the Superior Court of Justice

[12] D. M. E. made several appearances before various judges of the Superior Court of Justice commencing on November 7, 2011. Pre-trial motions were scheduled to begin on October 22, 2012 with a six to eight day jury trial fixed to commence on December 3, 2012.

The Trial Date: Re-election and Plea

[13] On the trial date, counsel sought a further pre-trial with a judge of the Superior Court of Justice. When counsel returned to the courtroom after the pre-trial, Crown counsel announced:

“We actually have come to a resolution in this matter.”

Crown counsel then asked the presiding judge if he would allow the Crown “to re-elect summarily”. The judge agreed. Defence counsel expressed his thanks.

[14] D. M. E. was arraigned on two counts in the indictment: sexual assault and failure to comply with a non-communication term of his original undertaking. D. M. E. pleaded guilty to both counts. Both defence counsel and D. M. E. confirmed the accuracy of the statement of facts read by Crown counsel. The presiding judge entered convictions on both counts, ordered a pre-sentence report, and set a date for submissions on sentence.

[15] The proceedings that occurred on the trial date attracted no objection at the time from anyone who participated. Not to the authority of the Crown to re-elect in the superior court of criminal jurisdiction to proceed with the counts in the indictment by summary conviction. And not to the authority of the judge of the Superior Court of Justice to permit the re-election, to receive the pleas of guilty, and to proceed with sentencing.

The Sentencing Proceedings

[16] On June 19, 2013 the trial judge sentenced D. M. E. to a term of imprisonment for 12 months to be followed by a period of probation of equivalent length. The judge also made several ancillary orders including a non-communication order under s. 743.21(1) of the Criminal Code, R.S.C. 1985, c. C-46.

The Appellate Proceedings

[17] On June 24, 2013 D. M. E. filed a “Notice of Appeal or Application for Leave to Appeal” against the sentence imposed upon him. About two weeks later, he filed an “Amended Notice of Appeal or Application for Leave to Appeal” against his sentence in which he contended, for the first time, that the sentencing judge “lacked jurisdiction to preside over the Sentencing Hearing of the Applicant”.

[18] In both the original and the amended “Notice of Appeal of Appeal or Application for Leave to Appeal”, D. M. E. described the relief sought as:

1. Leave to appeal against the sentence of the Honourable Sentencing Judge; and

2. Such further and other Order as to this Honourable Court may seem just.

D. M. E. has not filed or sought an extension of time within which to file an appeal against conviction.

[19] For the respondent, Ms. Choi filed a Motion to Quash the appeal against sentence “for lack of jurisdiction”. The motion was returnable and heard together with D. M. E.’s appeal against sentence.

THE GROUNDS OF APPEAL

[20] On appeals against sentences passed by trial courts in proceedings on indictment, courts of appeal hear submissions from the parties about the fitness of the sentence imposed at trial. Section 687(1) of the Criminal Code requires a court of appeal to consider the fitness of the sentence against which the appeal is taken and permits the court to dismiss the appeal or to vary the sentence within the limits prescribed by law for the offence of which the accused has been convicted.

[21] This appeal followed a different course. The only ground advanced was that the sentencing judge had no jurisdiction to continue the proceedings after the trial Crown had re-elected, with the approval of the judge and the consent of defence counsel, to proceed by summary conviction. Although not seeking any specific relief in either the original or amended “Notice of Appeal or Application for Leave to Appeal”, in oral argument the appellant sought an order quashing the sentence imposed and “remanding the matter back to the provincial court”.

[22] For discussion purposes, I will consider the claim of lack of jurisdiction first in connection with the Crown’s authority to re-elect mode of proceeding, then in relation to the authority of the judge of the superior court of criminal jurisdiction to take a plea and impose sentence. Finally, if there is a jurisdictional failure, I will consider the nature of the remedy available on an appeal from sentence.

Ground #1: Jurisdiction to Permit the Crown to Re-elect Mode of Proceeding

[23] No additional background need be summoned to enlarge the setting essential to an understanding and determination of this specific jurisdictional failure. Yet some features of the procedural milieu warrant brief repetition.

