COURT FILE NO.: CR-19-40000091-00AP DATE: 2020-07-06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – A.T.

COUNSEL: D. Guttman, for the Crown A. Weisberg and M. Psutka, for A.T.

HEARD: 28 May 2020

On appeal from the conviction entered on 18 November 2019 by Justice James Chaffe of the Ontario Court of Justice.

S.A.Q. Akhtar J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The appellant was convicted of sexual assault.

[2] His trial had a complicated history: the Crown had originally notified the appellant of its intention to proceed by indictment and a preliminary inquiry date had been set. However, three months before the start of that hearing the Crown advised the defence that they intended to seek leave to re-elect and proceed by way of summary conviction. The judge granted the Crown’s application and the preliminary inquiry became a trial.

[3] This was essentially a two-witness trial. The complainant and the appellant were familiar to each other and had been intimate in the past. The complainant testified that on the night of the offence, she and the appellant drove to a parking lot and he raped her in the back of his car.

[4] The defence brought an application pursuant to s. 276 of the Criminal Code seeking to cross-examine the complainant on various aspects of her prior sexual activity with the appellant. The judge prohibited most of the proposed questioning, revisiting one area that became relevant in light of the complainant’s testimony.

[5] At the conclusion of the hearing, the trial judge found the appellant guilty. He appeals his conviction.

Background Facts

[6] The complainant testified that she had met the appellant in May 2017 at an educational programme held in Toronto. They became friends, and commenced a sexual relationship, but were not in a “boyfriend/girlfriend” relationship. The complainant discovered she was pregnant on 5 December 2017 and told the appellant that he was the father. On 8 December, the appellant took the complainant to an abortion clinic and paid for the termination procedure. Whilst there, the complainant realised that the timing of the pregnancy meant that the appellant could not be the father. However, she did not reveal that fact to the appellant.

[7] Both parties kept in regular contact but did not continue any type of sexual activity. The complainant testified that between 2 December 2017 and 2 January 2018 she was no longer interested in the appellant because of his erectile issues. She did, however, send him suggestive texts which, on their face, suggested the opposite. When confronted with these texts in cross-examination the complainant testified that the messages were just “flirting” and did not mean anything.

[8] On 26 December 2017, when the appellant went to the complainant’s house to study he discovered her ex-boyfriend was also present watching their shared dog.

[9] On 2 January 2018, at approximately 8 p.m., the appellant met the complainant at her home for the purpose of studying. Earlier that day, the complainant had sent the appellant a text telling him that there would be no sexual activity during his visit. During the evening, the complainant told the appellant that she did not want to have a sexual relationship with anyone at that time. She added that an ex-boyfriend and a male friend had expressed their interest in her.

[10] The complainant suggested leaving the house to talk more about her ex-boyfriend and she and the appellant went for a drive in his car. When they arrived at a parking lot at Orfus Road, in Toronto, they parked behind a building and moved into the back seat to continue their conversation. The complainant testified that whilst talking about her ex-boyfriend and male friend and her wish not to have a sexual relationship with anyone, the appellant placed his hand on her thigh. In response, she pushed the hand away and said “I don’t want to do that”. The appellant continued and kissed her on the mouth but the complainant resisted.

[11] The complainant testified that the appellant pushed her onto her back and pulled off her leggings and underwear before having sex with her. The appellant stopped and attempted to perform oral sex on the complainant but she kicked out hitting him on his left shoulder. The appellant stopped as if he was stunned and the complainant asked to be driven home.

[12] Sometime after midnight, the appellant sent the complainant a text message saying “I’m sorry for tonight”. The complainant did not respond. Later that day, the appellant sent another message asking how the complainant was and she replied by saying “Honestly feel very violated. I didn’t respond to your advances, told you I wasn’t into it, and you still did it. Please don’t talk to me again”.

[13] The appellant responded with the following message: “I’m deeply sorry, I misread, I wish I could undo it and not hurt you like that. I’ll respect your wishes”.

