Court of Appeal for Ontario

Date: September 25, 2025 Docket: C70047

Judges: Fairburn A.C.J.O., Zarnett and Wilson JJ.A.

Between

His Majesty the King Respondent

and

G.H. Appellant

Counsel:

• Gregory Lafontaine, for the appellant
• Meaghan Cunningham, for the respondent

Heard: February 18, 2025

On appeal from the conviction entered by Justice Susan M. Magotiaux of the Ontario Court of Justice on March 24, 2021.

Zarnett J.A.:

I. OVERVIEW

[1] Under s. 561(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"), an accused who has elected to be tried in the Ontario Court of Justice ("OCJ") has a right to re-elect another mode of trial, specifically to be tried by either a Superior Court of Justice ("SCJ") judge or by a court composed of an SCJ judge and a jury. That right may be exercised without the consent of the Crown but is subject to a deadline. The right must be exercised not later than 60 days before "the day first appointed for the trial". This appeal turns on the proper interpretation of that phrase.

[2] In August 2020, the appellant elected to be tried in the OCJ on charges of sexual assault and sexual interference. At that time, November 19 and 20, 2020 were set to be used for an application the appellant planned to bring under s. 278.3 of the Code for the production of records relating to the complainants, or for trial evidence.

[3] In November 2020, Magotiaux J. ("the OCJ judge") heard and decided the appellant's s. 278.3 application, as well as an application by the Crown under s. 714.2 of the Code to receive evidence of a witness outside of Canada by videoconference. The OCJ judge adjourned the balance of the matter to dates in March 2021 for arraignment and to hear evidence on the merits of the charges.

[4] In January 2021, without the consent of the Crown, the appellant sought to re-elect to be tried in the SCJ before a judge and jury. The appellant asserted that his trial in the OCJ was not scheduled to commence until March 2021 and therefore Crown consent was not required to re-elect pursuant to s. 561(2) of the Code.

[5] The OCJ judge held that the appellant did not have the right to re-elect without the consent of the Crown under s. 561(2) of the Code. Taking a contextual approach to the question of when a trial commences, and considering a number of factors, the OCJ judge concluded that November 19, 2020 was the day first appointed for the trial and was the date the trial actually commenced. Therefore, the time limit for re-election without Crown consent had expired before the appellant sought to exercise his right of re-election: R. v. G.H., 2021 ONCJ 107.

[6] The OCJ judge proceeded to hear evidence on the merits from March 8-12, 2021. She convicted the appellant on three of the counts he faced.

[7] The appellant challenges his convictions and seeks a new trial, before an SCJ judge and jury, on the sole basis that his re-election without Crown consent in January 2021 was valid under s. 561(2) of the Code and that the OCJ judge erred in not giving effect to it. The appellant submits that since his re-election was valid, the OCJ judge lacked jurisdiction to have tried and convicted him thereafter.

[8] For the following reasons I would dismiss the appeal. Although my reasons differ from those of the OCJ judge, I agree with her conclusion that the time for re-election without Crown consent had expired by the time the appellant sought to re-elect.

[9] The determination of whether a date is "the day first appointed for the trial" focuses on the time the date is scheduled, rather than on what actually occurred on the scheduled date. A scheduled date will be "the day first appointed for the trial", allowing the accused person to calculate the deadline for expiry of the right to re-elect, when it is the earliest date fixed by the court for any step that is part of the trial. For these purposes, fixed means the date has been set by the court and only the court can change it, and the word trial is to be understood expansively – it is not limited to the stage of the trial in which evidence is heard.

[10] November 19, 2020 meets the requirements of "the day first appointed for the trial" because when it was judicially fixed (in August 2020) it was to be used for either a s. 278.3 application or trial evidence. Both are parts of the trial. Accordingly, the deadline to re-elect was triggered to expire 60 days before November 19, 2020. The appellant's purported re-election, in January 2021, took place well after the deadline.

II. THE STATUTORY RIGHT TO RE-ELECT AFTER A PROVINCIAL COURT TRIAL HAS INITIALLY BEEN CHOSEN

[11] The offences that the appellant was charged with were, at the time they were allegedly committed, subject to a maximum punishment of ten years imprisonment if the Crown elected to proceed by indictment. They attracted the constitutionally protected right to a jury trial, set out in s. 11(f) of the Canadian Charter of Rights and Freedoms, which provides, in relevant part, that:

Any person charged with an offence has the right … to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

[12] The right to a trial by jury may be waived by the person the right is designed to protect: R. v. Turpin, [1989] 1 S.C.R. 1296, at pp. 1315-16. Once waived, "reliance on the Constitution ceases" and elections or re-elections are governed by "the provisions of the Criminal Code": Turpin, at pp. 1322-23.