The Re-election Proceedings

[24] In accordance with the Crown’s original election to proceed by indictment and his election to be tried by a court composed of a judge and jury, the appellant appeared with counsel on the date fixed for trial. He did not seek to re-elect trial by provincial court judge in accordance with s. 561(1)(a) of the Criminal Code prior to the trial Crown re-electing to proceed by summary conviction.

[25] Once the trial Crown announced her intention to re-elect mode of proceeding, she sought from, and was granted permission by, the presiding judge to do so. The appellant was then arraigned, and entered pleas of guilty before the presiding judge. No one raised any objection to the presiding judge, a judge of the superior court of criminal jurisdiction, accepting D. M. E.’s guilty pleas and proceeding with sentencing. In particular, no one suggested that, as a summary conviction proceeding, the case should be remitted to a judge of the Ontario Court of Justice for disposition.

The Positions of the Parties

[26] For the appellant, Mr. Smith submits that the superior court of criminal jurisdiction has jurisdiction to try any indictable offence but only a “summary conviction court” as defined in s. 785 of the Criminal Code has the authority to try, determine and adjudge summary conviction proceedings under s. 798 of the Criminal Code. Neither the superior court of criminal jurisdiction nor a judge of that court is a “summary conviction court” within s. 785 of the Criminal Code. It follows, according to Mr. Smith, that once Crown counsel had validly re-elected to proceed by summary conviction, only a judge of the summary conviction court had authority to arraign the appellant, to take his plea and to proceed to trial or other disposition thereafter. The presiding judge should have remitted the case to the Ontario Court of Justice for plea and disposition.

[27] For the respondent, Ms. Choi says that the appellant was properly before a judge of the Superior Court of Justice in accordance with the Crown’s original election of mode of proceeding (by indictment) and the appellant’s election of mode of trial (by a court composed of judge and jury). There, the Crown could exercise its common law right to re-elect the mode of proceeding. The re-election was accompanied by the approval of the presiding judge and the consent of defence counsel, and thus was valid unless vitiated by what occurred later. Besides, the appellant benefitted by the re-election procedure because his trial counsel could seek a conditional sentence of imprisonment that was legally unavailable to him if the Crown proceeded by indictment.

The Governing Principles

[28] Several principles have a say in a determination of whether Crown counsel at trial had the authority to re-elect mode of proceeding in the superior court of criminal jurisdiction.

The Categories of Offences

[29] It is well-known that the Criminal Code contains offences that are

i. indictable;

ii. summary conviction;

iii. indictable or summary conviction.

Some offences are indictable only. Others are summary conviction only. The third category, with which we are concerned here, consists of hybrid offences that may be prosecuted by indictment or on summary conviction depending upon the Crown’s election of mode of proceeding.

[30] An offence is indictable if the enactment that creates it provides that an alleged offender may be prosecuted for it by indictment: Interpretation Act, R.S.C. 1985, c. I-21, as amended, s. 34(1)(a). As a result, offences in category iii – hybrid offences – are indictable offences unless and until Crown counsel elects or chooses to proceed by summary conviction: R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, at para. 21. Conversely, once Crown counsel elects to proceed by summary conviction, what was an indictable offence is no longer deemed to be so: Dudley, at para. 21.

[31] In the end, depending on Crown counsel’s election of mode of proceeding, or in some cases, Crown counsel’s failure to elect mode of proceeding, every hybrid offence will be tried as either an indictable offence, or as a summary conviction offence, but not as both.

The Right of the Crown to Elect Mode of Proceeding

[32] The terms “proceeding by indictment” and “proceeding by summary conviction” designate modes of proceeding and have resonance for hybrid offences. The right to choose, said differently, to elect mode of proceeding for hybrid offences resides with the Crown. This authority is grounded in the common law, not created by statute: R. v. Smythe, 1971 CanLII 831 (SCC), [1971] S.C.R. 680, at pp. 686-687; R. v. Linton (1994), 1994 CanLII 7272 (ON SC), 18 O.R. (3d) 647, 90 C.C.C. (3d) 528 (Gen. Div.), at p. 532. As part of the criminal law of England in force immediately before the proclamation of the Criminal Code revision on April 1, 1955, the Crown’s right to choose carries forward. Nothing in the Code alters, varies, modifies or affects this authority, and thus it retains its full vigour.

