Court File and Parties

Information No.: 15-373 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Gary Burleigh, Tatiana Folcan, William Harman, Stanley Idzior, Carol Lesdow, Dwayne McEwen

Before: Justice R.A. Marion

Heard: June 22, 2016

Counsel:

• J. Rooke for the Federal Crown
• C. Houle for the Provincial Crown
• J. Sitter for the Accused Burleigh
• M. O'Hearn for the Accused Folcan
• B. Dube for the Accused Idzior
• J. Comand for the Accused Lesdow
• F. Miller for the Accused Harman
• L. Joy for the Accused McEwen

MARION J.:

RULING ON ELECTIONS AND RE-ELECTIONS

1: THE PROCEEDING

[1] All six accused are charged with offences under the Controlled Drugs and Substances Act. These charges are such that the accused have the right to elect their mode of trial under s. 536(2) of the Criminal Code. This is a joint provincial and federal prosecution as there are also charges under the Criminal Code related to firearms. All of the defendants are represented by counsel.

[2] On June 22, 2015, the accused, Harman, elected trial by judge without a jury, while the five co-accused elected trial by a court composed of a judge and jury. These elections were recorded.

[3] On May 2, 2016, both Mr. Burleigh and Ms. Lesdow re-elected to a trial by a provincial court judge. These re-elections were recorded.

[4] On May 30, 2016, Ms. Folcan re-elected to be tried by a provincial court judge and this re-election was recorded.

[5] The accused, Harman, Idzior and McEwen requested a preliminary inquiry.

[6] At the focus hearing held on May 30th, 2016, the issue of the dissimilar elections was discussed. All counsel were present except counsel for Mr. Harman.

[7] On May 30th, 2016, the presiding justice was advised by counsel for Ms. Folcan that she wished to re-elect. Apparently, all counsel were of the opinion that if one of the jointly charged accused chose a trial by judge and jury, all other accused were procedurally required to accept a trial by judge and jury. I am assuming that all counsel were in agreement with that submission since no one voiced any opinion to the contrary.

[8] On June 22nd, 2016, the day of the preliminary inquiry, all accused and counsel were present. At the outset, I advised counsel of the different elections. Mr. Miller on behalf of Mr. Harman objected to submissions made by the Crown, effectively that I could ignore the elections made that were not for trial by a judge and jury and proceed with the preliminary inquiry.

[9] Upon review of the jurisprudence and the Criminal Code provisions dealing with elections and re-elections, I am of the opinion that there is no authority for the position expressed by counsel on May 30th, 2016, such that once one jointly charged accused elected a trial by judge and jury all accused were bound to this mode of trial. The preliminary inquiry was not held on June 22nd due to the deployment of police witnesses for an urgent matter and for consideration of the jurisdictional objection raised.

[10] The issue which arises from the recording of dissimilar elections is whether a justice presiding at a preliminary inquiry has any residual jurisdiction to remedy the elections that have been recorded in order to avoid a multiplicity of proceedings.

[11] The transcript of proceedings on May 2nd, 2016, and May 30th, 2016 reveal that the Crown never provided any consent, written or otherwise, to the re-elections. Counsel for the Crown never commented nor objected to the request for re-elections. By virtue of s. 561 an accused is required to obtain the written consent of the Crown in order to re-elect.

2: THE LAW

[12] The election of the mode of trial is of major significance. It is an important tactical strategy in the defence of an accused person.

[13] The right to a trial by jury is constitutionally guaranteed where the maximum punishment for the offence is imprisonment for 5 years or a more severe punishment. See s. 11(f) of the Charter of Rights and Freedoms.

[14] Even in the case of s. 11(f), the right to a trial by jury is not mandated and an accused has the right to waive this right. There are limits to an accused's choice of the mode of trial but they must be found in the Criminal Code: R v. Turpin, [1989] S.C.J. No. 47 (QL) at para 17 and para 32.

[15] In s. 536(2), s. 536(3) and s. 536(4.1) of the Criminal Code the procedure is set out for granting an accused election and the recording of the election made.

s. 536(2) Election before justice in certain cases - If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

s. 536(3) Procedure where accused elects trial by provincial court judge - Where an accused elects to be tried by a provincial court judge, the justice shall endorse on the information a record of the election and shall

(a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed; or

(b) where the justice is a provincial court judge, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial.

s. 536(4.1) Endorsement on the information - If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing

(a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be; and

(b) whether the accused or the prosecutor has requested that a preliminary inquiry be held.

[16] The provisions of the Criminal Code addressing elections and re-elections are detailed and comprehensive. The powers and rights related to elections and re-elections are entirely statutory. There is no provision in the Criminal Code specifically permitting a justice to rescind or disregard a recorded election. Although a justice may have non-statutory jurisdiction to control its own process at a preliminary inquiry, it does not extend to striking down or disregarding an election.

