Court Information
Ontario Court of Justice (East Region)
Her Majesty the Queen v. Laura Brahaney and Jake Hopwood
Before: Justice David M. Paciocco – Ottawa, ON
Reasons on Laura Brahaney Re-election Application
Released: June 23, 2016
Counsel
For the Crown: M. Geigen-Miller
For the Accused, Laura Brahaney: M. Smith and G. Fuentealba
Agent for the Accused, Jake Hopwood: Leo Russomanno
Decision
Paciocco J.
I. Introduction
[1] Laura Brahaney and Jake Hopwood are charged jointly with a range of serious offences arising from the allegation that they engaged in two unlawful confinement incidents, one in Ottawa, Ontario, and the other in Richmond Hill, Ontario. From the outset they signalled their intention to seek severance of the Ottawa from the Richmond Hill charges.
[2] Dates were set for hearing the severance application in the Ontario Court of Justice, on September 28 and 29, 2015. On September 11, 2015, the date of September 28, 2015 was cancelled as unnecessary.
[3] Prior to September 29, 2015, the Crown took the position that until the accused persons elected trial in the Ontario Court of Justice, the Ontario Court of Justice had no jurisdiction to order severance, as only a trial judge has the authority to sever counts. The Crown therefore brought an application for the summary dismissal of the severance application.
[4] On September 29, 2015, the parties ultimately agreed with the Crown position. I advised the accused parties that they were under no pressure to elect trial in the Ontario Court of Justice, but that if they wanted me to hear the severance application they would have to do so, and be arraigned before me. The matter was stood down to enable the parties to conduct a pretrial with the Local Administrative Judge, and for counsel to get instructions. Ultimately, the accused elected trial before the Ontario Court of Justice and a date was set before the Local Administrative Judge to have the application scheduled before me for disposition.
[5] On October 2, 2015, two dates were set. The severance application was to be heard on December 21, 2015, and 10 days were reserved for the evidentiary phase of the trial on whatever charges would be proceeding, commencing July 11, 2016.
[6] On December 21, 2015 Ms. Brahaney and Mr. Hopwood appeared before me on the application and entered pleas of not guilty. Evidence was heard on the motion and argument was made.
[7] On February 29, 2016, I denied the severance application in a written decision. The matter was then remitted to the administrative stream so that the parties could discuss with the Local Administrative Judge whether the trial period set was adequate, and to secure additional dates, if necessary.
[8] On June 13, 2016, six weeks after the severance application was decided adversely to Ms. Brahaney, she filed a "Notice of Intent to Re-elect" pursuant to section 536.3, seeking a judge alone trial in the Ontario Superior Court of Justice. The notice of re-election should, in fact, have been made pursuant to Criminal Code section 561(2). The Crown has not been prejudiced by this formal error in the "Notice of Intent to Re-elect," and all of the parties are proceeding on the footing that the notice was purportedly given pursuant to section 561(2).
[9] Section 561(2) of the Criminal Code provides:
561 (2) An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection 536(4) may, not later than 14 days before the first day appointed for trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor.
[10] Ms. Fuentealba argues that the "first day appointed for trial" is July 11, 2016, which is more than 14 days after the date notice was filed. She therefore claims that Ms. Brahaney can re-elect, as of right. Mr. Hopwood, through the agency of Mr. Russomanno - who is seeking to make arrangements to go on record as Mr. Hopwood's new counsel - agrees with Ms. Fuentealba's position.
[11] The Crown takes the position that the trial already commenced with the severance application. It urges that re-election at this stage therefore requires "the written consent of the prosecutor," which the prosecutor will not give. The Crown argues that the matter should continue with the Crown's case on July 11, 2016.
[12] I have to decide who is correct. That determination turns on the meaning to be ascribed to the term, "the first day appointed for trial."
II. Analysis
[13] Ms. Fuentealba, for Ms. Brahaney, urged that the plain language of section 561(2) resolves the matter. She argues that a severance application is a "pretrial motion," something that occurs prior to the "trial" that is referred to in section 561(2). She contends that the trial begins when evidence is presented on the charges, namely, July 11, 2016, leaving Ms. Brahaney an absolute right to re-elect, even without Crown consent.
