Her Majesty the Queen v. Sciascia

[Indexed as: R. v. Sciascia]

Ontario Reports

Court of Appeal for Ontario,

MacPherson, Watt and B.W. Miller JJ.A.

May 30, 2016

131 O.R. (3d) 375 | 2016 ONCA 411

Case Summary

Criminal law — Appeal — Proviso — Accused charged in separate informations with Criminal Code offences and provincial offences arising out of same events — Crown electing to proceed summarily on Criminal Code charges — Trial judge trying both sets of offences together with consent of parties — Accused represented by counsel — Joint trial not permissible as offences could not have been included in same information and as joinder mixed offences which were intended to be tried in discrete court systems — Error being procedural — Trial court having jurisdiction over each class of offences — Neither accused nor administration of justice prejudiced by procedural irregularity — Provisos in s. 686(1)(b)(iv) of Code and s. 120(1)(b)(iii) of Provincial Offences Act applying — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iv) — Provincial Offences Act, R.S.O. 1990, c. P.33, s. 120(1)(b) (iii).

Criminal law — Trial — Jurisdiction — Accused charged in separate informations with Criminal Code offences and provincial offences arising out of same events — Crown electing to proceed summarily on Criminal Code charges — Trial judge trying both sets of offences together with consent of parties — Joint trial not permissible as offences could not have been included in same information and as joinder mixed offences which were intended to be tried in discrete court systems — Error being procedural — Trial court having jurisdiction over each class of offences — Neither accused nor administration of justice prejudiced by procedural irregularity — Provisos in s. 686(1)(b)(iv) of Code and s. 120(1)(b)(iii) of Provincial Offences Act applying — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iv) — Provincial Offences Act, R.S.O. 1990, c. P.33, s. 120(1)(b)(iii).

The accused was charged with the Criminal Code offences of assault with a weapon and dangerous driving. In a separate information laid under s. 23 of the Provincial Offences Act ("POA"), he was charged with the Highway Traffic Act, R.S.O 1990, c. H.8 offences of failing to stop for police and failing to report property damage caused by his operation of a motor vehicle. All of the charges arose from the same events. The Crown elected to proceed summarily on the Criminal Code charges. With the consent of the parties, all of the charges were tried together. The accused was convicted of dangerous driving and failure to stop for police. He appealed, arguing that the trial was a nullity because he [page376] was simultaneously tried for Criminal Code and Highway Traffic Act offences. The summary conviction appeal court affirmed the convictions. The accused appealed.

Held, the appeal should be dismissed.

A Criminal Code information cannot include a count charging a provincial offence to which the POA applies, and a POA information cannot include counts charging Criminal Code offences. The joint trial was therefore impermissible because the Criminal Code counts and the Highway Traffic Act counts could not have been included in the same information. It was also impermissible because the joinder mixed offences which were intended to be tried in discrete court systems, one of which was created for the very propose of maintaining separation of trials. Each procedural irregularity originated in an error of law which, had it occurred prior to the enactment of s. 686(1) (b)(iv) of the Code, would have caused a loss of jurisdiction in the trial court. However, the presiding judge was both a summary conviction court under s. 785 of the Code and a provincial offences court under provincial law, and thus had jurisdiction to try both classes of offences. Neither the accused nor the due administration of justice was prejudiced by the procedural irregularity. Joinder avoided unnecessary duplication and depletion of judicial resources, inconvenience to witnesses and the prospect of inconsistent verdicts. This was appropriate for the application of the provisos in s. 686(1)(b)(iv) of the Criminal Code and s. 120(1) (b)(iii) of the POA.

R. v. Clunas, 1992 CanLII 127 (SCC), [1992] 1 S.C.R. 595, [1992] S.C.J. No. 17, 134 N.R. 268, J.E. 92-355, 52 O.A.C. 130, 70 C.C.C. (3d) 115, 11 C.R. (4th) 238, 9 C.R.R. (2d) 79, 15 W.C.B. (2d) 151; R. v. L. (S.J.), [2009] 1 S.C.R. 426, [2009] S.C.J. No. 14, 2009 SCC 14, 64 C.R. (6th) 240, 386 N.R. 1, EYB 2009-156451, J.E. 2009-630, 242 C.C.C. (3d) 297, 305 D.L.R. (4th) 1, 203 C.R.R. (2d) 25, apld