[33] No common law or statutory authority prescribes or limits the place or circumstances in which Crown counsel may elect the mode of proceeding for hybrid offences. As a matter of practice, however, the election is made on an appearance before a provincial court judge and recorded on the information on which the accused appears before that court.

[34] The election[^1] and re-election[^2] provisions in the Criminal Code apply only to proceedings on indictment and relate to mode of trial (for example, by a court composed of a judge and jury). The party who elects or re-elects mode of trial is the accused, who sometimes requires prosecutorial consent for a re-election.

The Right of the Crown to Re-elect Mode of Proceeding

[35] The authorities also recognize the right of the Crown to re-elect mode of proceeding, in other words, to change its original election to the other mode of proceeding. Unlike the right of election of mode of trial, however, the right of the Crown to re-elect mode of proceeding is not unqualified. In some cases, a re-election may require the consent of the accused and approval of the presiding judge: Linton, at p. 540; R. v. Hancock (1992), 60 O.A.C. 322 (C.A.), at p. 323; R. v. Kalkhorany (1994), 1994 CanLII 687 (ON CA), 17 O.R. (3d) 783, 89 C.C.C. (3d) 184 at pp.191-192; and Re. Abarca and The Queen (1980), 1980 CanLII 2958 (ON CA), 57 C.C.C. (2d) 410 (Ont. C.A.), at pp. 516-517;

[36] Despite the authority of the Crown to re-elect mode of proceeding in connection with hybrid offences, it is critical to keep in mind that the two modes of proceeding and types of trials are jurisdictionally different. The court that tries or otherwise disposes of the case must be properly constituted.

[37] The decision of this court in Kalkhorany well illustrates some of the problems that may follow from decisions by Crown counsel to change modes of proceedings midstream.

[38] In Kalkhorany, Crown counsel elected to proceed by summary conviction on a charge of fraud under. As the first witness was testifying, defence counsel interrupted the proceedings to point out that the Crown could not proceed by summary conviction because the offence was alleged to have been committed more than six months before the information was laid. Responding to a query from the trial judge, Crown counsel re-elected to proceed by indictment. Defence counsel indicated he was content to proceed. The appellant was not re-arraigned and entered no plea after Crown counsel had re-elected. The court was not reconstituted under Part XIX of the Criminal Code, nor was the evidence adduced prior to the re-election incorporated by reference into the indictable trial.

[39] On appeal, Kalkhorany contended that the Crown’s original election to proceed by summary conviction was a nullity because the information had been laid more than six months after the subject-matter of the proceedings arose. The Crown conceded on appeal that the original election was a nullity.[^3] The court appears to acknowledge the Crown’s right to re-elect mode of proceedings, but quashed the conviction because the court that entered it was never properly constituted. The court began the trial as a “summary conviction court”, but purported to continue it under Part XIX of the Criminal Code as the trial of an indictable offence within the absolute jurisdiction of a provincial court judge. The two types of trials are “jurisdictionally different”:Kalkhorany, at p. 191. The court did not suggest that Crown counsel had no right to re-elect mode of proceeding. What vitiated the proceedings was the failure to reconstitute the court – by arraignment, plea and referential incorporation of the evidence already given: Kalkhorany, at pp. 191-192.

[40] Under s. 786(2) of the Criminal Code, summary conviction proceedings must generally be instituted not more than six months after the subject-matter of the proceedings arose. This general rule is not unyielding. The parties may consent to institution of summary conviction proceedings beyond the six month limitation period. There would seem no reason to assign a lesser role to mutual consent where what occurs outside the limitation period is a re-election rather than an election. It may also be open to question whether re-election of mode of proceeding amounts to an institution of proceedings: Linton, at pp. 536-537.

