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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230414 DOCKET: C66756 Miller, Trotter and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.W. Appellant

Counsel: Paul J.I. Alexander, for the appellant Erica Whitford, for the respondent

Heard: February 15, 2023

On appeal from the conviction entered on April 28, 2018, by Justice James A. S. Wilcox of the Superior Court of Justice, sitting with a jury.

Trotter J.A. :

A. OVERVIEW

[1] Due to a confluence of unfortunate circumstances, the appellant was deprived of his right to elect his preferred mode of trial – trial by judge alone. This was caused by the inadvertence of counsel in failing to file a notice of re-election within the time required after the appellant was committed to stand trial, combined with the trial Crown’s refusal to consent to the re-election, even though she previously indicated that she would. The result was a miscarriage of justice. I would order a new trial.

B. Background Facts

[2] The appellant was charged with very serious offences: sexual interference ( Criminal Code , R.S.C. 1985, c. C-46, s. 151), sexual assault ( s. 271 ), and invitation to sexual touching ( s. 152 ). The offences were all committed against his step-daughter, who was 12-13 years old at the time. The appellant was convicted of the first two counts, but acquitted on the latter. [1] The appellant was sentenced to 18 months’ imprisonment, followed by probation for 24 months.

[3] Given the manner in which I would dispose of this appeal, it is not necessary to review the evidence at trial in detail. Suffice it to say, the complainant testified to ongoing sexual abuse in the context of a trust relationship. The appellant put his fingers in her vagina and he made her “touch him and suck his penis” many times. The appellant testified and denied the complainant’s allegations.

[4] No issue is taken with the reasonableness of the verdict, nor with the manner in which the trial was conducted. The appellant’s sole focus is on being deprived of his preferred mode of trial.

C. The Appellant’s Election as to Mode of Trial

(1) Introduction

[5] I will discuss the law of elections in greater detail below, but in order to understand what went wrong in this case, it is necessary to briefly mention the limitations that are placed on an accused person’s ability to re-elect their mode of trial.

[6] The appellant initially elected to be tried by a court composed of a judge and a jury. At the relevant time, s. 561(1) (b) of the Criminal Code provided that the appellant had the right to re-elect to be tried by a judge of the Superior Court without a jury, as of right, until the fifteenth day after the completion of the preliminary inquiry. After that, the consent of the Crown is required. [2]

[7] In this case, the notice of re-election was not filed on time. However, on its Pre-Trial Form signed by the Crown, one day after the deadline to re-elect, the Crown answered the questions – “Is there any prospect of a re-election” and “Will the Crown consent?” – in the affirmative. By the time of the Pre-Trial Conference, the Crown had changed its mind. As explained below, the missed deadline was the fault of trial counsel; the reason for the Crown’s withdrawal of its consent to the appellant’s re-election is unknown.

(2) The Fresh Evidence

[8] The appellant and his trial counsel provided affidavit accounts of the events leading up to the trial. I would admit the fresh evidence.

(a) Trial Counsel

[9] According to trial counsel, consistent with his usual practice, he advised the appellant to initially elect trial by judge and jury and then to re-assess the situation following the preliminary inquiry. Trial counsel swore that the appellant “did not tell me that he wanted to have a trial by judge alone. Nor did I advise him to have a trial by judge alone.” The appellant agreed with this advice. As it turned out, instead of a formal preliminary inquiry, the parties proceeded to a discovery of the complainant. At a subsequent appearance in the Ontario Court of Justice, the appellant consented to his committal to stand trial.

[10] Trial counsel thought that the complainant was a very good witness on the discovery. He recommended that the appellant re-elect trial by judge alone. This advice was also driven by counsel’s belief that juries are sympathetic to young complainants. Trial counsel said that the appellant accepted this advice.

[11] Trial counsel failed to file the appellant’s notice of re-election within the prescribed time. Initially, this was not a cause for concern because, in trial counsel’s experience, the Crown generally consents to a re-election to a judge-alone trial. He thought it would happen in this case. As noted, on the Pre-trial Form, the Crown indicated she would consent to a re-election. However, she changed her mind at the Pre-Trial Conference and could not be persuaded to consent to the re-election. Trial counsel said that he approached this Crown a number of times in an attempt to convince her to consent to the re-election, but to no avail. Trial counsel advised the appellant of the problem and said he would try to “fix it”.

