Court Information

Ontario Court of Justice

Date: July 27, 2020

Between:

Her Majesty the Queen

— and —

Christopher Vella

Before: Justice P.K. Burstein

Heard on: May 27, 2020

Ruling on Defence Application to Re-elect Mode of Trial

Released on July 27, 2020

Counsel

O. Fitzgerald — counsel for the Crown

J. Fennel — counsel for the accused

Decision

BURSTEIN J.:

Introduction

[1] Implying that things should be presumed to be what they seem, celebrated author Gertrude Stein once wrote that "a rose is a rose is a rose". This case raises the question of how a court should determine when "a trial is a trial". More specifically, the central issue on this Application is whether a scheduled trial that does not actually commence as a trial impacts the determination of the "day first appointed for the trial", the phrase defining the cut off mark for the right to re-elect mode of trial in s. 561(2) of the Criminal Code.

[2] The accused stands charged with several serious offences relating to a gunpoint robbery that is alleged to have occurred on April 16, 2019. Some of those charges are indictable offences for which an accused has the right to choose whether to have a trial in the "provincial court" or a trial in the "superior court". The accused had originally said he wanted to have a provincial court trial in the Ontario Court of Justice. That trial was scheduled to commence on November 5, 2019.

[3] On the day that was originally scheduled for his provincial court trial, the accused's lawyer successfully applied to withdraw from the case due to a "breakdown" in the solicitor-client relationship. Consequently, the trial did not commence as scheduled. The accused eventually retained new counsel and new dates were set commencing in September of 2020. After retaining new counsel, the accused sought to re-elect his mode of trial pursuant to s. 561(2) of the Criminal Code so that he could have a preliminary inquiry and then be tried in the superior court.

[4] Taking the position that "the day first appointed for [the accused's] trial" had already passed, the Crown contends that s. 561(2)'s absolute right to re-elect mode of trial has long expired. While s. 561(2) allows the Crown to consent to an accused's late mode of trial re-election, the Crown has refused to consent to the accused's proposed re-election (and has provided reasons for that refusal: see Transcript of Proceedings, November 5, 2019, p.55, ll.7-24). The accused, on the other hand, argues that because his "trial" did not actually commence on November 5, 2019, "the day first appointed for trial" has now become September 23, 2020, the date that has been set to commence pretrial motions prior to the Applicant's trial in October of 2020. On that basis, the accused says that because the "day first appointed" for the actual trial is now more than 60 days off into the future, he maintains an absolute right to re-elect mode of trial pursuant to s. 561(2). In the alternative, the accused submits that there have been "substantial changes" in his case since the date of his original election such that a court should exercise its residual common law discretion to allow him to change his original uninformed mode of trial election.

[5] In view of the accused's original election to have a provincial court trial, a total of seven days for a trial in this Court were set in September and October of 2020. At some point, it was anticipated that the presiding judge would be the trial judge. In an effort to ensure that the time allotted for the accused's provincial court trial would not go to waste, the parties agreed to have the accused's application to re-elect determined well in advance of the seven proposed trial dates. The accused brought his application before the court on March 4, 2020. However, because of some deficiencies in the Application materials, the hearing had to be adjourned to a later date. That subsequent hearing date was aborted because of the intervening COVID-19 pandemic. The parties then made arrangements to present oral argument on this Application by audio conference with the accused participating in the hearing by telephone from the jail. Accordingly, with the accused's express consent, the hearing on this Application took place on May 27, 2020 by audio conference. At the end of that remote hearing, the court reserved its decision. These are the reasons.

Procedural History of the Case

[6] The parties agree on most of the relevant procedural history of this case.

[7] The accused was arrested and charged on April 17, 2019. He has remained in custody ever since.

[8] The accused initially retained counsel as his lawyer. On July 16, 2019, that counsel conducted the first of three judicial pre-trial conferences that were conducted in this case (i.e., one by each of the accused's three different defence lawyers). According to the pre-trial conference form filed by the accused in the record before the court, that counsel indicated that the accused would elect to have a provincial court trial. The accused discharged that counsel at some point before September of 2019.

[9] On September 18, 2019, new counsel appeared in court with the accused as newly retained counsel to conduct a second judicial pre-trial conference. According to the form prepared as a result of that second judicial pre-trial conference (which was also filed by the accused as part of the record), the new counsel maintained the original trial time estimate and confirmed that there would be no defence challenge to the admissibility of evidence seized during a search of the accused's residence. As for the mode of trial election, when the accused was brought before the court that day, the new counsel remarked (see Transcript of Proceedings, dated September 18, 2019, p.3, ll. 17-21):

I took an extensive amount of time to speak with the accused to advise him of his rights to have a preliminary inquiry and to re-elect to do so. He's elected to continue with his trial in the Provincial Court of Justice.