[17] In order to prevent severance of an information and a multiplicity of proceedings, a justice must exercise his or her discretion to decline to record dissimilar elections. It is only by declining to record different elections that a justice can control the mode of trial.

[18] A justice may decline to record different elections with the result that jointly charged persons will be deemed to have elected a trial by judge and jury.

s. 567 of the Criminal Code reads as follows:

567 Mode of trial when two or more accused - Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury.

[19] s. 565(1) of the Criminal Code reads as follows:

565(1) Election deemed to have been made - Subject to subsection (1.1), if an accused is ordered to stand trial for an offence that, under this Part, may be tried by a judge without a jury, the accused shall, for the purposes of the provisions of this Part relating to election and re-election, be deemed to have elected to be tried by a court composed of a judge and jury if

(a) the accused was ordered to stand trial by a provincial court judge who, pursuant to subsection 555(1), continued the proceedings before him as a preliminary inquiry;

(b) the justice, provincial court judge or judge, as the case may be, declined pursuant to section 567 to record the election or re-election of the accused; or

(c) the accused does not elect when put to an election under section 536.

[20] Once all jointly charged accused have advised of their preferred mode of trial, a justice should then direct that the elections are to be recorded or that the recording of the elections is declined. The same careful consideration should guide the recording of a re-election.

[21] The jurisprudence is clear that the decision to decline to record the election is discretionary and is entitled to deference absent jurisdictional error.

R v. Allard, [1965] O.J. No. 1021 (C.A.) at para 19; R v. Zahran, [2014] O.J. No. 2020 (Sup Ct) at para 28, appeal dismissed [2015] O.J. No. 460 (C.A.); R v. Ghazzi, [2007] O.J. No. 3108 (Sup Ct.) at para 81 to para 103.

[22] In order for a re-election to be recorded, the written consent of the Crown is required.

[23] s. 561(1)(a) reads as follows:

s. 561(1)(a) – Right to re-elect - An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect,

(a) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge; …

[24] There are no statutorily prescribed forms for re-elections. It would suffice if the named accused would indicate his wish to re-elect and to which mode of trial. A notice of intention to re-elect would preferably be signed by counsel or the accused and, if it is agreed to, by a consenting Crown.

[25] It would obviously be beneficial if an accused, who wishes to re-elect, gave advance notice to a prosecutor of their intention to re-elect, but the Criminal Code does not require it.

[26] The recording of a re-election without obtaining the written consent of the Crown, or any consent at all, amounts to a jurisdictional error. In my opinion, it is an irregularity in procedure of a serious nature.

[27] I am of the view that I am not empowered to remedy and vary the elections or re-elections made and recorded, despite the failure to obtain written consent from the Crown on re-election or, as in this case, no consent was given. The presiding justice exercised his or her discretion. The elections were made in open court and in the presence and with the knowledge of the Crown. I am not in a position to supervise the recording or decision to decline recording a re-election by a presiding justice of this Court.

[28] The Crown has not raised jurisdictional error in the recording of the elections or re-elections. Even if they did, the remedy is to seek review in the Superior Court by way of prerogative remedy. It would seem to me to be a quick and obvious remedy. An order to strike down the re-elections would allow me to proceed with the preliminary inquiry. Mr. Harman's election to trial by judge alone would stand and have to be dealt with by the Superior Court if a decision is made committing him to trial.

[29] I have also considered the wording of s. 536(4.2):

(4.2) Preliminary inquiry if two or more accused - If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all of them.

[30] This section simply provides that all accused who are able to request a preliminary inquiry by virtue of their election as to mode of trial must have a preliminary inquiry on the request of the prosecution or any of the persons jointly charged. It incorporates by reference subsection 536(4.2) which does not include persons who have elected to be tried by a provincial court judge.

[31] Careful attention must be given when elections are made. It appears advisable that until all accused have elected no election should be recorded but rather simply noted. If there are different elections, a justice must consider before recording the elections whether he or she should decline recording them to avoid a multiplicity of proceedings.

[32] In R v. E.(L.), [1994] 94 C.C.C. (3d) 228, 75 O.A.C. 244 (C.A.) a trial judge overrode the prosecution's refusal to consent to an accused's request to re-elect to a different mode of trial. Consequently, subsequent proceedings were declared a nullity and a new trial was ordered.

[33] The elections and re-elections as recorded stand. I am not empowered to hold a preliminary inquiry for all accused who have elected trial by a provincial court judge. If I were to disregard the elections recorded, I am of the opinion that it would render all subsequent proceedings a nullity.

Released: July 27, 2016

Original signed and released

Ronald A. Marion Justice