[13] The Code recognizes the right of an accused charged with an offence such as sexual assault or sexual interference to a jury trial where the Crown is proceeding by indictment, as well as the ability to waive that right and elect a different mode of trial. Under s. 536(2.1) of the Code, an accused may elect trial by a judge of the OCJ without a jury, trial by an SCJ judge without a jury, or trial by a court composed of an SCJ judge and a jury.

[14] If trial by a judge of the OCJ is initially chosen by the accused, the accused may re-elect a different mode of trial pursuant to s. 561(2) of the Code. Section 561(2) of the Code provides (i) a time-limited right to re-elect a different mode of trial without the Crown's consent, and (ii) an opportunity to re-elect thereafter with the consent of the Crown. The applicable time limit, separating the right to re-elect without the consent of the Crown from the opportunity to re-elect only if the Crown consents, is "60 days before the day first appointed for the trial". Section 561(2) provides that:

An accused who elects to be tried by a provincial court judge may, not later than 60 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor.

III. PROCEDURAL HISTORY

[15] I summarize the procedural history only to the extent that it bears upon the issues relevant to this appeal.

January 2020

[16] On January 10, 2020, a judicial pretrial was held in the OCJ. The appellant indicated an intention to elect trial by judge and jury, but no formal election was then made. Dates of November 19 and 20, 2020 were reserved for a preliminary inquiry. January 22, 2020 was set for the formal election.

[17] No election took place on January 22, 2020. Instead, the matter was adjourned. The appellant's trial counsel had come to understand that due to amendments to the Code, the appellant would not be entitled to a preliminary inquiry as was originally contemplated. The parties subsequently agreed the case was not eligible for a preliminary inquiry.

August 2020

[18] On August 24, 2020, at a case management attendance before the OCJ, the appellant indicated an intention to bring an application under s. 278.3 of the Code for production of third-party records relating to the complainants. The Code requires such an application be made "to the judge before whom the accused is to be, or is being, tried": ss. 278.3(1) and (2).

[19] The Crown took the position that the appellant had to first elect the mode of trial before dates could be set in the OCJ for that application and any other steps, pointing out that if the appellant elected trial in the SCJ any dates set in the OCJ would be "moot". Appellant's counsel confirmed that the Crown was looking to try the case in November 2020, stating "if we elect provincial … you would be seeking that we keep those November dates". Crown counsel responded that they could try to find earlier dates for the s. 278.3 application but added "we got those dates in November. I would like to be able to use those". Appellant's counsel expressed some doubts about being ready for trial in November.

[20] The case management judge noted that the Crown had not elected how it was proceeding and decided that the Crown should first elect whether it was proceeding by indictment, and if the Crown so elected, the appellant should be put to his election as to the mode of trial.

[21] The Crown elected to proceed by indictment. The appellant was then put to his election as to the mode of trial. He elected (through counsel) to be tried by a judge of the OCJ.

[22] The discussion then returned to the dates of November 19 and 20, 2020. There is no question that those dates were maintained. I agree with the position of the Crown on appeal that the proper interpretation of what occurred at the August 24, 2020 case management attendance was that the November dates were maintained to be used either for the s. 278.3 application or trial evidence. I also agree with the observation of the OCJ judge that the November dates, while "originally set for preliminary hearing", were "converted to trial dates". The case management judge stated that the November dates, that had originally been reserved for a preliminary inquiry, "could still be used one way or the other", which in the context of the discussion was a reference to being used for either the s. 278.3 application or for trial evidence, as no other possible uses had been raised. Appellant's counsel asked, and the case management judge confirmed, that trials were taking place in person, further confirming what the dates were being scheduled for. The case management judge later stated that the dates were a "hearing date", noting that there would be a pre-trial conference to "sort out what we need."

October 2020

[23] On October 23, 2020, the Crown filed an application under s. 714.2 of the Code, seeking permission to have the evidence of one of the complainants received by videoconference. A party seeking such permission under s. 714.2 must give notice of "their intention to do so not less than 10 days before the witness is scheduled to testify": s. 714.2(2) of the Code.