At a later point in the proceedings on September 18, 2019, the court clerk indicated that there was no note of a mode of trial election having been formally made. Following up on what he had earlier indicated to the court, the new counsel responded by stating that the accused was formally electing to have a provincial court trial. When asked directly by the judge about that election, the accused said that he understood and agreed with it. The case was then adjourned for a week so that the new counsel could sort out a potential scheduling issue concerning the fourth day of the accused's trial and to get instructions from the accused about a set of outstanding unrelated charges.

[10] On September 26, 2019, the accused again appeared before the court. The new counsel was there as well. At the new counsel's request, the accused was adjourned directly "to the first day of his trial" on November 5, 2019. On his own behalf, the accused asked the judge to recommend that he be transferred out of segregation at the jail. Despite advocating for himself on that issue, the accused voiced no complaints about his counsel nor about his provincial court trial commencing on November 5, 2019.

[11] The accused appeared in court on November 5, 2019. His counsel was also present. Before anything else could be done in relation to the accused's case, the counsel informed the judge that he was applying to withdraw from the case for ethical reasons due to something that had happened the day before. When asked by the judge, the accused seemed to support the counsel's request to withdraw but based that support on his belief that the counsel was not prepared for trial. The Crown opposed the motion to withdraw because it was being brought on "the first day of trial" and the Crown (and its witnesses) had come ready to proceed. Ultimately, the judge granted the counsel's motion and allowed him to withdraw. After confirming that the accused wished to retain a new lawyer, the judge agreed to adjourn the case for a few weeks. Before court was adjourned, the accused told the judge that he wanted to have a preliminary inquiry instead of a trial in the Ontario Court of Justice.

[12] In the weeks following the adjournment on November 5, 2019, the accused was able to retain new counsel. On January 28, 2020, the new counsel appeared in court to conduct a third judicial pre-trial conference. According to the form generated at that judicial pre-trial conference (which was also included in the Application Record), the new counsel notified the Crown and the court about the defence intention to now challenge the search of the accused's residence. The new counsel also confirmed the accused's earlier indication that the defence wanted to change its mode of trial election to a superior court trial and to have a preliminary inquiry in the Ontario Court of Justice. The Crown disputed the defence claim that the accused's right to re-elect pursuant to s. 561(2) had survived the adjournment of the November 5, 2019 trial date. The Crown also re-iterated its earlier position that consent to such a re-election would be refused.

[13] Pending a determination of whether the accused was entitled to re-elect his mode of trial, target dates were set for his anticipated provincial court trial in September and October of 2020. At the same time, a hearing was scheduled for March 4, 2020 for a judge of this Court to determine whether or not the accused maintained a right to re-elect his mode of trial. As noted above, the hearing on that issue could not proceed as scheduled. Instead, the accused's Application to re-elect was conducted remotely on May 27, 2020.

The Parties' Positions on the Application

[14] The accused offers two reasons in support of his claim that he maintains a right to re-elect his mode of trial. First, relying on a line of jurisprudence tracing its way up to the Ontario Court of Appeal, the accused argues that there have been substantial changes to the case – the intention to present an alibi and the intention to challenge the search – which ought to justify this Court exercising its residual equitable discretion to allow the accused to go back and change his original mode of trial election. Alternatively, the accused submits that, properly interpreted, the "day first appointed for the trial" in this case is not November 5, 2019 but rather September 23, 2020 and thus he maintains an absolute right to re-elect his mode of trial given that the 60-day advance notice requirement in s. 561(2) can still be met.

[15] The Crown responds to the accused's first argument by citing a narrower version of the threshold for obtaining equitable relief and by disputing that there has been any substantial change to the Crown's case. The alleged changes in the case, says the Crown, are not new developments and, at most, are changes to the defence case, not the Crown's case. On the second issue, the Crown relies on a handful of provincial court decisions from other provinces to say that the plain meaning of the phrase "day first appointed for the trial" in s. 561(2) is dispositive of the accused's assertion that he maintains a right to re-elect. Relying upon the plain meaning of the wording of s. 561(2), the Crown submits that the day first appointed for the accused's trial was November 5, 2019.