The Principles Applied

[41] As I will explain, several reasons persuade me not to give effect to this claim of error or jurisdictional deficit.

[42] First, the right to elect mode of proceeding for hybrid offences is that of the Crown.

[43] Second, the common law equally permits the Crown, having once elected one mode of proceeding in connection with a hybrid offence, to re-elect later the other mode of proceeding. In some instances consent of the accused and approval of the presiding judge may be required.

[44] Third, unlike an accused’s right to elect or re-elect mode of trial, the Crown’s right to elect or re-elect mode of proceeding need not be made at any specific place or before any particular judicial officer. Provided any consent and approval requirements are satisfied, it is of no jurisdictional moment where re-election is made.

[45] Finally, that the re-election to proceed by summary conviction took place more than six months after the subject-matter of the proceedings arose is of no jurisdictional significance. The appellant, who was represented by counsel throughout, not only agreed with the change in the mode of proceeding, but also benefited substantially from it. Counsel for the appellant could advocate for a conditional sentence of imprisonment when Crown counsel proceeded summarily, a disposition statutorily unavailable to him when Crown counsel proceeded by indictment. And the maximum punishment to which the appellant would be subject on summary conviction was a term of imprisonment for 18 months rather than for ten years if the Crown proceeded by indictment. It may also be open to question whether re-election of mode of proceeding amounts to institution of proceedings within s. 786(2) of the Criminal Code: Linton, at pp. 536-537.

Ground #2: The Jurisdiction to Take Pleas of Guilty

[46] The second issue has to do with the authority or jurisdiction of a judge of the superior court of criminal jurisdiction to take a plea of guilty in summary conviction proceedings. Some aspects of the proceedings in the Superior Court of Justice warrant brief repetition before a canvass of the positions of the parties and a reference to the governing principles.

The Plea Proceedings

[47] After a further pre-trial conference with a judge of the Superior Court of Justice, counsel and the appellant returned to the courtroom where the trial Crown advised the presiding judge that “we have actually come to a resolution in this matter”. The Crown asked the presiding judge if he (the judge) would allow her (the Crown) “to re-elect summarily”. The judge approved. Defence counsel (who is also counsel on appeal) expressed his thanks.

[48] The appellant was arraigned and entered pleas of guilty to two of the five counts in the indictment. The Crown read a statement of facts that supported findings of guilt on those two counts. Defence counsel acknowledged the substantial correctness of the summary read by the Crown, and clarified several points. The appellant agreed that the summary of facts, as clarified by defence counsel, was correct. The presiding judge entered convictions on the two counts to which the appellant had pleaded guilty. The other counts were withdrawn by the Crown.

[49] At no point in the proceedings in the Superior Court of Justice did anyone involved in the case – Crown, defence or judge – query, let alone contest, the jurisdiction of the judge of the Superior Court of Justice to proceed as the prosecution played out.

The Arguments on Appeal

[50] For the appellant, Mr. Smith contends that after the Crown had re-elected to proceed by summary conviction, the presiding the judge had no authority to continue the proceedings. Rather, he should have remitted them to the Ontario Court of Justice for determination. A “summary conviction court” was the only court with jurisdiction over the proceedings once the Crown had re-elected to proceed by summary conviction. The Superior Court of Justice is not a “summary conviction court” as defined in s. 785 of the Criminal Code.

[51] Mr. Smith acknowledges that a judge of the Superior Court of Justice is ex officio a justice of the peace under s. 5 of the Justices of the Peace Act, R.S.O. 1990, c. J.4 and has jurisdiction throughout Ontario under s. 17(1) of that Act. Although a justice of the peace may qualify as a “summary conviction court” under paragraph (b) of the definition in s. 785 of the Criminal Code, no one in the proceedings below suggested, much less invoked this provision to ground the authority of the presiding judge. It should not be summoned here as an after-the-fact justification for proceedings that were a nullity.

[52] For the respondent, Ms. Choi offers two alternatives to sustain the convictions entered in the Superior Court of Justice.

