ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-DV6336

DATE: 20140318

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

B.L.
Applicant

James Cavanagh, for the Respondent Crown

Neil Weinstein, for the Applicant

HEARD: January 22, 23 and February 27, 2014

ruling on pre-trial motion

toscano roccamo j.

Nature of Proceedings

[1] The Applicant, B.L., is charged with a number of offences alleged to have occurred between May 2008 and May 2010, including assault, assault with a weapon, assault causing bodily harm and threatening, all with respect to the Complainant, his former common-law spouse and the mother of his eldest child.

[2] Pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, the Applicant has applied for an order dispensing with prosecutorial consent to a re-election of the mode of trial, under s. 561 of the Criminal Code, from trial by judge and jury to trial by judge alone, on the ground that refusal to permit re-election would offend his right to a fair trial, contrary to sections 7 and 11(d) of the Charter.

[3] In support of the relief sought, the Applicant relies upon the following: the transcripts of two audio/video statements provided by the Complainant to the police on February 14 and 18, 2011, respectively; the statement police obtained from the Applicant on April 14, 2011; and the transcripts of the evidence of the Complainant at the preliminary inquiry, held on June 13 and 14, 2012.

The Relevant Background

[4] The Complainant’s statements to police, as amplified by her evidence at the preliminary inquiry, are to the effect that she ended the relationship between herself and the Applicant in the fall of 2009 because of his abusive and threatening behavior. She contends that, after doing so, she moved away and cut ties with her family out of fear of the Applicant. Her fear was said to be based not only on the Applicant’s actions and words as against her, but on a series of violent acts involving other people. These other individuals do not form part of the allegations for which the Applicant is being tried, nor are they the subject of any criminal charges.

[5] In addition, in a statement which police secured from the Applicant, the admissibility of which he has not challenged on the basis of voluntariness or under s. 10(b) of the Charter, the Applicant submits that police chose to explore issues related to his upbringing and prior unrelated bad acts.

[6] At the preliminary inquiry, Crown counsel tendered the evidence of prior unrelated acts of violence by the Applicant against others as part of a narrative to explain the Complainant’s actions, most notably her delay in first complaining to police.

[7] The Applicant elected trial by judge and jury on November 25, 2011, over one month after the audio/video statements were disclosed by the Crown to the Applicant’s first counsel of record in October 2011. At the preliminary inquiry, the Applicant and his counsel both heard and saw the video statements which had been disclosed by the Crown more than six months prior.

[8] The Applicant’s request to re-elect trial by judge alone was not advanced until raised by his second counsel of record at a pre-trial conference held on October 15, 2012. The request to re-elect was not made in compliance with the time prescribed by s. 561 of the Criminal Code, which provides as follows:

(1) 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

(b) at any time before the completion of the preliminary inquiry or before the fifteenth day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge; and

(c) on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor.

Position of the Applicant

[9] The Applicant contends that the severity and the number of prior bad acts to which the Complainant attests, when coupled with the prior unrelated bad acts described in the Applicant’s own statement, would, if led in their entirety at trial, make the apprehension of real or perceived bias against the Applicant a reasonable expectation so as to deny him a fair trial. The Applicant submits that this would be alleviated by a trial without a jury.

[10] The Applicant argues that the time prescribed for a re-election under s. 561 of the Criminal Code should not be a bar to necessary Charter relief.

Position of the Respondent

[11] The Respondent’s position, with respect to which the Applicant takes no issue, is that the Application Record contains no evidence to demonstrate that the exercise of prosecutorial discretion in refusing to consent to the Applicant’s request to re-elect trial by judge alone amounts to an abuse of process, nor does the Application Record suggest an exercise of discretion that is arbitrary, capricious or based on improper motive.

[12] The Respondent asserts that to grant the Applicant the relief requested in the absence of such evidence would effectively eviscerate s. 561 of the Criminal Code.

[13] The Respondent argues that, in any event, the Applicant has failed to meet the onus upon him to establish, on a balance of probabilities, that the failure to consent to a re-election would result in a breach of his Charter rights to a fair trial.

[14] Finally, in the event that the Applicant were able to establish some abuse of process or breach of his Charter-protected right to a fair trial, the Applicant would still bear the onus of satisfying the Court, on a balance of probabilities, that the only appropriate remedy would be to permit the accused to re-elect a trial by judge alone.