Other cases referred to

Clayton v. Chief Constable of Norfolk, [1983] 2 A.C. 473, [1983] 1 All E.R. 984, [1983] 2 W.L.R. 555, 147 J.P. 161, 77 Cr. App. Rep. 24 (H.L.); Crane v. Director of Public Prosecutions, [1921] 2 A.C. 299, [1921] All E.R. Rep. 19, 90 L.J.K.B. 1160, 125 L.T. 642, 85 J.P. 245, 37 T.L.R. 788, 65 Sol. Jo. 642, 27 Cox C.C. 43, 15 Cr. App. Rep. 183 (H.L.); R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, 87 D.L.R. (4th) 449, 133 N.R. 1, J.E. 92-189, 51 O.A.C. 161, 69 C.C.C. (3d) 481, 10 C.R. (4th) 257, 7 C.R.R. (2d) 193, 15 W.C.B. (2d) 81, revg 1989 CanLII 262 (ON CA), [1989] O.J. No. 111, 31 O.A.C. 357, 47 C.C.C. (3d) 250, 68 C.R. (3d) 50, 45 C.R.R. 193, 7 W.C.B. (2d) 90 (C.A.); R. v. Cloutier, 1988 CanLII 199 (ON CA), [1988] O.J. No. 570, 27 O.A.C. 246, 43 C.C.C. (3d) 35, 4 W.C.B. (2d) 300 (C.A.) [Leave to appeal to S.C.C. refused [1989] 2 S.C.R. vi, [1989] S.C.C.A. No. 194, 104 N.R. 160n, 37 O.A.C. 320n, 50 C.C.C. (3d) vi]; R. v. Dennis; R. v. Parker, [1924] 1 K.B. 867, [1924] All E.R. Rep. Ext. 922, 93 L.J.K.B. 388, 130 L.T. 830, 88 J.P. 84, 40 T.L.R. 420, 68 Sol. Jo. 563, 27 Cox C.C. 632 (Cr. C.A.); R. v. Kennedy; R. v. Dowdall, 1971 CanLII 419 (ON CA), [1971] 2 O.R. 445, [1971] O.J. No. 1536, 3 C.C.C. (2d) 58 (C.A.); R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 36 O.R. (3d) 643, [1997] O.J. No. 5148, 105 O.A.C. 381, 121 C.C.C. (3d) 139, 37 W.C.B. (2d) 73 (C.A.); R. v. Noureddine (2015), 128 O.R. (3d) 23, [2015] O.J. No. 5916, 2015 ONCA 770, 341 O.A.C. 130, 332 C.C.C. (3d) 114; R. v. Phillips, 1983 CanLII 161 (SCC), [1983] 2 S.C.R. 161, [1983] S.C.J. No. 70, 3 D.L.R. (4th) 352, 48 N.R. 372, 50 N.B.R. (2d) 81, 8 C.C.C. (3d) 118, 35 C.R. (3d) 193, 10 W.C.B. 377; [page377] R. v. Pottinger, 1990 CanLII 10935 (ON CA), [1990] O.J. No. 289, 37 O.A.C. 262, 370 O.A.C. 262, 54 C.C.C. (3d) 246, 76 C.R. (3d) 393, 9 W.C.B. (2d) 708 (C.A.) [Leave to appeal to S.C.C. refused [1990] S.C.C.A. No. 201, 119 N.R. 352n, 41 O.A.C. 267n, 58 C.C.C. (3d) viin, 79 C.R. xxivn]; R. v. Shia, [2015] O.J. No. 1406, 2015 ONCA 190, 331 O.A.C. 1, 320 C.C.C. (3d) 111, 120 W.C.B. (2d) 303; R. v. V. (W.), [2007] O.J. No. 3247, 2007 ONCA 546, 87 W.C.B. (2d) 761 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 615, 397 O.A.C. 397n]; R. v. Varcoe, [2007] O.J. No. 1009, 2007 ONCA 194, 222 O.A.C. 197, 219 C.C.C. (3d) 397, 46 C.R. (6th) 299, 73 W.C.B. (2d) 305

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43 [as am.]

Criminal Code, R.S.C. 1985, c. C-46, s. 504, Part XIX [as am.], ss. 591(1), 686(1)(a)(ii), (b)(iii), (iv), Part XXVII [as am.], ss. 785 [as am.], 788(1), 789(1)(b), 813 [as am.], 839(1) (a)

Highway Traffic Act, R.S.O 1990, c. H.8 [as am.]

Interpretation Act, R.S.C. 1985, c. I-21, ss. 2(1) [as am.], 34(2)

Provincial Courts Amendment Act, 1979, S.O. 1979, c. 5

Provincial Offences Act, R.S.O. 1990, c. P.33 [as am.], ss. 1(1) [as am.], 23, (1), 25(5), 47(1), 116 [as am.], 120(1)(b)(iii), 131

Youth Criminal Justice Act, S.C. 2002, c. 1 [as am.], s. 2(1) [as am.]

APPEAL by the accused from the decision of Morissette J., [2015] O.J. No. 1427, 2015 ONSC 1885 (S.C.J.) dismissing an appeal from the convictions entered on June 7, 2013 by A.T. McKay J. of the Ontario Court of Justice.

Owen Wigderson, for appellant.

Chris Chorney, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: — St. Patrick's Day, 2012. Parties in a college town. Four offences. Two criminal. Two provincial. Charged in separate informations.

[2] Another day. This time in a courtroom. A single trial. A fair trial. Some offences proven. Others not. Convictions entered. Acquittals registered. Sentences imposed.

[3] But there is more. Now we are told that these fair proceedings were flawed from the outset. Even though everybody agreed on a single trial on two informations, it is as though the proceedings never occurred. At least according to the person who had that fair trial.

[4] Our task is to determine whether what occurred was a jurisdictional catastrophe beyond salvage or a procedural misadventure awaiting rescue.

[5] Preferring substance to form, I would dismiss the appeals.

The Background Facts

[6] The circumstances underlying the offences with which Joseph Sciascia (the "appellant") was charged are immaterial to [page378] the issues raised on appeal. Of greater significance is the procedural course followed in the prosecution.