[12] Trial counsel thought that the situation might be repaired by bringing a motion in the Superior Court of Justice to “strike” the appellant’s original election. However, he thought that because he had caused the problem by not filing a notice of re-election on time, he would need to withdraw from the case and have another lawyer represent the appellant. This would likely have delayed the trial and put the appellant to considerable expense.

[13] Trial counsel filed a motion to “strike” the appellant’s election and scheduled a date for hearing. However, the motion was abandoned. Trial counsel swore that he met with the appellant to discuss the issue. He made it clear to the appellant that the decision to proceed with the motion was “entirely his decision to make.” He further explained: “At the end of our meeting, Mr. [W.] instructed me not to proceed with the application to strike and to maintain the election to be tried by judge and jury. He wanted a trial date as soon as possible.” In cross-examination, trial counsel said “[the appellant’s] instructions were the quickest date possible.”

(b) The Appellant

[14] In his affidavit, the appellant stated: “I did not want a jury for my trial.” Regarding trial counsel’s strategy to elect trial by judge and jury and re-assessing the issue down the road, he said: “I do not specifically remember him saying this, but it is possible that he did. I do remember making it clear that regardless of how he handled the strategy in the meantime, I did not want to have a jury for my trial at the end of the day. [Trial counsel] and I agreed that the plan was to have a judge-alone trial.”

[15] The appellant said his “stomach dropped” when he found out that he would be tried by judge and jury. Trial counsel explained the options that were available to him, which included going ahead with a jury trial, or possibly firing trial counsel and having another lawyer come on board. In his affidavit, the appellant said that the latter was “not acceptable” for the following reasons:

I had been dealing with [trial counsel] for more than a year, and I was not comfortable starting from scratch with a new lawyer, especially when we were not even sure that firing [trial counsel] would allow me to re-elect. I was also concerned about the cost of hiring a new lawyer after [trial counsel] had done so much work. I asked [trial counsel] if he was comfortable running the case in front of a jury. He told me he was comfortable before jury. I did not want a jury trial, but I did not see another choice.

[16] The appellant was less certain about events during his cross-examination. He was not able to recall many details of his meetings with trial counsel. He agreed that he was told that the decision as to the mode of trial was his choice. Until trial counsel told him that he had missed the deadline, the appellant was unaware that there was a time limitation on being permitted to re-elect as of right.

[17] The appellant was advised that he might have to fire his trial counsel in order to attempt to “strike” his election. Trial counsel did not say one way or the other whether the motion would be successful. Ultimately, the motion was not brought. The appellant was unsure of the instructions he gave trial counsel about the motion. In short, the appellant believed that his only choices were to: (a) discharge his trial counsel and get a new lawyer, who would argue the motion and represent him at trial; or (b) proceed with a judge and jury trial with the lawyer he already had. He said that he did not want to have a judge and jury trial, but nor did he want to fire trial counsel. He also did not wish to delay his trial. Ultimately, he chose the latter course (judge and jury), believing that he had “no choice”. The appellant described his predicament as “heart-breaking”.

D. Analysis

[18] In terms of the proper framework for adjudicating this issue on appeal, the ineffective assistance of counsel (IAC) framework is applicable: R. v. White , 2022 SCC 7 , 411 C.C.C. (3d) 419 . In White , Karakatsanis J. referenced R. v. Wong , 2018 SCC 25 , [2018] 1 S.C.R. 616 (a guilty plea case) , and held that the mere loss of the right to make a proper election was not sufficient to ground such a claim; an appellant must prove subjective prejudice arising from counsel’s ineffectiveness.

[19] Thus, as with any other IAC claim, the appellant must establish the following : (1) the facts material to the claim of ineffective assistance on the balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. Archer , (2005) , 202 C.C.C. (3d) 60 (Ont. C.A.) , at paras. 119-120 .