[53] First, Ms. Choi says, the pleas of guilty were entered on charges that were properly before the Superior Court of Justice according to the Crown’s original election to proceed by indictment. These were offences over which the Superior Court of Justice has jurisdiction in much the same way that a judge of that court can take a plea to a summary conviction offence under s. 606(4) of the Criminal Code, or convict an accused of a lesser and included summary conviction offence under s. 662(1) of the Criminal Code.

[54] Second, and alternatively, Ms. Choi submits that a judge of the Superior Court of Justice is ex officio a justice of the peace with province-wide jurisdiction under s. 5 and 17(1) of the Justices of the Peace Act. As a result, she says, the presiding judge was a “summary conviction court” within paragraph (b) of the definition of “summary conviction court” in s. 785 of the Criminal Code. As a “summary conviction court”, the presiding judge had authority to receive the guilty pleas and conduct sentencing proceedings. In these circumstances, a member of the Court of Appeal for Ontario, ex officio a judge of the Superior Court of Justice, can determine the sentence appeal under ss. 813(a)(ii) and 822(1) of the Criminal Code.

The Governing Principles

[55] Several statutory provisions and related principles have their say in the resolution of this issue.

The Jurisdiction of the Superior Court of Justice

[56] The Superior Court of Justice is a “superior court of criminal jurisdiction” as that term is exhaustively defined in s. 2 of the Criminal Code.[^4] The superior court of criminal jurisdiction has jurisdiction to try any indictable offence under s. 468 and the exclusive jurisdiction to try the indictable offences listed or otherwise described in s. 469 of the Criminal Code. Part XIX Indictable Offences – Trial without a Jury, and Part XX Procedure in Jury Trials and General Provisions, govern the procedure in the trial of indictable offences in the superior court of criminal jurisdiction.

[57] Three specific provisions in Part XX warrant particular reference in connection with the authority of the superior court of criminal jurisdiction to deal with summary conviction offences.

[58] Section 591(1) of the Criminal Code is a rule of pleading that does not, in express terms, authorize joinder of summary conviction and indictable offences together in the same indictment. Equally, s. 591(1) does not prohibit such joinder; it uses the undifferentiated or generic term “offences”: R. v. Clunas, 1992 CanLII 127 (SCC), [1992] 1 S.C.R. 595, at pp. 611-612. In the result, indictable and summary conviction offences may be joined together in the same indictment or information: Clunas, at pp. 611-612. But where the mode of trial for the indictable offences is trial by a court composed of a judge and jury, the indictable and summary conviction counts may not be tried together: Clunas, at p. 612.

[59] Under s. 606(4) of the Criminal Code, an accused or defendant may plead not guilty of the offence charged, but guilty of any other offence arising out of the same transaction, whether the offence to which the guilty plea is entered is an included offence in the offence charged or not. Once again, the use of the generic “any other offence” would permit entry of the plea of guilty to a summary conviction offence even if the proceedings were in the superior court of criminal jurisdiction. The plea of guilty in this context is only effectual with prosecutorial consent and judicial acceptance.

[60] Where the principal offence charged is an indictable offence, entry of a s. 606(4) plea of guilty to a summary conviction offence does not change the nature of the proceedings in which the plea was entered. As they began in connection with the principal offence, these are “proceedings by indictment”, and it is the nature of the proceedings, not the nature of the conviction, that determines appellate rights: R. v. Yaworski (1959), 1959 CanLII 494 (MB CA), 124 C.C.C. 151 (Man. C.A.), at p. 154; R. v. Lévesque, [2002] J.Q. No. 1359 (C.A.), at para. 13. See also, ss. 675(1)(b) and 676(1)(d) of the Criminal Code.

[61] One further statutory provision warrants mention for it too permits a superior court of criminal jurisdiction to deal with a summary conviction offence.

[62] Section 662(1) of the Criminal Code permits conviction of an accused of an offence included in the indictable offence charged where the evidence fails to prove the principal offence, but does prove the included offence. The included offence of which the accused may be convicted may be punishable on summary conviction. Once again, however, it is the nature of the proceedings, not the nature of the conviction that determines appellate rights.