The offences charged

[7] The appellant was charged in an information laid under the Criminal Code, R.S.C. 1985, c. C-46 with assaulting a peace officer with a weapon -- a motor vehicle -- and dangerous operation of a motor vehicle. Both are hybrid offences that permit the Crown to choose whether to proceed summarily or by indictment.

[8] In an information laid under s. 23 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"), the appellant was charged with failing to stop for police and failing to report property damage caused by his operation of a motor vehicle, both offences under the Highway Traffic Act, R.S.O 1990, c. H.8 ("HTA").

The Crown election

[9] The Crown elected to proceed by summary conviction on both charges contained in the Criminal Code information.

The trial proceedings

[10] Both informations were scheduled for trial before the same judge, on the same day, in the same courtroom.

[11] As proceedings were about to begin, the Crown (not Mr. Chorney) suggested that pleas be entered on "everything". Defence counsel (not Mr. Wigderson) indicated that he wanted the appellant arraigned on all charges. The appellant was arraigned on both informations and pleaded not guilty to all charges.

[12] Defence counsel told the presiding judge that "time, jurisdiction and identity" were not in dispute. The single contested issue, according to defence counsel, was "whether the events that occurred are sufficient to prove the charges".

The findings of the trial judge

[13] The trial judge found the appellant guilty of dangerous operation of a motor vehicle under the Criminal Code and of failure to stop for police under the HTA. The judge found the appellant not guilty of the Criminal Code offence of assaulting a police officer with a weapon and of the HTA offence of failing to report property damage. [page379]

The summary conviction appeal

[14] The appellant changed counsel after trial. He appealed the dangerous operation conviction and the sentence imposed under s. 813 of the Criminal Code and appealed the provincial offence conviction under s. 116 of the POA. He raised the same primary ground of appeal in each notice. He asserted that his "trial was a nullity because he was simultaneously tried for Criminal Code and Highway Traffic Act charges".

The decision of the summary conviction appeal court

[15] Both appeals were heard together by a judge of the Superior Court of Justice sitting as a summary conviction appeal court. The appeal judge dismissed the conviction appeals but allowed the appeal from the sentence on the dangerous operation conviction and substituted an absolute discharge.

[16] In her written reasons, the appeal judge referred to the decision in R. v. Clunas, 1992 CanLII 127 (SCC), [1992] 1 S.C.R. 595, [1992] S.C.J. No. 17, which permitted the joint trial of an accused on separate informations that charged indictable and summary conviction Criminal Code offences with the consent of the parties. The essence of her reasons for rejecting the appellant's claim that the trial was a nullity is found in paras. 17-20 of her judgment:

A judge of the Ontario Court of Justice has the jurisdiction to hear both the C.C. and P.O.A. informations separately and is empowered to try provincial offences matters as well as summary conviction offences.

The P.O.A. provides for its own procedure and specifically in section 2 thereof highlights that there are differences between the procedures in the C.C. and in provincial prosecutions. However, as in this case, the appellant is charged under Part III of the P.O.A. Proceedings were commenced by information. The rules of evidence at the criminal trial, including proof beyond a reasonable doubt, etc., would be essentially the same, whether in the summary conviction criminal proceeding or in the provincial proceedings.

The appellant raises the issue of the difference between the federal and provincial rules of evidence that govern the contradicting of one's own witness. In my view, the slight difference between section 9(2) of the Canada Evidence Act, R.S.C. E-10 and section 23 of the Ontario Evidence Act, R.S.O. 1990, c. E. 23 did not affect the outcome of the trial in this case. The appellant was not prejudiced by it.

For these reasons, I find that the decision in Clunas supports the permissibility of a more efficient and effective trial process unencumbered by artificial rules that serve no useful purpose and rest on no sound principle.

The application for leave to appeal

[17] The appellant sought and was granted leave to appeal under s. 839(1) of the Criminal Code and special leave to [page380] appeal under s. 131 of the POA. He advances here the same claim of jurisdictional error as he first put forward before the summary conviction appeal judge.

The Grounds of Appeal

[18] The single ground of appeal contests the authority of the trial court to try, at the same time, summary conviction Criminal Code offences and provincial offences under the POA contained in separate informations. For discussion purposes, I will subdivide the ground into two issues:

(i) the authority to conduct a joint trial; and

(ii) the effect of any lack of authority on the validity of the proceedings.

Ground #1: The Authority to Conduct a Joint Trial

[19] A brief recapture of the positions advanced by counsel in oral argument will provide the background essential to an understanding of the first ground of appeal.

The arguments on appeal

[20] The appellant submits that no authority permits the joint trial of separate informations, one charging provincial offences, the other summary conviction Criminal Code offences. He says several reasons support this conclusion.

[21] First, provincial offences and summary conviction Criminal Code offences cannot be joined together in a single information. Clunas requires that offences charged in separate informations be capable of being joined in a single information before a single trial on those separate informations may be conducted. This is not possible here. Each information is laid under a different statute. Section 504 of the Criminal Code permits joinder of Criminal Code offences in the same information but not provincial offences. And Criminal Code offences cannot be included in an information laid under the POA because they are not offences created by an "Act of the Legislature" as s. 25(5) of the POA requires.