Analysis and Findings

a) Was there a "substantial change" in the case since the accused's original mode of trial election?

[16] The court will deal briefly with the accused's first ground for being permitted to re-elect as it is not satisfied that the evidence adduced by the accused at this hearing establishes that there has been a substantial change in the case as contemplated by the jurisprudence.

[17] The court accepts that the jurisprudence supports the notion that courts maintain a common law discretion to allow an accused to change their original mode of trial election as a remedy for substantial changes to the Crown's case subsequent to that initial election: see R. v. F. (M.) (2007), 223 C.C.C. (3d) 209 at para. 19 (S.C.J.). What is not as clear from the caselaw is the test for deciding whether there has been a "substantial change to the case" that will justify a court exercising that discretion. For example, the mere fact that there has been late disclosure does not in and of itself require equitable relief from an accused's previous mode of trial election. It is only when late disclosure can be shown to have been material to the accused's decision to elect a mode of trial that it may be appropriate for a court to allow the accused to change that election: see R. v. F.(M.), supra. Some cases go so far as to suggest that equitable relief is only appropriate where a court is satisfied that the Crown's refusal to consent to a change in the mode of trial would amount to an "abuse of process" or otherwise engage "constitutional considerations": R. v. Hunter, [2004] O.J. No. 3703 at paras. 11-13 (C.A.). That said, some cases have held that the Crown's refusal to consent to re-election in the face of substantial changes to the case would be contrary to the Charter and/or would give rise to an abuse of process. Whichever way the test is formulated, the court's residual discretion is limited to remedying any real prejudice to the accused's right to elect mode of trial resulting from a substantial change to the Crown's case. It is the accused's burden to demonstrate that there was a substantial change to the Crown's case and that it was material to the accused's mode of trial election.

[18] In this case, the accused's claim of substantial change relates to two features of the defence case: namely, the fact that the accused has now made clear his intention to raise an alibi defence and the fact that the accused, now armed with the Information to Obtain the Search Warrant ("ITO"), intends to challenge the constitutional propriety of the search. The court agrees with the Crown that even if it could be said that these features are "substantial changes" in the case, they are not changes to the case the accused must meet. If anything, they are changes in how the defence intends to respond to the Crown's case. The caselaw does not recognize the right to re-elect mode of trial because of a change in defence strategy.

[19] Furthermore, even if the jurisprudence extends so far as to allow for a change to the mode of trial because of a substantial change to the defence case, the court is not satisfied from the record on this Application that there has been a substantial change in either of the two aspects cited by the accused. According to the accused's Factum, the bases for both the alibi and the search warrant challenge are found in the original disclosure materials. The fact that previous defence counsel may have chosen to not advance those aspects of the defence was a tactical decision. Absent a demonstration that previous counsel provided ineffective assistance to the accused by not pursuing those two aspects of the defence, it cannot be said that anything they did or did not do in the case unfairly prejudiced the accused's ability to have made an informed election as to mode of trial.

[20] At one point during this Application, counsel for the accused had also relied upon the seemingly late disclosure of the ITO as a basis for allowing the accused to change his original election. Counsel submitted that when the accused originally elected to have a provincial court trial his former counsel had not yet received a copy of the ITO and so the accused's election had been uninformed. According to the Application Record, the ITO was not disclosed until on or about January 29, 2020 – well after the accused had made his original election for provincial court trial.

[21] The court has little difficulty with the notion that late disclosure of an ITO may, in some cases, amount to a substantial change in the Crown's case requiring a court to exercise its discretion to permit a change in mode of trial election. On the record before the court, however, the accused has failed to show that the timing of the ITO's disclosure prejudiced his ability to make his original mode of trial election. This is not a case where at the time of his original election the accused and his former counsel were unaware that the police had searched a location and had discovered key incriminating evidence. Like in R. v. Dixon, [1998] S.C.J. No. 17, any failure on the part of the defence to have pressed the Crown for timely disclosure of the ITO weighs against the accused's claim that late disclosure of it prejudiced his right to make an informed mode of trial election. The fact that the accused's new counsel is of the opinion that there is merit to a s. 8 challenge does not mean that it was inevitable such a challenge would be brought if and when the Crown disclosed the ITO. As the court has said, there was no formal claim by the accused that either of his two former counsel provided ineffective assistance by failing to have pursued a s. 8 challenge to the search nor by advising the accused to elect provincial court trial. Absent a successful ineffective assistance of counsel claim, the court is left to conclude that the accused's two former counsel exercised professional judgment in arriving at their recommendations to elect provincial court trial and to forego such a challenge based on the disclosure available to them. The fact that the accused's new counsel has a different opinion as to the mode of trial election and the merits of a s. 8 challenge does not amount to a "substantial" change that should afford the accused a right to re-elect his mode of trial contrary to the express terms of s. 561 of the Code. Absent a viable claim that an accused's former counsel provided ineffective assistance prior to the accused making their original mode of trial election, neither a change of counsel nor a change of trial strategy can justify allowing the accused to change his original mode of trial election.