The Jurisdiction of the Summary Conviction Court

[63] Part XXVII of the Criminal Code governs summary conviction proceedings except where some other law provides otherwise: Criminal Code, s. 786(1). Among other things, the term “proceedings” means proceedings in respect of offences that Parliament has declared to be punishable on summary conviction: Criminal Code, s. 785.

[64] Every summary conviction court has jurisdiction to try, determine and adjudge summary conviction proceedings in the territorial division in which the summary conviction court has jurisdiction: Criminal Code, s. 798. In Part XXVII, the term “summary conviction court” means a person who has jurisdiction in the territorial division where the subject-matter of the proceedings is alleged to have arisen and is either given jurisdiction over the proceedings by the Criminal Code or is a justice or provincial court judge: Criminal Code, s. 785. The term “justice” is exhaustively defined in s. 2 of the Criminal Code as a justice of the peace or a provincial court judge.

[65] Some authorities have held that enabling legislation such as s. 5 of the Justices of the Peace Act permits a judge of a superior court of criminal jurisdiction to exercise the powers of a justice of the peace: R. v. Vincent, 2008 ONCA 76, at paras. 12-13; and R. v. Sharma, 1995 CanLII 251 (BC CA), [1995] B.C.J. No. 2680 (C.A.), at para. 24. But circumstances may make in unwise for a judge of the superior court of criminal jurisdiction to exercise jurisdiction as an ex officio justice of the peace, as for example where the effect would be to have members of the same court exercise both first instance and review jurisdiction: R. v. LaFontaine (1973), 1973 CanLII 1478 (ON SC), 13 C.C.C. (2d) 316 (Ont. H.C.), at pp. 317-318.

[66] This court has also held that the superior court of criminal jurisdiction has no authority to try summary conviction offences charged in the same indictment as indictable offences. The jurisdiction of the superior court of criminal jurisdiction is to try indictable offences, not to try summary conviction offences: R. v. Allen, [2000] O.J. No. 4150 (C.A.), at para. 5; and R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 18.

The Principles Applied

[67] For several reasons, I would give effect to this ground of appeal. It follows, in my respectful view, that the presiding judge had no authority to arraign the appellant, to take his plea of guilty, or to impose what he considered to be a fit sentence.

[68] First, the offences to which the appellant pleaded guilty after the Crown’s re-election to proceed summarily were summary conviction offences. Section 798 of the Criminal Code requires that summary conviction proceedings be tried, determined and adjudged by a summary conviction court. Section 785 exhaustively defines “summary conviction court”. Neither the “superior court of criminal jurisdiction”, as defined in s. 2, nor a judge of that court is included in the definition of “summary conviction court” in s. 785 of the Criminal Code.

[69] Second, the Superior Court of Justice, either by name or as the “superior court of criminal jurisdiction”, is the “appeal court” for the purposes of appeals in summary conviction proceedings under ss. 813-828 and 830-838 of the Criminal Code. It would be somewhat undesirable to have judges of the same court try and review trials for error.

[70] Third, the proceedings in this case do not come within any of the circumstances to which ss. 606(4) and 662(1) apply directly or by analogy.

[71] Section 606(4) applies where an accused pleads not guilty to the offence charged (the principal offence), but guilty to some “other offence arising out of the same transaction” (the other offence). The court has the discretion to accept the plea to the “other offence” provided the Crown has consented to entry of that plea. The “other offence” could be a summary conviction[^5] offence.

[72] Section 606(4) has no application here. Here, the pleas of guilty were to the principal offences. Further, although s. 606(4) would permit an accused in proceedings by indictment to plead not guilty to the principal indictable offence charged, but guilty to a summary conviction offence arising out of the same transaction, the subsection cannot provide general authorization for what occurred here – the conduct of summary conviction proceedings by a court other than a “summary conviction court”.

[73] Section 662(1) is also limited in scope. It permits a court in proceedings by indictment to find an accused not guilty of the principal indictable offence charged, but guilty of an included summary conviction offence where the evidence fails to prove the principal offence, but does prove the included offence. But like s. 606(4), this provision does not furnish general authority to a superior court of criminal jurisdiction to try summary conviction offences.