[22] Second, the joint trial of provincial offences and summary conviction Criminal Code offences would not be permitted following Clunas because different procedural and evidentiary rules exist under the POA and the Criminal Code. Typical examples include

-- change of venue; [page381]

-- the competence of witnesses under 14;

-- the admissibility of videotaped statements;

-- the admissibility of business records; and

the number of expert witnesses who may testify without leave.

[23] Third, joinder would contravene the intent of the provincial legislature to create a system for the trial of POA offences that separates them from the system for the trial of criminal offences created by Parliament.

[24] Fourth, joinder would violate the principles expressed by the Supreme Court of Canada in R. v. L. (S.J.), [2009] 1 S.C.R. 426, [2009] S.C.J. No. 14, 2009 SCC 14 that barred a joint trial of offences that required trial by a youth court under the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA") with offences tried under the Criminal Code.

[25] As an alternative, the appellant says, the jurisdictional bar to joint trials can be avoided by an agreement to proceed with the criminal trial first. When the evidence has concluded, the defendant can be arraigned and enter a plea on the provincial offences. Section 47(1) of the POA can then be invoked to permit the evidence adduced at the criminal trial to apply to proceedings for the provincial offence. Submissions and decision in both prosecutions can follow. The efficiency of a joint trial is preserved without jurisdictional compromise.

[26] The respondent says that it is open to this court to decide that, with the consent of the parties, a provincial court judge can simultaneously preside over the trial of a summary conviction Criminal Code offence and of a provincial offence. A combination of the Criminal Code, POA and the Courts of Justice Act, R.S.O. 1990, c. C.43 provides the provincial court judge with the jurisdiction to try both offences.

[27] The respondent does not agree that the decision in Clunas prohibits the joint trial of provincial offences and summary conviction Criminal Code offences charged in separate informations. After all, Clunas involved only Criminal Code offences charged in separate informations and had nothing to say, either expressly or by necessary implication, about joint trials involving provincial and summary conviction Criminal Code offences. The decision in Clunas did not bar the joint trial of any combination of charges. The Clunas court could have forged such an all-encompassing prohibition but declined to do so. [page382]

[28] Allowing such a joint trial is not inconsistent with the defendant's right to any evidentiary or procedural advantages available under either the Criminal Code or POA. While procedural differences do exist, they are slight and, in most cases, work no great mischief. And, if the defendant has any concerns about the advantage or benefit that may be lost in a joint trial, she or he need only refuse to consent to the joint trial.

[29] Further, the respondent says, the alternative advanced by the appellant -- using s. 47(1) of the POA to incorporate by reference the evidence given at the criminal trial -- would suffer from the same rule differential. Yet the appellant advances such a procedure as a jurisdictionally sound alternative. The appellant cannot have it both ways.

The governing principles

[30] The principles that control our decision in this case are an amalgam of statutory enactments that permit and limit joinder of offences and decisions that control the circumstances in which a single trial may be held on more than one information or indictment.

(1) The commencement of proceedings and joinder of counts

[31] Criminal Code proceedings are commenced by laying an information under oath alleging the commission of an offence. The same procedure applies whether the offence charged is an indictable or hybrid offence (s. 504) or a summary conviction offence (s. 788(1)).

[32] In a Criminal Code information that charges indictable offences, subject to an exception that has no place here, any number of indictable offences may be included, provided each is contained in a separate count: s. 591(1). Likewise, s. 789(1)(b) expressly permits the inclusion of several summary conviction offences in separate counts in a single information.

[33] The Criminal Code contains no provision that expressly permits or prohibits joinder of indictable and summary conviction offences as separate counts in the same information.

[34] For proceedings governed by the POA, an information laid under s. 23(1) of the Act may allege, as separate counts, several offences. Section 1(1) defines the term "offence" exhaustively as "an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature". Section 25(5) of the POA authorizes joinder of any number of counts for any number of offences in the same information. Each [page383] "offence" charged in an information must be an "offence" within s. 1(1) of the POA.

(2) The trial court

[35] Summary conviction offences under the Criminal Code are tried in accordance with Part XXVII by a "summary conviction court" as defined in s. 785. In Ontario, a summary conviction court includes a provincial court judge, a member of the Ontario Court of Justice.

[36] Provincial offences are tried in provincial offences court, a court created by the Provincial Courts Amendment Act, 1979, S.O. 1979, c. 5. This legislation, enacted contemporaneously with the POA, conferred exclusive jurisdiction over the trial of provincial offences on the provincial offences court. Judges of the Ontario Court of Justice are judges of the provincial offences court.

(3) Joint trials on separate informations

[37] In 1983, the Supreme Court of Canada held that the overwhelming weight of authority was against the joint trial of more than one indictment or information: R. v. Phillips, 1983 CanLII 161 (SCC), [1983] 2 S.C.R. 161, [1983] S.C.J. No. 70, at p. 164 S.C.R.