b) Has the limitation period on the accused's right to re-elect mode of trial pursuant to s. 561(2) of the Code expired?

[22] The Criminal Code provides for three different modes of trial for indictable offences: superior court judge alone, superior court judge and jury or a judge of a provincial court such as the Ontario Court of Justice. Subject to a narrow class of offences, a person accused of an offence which is being prosecuted by indictment has a right to choose between the three modes of trial. At some point early in the process, the accused is to be formally presented with the options as to mode of trial and then asked to "elect". That election is then recorded on the information. The recorded election determines how the accused's case is then processed.

[23] The Code recognizes that an accused may want to later change their original mode of trial election. Having regard to the efficient administration of justice, the Code has long imposed restrictions on accused who wish to change their mode of trial after they have already made an initial election. Those restrictions to re-electing mode of trial are set out in s. 561 of the Code. In terms of re-electing from provincial court trial to a superior court judge and jury trial, s. 561(2) states:

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.

[24] The issue in this case is whether the phrase "day first appointed for the trial" in s. 561(2) means the first day scheduled for a trial, regardless of whether that trial actually commences on that day. As noted above, the accused's position is that where a trial is adjourned before arraignment or any meaningful judicial event taking place the trial has not yet reached its first day. In this case, nothing of procedural significance happened on November 5, 2019 when the accused appeared in court for his "trial": he was not arraigned and there was no exercise of trial jurisdiction over the case. Any judge of this court could have heard former counsel's motion to withdraw and any judge could have granted the subsequent adjournment. It did not need to be a judge seized with the accused's trial. The Crown, on the other hand, seeks to define "day first appointed for the trial" by simple reference to the first date the parties had scheduled for the accused's provincial court trial.

[25] Surprisingly, none of the Ontario cases provided to the court concerning the interpretation of s. 561(2) have squarely dealt with the interpretive issue raised by the facts of this case. To the extent that this specific issue has been decided by provincial court judges in other jurisdictions, some of those decisions were conclusory and lacked a principled basis for the conclusions. The court did not find any of the out-of-province decisions to be of assistance in determining the issue on this Application. The court did not rely on any of them in arriving at its decision on this Application because it could not understand how and why the "day first appointed for the trial" was determined to be what it was in those cases.

[26] At first blush, there is some allure to the Crown's simplified approach to the interpretive issue on this Application. Such an interpretation would certainly accord with the "plain meaning" approach to statutory construction. It also seems consistent with the fact that Parliament could have employed the phrase "the day upon which the trial commences" if the limitation period in s. 561(2) was intended to expand by virtue of late adjournments of scheduled trials. On the other hand, the Crown's simplified interpretive approach risks creating procedural havoc and confusion in some cases. Consider a case where an accused's provincial court trial is rescheduled to begin three months sooner than originally scheduled. On the Crown's simplified interpretation of s. 561(2), the "day first appointed for trial" would be the original trial date three months later. This would mean that at any time during his earlier provincial court trial, the hypothetical accused would be more than 60 days prior to the "day first appointed for the trial" and could re-elect as of right pursuant to s. 561(2) to instead have a preliminary inquiry. To take another example, provincial court trials of indictable offences may involve the scheduling of "pretrial motions" well in advance of the trial proper: see, for example, R. v. Brahaney, [2016] O.J. No. 3547 (O.C.J.). As Paciocco J. observed in Brahaney, depending on their nature and the way they are litigated, those pretrial motions may or may not be characterized as part of the "trial" for the purposes of s. 561(2). If those pretrial motions are abandoned how would a court later determine if those abandoned motions were part of the "trial" for the purpose of determining the "day first appointed for trial"? If no materials were filed on the abandoned pretrial motions, how would the judge determining a subsequent s. 561(2) issue know whether the parties would have presented evidence on the abandoned pretrial motion – a key factor in determining whether a pretrial motion was a "trial task" (see R. v. Brahaney, supra). The proper interpretation of s. 561(2) must be functionally sound and must provide a principled basis for determining the triggering event; that is, the "day first appointed for the trial". Focusing exclusively on the first day the parties schedule for an anticipated "trial" fails on both counts.