[14] In February, the complainant reported the incident to the police.

[15] The appellant’s evidence was very different.

[16] He agreed that he had met the complainant at an educational programme. However, he testified that they began a sexual relationship in October 2017, a relationship which led the appellant to believe that they were exclusively seeing each other.

[17] In December 2017, the complainant informed him of her pregnancy and told him that he was the father. After the abortion he and the complainant remained a couple but had not engaged in sex since she had learnt of the pregnancy.

[18] He testified that when he went to her house on 26 December 2017, he found the complainant’s ex-boyfriend in attendance. Three days later, he questioned the complainant about his presence. She assured the appellant that she had no interest in the ex-boyfriend. She did, however, reveal that her ex-boyfriend had told her that he still liked her.

[19] The appellant said that he and the complainant agreed to meet on 2 January 2018 with an intention to have sex. He explained that they had abstained from sex since the abortion but sufficient time had elapsed to allow them to restart their physical relationship. On his way to the complainant’s house he received a text from the complainant telling him she did not want to leave the house. He took this to mean they were not going to have sex that night.

[20] Upon his arrival, the complainant told the appellant that her male best friend had told her that he loved her after the abortion had occurred. The timing of this revelation coupled with the news that her ex-boyfriend also felt the same way made the appellant sceptical that he had impregnated the complainant.

[21] The appellant and the complainant embraced and kissed before the complainant suggested that they go for a ride. In the Orfus Road parking lot, the appellant insisted that the complainant had consented to sexual activity but that he had encountered erectile dysfunction issues. He began to perform oral sex on the complainant but was kicked away. When he asked what was wrong, the complainant began to cry.

[22] Consumed with doubt, the appellant accused the complainant of lying about his being the father of her aborted child. The complainant did not respond but asked to be driven home.

[23] Shortly after midnight and feeling guilty about his accusations, the appellant texted the complainant telling her he was sorry “for tonight”.

[24] The appellant agreed he had exchanged the texts referred to above later in the day on 3 January 2018 but denied that they were admissions of sex assault. He insisted they were an apology: during their conversation about the ex-boyfriend and the close male friend, the appellant had accused the complainant of being unfaithful and concealing the fact that another male, not he, was the father of her child. The appellant testified that he was remorseful about making the accusation. His comments were a way of attempting to placate her and end things in a peaceful manner.

[25] The trial judge rejected the appellant’s evidence calling it “highly problematic”. He accepted the complainant’s evidence finding that any inconsistencies inherent were immaterial to the issue of guilt.

Grounds of Appeal

[26] The appellant appeals his conviction on the following grounds:

1. The trial judge misapprehended the evidence;
2. The trial judge erred by prohibiting cross-examination under s. 276 of the Criminal Code;
3. The trial judge erred by failing to find a violation of the appellant’s s. 11(b) Charter rights;
4. The trial judge wrongly permitted the Crown to re-elect after it had originally elected trial by indictment.

[27] For the reasons that follow, I allow the appeal on the first ground but would dismiss the remaining grounds.

ANALYSIS

Misapprehension of Evidence

[28] The appellant argues that the trial judge misapprehended two aspects of his testimony. The effect of that misapprehension, says the appellant, played a significant part in the judge’s rejection of his evidence.

[29] A misapprehension of evidence involves an error about the substance of evidence, a failure to take into account evidence relevant to a material issue, or a failure to give the appropriate effect to an item of evidence: R. v. Morrissey (1995), , 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 46.

[30] Not every misapprehension of evidence is fatal to a verdict. The misapprehension must be material and play an essential role in the reasoning of the trial judge, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2-6; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 5; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19.

[31] With respect to findings of credibility, great deference is owed to the trial judge. An appellate court can only intervene in the face of these findings where it is shown that the finding was unreasonable or based on a material misapprehension of the evidence: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 80; R. v. Jones (2006), , 81 O.R. (3d) 481 (C.A.), at para. 7.

