Court File and Parties
COURT FILE NO.: Welland – 4117/13 DATE: 2017-01-10 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Graeme Leach, for the Crown/Respondent Crown/Respondent
- and -
DAVID NELSON and MIKOL ZAHORCHAK Delmar Doucette, for the Accused/Applicant David Nelson Andrew Furgiuele, for the Accused/Applicant Mikol Zahorchak Accused/Applicants
HEARD: On December 7 and 9, 2016 in Welland
RULING ON APPLICATION
INTRODUCTION
[1] This is an application brought by David Nelson and Mikol Zahorchak for an order vacating the applicants’ election to be tried by a judge of the Superior Court of Justice sitting without a jury, and allowing the applicants to elect to proceed to trial in a court composed of a judge and jury.
FACTUAL BACKGROUND
[2] The applicants are charged with various offences of violence and neglect in relation to Kobalt Nelson-Zahorchak, a baby who was in their custody from his birth on May 16, 2009 to October 2, 2009. The information was sworn and the proceedings officially commenced on January 24, 2011.
[3] The applicants’ case began in the Ontario Court of Justice. On December 16, 2011, the applicants attended before Nadel J. for a pretrial. The transcript of that attendance was not provided on this application. Both accused were self-represented at that time. On January 4, 2012 the applicants attended another judicial pretrial before Nadel J. In the course of the pretrial, the issue of the applicants’ election was raised by Nadel J. The applicant Zahorchak indicated that the applicants would elect trial in the Superior Court without a jury. Zahorchak stated, “I believe that’s my, our intention.”
[4] On January 17, 2012, the applicants again attended before Nadel J. for a further pretrial. In the course of that pretrial, there was further discussion about their election. There were two recesses during the pretrial.
[5] The applicants say that they spoke with Assistant Crown Attorney Patricia Vadacchino during a recess prior to their formal election on January 17, 2012. The applicants’ depose that they reviewed their proposed election and the reasons behind it with Ms. Vadacchino, and that Ms. Vadacchino agreed with the advice of Mr. Charlebois (counsel consulted by Zahorchak). In her affidavit filed on this application, Ms. Vadacchino deposed that she has no specific recollection of what she said in that interaction. She confirmed that she would have said that she could not provide legal advice. However, she may have acknowledged that such an election was a reasonable one.
[6] On January 17, 2012, both applicants were put to their election in accordance with the process set out in s. 536(2) of the Criminal Code of Canada. Both applicants confirmed they elected to be tried by “judge, no jury, with preliminary.”
[7] The preliminary inquiry was completed November 12, 2013 and the applicants were committed to the Superior Court for trial on that date. Since January, 2013, the matter was set for a judge alone trial on two separate occasions. The applicants were ultimately successful in a Rowbotham application and now have counsel. The applicants seek to re-elect to proceed with a trial by judge and jury. The Crown has refused to consent.
ISSUES
[8] The applicants assert there are two issues that arise in this application:
(1) Was there a valid informed waiver by the applicants of their constitutional right to a jury trial?
(2) If there was a valid waiver, is the Crown’s refusal to consent to a re-election an abuse of process in all the circumstances of this case?
[9] The applicants assert that there was not a valid informed waiver. Alternatively, if there was, the applicants submit that the Crown’s refusal to consent is an abuse of process. The Crown says there was a valid informed waiver by the applicants of their constitutional right to a jury trial, and the Crown’s refusal to consent is not an abuse of process.
WAS THERE A VALID WAIVER?
[10] The constitutional right to a jury trial is guaranteed under s. 11(f) of the Canadian Charter of Rights and Freedoms. Any waiver of a Charter right must be unequivocal.
[11] The applicants refer to the decision of Mr. Justice Lamer is Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, and in particular, the passage on page 49 which reads as follows:
Indeed, the Court is saying in Park that the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.
[12] In discussing the judge’s duties concerning any waiver, a number of factors are to be taken into account. Justice Lamer stated:
The judge's duties concerning any waiver are no different than those on a plea of guilty. The factors he will take into account in determining whether the accused has clearly and unequivocally made an informed decision to waive his rights will vary depending upon the nature of the procedural requirement being waived and the importance of the right it was enacted to protect. However, always relevant will be the fact that the accused is or is not represented by counsel, counsel's experience, and, in my view, of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are taking place.
[13] In Korponay, the accused, through counsel, re-elected trial by judge alone without complying with the re-election procedure set out in the Criminal Code. The Court held that the accused clearly understood that he was waiving the procedural requirement and the matter proceeded and that the accused intended, and through his counsel communicated his intention, to proceed to trial before a judge alone. That was a case of a clear and unequivocal waiver.
[14] The applicants assert that the situation is similar to a guilty plea and refer to the Supreme Court of Canada decision in R. v. Taillefer; R. v. Duguay, 2003 SCC 70 where Lebel J., in discussing the requirements for a guilty plea, quotes with approval the decision of Doherty J.A. in R. v. T.(R.) (1992), 10 O.R. (3d) 517 as follows:
To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea.