[27] A functionally sound approach to the interpretation and application of the phrase "day first appointed for the trial" was set out by Paciocco J. (as he then was) in R. v. Brahaney, supra (at para. 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 (Ont. Gen. Div.), this can even result in a "trial" commencing at different points in time for a judge and jury adjudicating the same matter.

[28] The accused in Brahaney had claimed a right to re-elect from trial in the provincial court to trial in the superior court pursuant to s. 561(2). The accused had completed a severance application in the provincial court before Paciocco J. and were awaiting future dates for the commencement of the trial proper. The issue before Paciocco J. was whether or not the "day first appointed for the trial" in s. 561(2) had been triggered by the severance application or whether it was defined by the first day scheduled for the actual trial. Using a contextual analysis of the specific features of the case before him, Paciocco J. found that the "day first appointed for the trial" had been the commencement of the severance application (at para. 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.

[29] In the court's view, the inquiry required by s. 561(2) goes beyond simply asking whether the parties had, at one point, scheduled a date upon which they expected the trial to commence. Equally, however, the s. 561(2) issue is not determined merely by asking whether or not the trial actually commenced on the "day first appointed". As Paciocco J. held in Brahaney, a determination of the "day first appointed for the trial" is necessarily a case specific inquiry. That case specific inquiry must recognize that, in some cases, future "trial" dates will prove to be unrealistic targets well before the "day first appointed" due to intervening events beyond the control of the defence (such as late disclosure or witness unavailability), while in other cases the trial may have to be rescheduled despite the Crown and the court being ready to proceed with the trial on the "day first appointed". Put simply, the contextual analysis for determining the "day first appointed for the trial" for the purpose of s. 561(2) must recognize that things do not always go as planned in a criminal prosecution.

[30] Determining whether a trial had become an "established reality" before having to be rescheduled is consistent with how the Ontario Court of Appeal in R. v. R.S., 2019 ONCA 906, [2019] O.J. No. 5773 determined the point in time when a mode of trial election could be said to have crystalized. While the focus of the decision in R.S. was whether recent amendments to the mode of trial election provisions in the Code applied retrospectively or not, the Court's analysis in R.S. includes a discussion of how to properly determine when a procedural event – like a mode of trial election – can be said to have crystalized. In distinguishing between preliminary inquiries which remained only theoretical possibilities and those which had evolved into actual realities, Doherty J.A. explained (at para. 35):

The appellants' right to a preliminary inquiry and the court's obligation to hold that preliminary inquiry as of September 19, 2019, were established realities. Neither was conditional or a mere possibility. The appellants had done all they were required to do under the law to trigger their right to a preliminary inquiry and the court's corresponding obligation to hold a preliminary inquiry. The appellants were simply waiting for the court's schedule to accommodate their right to a preliminary inquiry on the date that had been set by the court. [Emphasis added.]

In a similar vein, appellate courts in the pre-Jordan era had long recognized that judicial determinations of an accused's "first available trial date" had to take account of the point in time when the parties would actually have been ready to conduct that trial, and not simply when the parties claimed they could: see, for example, R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.) at paras. 33 and 34. In other words, like in R.S., those pre-Jordan decisions attempted to differentiate between established realities and mere possibilities in deciding when a particular trial could have commenced.

[31] Turning then to a contextual analysis of the features of the accused's case relevant to identifying the "day first appointed for the trial", the court begins by noting the significance of the fact that nothing "bearing on the substantive conduct of the [accused's] trial" (see R. v. Brahaney, supra at para. 34) occurred on November 5, 2019. In other words, nothing that happened in court on November 5, 2019 resulted in the presiding judge becoming seized with the accused's trial once it had been adjourned due to the withdrawal of counsel that day. Indeed, the accused was not even arraigned on November 5, 2019. The absence of any substantive trial activity on November 5, 2019 weighs heavily in favour of the accused's position that this day cannot fairly be said to have been the "day first appointed for [his] trial".