[24] On the same date, the appellant filed a third-party records application under s. 278.3 of the Code for production of records relating to the complainants. On the Form 1 filed for the application, the appellant indicated that the next court date set was November 19, 2020, and that the type of appearance was "Trial".

November 2020

[25] On November 17, 2020, counsel for the appellant and Crown counsel appeared before the OCJ judge. After inquiring into what was to occur that day, the OCJ judge indicated that the appellant should be present. Counsel for the appellant then took steps to have the appellant attend virtually. The OCJ judge advised the appellant that she was the trial judge, and that "this is part of the beginning of your trial".

[26] The OCJ judge released her ruling allowing the Crown's s. 714.2 application on November 19, 2020. She rejected the appellant's argument that the application was brought too close to the hearing, as it was brought within the time contemplated by the Code, having been filed more than ten days before "[t]he case is set to begin on November 19 and 20".

[27] On November 19, 2020, submissions on the s. 278.3 application were made. Records were ordered produced to the court for the OCJ judge to review, after which further submissions were made. There was discussion about whether the trial evidence might commence the following day. The Crown indicated that they were prepared to proceed with the trial evidence the next day, but counsel for the appellant objected to the evidence being split and preferred to proceed within a single block of trial time. On the agreement of the parties, the OCJ judge agreed to defer the commencement of the trial evidence until the next block of dates that were being scheduled for March 2021.

[28] On November 20, 2020, the OCJ judge directed that certain portions of the records be produced to the appellant, subject to terms. She adjourned the matter to March 8-12, 2021, for arraignment and trial evidence.

January 2021

[29] On January 6, 2021, the appellant delivered a notice that he intended to re-elect trial by judge and jury pursuant to s. 561(2) of the Code, without the Crown's consent.

February 2021

[30] On February 11, 2021, the OCJ judge released her reasons dismissing the appellant's application to re-elect, and directing that the matter proceed on March 8-12, 2021, as had been scheduled. (I discuss her reasons rejecting the re-election below).

March 2021

[31] The appellant was arraigned and entered his plea of not guilty on March 8, 2021. The evidence on the merits was heard between March 8 and 12, 2021. On March 24, 2021, the OCJ judge released her decision convicting the appellant on three of the counts he faced.

IV. THE DECISION REJECTING THE RE-ELECTION (R. v. G.H., 2021 ONCJ 107)

[32] The OCJ judge noted that the operative phrase in s. 561(2), "the day first appointed for trial", is undefined. She largely equated the question of what that phrase meant with the question of "[w]hen does a trial begin?" She referred to the purpose of the deadline for re-election without consent in s. 561(2) as balancing, on the one hand, important concerns and choices of the accused person with, on the other, the avoidance of disruption, delay, and judge-shopping. According to the OCJ judge, this supported the view that the start date of a trial is to be determined by reference to a number of factors, none of which are determinative but must instead, be "balanced together in context with the purpose of the section squarely in mind."

[33] Applying that approach, the OCJ judge rejected the appellant's argument (which is not repeated on appeal) that arraignment and plea are a bright line demarcating the start of a trial. While an arraignment and plea can be helpful markers of the starting point of a trial, they alone are not determinative.

[34] The OCJ judge noted that what are sometimes colloquially referred to as "pretrial" applications may signal the start of a trial where those applications engage "substantive trial interests", such as a severance application or a voir dire regarding the admissibility of evidence at trial. Building on this, she reasoned that s. 278.3 applications "can also be said to engage substantive trial interests," and often involve a court receiving and reviewing evidence, including evidence from parties and witnesses who will participate in the trial.

[35] For the OCJ judge, considerations of "principle" were also a factor. Section 561(2) of the Code should not be interpreted to give the accused, who has received a ruling on an application that engages substantive trial interests, a do-over by re-electing so as to, in effect, secure a different trial judge who would not be bound by the earlier ruling.

[36] The final factor for the OCJ judge was whether the parties' behaviour implies that they believed that the court was acting as a trial court; if so then the trial is more likely to be deemed to have begun.

[37] Applying these factors, the OCJ judge concluded that November 19, 2020 was the day first appointed for trial and that the trial began on November 19, 2020 when she heard the s. 278.3 application.