[32] The appellant points to two material misapprehensions of evidence committed by the trial judge.

[33] First, he asks this court to consider the judge’s reasons at paras. 12-13 and reproduced as follows:

[A.T.’s] evidence was highly problematic and, at times, strained credulity. His demeanour throughout examination in chief was calm and responsive. During cross-examination, he became frustrated with the tenacious, if at times repetitive, cross-examination but was essentially consistent throughout – and I find that his demeanour did not raise any concerns regarding his credibility or reliability.

The most problematic internal consistency[^1] with [A.T.’s] evidence is between his admission that he may have ‘misread’ [the complainant’s] consent after she forcefully kicked him off her and his testimony that [the complainant’s] text: “honestly feel very violated. I didn’t respond to your advances told you I wasn’t into it and you still did it. Please don’t talk to me again.”, despite accepting that it was a description of her being ‘raped’ by him was a baseless allegation.

[34] The judge’s reasons appear to indicate that there was an inconsistency in the appellant’s evidence between: (1) his concession that he might have misread consent and (2) his evidence that the complainant’s text was a lie.

[35] It is unclear to me how this constitutes an inconsistency: the two parts of the appellant’s testimony describe two different evidentiary events. The first details the appellant’s purported error in believing that the complainant was consenting, the second outlines his opinion that the complainant was lying when she sent her text.

[36] Crown counsel concedes that the wording of this paragraph does not allow for easy interpretation but argues that, when read in its entirety, the trial judge is referring to inconsistencies in the text message as a whole.

[37] This may well have been the trial judge’s intention. However, I cannot read that interpretation into the impugned passage which draws the inconsistency between the texts and the appellant’s misreading of consent in the car. I agree that this is a misapprehension of the appellant’s testimony.

[38] The appellant argues that there is a second misapprehension of evidence with respect to the appellant’s evidence that he accused the complainant of lying to him about the identity of the father of her terminated pregnancy. At paras. 19-20, the trial judge wrote:

I accept that [the appellant], wanted a sexual, exclusive relationship with [the complainant] and was optimistic of that. He testified that he had been very supportive (paying for the abortion and being a constant and compassionate emotional support) to [the complainant] during the trauma of her pregnancy, abortion and after. He presumed that he was the father without contradiction from [the complainant]. On his evidence he did not learn he was not the source of [the complainant’s] pregnancy until after he received disclosure of [the complainant’s] police statement.

On January 2, 2018, it seems clear on [A.T.’s] evidence, apart from his account of confronting [the complainant] regarding fatherhood, that he believed he had made her pregnant. I find his purported confrontation in the back seat of the car to be inconsistent with both his knowledge at the time and his narrative regarding his perspective of their relationship. [Emphasis added.]

[39] The appellant submits that there was no inconsistency between the accusation and his knowledge at the time of the event. It is clear that confirmation he was not the father occurred after the incident but that did not make his accusation – based on suspicion, not knowledge – inconsistent.

[40] The respondent, on the other hand, submits that in the face of the text messages and the record as a whole, the trial judge was entitled to make this finding.

[41] The difficulty with this argument is that the judge appears to have determined an inconsistency because the appellant only found out he was not the father after 2 January 2018. It was unclear how “his narrative regarding his perspective of their relationship” created an inconsistency.

[42] However, as pointed out by the appellant, the accusation was not based on knowledge. The appellant’s allegation arose from comments made by the complainant about her ex-boyfriend and close male friend as well as the fact that her ex-boyfriend had been at her home during one of his previous visits. In other words, whilst it was within the judge’s purview to reject the appellant’s account of the accusation, that rejection could not be based on an inconsistency which did not exist.

[43] Accordingly, I find the judge’s reference to these two items of evidence as inconsistencies to be a misapprehension of the evidence.

[44] As noted, to warrant a new trial, the misapprehension of evidence must be material and “play a role in the reasoning of the trial judge”.