The Test under Section 561 of the Criminal Code

[15] R. v. L.E. (1994), 1994 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), is the leading case with respect to Crown discretion under section 561.

It is clear that the trial judge cannot temper the factors of prejudice and complexity by depriving either of the parties of their right to trial by a jury...

[16] With regard to the test to be applied, Justice Finlayson stated:

In my opinion, the authorities have consistently held that the overriding discretion as to the manner in which the Crown conducts a trial can only be overruled when the accused has established that there has been an abuse of process which impairs the fair trial of the accused.

[17] ...

[18] ...

The Review of Prosecutorial Discretion

[19] In R. v. Ng, 2003 ABCA 1, the Alberta Court of Appeal considered the circumstances in which a trial judge may review the refusal by a prosecutor to consent to a re-election to trial by judge alone.

[20] The Court in Ng relied upon the Ontario Court of Appeal’s decisions in R. v. Durette and R. v. L.E., and the Supreme Court of Canada’s decisions in R. v. Power and R. v. Cook.

[21] In R. v. Nixon, 2011 SCC 34, Charron J. considered an accused’s application alleging abuse of process.

[22] At para. 52 of her Reasons, Charron J. observed:

By straying into the arena and second-guessing the decision, the reviewing court effectively becomes a supervising prosecutor and risks losing its independence and impartiality...

[23] In R. v. Gill, 2012 ONCA 607, the Ontario Court of Appeal adopted the reasoning in Nixon.

[24] In my opinion, the application before me suffers from the very frailty described in Nixon...

Does recent case law examining the test for re-election under s.473 of the Criminal Code call for review of the test under s. 561 of the Criminal Code?

[25] The Applicant refers me to the decisions of the Ontario Court of Appeal in two murder cases, R. v. Khan, 2007 ONCA 779; and R. v. Saleh, 2013 ONCA 742.

[26] In Khan, the Court upheld the decision of the trial judge to refuse the appellants’ request for a trial by judge alone.

[27] ...

[28] In Saleh, the accused appealed a conviction for first degree murder.

[29] The Court of Appeal rejected the argument that the trial judge erred in refusing the request for a judge-alone trial.

[30] The Applicant argues that these decisions imply a shift in the approach.

[31] The Applicant also points to R. v. Ruston.

[32] However, the circumstances in Ruston were unique.

[33] Both Khan and Saleh describe the test as a demanding one, applicable only in the clearest of cases.

[34] In my opinion, these cases offer nothing new that would signal a change in the standard under s. 561(1).

[35] The reasoning is consistent with the approach taken since R. v. O’Connor.

[36] The Supreme Court’s decision in R. v. Auclair, 2014 SCC 6, also reflects the same approach.

[37] I find that no such exceptional circumstances exist in the proceedings before me.

[38] If the reasoning in Khan and Saleh was intended to alter the test, I would have expected much clearer language.

Assuming some basis to review the exercise of Crown discretion, has the Applicant established a breach of Charter Rights?

[39] In my opinion, the Application Record does not articulate how the Crown’s refusal to consent would constitute a breach of the Applicant’s Charter rights.

[40] To accept the Applicant’s position would run contrary to the weight of authority upholding the strength of the jury system: R. v. Corbett.

[41] Research suggests that jurors provide as fair a trial as judges sitting alone.

[42] A more recent study suggests judges still have higher conviction rates than juries.

Assuming a Charter breach, is the right of re-election the only appropriate remedy under s. 24(1) of the Charter?

[43] In Nixon, Charron J. held that even if a violation of s. 7 is proved, the court must still determine the appropriate remedy under s. 24(1) of the Charter.

[44] In doing so, she referred to the reasoning in O’Connor.

[45] In my opinion, to dispense with the Crown’s consent to permit a re-election without evidentiary foundation would be premature.

Conclusion

[46] In the result, this application is dismissed, with the expectation that counsel will proceed, as directed, to attend a further judicial pre-trial on March 19, 2014. At that time, counsel may explore measures to promote trial fairness, including an agreement to redact or limit the degree to which the statements of the Complainant and of the Applicant are left with the jury.

Madam Justice Toscano Roccamo

Released: March 18, 2014