V. ANALYSIS

A. The Parties' Positions

[38] The appellant argues that the right to re-elect must be viewed through the lens of the right to a jury trial guaranteed by s. 11(f) of the Charter. Although the right to a jury trial can be waived, the choice to do so must be voluntary and informed – the accused must know the case to meet before they choose their mode of trial: R. v. Hunter (2004), 190 O.A.C. 53 (C.A.), at para. 8. Similarly, an accused should only lose the right to re-elect on an informed basis. An informed basis means that it must be clear to the accused, before they lose the right to re-elect a jury trial under s. 561(2) of the Code, when the right will be lost.

[39] On the OCJ judge's approach, the right to re-elect expired on September 20, 2020, 60 days before November 19, 2020. But according to the appellant, nothing made it adequately clear to the appellant before September 20, 2020, that the right to re-elect would be lost if not exercised before that date. The only time when it was clear, according to the appellant, that a date had been set from which one would count back 60 days to determine the deadline for re-election was when, on November 20, 2020, the matter was set for the hearing of evidence beginning March 8, 2021. The appellant's notice of re-election was 61 days before March 8, 2021.

[40] The Crown argues that the trial judge was correct to refuse the appellant's re-election on two bases. First, on August 24, 2020, November 19 and 20, 2020 were "converted to trial dates." Even though it was not certain that trial evidence would be called on those days, November 19, 2020 was nonetheless the day first appointed for trial, and the right to re-elect had to be exercised more than 60 days before that date. Thus, an application to re-elect pursuant to s. 561(2) of the Code had to be made prior to September 20, 2020. Second, because the appellant brought a s. 278.3 application that was heard on November 19, 2020, and such an application must be heard by the trial judge, the trial commenced and therefore a re-election after that date could not be valid.

B. Discussion

[41] The proper interpretation of s. 561(2) of the Code is a question of law, to which a standard of correctness applies: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.

[42] Section 561(2) of the Code, like any legislative provision, "must be interpreted in a textual, contextual and purposive way": Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 11. Legislative intent – the discernment of which is the goal of the interpretive exercise – "can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context": Vavilov, at para. 118.

[43] The operative phrase in s. 561(2) of the Code is "the day first appointed for the trial", which triggers the calculation of the deadline for re-election without Crown consent. It gives rise to three interpretive questions: (i) what constitutes a day having been "appointed"?; (ii) what constitutes a day having been appointed for "trial"?; and (iii) what constitutes the "day first appointed for trial"?

i. When Has a Day Been "Appointed" for Trial?

[44] Two points are important with respect to this interpretive question. First, the term "appointed" within the phrase "the day first appointed for the trial" contemplates that the day, and what is to occur on it, have been scheduled with a degree of certainty. Second, whether a day has been appointed in this sense is assessed from the perspective of when the scheduling takes place.

[45] A degree of certainty is required because "appointed" is synonymous with "fixed". This understanding accords with the French version of s. 561(2) which uses the phrase "la date fixée pour son procès".

[46] The perspective follows from the fact that s. 561(2) of the Code requires one to count backward from the day first appointed for the trial to determine the deadline for re-election. Although I do not agree with the appellant that the Charter drives this conclusion (see Turpin, at pp. 1322-23), I do agree with him that it is integral to the right to re-elect that the accused be able to determine the deadline before it expires, and therefore it must be clear that the trigger for calculation of the expiry of the deadline to re-elect has been set. The question is whether, when viewed at the time of the scheduling, a date has been fixed that constitutes the day first appointed for the trial, allowing the accused to make the necessary calculations based on that future date. Subsequent events may shed light on whether a date has been scheduled so as to constitute the day first appointed for the trial only to the extent that they reveal, or dispel, any suggestion of a lack of clarity about what was scheduled to occur.

[47] Accordingly, a day is appointed when, at the time it is scheduled, the court has directed the matter is to proceed on the scheduled date and further court involvement would be required to change the date. This approach respects the degree of certainty conveyed by the term appointed and brings the proper time perspective to the inquiry. Although there is merit to the concern that such an approach may miss either the nuance of what a scheduled date meant to the parties in a particular case, or the uncertainty inherent in the scheduling of any dates in a criminal prosecution, in my view the plain language of s. 561(2) of the Code and its purpose support the conclusion that a bright line, which allows the parties to determine, in advance, the re-election deadline, is apposite. A case by case, moving target approach that does not involve accepting a judicially set date at face value but instead inquires into the parties' subjective beliefs as to whether the date would be met or is contingent on subsequent events, would introduce unacceptable uncertainty into the determination of the deadline.

ii. What Constitutes a Day Having Been Appointed for "Trial"?