[32] When considered in the larger context of this case, however, the absence of substantive trial activity on November 5, 2019 does not tilt the balance in the accused's favour on the s. 561(2) issue. There are other features of this case which lead the court to conclude that, despite the absence of substantive trial activity on November 5, 2019, that day can fairly be said to have been the "day first appointed for [the accused's] trial":

(1) Not only had the Crown and defence scheduled the trial to commence on November 5, 2019, the record on this Application shows that until that very day both parties had expected the trial to proceed as scheduled. On September 26, 2019, the accused and his former counsel had both confirmed that they would be ready to proceed with the trial on November 5, 2019. It was not until November 5, 2019, the day first appointed for trial, that the defence expressed any concern about being unable to proceed with the trial as scheduled. This was not a case where the anticipated "trial" dates had become suspect in advance of the "day first appointed" due to some intervening event. By the time there was any indication that the trial may not be able to proceed on the "day first appointed", the Crown had its case ready for trial. All of the necessary witnesses were in attendance (or available) and the Crown was ready to begin presenting evidence on November 5, 2019: see Transcript of Proceedings, dated November 5, 2019, p.12, l.32 – p.13, l.9. For its part, the court was ready to begin receiving evidence on the accused's trial on the day that had been appointed. In short, but for the last-minute breakdown of the accused's solicitor-client relationship, commencing the accused's provincial court trial on November 5, 2019 had become an established reality.

(2) The accused was directly questioned in court on September 18, 2019 about his mode of trial election. In response, the accused confirmed that he was electing to have a provincial court trial that he knew was scheduled to commence on November 5, 2019: Transcript of Proceedings, dated November 5, 2019, p.43, ll. 5-7. There was nothing preventing the accused on September 18, 2019 from electing to have a superior court trial with a jury. That would obviously have resulted in a cancellation of the provincial court trial set to otherwise commence on November 5, 2019. In the unique circumstances of this case, the accused was effectively afforded a right to "re-elect" his mode of trial on September 18, 2019 – less than 60 days prior to the day first appointed for his provincial court trial, contrary to s. 561(2) – but still chose to maintain his previously stated intention of proceeding with a provincial court trial commencing on November 5, 2019.

(3) There was no evidence on this Application (other than some vague and unsupported statements by the accused when he was in court on November 5, 2019) of the accused having been misinformed about the nature and consequences of electing to have a provincial court trial. In other words, on the record before the court, there is no basis to find that the accused's initial mode of trial election was uninformed or ill advised. When he was in court on September 18, 2019, the accused had vocally objected to the prospect of his provincial court trial being delayed by two more months (from November, 2019 to January, 2020). Absent some evidence to the contrary, the court infers that the accused had deliberately opted for a much speedier provincial court trial and that he had expected to proceed with that trial right up until he had arrived in court on November 5, 2019, the day first appointed for that trial.

(4) While there is no evidence that the accused deliberately caused his former counsel to withdraw from the case on the first day scheduled for trial, the fact remains that the provincial court trial was only adjourned on November 5, 2019 because of the breakdown in the accused's relationship with his former counsel. Both the court and the Crown were ready to proceed with the accused's provincial court trial on November 5, 2019. It was only because the accused was unable to maintain a working relationship with his former counsel that the trial had to be adjourned. Any contextual interpretation of s. 561(2) must include a recognition of the need to avoid conferring windfall procedural benefits to accused who contribute to the need for last-minute adjournments of trials on the days appointed to commence those trials. As Paciocco J. said in Brahaney:

The imposition of time limits [in s. 561] 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.

Conclusion

[33] In the particular circumstances of this case, the court is satisfied that the "day first appointed for [the accused's] trial" was November 5, 2019. Accordingly, even taking the accused's application at its highest, when he told the judge on November 5, 2019 that he wanted to have a preliminary inquiry he was already beyond the time limit imposed by s. 561(2). His statutory right to change his mode of trial had expired at least 14, if not 60, days prior to November 5, 2019.

[34] As for his alternative argument, based on the record presented to the court on this Application, the accused has not established that he is entitled to an exercise of this Court's equitable jurisdiction to allow him to change his original mode of trial election. The evidence presented on this Application fails to demonstrate that the Crown's refusal to consent to a re-election amounts to an abuse of process or otherwise engages constitutional considerations. Furthermore, the court is not satisfied that there has been any "substantial change" to the Crown's case since the point in time that the accused made his original mode of trial election (on September 18, 2019) which requires the court to allow for a change in his original mode of trial election.

[35] The accused's application to re-elect his mode of trial is dismissed. He will be remanded to appear for the commencement of his trial in the Ontario Court of Justice on September 23, 2020.

Released: July 27, 2020

Signed: Justice P.K. Burstein