[38] In Phillips, three members of the Phillips family agreed to a joint trial on three separate informations. Each information charged one person with an offence. Two charged offences under provincial law, the third a hybrid Criminal Code offence on which the Crown elected to proceed summarily. The court, relying on the decision of the House of Lords in Crane v. Director of Public Prosecutions, [1921] 2 A.C. 299, [1921] All E.R. Rep. 19 (H.L.), and of the Court of Criminal Appeal in R. v. Dennis; R. v. Parker, [1924] 1 K.B. 867, [1924] All E.R. Rep. Ext. 922 (Cr. C.A.), held that a single trial could not be held on more than one indictment, even with the consent of the parties. Consent cannot confer jurisdiction: Phillips, at p. 164 S.C.R.

[39] The Phillips court did not follow this court's decision in R. v. Kennedy; R. v. Dowdall, 1971 CanLII 419 (ON CA), [1971] 2 O.R. 445, [1971] O.J. No. 1536 (C.A.), which upheld the convictions of two accused jointly tried on two separate informations with their consent. This court had considered such a joint trial at best an irregularity curable in the absence of prejudice under what is now s. 686(1)(b)(iii) of the Criminal Code.

[40] The Phillips court rejected the reasoning in Kennedy and Dowdall for four reasons: [page384]

(i) the elaborate procedure for joint trials contained in the Criminal Code was not replicated for the joinder of (separate) informations or indictments;

(ii) the joint trial of separate indictments against two accused would permit the Crown to call one accused as a Crown witness against the other;

(iii) an accused would be deprived of the opportunity to testify and answer to the charge contained in one indictment but not the other (the same would hold true if all the counts were included in the same indictment); and

(iv) the Criminal Code refers to "the" information and "the" indictment as the document on which an accused is tried, rendering the joinder and severance provisions unnecessary if a joint trial could be held on more than one information or indictment.

[41] In Phillips, the court said nothing about the appellant's claim that Criminal Code and provincial offences charged in separate informations could not be tried together.

[42] Almost a decade later, the Supreme Court of Canada welcomed the opportunity to reconsider Phillips in light of Lord Roskill's opinion in Clayton v. Chief Constable of Norfolk, [1983] 2 W.L.R. 555, [1983] 2 A.C. 473 (H.L.), at pp. 562-63 W.L.R.:

Any rule of practice or procedure which makes their task more difficult or demands subservience to technicalities is to be deprecated and your Lordships may think that this House should now encourage the adoption of rules of procedure and practice which encourage the better attainment of justice, which includes the interests of the prosecution as well as of defendants, so long as the necessary safeguards are maintained to prevent any risk of injustice to defendants.

See Clunas, at p. 599 S.C.R.

[43] In Clunas, a single accused was charged in two separate informations with two offences under the Criminal Code. One offence was an indictable offence in which Clunas elected trial by provincial court judge. The second was a dual procedure offence on which the Crown elected to proceed summarily. Clunas agreed to have the two informations tried together.

[44] The joinder issues in Clunas were twofold. The first was whether a single accused could be tried (with consent) at the same time on two separate informations. And the second was whether an accused could be tried (on consent) in a single trial on two separate informations, one charging an indictable offence and the other a summary conviction offence. [page385]

[45] The Clunas court rejected the reasoning in Phillips, based not only on Crane being overtaken by Clayton, but also on the court's conclusion that the problems contemplated in Phillips and summarized above would not arise. Lamer C.J.C. expressed the unanimous conclusion of the Clunas court in these terms, at p. 610 S.C.R.:

To conclude this portion of the judgment, I would say that when joinder of offences, or of accuseds for that matter, is being considered, the court should seek the consent of both the accused and the prosecution. If consent is withheld, the reasons should be explored. Whether the accused consents or not, joinder should only occur when, in the opinion of the court, it is in the interests of justice and the offences or accuseds could initially have been jointly charged.

[46] As a result of the decision in Clunas, a joint trial on separate informations may be held, even in the absence of an accused's consent, where the trial court concludes that a joint trial is in the interests of justice and that the offences or accuseds could initially have been jointly charged: Clunas, at p. 610 S.C.R.

[47] The joint trial on separate informations in Clunas involved only Criminal Code offences. The trial took place before a provincial court judge who simultaneously exercised the authority of

(i) a court of criminal jurisdiction for the trial of an indictable offence under Part XIX; and

(ii) a summary conviction court for the trial of a summary conviction offence under Part XXVII.

(4) Joint trials for offences under different statutory schemes

[48] In L. (S.J.), the Supreme Court was required to decide whether young persons could be tried together with adults. Two young persons and several adults were charged following a major police investigation into the drug trafficking activities of a criminal organization. After an unsuccessful motion for a preliminary inquiry for all accused, the Crown preferred a direct indictment against all accused. A judge of the Superior Court quashed the direct indictment against the young persons. A preliminary inquiry followed. The Quebec Court of Appeal upheld the decision of the Superior Court concluding that young persons and adults could not be tried together.

[49] The Supreme Court was unanimous in concluding that young persons could not be tried together with adults. The court acknowledged the common law rule that persons charged on [page386] separate informations or indictments may be tried together "if they committed an offence together": L. (S.J.), at para. 48. Nothing in the common law or the Criminal Code barred either the joinder of young persons and adults in the same indictment or a request for a joint trial: L. (S.J.), at para. 52. The court did not consider the simultaneous exercise by the presiding judicial officer of two different jurisdictions an impediment to joinder: L. (S.J.), at para. 60.