[48] Reading s. 561(2) in the context of the Code as a whole, and in light of its purpose, the term "trial" as used in the Code is to be given an expansive meaning. Accordingly, a day has been appointed for trial when the day has been fixed, in the sense described above, for any step recognized by the Code to be part of the trial. Such steps will include those considered to be part of the trial under s. 551 of the Code, a provision that describes not only the stage at which evidence is heard, but other specific steps and procedures that take place before that stage, as occurring "at trial". Trial will also include any step mandated to be determined by the trial judge in the presence of the accused because that step is considered part of the trial for the purpose of determining whether the accused's presence is required under s. 650(1) of the Code. I reach this conclusion for the following reasons.

[49] As the Supreme Court explained in R. v. Barrow, [1987] 2 S.C.R. 694, what is comprised within the term trial in the Code may be given an expansive or a narrow meaning depending on the text of the section in which the term is used and the interests the section is designed to protect. As the court in Barrow stated at pp. 703-4:

the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied[.] … The reason for varying starting points is that different sections of the Code protect different interests.

[50] In Barrow, the court was concerned with the right of the accused to be present during the "whole of the trial" under what is now s. 650(1) of the Code. In the course of selection of the jury before evidence on the merits was heard, the trial judge had questioned jurors as to their partiality outside the presence of all counsel and the accused. The court held that for the purpose of the right of the accused to be present during the "whole of the trial", an expansive meaning is to be given to the word trial. An accused is entitled to be present not only for the presentation of evidence and rulings on admissibility, but whenever "vital interests" of the accused are at stake or when a decision bears on the "substantive conduct of the trial", such as proceedings relating to the selection of the jury. These steps are properly considered to be "part of the trial", a conclusion flowing from a consideration of the interests protected by this provision:

First, the accused is present to hear the case he or she faces and is thereby able to put forward a defence. Second, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and the trial fair. … [T]his second value is of enormous importance to the perceived fairness of the Canadian criminal justice system. The sight of a judge conferring in private with jurors on issues that go to the partiality of the trier of fact can only prompt cynicism in an accused. It should be avoided: Barrow, at p. 707.

[51] The court in Barrow referred, as an example of a section in the Code where trial, and therefore the commencement of the trial, would receive a more restricted meaning, to the decision in Basarabas and Spek v. The Queen, [1982] 2 S.C.R. 730. In that case, the trial judge discharged a juror after the jury was empanelled, but before the accused was put in the jury's charge and evidence was heard; the trial then proceeded with eleven jurors. The question was whether the trial judge had the power to do this under what was then s. 573 [now ss. 644(1) and (2)] of the Code, which gave the judge the power to discharge a juror "in the course of a trial" and continue with a jury of not fewer than ten.

[52] In Spek, the court concluded that s. 573 of the Code did not provide authority for what occurred, as the juror was discharged before the trial had commenced, as opposed to in the course of the trial. As the court in Barrow explained, for the purpose of what was then s. 573 of the Code, "'[t]rial'" … refers to the heart of the trial, the presentation of evidence before the trier of fact": at p. 704. That construction flowed, in part, because the provision, being an exception to the right of an accused to the unanimous verdict of twelve persons, should be construed narrowly: Barrow, at pp. 703-4.

[53] Applying that analytical framework, the text of s. 561(2) of the Code and the interests it protects lead to the conclusion that an expansive meaning is apposite and that giving the term trial a meaning that restricts it to the evidentiary phase would be inappropriate.

[54] First, the term trial appears in s. 561(2) of the Code without any limiting modifier. Restricting its meaning to a trial's evidentiary phase would put the section out of step with other provisions of the Code that repeatedly refer to parts of the trial other than the taking or hearing of evidence.

[55] For example, s. 650(1.1) of the Code allows the court, with the consent of the accused and the prosecutor, to "allow the accused to appear by counsel for any part of the trial, other than a part in which the evidence of a witness is taken."