[15] The applicants assert their election was equivocal. That is, both applicants were making an election on the basis that this was the appropriate election to make if they were self-represented. The applicants’ posit that the court should engage in an inquiry similar to a plea inquiry. In my view, this is neither necessary nor appropriate in dealing with an election. It would be improper for the judge before whom the election is to be made to inquire as to the reasons behind the election. There are many factors which go into the election decision. The reasons behind the election should be of no concern to the court.
[16] The applicants were put to their election in accordance with the provisions of the Criminal Code. They made their election. Their election was voluntary. Their election was unequivocal.
[17] The applicants also assert that their election was not informed. That is, the applicants received no legal advice as to the effect and consequences as referred to in R. v. T.(R) as set out above. I disagree. The applicants were aware that they were electing judge alone trial. Their case would be heard without a jury. That is the consequence of their election.
[18] Zahorchak had the opportunity to obtain some advice from counsel, Mr. Charlebois, with respect to the election. In his affidavit, he deposes to the rationale given to him by Mr. Charlebois to elect trial by judge alone. The reasons given were: a great deal of medical evidence would be led and, also, a risk that the jurors would not look favourably on them as defendants accused of seriously injuring children. Interestingly, the fact that they were self-represented was not provided as a reason in the affidavit.
[19] Nelson deposes that he received no advice with respect to the election. However, he did speak with Zahorchak, who provided him with Mr. Charlebois’ advice. Nelson adds an additional element not contained in the affidavit of Zahorchak, which is Charlebois’s advice that if they were forced to defend themselves, it might be best to elect trial by judge alone.
[20] Both applicants had the opportunity to get advice with respect to the election from duty counsel. Nelson said on several occasions he waited to get advice from the duty counsel but there was a long line and he was not reached. On each occasion, duty counsel left the court house without speaking to Mr. Nelson.
[21] The applicants’ counsel points out that there is no evidence of any advice about re-election. That is, that they had the right to re-elect within 15 days of completing the preliminary enquiry without the Crown’s consent. Transcripts from the appearance of December 16, 2011 were not provided. Nadel J. may have spoken about a right to re-election on that date. In any event, there was a discussion of the right to re-election on January 17. At that point, either applicant could have asked questions.
[22] The applicants were put to their election. If they had refused to elect, they would have been deemed to have elected trial by judge and jury. That was not what they wanted. They wanted to have a judge alone trial based, in part, on the fact that they were self-represented. Mr. Charlebois provided other reasons for the election. The preliminary inquiry was completed in November, 2013. They were still self-represented at that point so they would not have exercised their right to re-elect judge and jury within 15 days at that time.
[23] In R. v. Beach, 2005 ABQB 253, the accused was charged with two counts of fraud. The accused elected trial by judge and jury while representing himself. After counsel was appointed, he sought to re-elect. The Crown would not consent. The accused’s counsel asserted that his client’s waiver was vitiated by the fact that he was unrepresented when he waived his trial by judge and jury. The court found he did not effectively or validly waive his constitutional right to trial by judge and jury. However, it is important to note what was said at paragraph 32:
I deduce from Mr. Beach’s rambling and personal submissions, the nature of which suggest that he may not be acting in his own best interests, that he is contending with personal problems and is ill-equipped to represent himself. I infer that he was in no better position to do so when he waived his right to a jury trial some months earlier.
[24] This passage makes clear that the court had some concerns about the accused’s capacity to make decisions. In this case, the applicant Zahorchak had an opportunity and did discuss the issue of election with counsel. Mr. Nelson deposed that he did not discuss the issue of election with counsel but was content to make his election.
[25] In summary, I am satisfied that the applicants’ election was voluntarily and unequivocal. They have a constitutional right to a trial by judge and jury but also have the right to a trial by judge alone if they so elect. This was not a guilty plea with an acceptance of guilt and the significant consequences arising from the plea. An election that may have been contingent in the minds of the applicants is not unequivocal. Further, the applicants were not uninformed in making their decision. Zahorchak received advice and then discussed the advice with Nelson.
ABUSE OF PROCESS
[26] The applicants also assert that although s. 561 of the Criminal Code provides for a 15 day time period within which the accused may re-elect without the consent of the Crown, if the Crown acts improperly such that there is an abuse of process, the court may then review the decision of the Crown not to consent and substitute its own decision. The applicants set out two separate factual inquiries:
(1) What were the circumstances in which the election was made?
(2) What were the reasons for the failure consent to the re-election?
[27] The applicants say that the circumstances of the election provide a basis to review the discretion of the Crown in refusing to consent to a re-election. They further suggest that the rationale set out by the Crown in its response is not a valid reason for refusing to consent to a re-elect. Essentially, the applicants say that the reasons given by the Crown are not sufficient. The reasons for refusal support that it is an abuse of process.