[50] What prohibited the joinder in L. (S.J.), and distinguished it from Clunas, was that in L. (S.J.) the joinder would have combined in a single proceeding two criminal justice systems that Parliament had made it clear were to be kept separate. Parliament created a separate criminal justice system for young offenders. It did so for the express purpose of keeping them and their trials separate from the adult criminal justice system. To permit the joint trial sought in L. (S.J.) would flout the will of Parliament to keep the systems separate.

[51] The court expressed its conclusion in these terms, at para. 76:

In conclusion, the history of the separate youth criminal justice system, the abolition of the transfer to adult court, the content of s. 67(5) and (7.1) YCJA, and the fact that neither the YCJA nor the Criminal Code contains specific provisions authorizing joint trials of adults and young persons are indications that Parliament intended to prohibit such trials. What is more, the adoption of this solution will make it easier for the youth justice court to perform its special role and will avert the practical difficulties inherent in a joint trial of young persons and adults. On this point, I therefore agree with the Court of Appeal that co-accused young persons and adults cannot be tried together.

The principles applied

[52] As I will explain, binding authority requires us to give effect to this ground of appeal.

[53] First, under Clunas the joint trial of separate informations can only occur when it is in the interests of justice and the offences could initially have been jointly charged: Clunas, at p. 610 S.C.R.

[54] In this case, the appellant consented to the joint trial of the two informations. It was manifestly in the interests of justice that the allegations, all of which arose out of the same series of events, be tried at the same time. But the sticking point is the requirement that "the offences . . . could initially have been jointly charged": Clunas, at p. 610 S.C.R.

[55] A Criminal Code information can include, as separate counts, several offences. It is of no moment whether those offences are exclusively indictable offences, exclusively summary [page387] conviction offences, or offences triable either way at the option of the Crown. Although the term "offence" is not defined in or for the purposes of the Criminal Code, it is self-evident that the term, as used in the joinder provisions of ss. 591(1) and 789(1) (b), refers to offences created and punished by the Criminal Code.

[56] Section 34(2) of the Interpretation Act, R.S.C. 1985, c. I-21, as amended, makes it clear that the Criminal Code applies to the trial of all indictable and summary conviction offences "created by an enactment". Section 2(1) of the Act defines an "enactment" as an "Act" and an "Act" as an "Act of Parliament".

[57] In combination, the joinder provisions of the Criminal Code and s. 34(2) of the Interpretation Act make it clear that a Criminal Code information cannot include a count charging a provincial offence to which the POA applies.

[58] The POA also permits joinder of several offences in a single information. Unlike the Criminal Code, however, the POA, in its s. 1(1), defines "offence" as "an offence under an Act of the Legislature". From this definition, it follows that a POA information cannot include counts charging Criminal Code offences.

[59] The Supreme Court's decision in L. (S.J.) erects an additional roadblock to what occurred here.

[60] The circumstances in L. (S.J.) are analogous, but not identical, to those of this case. Each involved a trial that combined the trial of a Criminal Code offence with the trial of an offence or offender for which or for whom a scheme separate from that used to try Criminal Code offences was specifically created. In L. (S.J.), the youth court had exclusive jurisdiction over the trial of offences committed by young persons. In this case, the provincial offences court has exclusive jurisdiction over the trial of the provincial offences with which the appellant was charged.

[61] The procedural flaw the Supreme Court identified in L. (S.J.) -- the joint trial of offences within the exclusive jurisdiction of one court with those in the exclusive jurisdiction of another -- also occurred here. There is, however, one difference. In L. (S.J.), the presiding judge was not a "youth justice court" or a "youth justice court judge" under the YCJA. In this case, the provincial court judge was not only a "summary conviction court" under Part XXVII of the Criminal Code but also a "provincial offences court" for the purposes of the POA. I am not persuaded, however, that this distinction warrants a different conclusion, at this stage of the analysis. [page388]

[62] In the result, I am satisfied that the application of the principles laid down in Clunas and L. (S.J.) barred the joint trial of the separate Criminal Code and POA informations. What remains is to consider the impact of that unauthorized joinder.

Ground #2: The Impact of the Improper Joint Trial

[63] Nothing further need be said about the circumstances in which the joint trial was held. It is enough to say that the joint trial went ahead on consent and that nothing occurred that caused the appellant any substantive prejudice.

The arguments on appeal

[64] The appellant acknowledges that not every error made in the conduct of a trial warrants appellate reversal. Legal errors may be saved by the application of the proviso in s. 686(1)(b)(iii) because they have not caused the appellant any substantial wrong or a miscarriage of justice. Procedural irregularities may be saved by the proviso in s. 686(1)(b)(iv) if the trial court had jurisdiction over the class of offence of which the appellant was convicted and the appellant suffered no prejudice as a result of the irregularity.

[65] The appellant says that neither proviso can salvage the verdicts recorded at trial in this case.

[66] The proviso s. 686(1)(b)(iii), the appellant contends, cannot render harmless the verdict because the error of law that occurred here was jurisdictional in nature and thus beyond the reach of that proviso.