[20] Before applying these factors, it is helpful to consider the elemental nature of the right to elect the mode of trial. It has long been recognized in Canadian criminal law that the right of an accused person to elect their preferred mode of trial is of critical importance. This view crystallized in G. Arthur Martin’s famous essay, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12 Crim. L.Q. 376 at pp. 387-388, in which he identified three decisions in a criminal case that are so fundamental that the lawyer cannot make them on behalf of their client: (1) the election as to mode of trial; (2) how to plead; and (3) whether to testify: see also R v. Stark , 2017 ONCA 148 , 347 C.C.C. (3d) 73 , at paras. 17-18 ; R. v. Fiorilli , 2021 ONCA 461 , 156 O.R. (3d) 582 , at paras. 56-57 ; and R. v. McDonald , 2022 ONCA 838 , 164 O.R. (3d) 321 , at paras. 31 and 35 .

[21] In Stark , a case that also concerned an election as to the mode of trial, Lauwers J.A. described the decision as “whether to waive trial by jury where that is permissible”: at para. 17. This approach highlights the constitutional nature of the decision. As he wrote, at para. 19:

Parliament has chosen to give accused who are charged with the more serious crimes a choice as to the mode of trial. That right is partly constitutionalized in s. 11(f) of the Charter , which guarantees a right to trial by jury for offences punishable by a sentence of five years or more. The exercise of the right to choose the mode of trial is integral to the court's jurisdiction over an accused and is essential to the fairness of the proceeding.

[22] The Crown does not take issue with the fundamental nature of the right to elect the mode of trial. However, she submits that the same values do not attach to re-election decisions. I disagree. The right to re-elect is an extension of the original right to choose one’s mode of trial. Parliament has provided a limited right to re-visit the original election. It is part and parcel of the same fundamental decision.

[23] Returning to the IAC framework, it is my view that the appellant has established all three elements. In terms of proving the underlying facts in support of the allegation of ineffective assistance, on balance, the materials filed on the fresh evidence application confirm that the appellant wanted a trial by judge alone.

[24] The fact-finding task at this stage would have been more straightforward had trial counsel obtained written instructions concerning the original election and the attempt to re-elect. The failure to obtain written instructions about important steps in the criminal trial process makes it more difficult to decide IAC claims on appeal. Seeking written instructions from a client on critical decisions is a matter of professional prudence. The failure to do so is “ill-advised and contrary to counsel’s best interests”: R. v. B. (W.E.) , 2012 ONCA 776 , 366 D.L.R. (4th) 690, at para. 10 , aff’d 2014 SCC 2 , [2014] 1 S.C.R. 34. See also R. v. Trought , 2021 ONCA 379 , 156 O.R. (3d) 481, at paras. 76-77 .

[25] Nonetheless, the fresh evidence record shows that the appellant wished to have a trial by judge alone and that trial counsel took some steps to achieve that goal on the appellant’s behalf. What is less clear is why counsel’s efforts were terminated. Trial counsel swore that he was “instructed” to abandon the motion. The motion did not go ahead. The evidence demonstrates that the appellant seemed resigned to proceeding with a jury trial. However, given the options that were explained to him, I accept the appellant’s claim that he believed that he had no real choice.

[26] Second, there can be little doubt that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances. Sometimes, this standard is met by demonstrating a course of conduct spanning the entire trial ( see R. v. Blake , 2023 ONCA 220 ); in other cases it is established by a single misstep that has dramatic consequences ( see Trought ). The key to success in both circumstances is proof of prejudice.

[27] In this case, there was critical misstep – trial counsel missed a statutory deadline that would have allowed his client to re-elect as of right. This is akin to missing a limitation period in the civil context. Although trial counsel attempted to undo his mistake, he was unsuccessful. Unfortunately, the matter could have been easily remedied by Crown counsel honouring her written agreement to consent to re-election, but this did not happen.

[28] There is another aspect of trial counsel’s performance that fell below the standard of reasonable professional assistance. Even though it was not explored in any detail during cross-examination, I am perplexed by trial counsel’s belief that the solicitor-client relationship needed to be terminated in order to bring the motion to “strike” the election. I accept that, having created the situation, it was untenable for trial counsel to argue the motion, especially if he were to swear an affidavit in support of the motion. However, it was not clear why he would need to withdraw from the case altogether and have the appellant “start over” with new counsel. Had the motion succeeded, trial counsel could have continued to represent the appellant at trial. Had the motion been unsuccessful, the appellant would have been in the exact same situation he found himself in at trial.