[56] Further, ss. 551.3(1)(g) and 551.3(3) of the Code recognize that hearing evidence on the merits is a stage of the trial, but that certain steps that precede the hearing of evidence are also part of the trial, even if exercised by a case management judge who is different from the judge who hears the evidence on the merits. Those sections provide:

551.3(1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by

(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to

(i) the disclosure of evidence,

(ii) the admissibility of evidence,

(iii) the Canadian Charter of Rights and Freedoms,

(iv) expert witnesses,

(v) the severance of counts, and

(vi) the separation of trials on one or more counts when there is more than one accused.

551.3(3) When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial. [Emphasis added.]

[57] Similarly, ss. 551.7(9) and (10) of the Code, provide that a judge appointed to adjudicate, in a joint hearing, an issue referred to in ss. 551.3(g)(i) to (iii) of the Code that arises in related trials, exercises the power of a trial judge and adjudicates the issue "at trial".

[58] Giving a restricted meaning to the term trial in s. 561(2) would also be inconsistent with provisions of the Code, such as s. 278.3 that contemplate steps that are required to be heard by the trial judge ("the judge before whom the accused is to be, or is being, tried"). Such an application is properly considered to be part of the trial, requiring the attendance of the accused, under s. 650 of the Code: R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 42, 44, 52.

[59] Turning to the interests protected by the section, the deadline in s. 561(2) of the Code exists to avoid delay and duplication, to promote trial efficiency, and thus to protect the integrity of the administration of justice. Restricting the meaning of trial to its evidentiary phase would set the deadline for re-election under s. 561(2) of the Code at 60 days before the evidentiary phase was scheduled to begin, even if steps had already been scheduled, and had proceeded, that constituted part of the trial for the purposes of ss. 551 or 650(1) of the Code. All of those steps would be at risk of being wasted and of having to be undertaken afresh, if a re-election to move the matter to the SCJ could still occur (because the deadline had not yet expired). As Paciocco J., as he then was, noted in R. v. Brahaney, 2016 ONCJ 395, at para. 55,

there can be numerous complex and time-consuming matters argued and disposed of before the evidentiary phase of the trial arrives. … If [the meaning of trial were restricted to the evidentiary phase] all of the judicial resources, time and public expense invested in cases w[h]ere preliminary matters are addressed in advance of the evidentiary phase of the trial in this way can be laid to waste by a simple re-election.

[60] In summary, it would be inconsistent with the text of the section in light of the Code as a whole to consider the word "trial" in s. 561(2) as restricted to the evidentiary phase and as not including the steps or proceedings that other sections of the Code contemplate as part of the trial. And doing so would undermine the purpose of the deadline for re-election, as it would risk such steps or proceedings and all "the judicial resources, time and public expense invested" in them being "laid to waste by a simple re-election": Brahaney, at para. 55. Giving the word trial an expansive meaning, that includes the steps contemplated by other provisions of the Code to be part of the trial, respects the text, context, and purpose of the provision.

iii. What Constitutes the Day "First" Appointed for Trial?

[61] The word "first" in s. 561(2) of the Code does not have a precise equivalent in the French version of the Code. Aligning the meaning of the two versions, the deadline is calculated from the day the earliest step that is considered part of the trial is scheduled to begin. This is both the day first appointed for the trial, even if there are more days scheduled, and "la date fixée pour son procès", even if the trial is scheduled for more than one day.

[62] What if the earliest step scheduled for trial, as that term is expansively understood, does not take place as scheduled? Some case law holds that once a day is appointed for trial, any postponement or adjournment of the trial date does not affect the deadline for re-election, which is calculated from the date originally appointed: see e.g., R. v. T.B., 2018 ABPC 43, at para. 61; R. v. Shilmar, 2017 ABPC 213, 70 Alta. L.R. (6th) 151, at para. 136; R. v. BHS, 2020 ABPC 87, at para. 29.

[63] I am in general agreement with the proposition that a postponement or adjournment of the trial date does not change the deadline for re-election. One must be able to determine the deadline, with certainty, before it expires. That requires counting 60 days back from the day first appointed for the trial. Conditioning the validity of the deadline so determined on whether what was subsequently scheduled actually occurred or was postponed would make it impossible to have the required certainty at the point in time – 60 days before the day first appointed for the trial – the Code prescribes as when the right to re-elect without the consent of the Crown terminates.