[67] The appellant concedes that the proviso of s. 686(1) (b)(iv) can be applied to procedural irregularities that are jurisdictional in nature but says that it cannot be invoked for every such error. The proviso can sustain verdicts where jurisdiction is lost during the proceedings, but it cannot underpin a decision rendered in proceedings where jurisdiction failed or was not established at the outset. And it is the latter that occurred here: the trial court was never properly constituted.

[68] Under the POA, there is no curative proviso like s. 686(1)(b)(iv) of the Criminal Code to remedy jurisdictional errors.

[69] The respondent says that if the joint trial of a Criminal Code summary conviction offence and a provincial offence is characterized as an error of law, the verdict rendered can be preserved by the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code and its equivalent, s. 120(1)(b)(iii) under the POA. The joinder caused the appellant no prejudice. [page389]

[70] If the error is categorized as a procedural irregularity, the respondent says that s. 686(1)(b)(iv) should be invoked to sustain the Criminal Code conviction. The POA conviction would fall, however, because the POA has no equivalent to s. 686(1) (b)(iv).

[71] In the alternative, the respondent invites us to consider whether the appellant waived the requirement put in place by Clunas that permits joinder only where the offences can be joined together in the same information.

The governing principles

[72] To determine the impact of the improper joint trial of the Criminal Code and POA informations, an essential first step is to determine the character of the misjoinder. A procedural irregularity? An error of law? A procedural irregularity based on an error of law? Or something else? The characterization of the nature of the error, as we shall see, has implications for the availability of a proviso to hold harmless the verdict rendered at trial.

(1) Characterizing the error

[73] The Criminal Code contains both substantive and procedural provisions. Among other things, the Criminal Code creates offences, as well as justifications, excuses and defences. These provisions are substantive law. The procedural provisions of the Criminal Code regulate the manner in which the parties conduct proceedings, for example, the conduct of trials to determine whether the offences with which a person has been charged have been proven beyond a reasonable doubt: R. v. Cloutier, 1988 CanLII 199 (ON CA), [1988] O.J. No. 570, 43 C.C.C. (3d) 35 (C.A.), at pp. 48-49 C.C.C., leave to appeal to S.C.C. refused [1989] 2 S.C.R. vi, [1989] S.C.C.A. No. 194.

[74] Criminal Code provisions relating to joinder of offences and offenders as, for example, ss. 591(1) and 789(1) (b), have to do with the manner in which the trials of several offences and offenders are conducted. These provisions are procedural in nature: see Kennedy and Dowdall, at pp. 447-49, 457 O.R.; and 70; R. v. Pottinger, 1990 CanLII 10935 (ON CA), [1990] O.J. No. 289, 54 C.C.C. (3d) 246 (C.A.), at pp. 251-52 C.C.C., leave to appeal to S.C.C. refused [1990] S.C.C.A. No. 201, 58 C.C.C. (3d) viin.

(2) The scope of the proviso

[75] The Criminal Code contains two provisos. Each authorizes and defines the circumstances in which an appellate court may sustain a verdict rendered at trial despite errors or [page390] irregularities in the conduct of that trial. Each describes the nature of the error to which it applies and the standard to be met to preserve the disposition rendered at trial.

[76] Section 686(1)(b)(iv), sometimes described as the procedural proviso, is in these terms:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby[.]

[77] Section 686(1)(b)(iv) consists of three components or elements. The first relates to the nature of the error that occurred at trial. The second has to do with the jurisdiction of the trial court. And the third concerns the assessment of the error by the appellate court. In summary form, the elements are as follows:

-- procedural irregularity;

-- offence jurisdiction; and

-- absence of prejudice.

[78] This proviso expands the remedial power of courts of appeal. It permits the court to dismiss appeals despite procedural irregularities that were previously seen as having caused a loss of jurisdiction at trial: R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, at para. 11. But this remedial power has its limits. And those limits involve both the jurisdiction of the trial court and the assessment of prejudice by the court of appeal. The trial court must have maintained its jurisdiction over the class of offence charged. And the court of appeal must be persuaded that the appellant has suffered no prejudice as a result of the procedural irregularity: Khan, at para. 11.

[79] The first precondition that must be met to engage the discretion of a court of appeal to invoke its remedial power under s. 686(1)(b)(iv) has to do with the jurisdiction of the trial [page391] court. The trial court must have had jurisdiction over the "class of offence" of which the appellant was convicted.

[80] The Criminal Code creates two classes of offences -- indictable and summary conviction -- and confers jurisdiction on various courts to try persons charged with those offences. A "summary conviction court", as defined in s. 785, has jurisdiction to try summary conviction offences. In Ontario, a "summary conviction court" includes a provincial court judge, a member of the Ontario Court of Justice.

[81] In some cases, procedural requirements must be met in order for a trial court to have jurisdiction over the class of offence with which an accused is to be tried. For example, a failure to adhere to the statutory requirements for selection of a jury, where the trial is to be held in a court composed of a judge and jury, has been held to be a procedural irregularity that is beyond the remedial authority of s. 686(1) (b)(iv): see, for example, R. v. Bain, 1989 CanLII 262 (ON CA), [1989] O.J. No. 111, 47 C.C.C. (3d) 250 (C.A.), at pp. 253-54 C.C.C., revd on other grounds 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3; R. v. V. (W.), [2007] O.J. No. 3247, 2007 ONCA 546, at paras. 12-13 and 26-27, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 615, 397 O.A.C. 397n; and R. v. Noureddine (2015), 128 O.R. (3d) 23, [2015] O.J. No. 5916, 2015 ONCA 770, at paras. 49-50.