[14] To support this position Ms. Fuentealba points out that cases frequently speak of "pretrial" motions, as opposed to trial motions, as do the rules developed by this court, the Ontario Court of Justice. She contends that had Parliament intended the term "trial" to include "pretrial" matters, it had the opportunity to say so, including when the provision was amended in 2002, but did not.
[15] Unfortunately, the determination of when a trial begins for the purposes of particular statutory provisions, and what takes place as part of a trial, is not so easily resolved. Whether something is part of the trial certainly does not turn on the colloquial habits in reported decisions of referring to some applications as "pretrial motions." Moreover, as important as the Criminal Rules of the Ontario Court of Justice are, they are formed under statutorily delegated authority. The convenient division expressed in those rules between pretrial and trial motions cannot alter the meaning of a statutory term, such as Criminal Code section 561(2).
[16] Case law makes clear that when it comes to interpreting the term "trial" in a statutory provision, a contextual and purposive approach is to be taken. Indeed, the term "trial" can mean different things in different contexts. As observed by Justice Ewaschuck in R. v. Curtis [1991] O.J. No. 1070 (O.C.J. Gen. Div.), this can even result in a "trial" commencing at different points in time for a judge and jury adjudicating the same matter.
[17] The influence of context and purpose on the determination of when a trial begins or is underway is best illustrated by the decisions in R. v. Basarabas, [1982] 2 S.C.R. 730 and R. v. Barrow, [1987] 2 S.C.R. 694. Both cases involved steps taken in the selection of juries.
[18] In Basarabas, supra, the issue was whether it was appropriate to appoint a replacement juror for a juror who was discharged because of conflict of interest, before any evidence on the merits had been heard. The statutory authority needed to replace that juror would not have existed if the juror was discharged "in the course of the trial." Where a juror is discharged "in the course of the trial" the proper procedure is to continue with the remaining jurors, so long as there are at least 10: Criminal Code section 573(2) [now section 644(2)].
[19] The Supreme Court of Canada held that, given the importance of enabling the accused to have a trial by 12 jurors, and the feasibility of replacing the juror before the jury began its function, the term "in the course of the trial" should be interpreted in section 573(2) as commencing when the accused is actually placed in the charge of the jury. As a result, the disqualified juror should have been replaced, and the judge erred by not doing so.
[20] In Barrow, supra, the question again was whether a trial was underway when the jury panel was in the process of being assembled. If so, Criminal Code s. 577(1), [now section 650(1)] would apply. That provision holds that "an accused shall be present in court during the whole of his trial." Presence includes the right to be privy to information considered in court, including communications about whether to exclude jurors.
[21] In his case, Mr. Barrow and his counsel were left out of earshot of inquires conducted by the judge, leading to jurors being excused. Mr. Barrow was not, therefore, "present" in a meaningful sense. If the trial was underway, section 577(1) had therefore been contravened.
[22] The Supreme Court of Canada ultimately ruled that, for the purpose of section 577(1), the trial was indeed underway during jury selection. This was so, even though the accused was not yet placed in the charge of the jury, the trigger that had been adopted in Basarabas, supra. The Court reasoned that since the determination of who the jurors would be is a centrally important trial matter, accused persons are entitled to meaningful presence during jury selection. The meaning of "present… during the whole of his trial" is capable of including jury selection, and given the issue, context and purpose of the provision, it should be interpreted accordingly. For the purpose of section 650(1), then, "the whole of his trial" includes jury selection.
[23] It is not only the policy implications of the different issues that arise that causes flux in the conception of a "trial." The term "trial" is ambiguous because there are a range of tasks undertaken before the ultimate resolution of a case.
[24] For example, there are mere administrative acts required to set the stage for the commencement of hearings, things such as intake appearances, the conduct of pre-trials, or applications for adjournment. Universally, mere administrative acts of this kind are not considered to be part of the trial. That is why, in this case, the Local Administrative Judge is empowered to conduct pretrials and schedule court dates.