[29] By creating this false dichotomy, trial counsel failed to properly advise the appellant of his options. The motion to “strike” ended up being abandoned based on this false premise. I accept the appellant’s contention that he felt he had no choice but to proceed with a jury trial. In fact, he did have other options, but they were not explained to him.

[30] The nature of the motion contemplated by trial counsel was not addressed in any detail in trial counsel’s affidavit, nor in his cross-examination. However, t here were several references to a motion to “strike” the appellant’s election. This is a misnomer. There was nothing invalid or uninformed about the appellant’s original election – it was based on reasonable advice and made with a view to keeping the appellant’s options open as the case progressed. Thus, the appellant’s original election was not under attack; the Crown’s refusal to consent to a re-election was the issue.

[31] The Crown’s decision to withhold its consent to a re-election is a matter of prosecutorial discretion, reviewable on the basis of an abuse of process standard. In R. v. E.(L.) , (1994) , 94 C.C.C. (3d) 228 (Ont. C.A.) , Finlayson J.A. said, at p. 241: “I think that there would have to be some showing before the trial judge that the crown had exercised its discretion arbitrarily, capriciously or for some improper motive so as to invite an examination as to whether there was an abuse of process under Section 7 of the Charter ” or when “constitutional considerations are engaged”: see also R. v. McGregor (1999) , 43 O.R. (3d) 455 (C.A.) , at p. 457-458 , R. v. Saleh , 2013 ONCA 742 , 303 C.C.C. (3d) 431 , at para. 83 , and R. v. Ng , 2003 ABCA 1 , 327 A.R. 215 , leave to appeal refused [2004] S.C.C.A. No. 33, at paras. 56-68.

[32] Moreover, because the Crown is not required to provide reasons for its refusal to consent, “it is extraordinarily difficult for an accused to make out an abuse of process claim on this basis”: see Steven Penney, Vincenzo Rondinelli, and James Stribopoulos, Criminal Procedure in Canada , 3rd ed. (Toronto: LexisNexis, 2022), at §9.02.

[33] It is difficult to gauge whether the appellant’s motion would have been successful had it not been abandoned. The Crown’s change of position may have increased the appellant’s chances of success. If the motion had been brought but was unsuccessful, trial counsel’s mistake in missing the deadline would have been cemented, making the IAC claim even stronger.

[34] But the appellant should not be in a weaker position by making or acquiescing in the decision not to pursue the motion – it was predicated on erroneous legal advice. In R. v. K.M.M. , 2020 ONCA 736 , the court considered inadequate advice in the context of the accused person’s decision whether to testify. As Doherty J.A. said, at para. 91:

An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence . That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. [Emphasis added.]

The same principles apply in this case.

[35] The last factor to consider on the IAC claim is whether the appellant has established that the shortcomings in trial counsel’s representation resulted in a miscarriage of justice. As noted above, the Supreme Court of Canada in White held that the mere loss of the right to elect one’s mode of trial does not necessarily amount to a miscarriage of justice. An appellant must demonstrate subjective prejudice. The claim in White failed on this basis. As Karakatsanis J. said, “ Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial.”

[36] That is not the situation here. The appellant was adamant in his desire to be tried by a court composed of a judge sitting without a jury. The Crown submits that, if he was sincere, he should have followed through with his motion, but he did not do so. But as I have explained above, the appellant was not provided with proper advice about his options to rectify the predicament created by trial counsel’s initial misstep in missing the deadline, and the Crown’s curious change of position and subsequent intransigence on the issue.

E. Disposition

[37] I would allow the appeal, set aside the conviction, and order a new trial on all counts on the indictment. Pursuant to s. 686(5) (b) of the Criminal Code , I would order that the new trial be held before a judge of the Superior Court of Justice sitting without a jury.

Released: April 14, 2023 “B.W.M.” “Gary Trotter J.A.” “I agree. B.W. Miller J.A.” “I agree. L. Favreau J.A.”

[1] The sexual assault count was stayed pursuant to R. v. Kienapple , [1975] 1 S.C.R. 729.

[2] The Criminal Code has since been amended to expand the time to re-elect to 60 days following the completion of the preliminary inquiry: S.C. 2019, c. 25, s. 254.