[82] In a similar way, where a court's authority to try an accused depends on that accused's election of mode of trial, a failure to follow the Criminal Code requirements on elections or re-elections of mode of trial is a procedural irregularity that lies beyond the remedial authority of s. 686(1)(b)(iv): Noureddine, at para. 56; R. v. Varcoe, [2007] O.J. No. 1009, 2007 ONCA 194, 219 C.C.C. (3d) 397, at paras. 14-22; R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 36 O.R. (3d) 643, [1997] O.J. No. 5148 (C.A.), at pp. 651-52 O.R.; and R. v. Shia, [2015] O.J. No. 1406, 2015 ONCA 190, 320 C.C.C. (3d) 111, at paras. 26-27 and 33.

[83] These authorities and others make it clear that procedural irregularities that compromise the composition or selection of the trial court deprive that court of jurisdiction over the class of offence charged and are beyond the reach of s. 686(1)(b)(iv).

[84] The second precondition that must be met to engage the discretion of a court of appeal to invoke its remedial power under s. 686(1)(b)(iv) focuses on the court of appeal's assessment of the impact of the procedural irregularity. The court is required to assess whether the procedural irregularity caused the appellant prejudice. [page392]

[85] The prejudice inquiry under s. 686(1)(b)(iv) examines not only actual prejudice to the appellant, but also any prejudice to the due administration of justice caused by the procedural irregularity: Noureddine, at para. 62. An appellate court may infer prejudice from the procedural irregularity, but the Crown may rebut that inference: Khan, at para. 16; Noureddine, at para. 62.

[86] Where a procedural error or irregularity has occurred at trial, it becomes necessary to determine its origin. Procedural irregularities that amount to, or are based on, an error of law are considered under s. 686(1)(a)(ii) and their effect assessed under the proviso of s. 686(1)(b)(iii): Khan, at para. 18. If the procedural irregularity was classified prior to the enactment of s. 686(1)(b)(iv) as one that caused a loss of jurisdiction, s. 686(1)(b)(iv) provides that such an error is no longer fatal to the conviction. Prejudice is analysed in accordance with the principles in s. 686(1)(b)(iii): Khan, at para. 18.

The principles applied

[87] As I will explain, I would reject this ground of appeal.

[88] The procedural irregularity that occurred here was twofold. The joint trial of the Criminal Code summary conviction information and the POA information fell outside what Clunas permitted because the counts could not be included in the same information. The joint trial also ran afoul of L. (S.J.) because the joinder mixed offences to be tried in discrete court systems, one of which was created for the very purpose of maintaining separation of trials.

[89] Each procedural irregularity originated in an error of law which, had it occurred prior to the enactment of s. 686(1) (b)(iv), would have caused a loss of jurisdiction in the trial court.

[90] In this case, unlike in L. (S.J.), however, the trial court had jurisdiction over the class of offences of which the appellant was convicted.

[91] In L. (S.J.), the court in which the direct indictment was preferred -- the Quebec Superior Court -- was not a "youth justice court". The judge presiding in that court was not a "youth justice court judge" within s. 2(1) of the YCJA. As a result, the court and judge lacked jurisdiction over the class of offence charged -- an offence under the YCJA.

[92] In this case, the presiding judge was a "summary conviction court" under s. 785 of the Criminal Code. As a "summary conviction court", the provincial court judge had jurisdiction to try the class of offence charged under the Criminal Code: a summary conviction offence. In a similar way, the judge was [page393] a "provincial offences court" under provincial law and thus had jurisdiction to try the class of offence charged -- a provincial offence. That the joint trial required concurrent exercise of two discrete jurisdictions with some procedural differences is of no moment: L. (S.J.), at para. 59.

[93] Turning to the question of prejudice arising from the procedural irregularity, I am satisfied that the appellant suffered no actual prejudice and am equally satisfied that no prejudice was occasioned to the due administration of justice.

[94] The inference of prejudice arising from the procedural irregularity here falls away on a fundamental level. All the charges related to a single incident: a series of events that took place within minutes, if not seconds, of one another. The appellant, who was represented by counsel, sought and got what he wanted: a single trial. He advances no ground of appeal that asserts error in the conduct of the trial that occurred because of its joint nature. He lost no substantive or procedural advantage. The prosecution gained neither.

[95] Likewise, the record is barren of any suggestion of prejudice to the due administration of justice. The joint trial coincided with the positions advanced by counsel on both sides of the case. Joinder avoided unnecessary duplication and depletion of judicial resources, inconvenience to witnesses, and the prospect of inconsistent verdicts.

[96] In the end, I am satisfied that this is an appropriate case to apply the provisos in s. 686(1)(b)(iv) of the Criminal Code and s. 120(1)(b)(iii) of the POA. Although the POA contains no provision comparable to s. 686(1)(b)(iv), the legal nature of the error is sufficient to bring it within the reach of s. 120(1) (b)(iii).

Conclusion

[97] I would dismiss the appeals.

Appeal dismissed.

End of Document