[74] Fourth, although there may be circumstances in which a judge of the Superior Court of Justice may exercise jurisdiction as a justice of the peace as a result of s. 5 of the Justices of the Peace Act, the parties never asked the presiding judge to do so here, nor did he purport to do so. Although as a matter of statutory construction a justice of the peace falls within the definition of “summary conviction court” in s. 785 of the Criminal Code, in this province justices of the peace do not in practice exercise jurisdiction as a “summary conviction court” for the trial of summary conviction offences under the Criminal Code. Further, the two types of proceedings – proceedings by indictment and proceedings by summary conviction – are jurisdictionally different. At the very least, the steps required to reconstitute the presiding judge as a “summary conviction court” were not taken, thus summary conviction jurisdiction was engaged.

[75] Finally, prior decisions of this court make it clear that the superior court of criminal jurisdiction has no authority to try summary conviction offences: Allen, at para. 5; and Woolcock, at para. 18.

The Appropriate Remedy

[76] The more difficult issue in this case has to do with the disposition that we should make in light of the determination that the presiding judge had no authority to conduct proceedings once Crown counsel had re-elected to proceed by summary conviction. The available remedies are circumscribed by the nature of the appeal – an appeal against sentence only – and the dispositive authority conferred on this court by s. 687 of the Criminal Code – to dismiss the appeal or vary the sentence within the limits prescribed by law for the offences of which the appellant has been convicted.

The Positions of the Parties

[77] For the appellant, Mr. Smith submits that the respondent’s motion to quash the appeal should be dismissed. The proceedings taken against the appellant in the Superior Court of Justice were proceedings by indictment. The appellant’s appearance there was a direct result of Crown counsel’s election of mode of proceeding and the appellant’s own election of mode of trial. Crown counsel elected to proceed by indictment. The appellant elected to be tried by a court composed of a judge and jury. Although the appellant was convicted of summary conviction offences, it is the nature of the proceedings not the nature of the conviction that determines rights of appeal. A sentence imposed by a trial court “in proceedings by indictment” falls within the authority of this court under s. 675(1)(b) of the Criminal Code.

[78] According to Mr. Smith, the appropriate remedy is to allow the appeal, quash the sentence imposed in the Superior Court of Justice and remit the case to the Ontario Court of Justice sitting as a summary conviction court, to take the pleas of guilty and conduct sentencing proceedings. Mr. Smith emphasizes that the appellant does not intend to resile from the pleas of guilty he entered in the Superior Court of Justice.

[79] For the respondent, Ms. Choi did not specifically address the issue of remedy if the re-election were found valid but the subsequent proceedings conducted without jurisdiction. Her approach was to characterize the proceedings as a whole as being conducted with or without jurisdiction based on the validity of Crown counsel’s re-election. If the Crown’s re-election to proceed by summary conviction was invalid, the offences remain indictable and this court should determine the fitness of the sentence. If the Crown election to proceed by summary conviction was valid, this court has no authority to consider the fitness of the sentence, although a single member of the court could do so as a member of the “appeal court” in s. 812(1)(a) of the Criminal Code and should do so.

The Governing Principles

[80] Several principles contribute to a determination of the remedy that is legally available and just in this case.

[81] First, as I pointed out earlier, rights of appeal are determined by the nature of proceedings in which the convictions are entered and sentences imposed, not by the nature of the offence of which an accused is convicted: Yaworski, at p. 134; and Lévesque, at para. 13. It follows that if an accused is convicted in proceedings by indictment of an offence that is exclusively summary conviction, his or her rights of appeal are those included in Part XXI, Appeals – Indictable Offences, in particular, in s. 675.

[82] Second, rights of appeal, as well as the remedies available on appeal, are entirely statutory. Unlike superior courts of criminal jurisdiction, appellate courts have no inherent jurisdiction. And that is so, at least where the appellate court is exercising its host jurisdiction, even if the court might be included in a statutory definition of “superior court of criminal jurisdiction”.

