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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20200309 DOCKET: C64826

Strathy C.J.O., Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Hugh Mitchell Appellant

Counsel: Mark Halfyard, for the appellant Jennifer A.Y. Trehearne, for the respondent

Heard: March 4, 2020

On appeal from the conviction entered on July 18, 2017 by the Honourable Stephen J. Hunter of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was charged with a single count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. It was alleged that he sexually assaulted the victim while she was unconscious as a result of consuming too much alcohol at a cottage party.

[2] The appellant elected to be tried by a judge of the Superior Court of Justice, sitting without a jury. He requested a preliminary inquiry.

[3] The victim testified at the preliminary inquiry, as did her friend (whose parents owned the cottage where the party was held). Both witnesses were cross-examined. There were other witnesses scheduled to testify. However, the preliminary inquiry judge invited counsel to meet with him in chambers.

[4] Upon the resumption of the proceedings, trial counsel said: “I have instructions to at this point in the preliminary hearing to approach the Court with respect to making a re-election….” The preliminary inquiry judge (who then became the trial judge) noted the re-election to be tried in the Ontario Court of Justice, which he endorsed on the information. The trial judge asked trial counsel whether he would be calling any evidence. He said that he would not. The Crown then asked the trial judge to make a finding of guilt based on the evidence that was heard. Trial counsel made no objection.

[5] The trial judge found the appellant guilty of sexual assault. In brief reasons, he said that was not satisfied beyond a reasonable doubt that intercourse had occurred; however, he was satisfied that the appellant touched the victim in a sexual manner without her consent. The case was adjourned for sentencing.

[6] Within roughly two months, the appellant appeared before the trial judge with new counsel. He moved to re-open the proceedings with a view to reversing his re-election. He argued that, because the mandatory requirement of s. 561(7) of the Criminal Code had not been complied with, the re-election was invalid. The Crown took the position that the trial judge was functus officio and, therefore, could not re-open the proceedings for the purpose of entertaining an application for a further re-election.

[7] The trial judge expressed concerns about whether he was functus officio. However, acting on the assumption that he was not, the trial judge concluded that the appellant’s previous re-election was valid. He said: “in my view, the procedure that was conducted before the Court was fair to Mr. Mitchell, was fully informed to Mr. Mitchell, he had an election to – he gave – instructions to re-elect and proceed with the trial with the full knowledge of the process that would unfold after that election was made.”

[8] Sentencing proceedings were adjourned to facilitate the preparation of a pre-sentence report. The trial judge acceded to a joint submission of 12 months’ imprisonment.

[9] The appellant submits that the trial judge erred both in concluding that he was functus officio, and in his alternative finding that the appellant waived his right to the reading of the re-election in s. 561(7).

[10] On appeal, the Crown concedes that the trial judge was not functus officio but submits that the re-election was valid.

[11] We agree that the trial judge was not functus officio when trial counsel applied to re-open the proceedings to make a further re-election. Until sentence is imposed, a trial judge has jurisdiction to re-open the proceedings: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561; R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.); and R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144. The trial judge could have re-opened the case to deal with the re-election request had he seen fit to do so. However, we agree with the trial judge’s assessment of the merits of the appellant’s request.

[12] Section 561(7) of the Criminal Code requires that the following words or words to like effect be read to the accused person: “You have given notice of your wish to re-elect the mode of your trial. You now have the option to do so. How do you intend to re-elect?” This was not done in this case. However, when the appellant re-elected to be tried by a judge of the Ontario Court of Justice, he was represented by capable counsel. It is clear from the record that, through counsel, he waived his right to have the words of s. 561(7) read to him. The trial judge was entitled to rely upon counsel’s representations as to the instructions he received from the appellant, and to conclude that the requirements of s. 561(7) had been waived: Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at p. 53.

[13] Nothing was placed before us that calls into question the appellant’s understanding of the consequences of his re-election. Moreover, there is no suggestion that trial counsel was ineffective in his representation of the appellant. We are satisfied that the appellant waived his right to the reading of the re-election and his re-election was valid.

[14] It would have been better if the language of s. 561(7) was read to the appellant, as required by that section: see R. v. Mitchell (1997), 36 O.R. (3d) 643 (C.A.), at pp. 655-656; and R. v. Vuong, 2010 ONCA 798, 264 C.C.C. (3d) 39, at para. 33. Nevertheless, we are satisfied that there was a valid waiver and the appellant was dealt with fairly.

[15] The appeal is dismissed.

“G.R. Strathy C.J.O.”

“B.W. Miller J.A.”

“Gary Trotter J.A.”