[25] As a result, in R. v. Stacey [1999] N.J. No. 377 (Nfld. S.Ct. (C.A.)) the communication by the accused during the intake process of his intended election and plea, and the act of setting a date for the commencement of the evidentiary hearing, were not part of the trial within the meaning of Criminal Code section 475. Since these matters were not trial matters, an accused person who failed to show up on that set date had not absconded "during the course of the trial." It was therefore an error to try him in absentia under the purported authority of section 475.
[26] The same would hold true, for the purpose of section 561(2), the provision at issue here. Had only purely administrative matters of this kind occurred prior to Ms. Brahaney's re-election, there could be no issue taken with the validity of her re-election.
[27] Then there is the formal reception of the plea. Ordinarily, this ceremony is not considered to commence the trial, and a jurist who does no more than receive a plea from an accused person is not seized of the matter: R. v. Wiseberg [1973] O.J. No. 945 (Ont. S.C. (A.D.)), and see Criminal Code, section 669.1. The fact that Ms. Brahaney entered a plea before me on December 21, 2015 does not, on its own, undermine her right to re-elect.
[28] Conversely, a trial is always underway where the parties are presenting evidence relating to the guilt or innocence of the accused. Unquestionably, if this occurs within 14 days of an attempted re-election, that re-election is impermissible without the Crown's consent: R. v. Robinson [1984] M.J. No. 320 (Man. Prov. Ct.).
[29] When it comes to motions commenced or adjudicated in advance of the evidentiary phase of the trial, things become more complicated. In some contexts, at least, some such matters are not considered to be part of the trial. For example, in R. v. Black 2010 NBCA 36, [2010] N.B.J. No. 171 (N.B.C.A.) the determination of a request for particulars was not part of the trial, such that the adjudicating judge became seized as the trial judge upon making that order.[1]
[30] Other hearings conducted in advance of the evidentiary phase of the trial will be part of the trial. In R. v. Poloni 2008 BCPC 326, [2008] B.C.J. No. 2168 (B.C.P.C.), the trial judge quite correctly remarked, at para 55:
"[T]here is ample authority for the proposition that a voir dire aimed at canvassing the admissibility of evidence is part of the 'trial': Duhamel v. The Queen, [1984] 2 S.C.R. 555 at 563. The fact that a voir dire occurs at the beginning of a judge alone trial, before any evidence is called on the trial proper, does not make it any less a 'trial within a trial.'"
[31] The instant question, then, is whether a severance application is the kind of motion conducted in advance of the evidentiary phase of the trial that forms part of the trial. I have been presented with no authority resolving the question. Ms. Fuenteable offered R. v. Stacey [1999] N.J. No. 377 (Nfld. S.C. (C.A.)) and R. v. Malakpour [2012] B.C.J. No. 2471 (B.C. Prov. Ct.) yet neither case is helpful. It is true that each decision referred to the first date set for the reception of evidence about guilt or innocence as "the first day set for trial," yet neither case involved pretrial motions, such as a severance application.
[32] Given the capacity of the word "trial" to refer to various aspects of the proceedings, I therefore have to resolve this question as a matter of principle, bearing in mind the nature of a severance hearing, and giving particular focus to the contextual and purposive implications of the right to re-election provided for in section 561(2).
[33] I will begin with general principles that assist in determining whether a trial is underway.
[34] The first principle consulted by the courts is that "decisions having a bearing on the substantive conduct of the trial or the issue of guilt or innocence" will generally form part of the trial: R v. Hertich [1982] O.J. No. 496 (Ont. S.C. (A.D.)) at para 54. A similar sentiment was expressed in R. v. Barrow, supra where the decision to treat juror selection as part of the trial was inspired by the importance juror selection played in the trial, and in Mr. Barrow's right to a fair hearing. The centrality or importance of a matter to the conduct of the trial or in determining guilt or innocence is therefore material in determining whether that matter forms part of the trial.