[64] It has been pointed out, however, that the approach set out in cases like T.B., of calculating the deadline from the date for trial originally set, could result in an absurdity if the trial date were not moved back, but instead were moved up to a date 60 days earlier than the original date. A trial date moved up in this way could result in the accused retaining a right to re-elect during their provincial court trial: see e.g., R. v. Holynski, 2023 SKKB 40, 424 C.C.C. (3d) 306, at para. 30.

[65] In my view, moving the date for trial up is quite different than a postponement or an adjournment. In the latter situation, the date originally set for trial is still properly understood as the day first appointed for the trial – the postponed or adjourned date does not change that. However, when an earlier date is set for trial, the original date is no longer the day first appointed for the trial, since there is an earlier date that has taken its place. The deadline would accordingly be calculated from the new first day, that is the earliest date.

C. Application to this Case

[66] On August 24, 2020, the court set November 19 and 20, 2020 as dates that would be used for either a third-party records application under s. 278.3 of the Code, or for trial evidence. Either, as a matter of law, would be part of the trial.

[67] Viewed from the correct perspective – the time when the November dates were fixed – there was no lack of certainty as to the dates set or what they were to be used for. Nor could they be changed other than by further judicial direction. There was, therefore, no lack of clarity that the trigger for the calculation of the deadline to re-elect had been set, nor about how to calculate the deadline to re-elect or when the right to re-elect would expire. To the extent it is necessary to look at anything that occurred afterwards for the purpose of determining whether the November dates were set with any lack of clarity or certainty, it is sufficient to note that when the appellant commenced his s. 278.3 application, he indicated it was being brought on November 19, 2020, a date scheduled for "Trial".

[68] The fact that trial evidence was not led in November 2020, and that dates in March 2021 were scheduled for evidence to be led does not detract from the fact that November 19, 2020 was the day first appointed for the trial – the subsequent scheduling of additional dates for arraignment and trial evidence did not cause that date to lose that character.

[69] The appellant did not re-elect before the deadline for doing so expired. He did not re-elect at least 60 days before November 19, 2020.

VI. DISPOSITION

[70] I would dismiss the appeal.

Released: September 25, 2025

"J.M.F."

"B. Zarnett J.A."

"I agree. Fairburn A.C.J.O."

"I agree. D.A. Wilson J.A."

Footnotes

[1] This appeal is subject to a publication ban pursuant to s. 278.9(1) and s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The complainants, SM and AM, were the appellant's stepchildren at the time of the offences. The offences were allegedly committed between 1998 and 2000.

[3] I use the term the OCJ judge rather than the trial judge in light of the issue about what constitutes the trial.

[4] The OCJ judge also refused to exercise the discretion under s. 555(1) of the Code to end the proceedings in the OCJ and send the matter to the SCJ for trial by judge and jury, as she considered there was an insufficient basis to do so. That refusal is not challenged on appeal.

[5] The subsection applicable when the maximum punishment is less than 14 years imprisonment, which was the case here because of the historical nature of the alleged offences.

[6] A pre-trial conference took place on September 11, 2020. Although no transcript was filed for the appeal, the OCJ judge described what occurred as a discussion of the procedure for the s. 278.3 application and a discussion between the parties about scheduling additional dates for trial as the trial was anticipated to take longer than the 1.5 days originally scheduled for the preliminary hearing. There is no suggestion of a change to the November 19 or 20 dates, or what they were to be used for.

[7] Elsewhere, the OCJ judge noted that while those dates were originally set for a preliminary hearing, they were "converted to trial dates" after the parties realized the offences were not eligible for a preliminary inquiry.

[8] The word "appoint" is defined as "fix, decide on (a time, place, etc.)": Canadian Oxford Dictionary, 2nd ed. (Don Mills, Ont.: Oxford University Press, 2004), definition of "appoint".

[9] The French version of the Code provides: « Un prévenu qui a choisi d'être jugé par un juge de la cour provinciale peut de droit, au plus tard soixante jours avant la date fixée pour son procès, choisir un autre mode de procès; il ne peut par la suite le faire qu'avec le consentement écrit du poursuivant. »

[10] See e.g., R. v. Vella, 2020 ONCJ 338, at para. 26.

[11] By the addition of s. 644(1.1), the Code now addresses the precise issue that arose in Spek.

[12] If the proposed earlier date would truncate a not yet expired deadline to re-elect, the court could refuse to set the earlier date, or could take into account whether the Crown was prepared to undertake to consent to re-election within a specific period of time in deciding whether to set it.