CIRCUMSTANCES SURROUNDING THE ELECTION
[28] The Crown acknowledges that the court has an ability to review prosecutorial discretion. The decision not to consent to a re-election is such an exercise of prosecutorial discretion. The Supreme Court of Canada has held that prosecutorial discretion is not absolute: the court has a residual discretion to examine whether there was an abuse of the court’s process, but only in the clearest of cases. In R. v. Power (1994), 89 C.C.C. (3) 1, L'Heureux‑Dubé J. noted that abuse of process amounts to conduct that shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
[29] The Crown points to R. v. Ng, 2003 ABCA 1, wherein the Alberta Court of Appeal held that the trial judge is not to inquire into the Crown’s reasons for its exercise of discretion or the sufficiency of any reasons offered, unless the accused has met the onus of providing a basis to review the Crown’s decision. In Ng, the accused made an application for re-election to dispense with the Crown’s consent. The Crown refused to provide reasons for its refusal to consent to the re-election. The trial judge directed the trial to proceed by judge alone. In Ng, the court noted at paragraph 33:
The basis for a court to probe into prosecutorial discretion, therefore, arises in the limited case of an abuse of the court’s process where the prosecutor’s misconduct threatens either the accused’s Charter right to a fair trial or the public interest in a fair and just trial process.
[30] The Alberta Court of Appeal held that the Crown’s refusal to consent to a re-election was not an abuse of process. The trial judge erred in law in ordering the trial to proceed by judge alone and a new trial was ordered.
[31] In R. v. L.E. (1994), 94 C.C.C. (3d) 228, Finlayson J.A., in dealing with the Crown’s refusal to consent to a re-election, wrote the following at paragraph 27:
While I do not believe that the Crown has an unfettered right to withhold consent to a re-election under s. 561(1)(c), the court cannot review this exercise of statutory discretion relating to the mode of trial unless it has been demonstrated on the record that there has been an abuse of the court's process through oppressive proceedings on the part of the Crown. I would think that there would have to be some showing before the trial judge that the Crown had exercised its discretion arbitrarily, capriciously or for some improper motive so as to invite an examination as to whether there was an abuse of process under s.7 of the Charter.
[32] In R. v. Ruston (1991), 63 C.C.C. (3d) 419, the Manitoba Court of Appeal reviewed the Crown’s failure to consent to a re-election to judge and jury. The court noted that the purpose of allowing a re-election after the preliminary inquiry was that, at that stage, the accused would have knowledge of the Crown’s case. There was a substantial change in the case against the accused after the preliminary inquiry. The court held that provision should be interpreted so as to give the accused the right to re-election without the consent of the Crown within 15 days of notification of substantial change in the case against him. In this case, there is no evidence that there was any significant change in the evidence against the applicants.
[33] In R. v. Brisson, the accused originally elected to be tried by judge and jury. The accused sought to re-elect trial by judge alone. The Crown refused to consent. The accused asserted that at the time the original election was made, she was not in possession of all the important facts pertaining to the Crown’s evidence. The prosecution acknowledged that the accused did not have a full disclosure. The accused had no counsel representing her at the time. However, once new counsel was retained, the new counsel considered the change in the Crown’s case to be so substantial he advised that it would be in her best interest to re-elect trial by judge alone. In the current case, there is no assertion by counsel for the applicants that the case has fundamentally changed or the evidence has changed since the election. I do not accept that any delay in disclosure in this case has the effect of changing the nature of the case.
[34] I have already reviewed the circumstances surrounding the election. The applicants were self-represented. They had consulted with but not retained counsel. They applied for Legal Aid. They only got counsel after a successful Rowbotham application in 2016. One of the accused had spoken to a lawyer about the election. He had discussed that advice with the other. When they spoke to Crown counsel, she did not dissuade them of their view that their election to judge alone was appropriate. There was no evidence about them being directly told about the right to re-elect.
[35] I find there is no prosecutorial misconduct or abuse of process that would shock the conscience of the community, or that is so detrimental to the proper administration of justice that it warrants judicial intervention.
CROWN’S REASONS FOR REFUSAL
[36] The Crown has refused to consent. The Crown is not required to provide reasons. There may be many different reasons. The failure to provide reasons is not an abuse of process. In Ng, the court held that the trial judge is not to inquire into the Crown’s reasons for its exercising of discretion unless the accused has met the onus of providing a basis to review the Crown’s decision (para. 62). If, in the absence of an abuse of process, the Crown is required to provide reasons, the court would then have to examine those reasons in each case. That is a direct review of prosecutorial discretion, and it is only to occur in the clearest of cases. This is not such a case. Therefore, it is not necessary nor is it appropriate to examine the Crown’s reasons for refusing to consent to a re-election.
[37] I find there was no abuse of process on the part of the Crown and no basis to review the Crown’s exercise of discretion in not consenting to a re-election by the applicants.
[38] The application to allow the applicants to re-elect is dismissed.