[35] In my view, this principle suggests that a severance hearing, settling what charges the accused is going to face during the hearing, is part of the trial. While the severance hearing does not have a direct bearing on the issue of guilt or innocence, it does bear centrally on the "substantive conduct of the trial." Moreover, the focus during a severance application is not simply administrative. It has to do, as well, with ensuring the integrity of the hearing, the consistency of verdicts, and in ensuring that accused persons can be tried fairly. A severance application is a central and important stage in the ultimate resolution of the charges against the accused.
[36] A second principle consulted by courts is that preliminary motions that require evidence to resolve tend to be part of the trial, but those preliminary motions that do not require evidence tend not to be: R. v. Poloni, supra at para 17. Thus, a motion for particulars is not generally part of the trial because the need for particulars is evaluated not by the consideration of proof, but by the characterization of the sufficiency of the information in a charge. By contrast, a motion for severance is based on claims about a state of fact that, if not agreed to, has to be resolved. In this case, for example, evidence was presented by Det. Jacobs about the overlap and intersection between the Ottawa and Richmond Hill charges.
[37] The need to receive evidence to resolve a matter is not an arbitrary point of departure in determining whether a trial has commenced. It is closely related to the notion that "trial judges are to hear all matters relating to the trial": R. v. Black 2010 NBCA 36, [2010] N.B.J. No. 171 (N.B.C.A.) at para 49, a proposition linked to the practice of seizing judges with cases. This practice of seizure promotes trial efficiency and encourages consistency in adjudication, including on questions of credibility. The concept of seizure also protects the appearance of justice by removing the spectre of judges being selected to adjudicate discrete issues.
[38] This concept of seizure gives rise to a third relevant principle of assistance in determining whether a trial is underway. Although, as Barrow, supra illustrates, there is a distinction between a judge being seized and whether a trial has commenced or is underway, I agree with Prov. Ct. J. F.E. Howard, in R. v. Poloni, supra, that there is an important correlation between the two. As the judge put it, "The question of whether a judge is seized and the question of whether a trial has commenced is closely related. In general, if a trial has commenced, then the trial judge is seized."
[39] I would add to that. As a general proposition, when a seized trial judge undertakes acts that arise because of their role as trial judge, or "qua trial judge," the trial is more likely to be underway. Naturally, if the only authority a judge has to undertake a task is that they are seized as the trial judge, that task is apt to be a trial task.
[40] In this case I was, at the time of the notice of re-election, seized of this matter as the designated trial judge. This occurred once I commenced hearing Ms. Brahaney's severance motion, after she elected trial in the Ontario Court of Justice. R. v. Litchfield, [1993] S.C.J. No. 127 at paras 25-27, is the applicable authority for the proposition that only a trial judge can order severance.[2]
[41] I am mindful that Litchfield, supra, involved charges tried on an indictment, and that the reasoning offered by the Court turned, in part, on the rule that an indictment is preferred when it is lodged with the trial judge at the opening of the trial. In my view the rule in Litchfield nonetheless applies, with equal force, even in cases tried on a sworn Information, such as the matter before me.
[42] As explained in R. v. Brown [2000] O.J. No. 2434 at para 26 (Ont. C.A.), the decision to require trial judges to determine severance matters is supported by appreciation that a "severance order will clearly have an impact on the nature and course of the trial to be held," matters that should ordinarily be the responsibility of the trial judge.
[43] Moreover, a significant concern in Litchfield was the complication in appealing a severance ruling, if that ruling was made by someone other than the trial judge. This is because of the usual bar on collateral attacks, and the limitation on appeals only after final verdict. Appeal difficulties would apply whether charges are tried on indictment or on a sworn Information.