[83] Third, on appeals against sentence only, whether the proceedings in the trial court are by indictment or by summary conviction, the authority of the reviewing court is to dismiss the appeal or to vary the sentence within the limits prescribed by law for the offence of which the accused was convicted. The dispositive authority on sentence appeals, s. 687 of the Criminal Code, made applicable to sentence appeals in summary conviction proceedings by s. 822(1), contains no provision comparable to the supplementary authority found in s. 686(8) to make any additional order that justice requires.

[84] Fourth, persons charged with summary conviction offences have proceedings against them tried, determined and adjudged by a summary conviction court, not by a judge of the superior court of criminal jurisdiction.

[85] What the parties sought to achieve here seems clear enough. The appellant was prepared to plead guilty to counts of sexual assault and breach of an undertaking, but wanted to be able to seek a conditional sentence on the sexual assault count. A conditional sentence was not legally available if the Crown proceeded by indictment. To permit the appellant to seek a conditional sentence, Crown counsel re-elected to proceed by summary conviction. But the proceedings never made their way to a summary conviction court.

[86] The result the parties sought could have been accomplished in a few brief steps. When the parties appeared for trial in the Superior Court of Justice, the appellant could have re-elected trial by a provincial court judge with the written consent of the prosecutor under s. 566(1)(a) of the Criminal Code. The proceedings would have retained their indictable character when they returned before a judge of the Ontario Court of Justice. When the parties appeared before a provincial court judge in the Ontario Court of Justice, Crown counsel could then have re-elected to proceed by summary conviction. Reconstituted as a summary conviction court, the presiding judge could then proceed with the arraignment, pleas of guilty and sentencing proceedings. The parties could appeal the sentence imposed to the Superior Court of Justice under s. 812 of the Criminal Code. In the circumstances of this appeal, once the Crown re-elected, one would think the presiding judge could have remitted the matter to the Ontario Court of Justice.

The Principles Applied

[87] For the reasons that follow, I am satisfied that the initial election of the Crown to proceed by indictment, together with the appellant’s appearance before a judge of the superior court of criminal jurisdiction on the date scheduled for a jury trial, establishes a sufficient jurisdictional predicate for this court to hear and determine this appeal from sentence. In addition, I am satisfied that in these circumstances we have the authority to quash a sentence imposed by a court that was without jurisdiction to impose it. In the result, I would grant leave to appeal sentence, allow the appeal, quash the sentence imposed at trial and, along with it, the pleas of guilty entered there.[^6] I would also dismiss the Motion to Quash the Appeal.

[88] Once the Crown had re-elected to proceed by summary conviction, the case should have been remitted to the Ontario Court of Justice in the jurisdiction in which the proceedings arose. It was there, not in the superior court of criminal jurisdiction, that, to borrow the language of s. 798 of the Criminal Code, the summary conviction proceedings should have been tried, adjudged and determined.

[89] The appellant is now a person charged with several summary conviction offences. Arrangements should be made, as soon as practicable, to have him appear before a judge of the Ontario Court of Justice at Milton so that the prosecution can proceed, as it failed to do earlier, in a court with jurisdiction to do so. In light of the position taken by counsel for the appellant during argument, that the appellant does not resile from his pleas of guilty, I expect that the summary conviction proceedings can be completed shortly.

Released: June 26, 2014 (J.L)

“David Watt J.A.”

“I agree John Laskin J.A.”

“I agree R.G. Juriansz J.A.”

[^1]: For example, ss. 536 and 536.2.

[^2]: For example, ss. 561-563.

[^3]: The decision precedes the 1997 amendment to s. 786(2) which permits summary conviction proceedings to be instituted more than six months after the subject-matter of the proceedings arose provided both parties consent.

[^4]: This court is also included in the definition.

[^5]: If the “other offence” is a hybrid offence, it would be indictable because of s. 34(1)(a) of the Interpretation Act.

[^6]: If necessary I would extend the time within which the appellant could serve and file a Notice of Appeal against conviction to achieve this result on the basis that the plea of guilty was entered in a court that had no jurisdiction to receive it.