[44] My status as the trial judge is further supported by the fact that I heard evidence in this matter, albeit evidence on a motion rather than for the purpose of resolving substantive issues of guilt or innocence. As section 669.1(1) implies, once evidence is received, the judge hearing it is seized of the trial. The term "evidence" in section 669.1(1) should not be confined to material information relating to the ultimate merits of the case. Interpreted purposively in light of the need for consistency in adjudication, and the value in linking a judge to a case for administrative efficiency and constancy, only a trial judge should adjudicate matters requiring proof in their assigned case. Indeed, as Criminal Code, s.551.1(1) demonstrates, when Parliament does intend the term "evidence" to be constrained to proof about guilt or innocence it uses terms such as "evidence on the merits." Section 669.1(1) does not. It uses the term "evidence" at large.
[45] In sum, general principles for determining whether the trial was underway support the conclusion that the trial started with the severance motion. First, the issue at stake in the severance motion had a material bearing on the substantive conduct of the trial and was of central importance in determining, as it did, the charges Ms. Brahaney would be tried upon. Second, the resolution of that issue required an evidentiary foundation to be established, or agreed upon. And third, I necessarily heard that motion in my capacity as the judge who was seized of the trial, both because only a trial judge can hear such motions, and this motion required the presentation of evidence to resolve. Since the judicial undertaking of resolving the severance motion was engaged in "qua trial judge," it follows that when I undertook the motion, it was within the shelter of the trial under the authority of the trial judge.
[46] While this is where general principles relating to the commencement of a trial lead, principles, of course, do not compel outcomes. They direct how things should ordinarily work, and can be outpointed by competing considerations. In this case Ms. Fuentealba relies heavily on the purposive implications of severance to urge that a severance motion should not be considered to be part of the trial for the purposes of section 561(2).
[47] Ms. Fuentealba contends, first, that the right to choose the mode of trial is a centrally important right to the accused, carrying with it the right to a jury trial, and should not be lightly restricted. Since the purpose of section 561(2) is to preserve that choice by permitting re-election, the concept of "trial" should be interpreted generously. Second, she urges that an accused person should not be required to elect their mode of trial until they have full knowledge of the interests at stake. Until a determination is made about what charges will proceed, the accused person is unable to make an informed, tactical choice about where they wish to be tried. I will address each of these considerations in turn, but only after addressing another consideration that occurred to me.
[48] Specifically, the argument can be made that a severance application cannot form part of the trial, because until the severance issue is determined, it is not even clear what charges the trial will embrace. I wanted to address this consideration because initially it seemed compelling to me.
[49] On reflection, the point does not hold up. There is no reason to conceive of a severance hearing as separate from a trial simply because a successful motion will result in adjudication on fewer charges than initially presented. It is not uncommon for a trial to begin including charges that do not remain at the end of the proceedings, whether it is because those charges have been stayed or withdrawn. A severance order operates similarly by removing some of the charges that are before the court.
[50] Moreover, there is no limit on when a severance motion can be brought. It is even possible to renew an application late in the proceedings, if circumstances change. Severance applications can occur even after the presentation of evidence on the merits, at a time when unequivocally the trial is underway: R. v. Sternig (1975), 31 C.R.N.S. 273 (Ont. C.A.). In other words, there is nothing antithetical about conducting a severance motion as part of the trial.
[51] What, then, of Ms. Fuentealba's purposive argument? I do accept that an accused person has an imposing interest in being able to elect mode of trial, including a trial by jury. That interest is serviced in the Criminal Code in a variety of ways. For electable offences, the accused has the initial choice as to mode of trial: Criminal Code, section 536(2). They also have the absolute right to re-elect within 15 days after a preliminary inquiry, and where they do not have a preliminary inquiry, no later than 14 days "before the first day appointed for trial." This right to elect and re-elect does signal the importance of the entitlement of accused persons to exercise choice over their mode of trial for electable indictable offences – the majority of criminal charges – and to enjoy, if they wish, either the right to a summary trial in provincial court, or a trial in superior court, either with or without a jury.
[52] On the other hand, the law makes clear that the entitlement to choose the mode of trial is not absolute. The law imposes limits on the right to choose. Where there are co-accused persons, each accused person is compelled to have a preliminary inquiry and be tried in the Superior Court if one of them makes that choice: Criminal Code, section 536(4.2). In some cases, the Crown can compel a trial by jury: Criminal Code, section 568. And in cases of re-election, there are time limits or Crown consent requirements.
[53] These provisions demonstrate, as recognized in R. v. E.(L.), [1994] O.J. No. 2641 (Ont. C.A.), that there are competing public interests that operate to limit the freedom of choice granted to accused persons. As a result, the Court held in E.(L.) that it was an error for the trial judge to have disregarded the limits on the right to elect the mode of trial on the theory that the accused's right of election is somehow more important than the protection of these competing interests. Simply put, statutory provisions relating to the mode of trial recognize competing interests and cannot be interpreted purposively, as if they serve only the preservation of options for the accused. It has to be remembered that applying a narrow conception of "the first day of the trial" to permit re-election reduces the opportunities of the Crown to withhold consent, potentially disrupting the balance established by the provision.
[54] What then, is the interest being protected by the Crown that inspired Parliament to impose time limits on re-election? The imposition of time limits is clearly meant to facilitate the advancement of cases without delay, and to promote trial efficiency. It is important that the re-election provisions not be interpreted in a fashion that promotes delay or inefficiency, or otherwise operates in a fashion that undermines the integrity of the administration of justice. Interpreting section 561(2), in particular, as permitting re-election from the Provincial Court to the Superior Court until 14 days before the evidence about guilt or innocence starts to flow would, in my view, create this kind of mischief.
[55] First, if, as contended by Ms. Fuentealba, "the day first appointed for the trial" is to mean the first day on which evidence on the merits of the case is heard, elections will be possible until all preliminary matters are attended to, regardless of their nature. As the decision in R. v. E.(L.), supra exemplifies, there can be numerous complex and time-consuming matters argued and disposed of before the evidentiary phase of the trial arrives. In R. v. E.(L.) the trial judge heard and resolved a change of venue application, a severance application, Charter applications and evidentiary applications, including relating to expert evidence, all before any evidence on the merits was presented.[3] If the position offered by Ms. Fuentealba is correct, all of the judicial resources, time and public expense invested in cases were 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.
[56] To be sure, some of those rulings might remain relevant if a preliminary inquiry is requested at the time of the purported re-election. Rulings made, however, "qua trial judge" would have to be ignored during a preliminary inquiry held after re-election because of jurisdictional limits. This would include motions for Charter relief, including the exclusion of evidence, or section 11(b) applications for stay, disclosure rulings, and severance rulings.
[57] Second, the implication of the position being offered by Ms. Fuentealba is that simply by re-electing the accused person can replace a trial judge, seized of the case. This can occur not only before rulings have been made, but even after sampling the decisions reached by the judge. The suggestion is that if things are not going well, the accused has been given the right by Parliament to reload and try again. The provision would facilitate an unbecoming form of judge shopping if interpreted in this way.
[58] Third, the implication of the position being offered is that the accused can achieve the same outcome as an appeal or the judicial review of a decision, having those decisions set aside, simply by re-electing. This follows because there is nothing in law to bind the trial judge assigned in the Superior Court from revisiting a matter decided in a prior Provincial Court hearing, regardless of whether there has been a change in circumstances. It is doubtful that the law intends to offer this kind of opportunity through re-election. It not only offers a de facto right of appeal without the demonstration of error, it creates the risk of inconsistent decisions without demonstrating error. In simple terms, it would permit what can fairly be called "decision shopping."
[59] Ultimately, I do not believe that a purposive, contextual examination of section 561(2) sustains an interpretation that would support these kinds of implications. This re-election provision offers generous time for reconsideration, but it also meant to balance competing interests. Section 561(2) should not be interpreted to give accused persons a do-over before a different judge after significant matters have been adjudicated.
[60] There is, however, some intuitive currency in Ms. Fuentealba's second point, that decisions as to mode of trial should be made on full information, and that the outcome of a severance application can have a profound effect on tactical decisions about the mode of trial. For example, if one of the counts is inflammatory or is apt to turn on a highly technical legal issue, this may be enough to prevent a sensible election of trial by jury, even if a trial by jury is desirable for the other charges. To support this contention she relies on the comments made by Justice Quigley in R. v. Phillips [2006] O.J. No. 5799 (Ont. S.C.J.), in which he accepts the proposition that the outcome of applications and motions can substantially change the case the accused has to meet, giving a reasoned basis for re-election.
[61] This concern is not enough, in my view, to carry the day. First, the Phillips decision did not involve a balancing of the kind of competing interests that are at play under section 561(2), where the re-election is away from a Provincial Court trial. Phillips is a Superior Court Case involving a judge conducting preliminary motions before empanelling a jury for a jury trial. In that context, re-election involves nothing more than having the seized judge remain the seized judge, and conducting a judge alone trial instead of a jury trial, with the full benefit of all prior rulings made. Re-election from one mode of Superior Court trial to another does not raise the kind of adverse implications that section 561(2) does for re-election from Provincial Court.
[62] Second, in cases where there really is a compelling interest in electing one mode of trial for some charges, and another mode for others, this can assist in forming the foundation for a severance request. In R. v. Last 2009 SCC 45, [2009] S.C.J. No. 45, the Court noted that the factors identified in the jurisprudence as relevant in a severance application are not exhaustive. The test for a successful severance application is broad. It is whether it "is in the interests of justice," and a severance may well be where it is required, in part, to facilitate choice as to the mode of trial.
[63] It is obvious that, in spite of this, there will be cases where accused persons will have to make mode of trial decisions without knowing the outcome of an anticipated severance application. Naturally, it would be ideal for accused persons to have the outcome of every preliminary ruling in hand before electing where the evidentiary phase of the trial will be. That would be attractive to accused persons, but it is not the law. When the matter is considered as whole, the impediment that uncertainty about severance poses to the ability of the accused to make an informed choice about mode of trial does not outpoint the competing considerations I have identified. A balanced, purposive, contextual interpretation of section 561(2) will not accommodate this.
[64] In sum, when the general principles that apply in identifying when a trial has commenced or is underway, and a contextual, purposive approach is taken to finding the meaning of "the first day appointed for trial" within section 561(2), it is my view that once a seized trial judge begins to receive evidence on a severance application – either in the form of contested testimony, or agreed upon facts[5] – the trial is underway. Fourteen days before this, then, the right to re-elect without consent expires.
[65] Accordingly, the trial in this case was already underway when Ms. Brahaney's "notice of re-election" was filed. The application to have this court recognize that notice of re-election is therefore denied. The trial will proceed before me in the Ontario Court of Justice.
Dated at Ottawa this 23rd day of June 2016
Justice David M. Paciocco
Footnotes
[1] This case involved the unsuccessful attempt by the defence to urge that the trial was a nullity because it had not been conducted by the judge who had made the ruling ordering that "particulars" be provided.
[2] That ruling is now subject to Criminal Code, section 551.3, since assigned case management judges can order severance without becoming seized. Absent such a statutory exception, Litchfield continues to govern, and no exception applies in this case.
[3] Although E.(L.), supra, is a Superior Court case, similar matters are often disposed of in this way in Provincial Court trials before evidence about guilt or innocence is led.
[4] The case applies the Manitoba Court of Appeal interpretation of section 561(1)(c) in R. v. Rushton [1991] M.J. No. 112, which held that a material change in the case the accused has to meet can cause the time period to be reset. The decision is controversial, having used Charter values in an interlocutory appeal to read "before the fifteenth day following the preliminary inquiry" as if it said "before the fifteenth day after learning of a material change in the case, not disclosed during the preliminary inquiry." R. v. Phillips [2006] O.J. No. 5799 (Ont. S.C.J.) reflects a generous view of this doctrine, by supporting the suggestion that the particular rulings made during the preliminary phase of the trial can constitute a material change in circumstances, enabling re-election. As indicated, this generosity may be possible where re-election does not affect the application of those rulings. It is not here.
[5] See R. v. Cataract (1994), 1994 SKCA 4616, 93 C.C.C. (3d) 483 (Sask. C.A.).