[45] The case law indicates that in cases involving credibility, a misapprehension of evidence is significant. In R. v. W.M., 2020 ONCA 236, at paras. 21-22, the court stated:

If the appellant can show that the conviction was based on a misapprehension of evidence, the appellant is entitled to a new trial “even if the evidence, as actually adduced at trial, was capable of supporting a conviction”: Morrissey, at p. 541.

The impact of a misapprehension of evidence is particularly marked in cases where the principle issue is credibility. In such cases, “it is essential that the findings be based on a correct version of the actual evidence”, as “wrong findings on what the evidence is destroy the basis of findings of credibility”: Morrissey, at p. 541, citing Whitehouse v. Reimer (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594 (Alta. C.A.).

[46] Here, there were only two witnesses to the allegations. Under R. v. W. (D.), 1991 SCC 93, [1991] 1 S.C.R. 742, the appellant was entitled to an acquittal if his evidence raised a reasonable doubt, even if he was disbelieved.

[47] The judge, at para. 12 of his reasons, appeared to make somewhat contradictory comments about the appellant’s credibility. At first, he called his evidence “highly problematic” but, in the same paragraph, described the appellant’s testimony in cross-examination to be “consistent throughout”. However, in the following paragraph, he identified flaws in the appellant’s evidence which caused him concern.

[48] It is clear that the judge found the supposed inconsistencies to be significant describing the first as the “most problematic internal inconsistency” and the second as casting doubt on the appellant’s evidence explaining text messages that, on their face, seemed incriminatory.

[49] In these circumstances, I find that the two instances of misapprehension of evidence are sufficiently material to warrant a new trial.

[50] Accordingly, the appeal is allowed on this ground.

Was the Appellant’s Section 11(b) Right Violated?

[51] The charge against the appellant was laid on 22 February 2018 with the trial evidence completed on 13 August 2019.

[52] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada reset the principles governing the application of s. 11(b) of the Charter. New presumptive ceilings of reasonable delay were created for criminal cases.

[53] After Jordan, any summary charges which take over 18 months to complete are presumptively unreasonable in terms of delay. In the Superior Court of Justice, the ceiling was set at 30 months.

[54] Determining whether a particular time period breached the ceiling requires some analysis of the history of the case. Any delay caused by the defence must be deducted from the total time period.

[55] If, after deducting defence delay, a case still exceeds the ceiling, the Crown is required to identify the existence of exceptional circumstances justifying the excess delay. Failure to do so results in a stay of the charges.

[56] At trial, the appellant brought a s. 11(b) application alleging a Charter violation on the basis that the time taken to trial had been 19 and a half months thereby exceeding the summary conviction ceiling. However, when making this argument, the parties did not have the benefit of R. v. K.G.K., 2020 SCC 7, which clarified that the Jordan time periods end at the close of evidence rather than the delivery of the verdict. At trial, therefore, the focus of argument centred on defence delay and exceptional circumstances. Ultimately, the trial judge ruled that there had been no s. 11(b) breach and dismissed the application.

[57] In light of K.G.K., the appellant concedes that the total time from charge to the end of evidence amounted to 17 months and 22 days and therefore falls within the presumptive range set by Jordan.

[58] In this case, both parties initially advanced positions about the delay caused by the defence and the presence of exceptional circumstances in support of their positions on the argument of unreasonable delay.

[59] However, this approach does not accord with Jordan. In cases where the trial time period falls within the presumptive ceiling, a different test is applied. In Jordan, at paras. 82-91, the court explained that for a violation to occur, an applicant must show (1) that they took meaningful steps demonstrating a sustained effort to expedite the proceedings and (2) the case took markedly longer than it should have. It is also worth remembering that stays of this kind must only be granted in clear cases: Jordan, at para. 83.

[60] I find nothing in the record that shows that the defence took the steps required to demonstrate unreasonable delay below the ceiling. Although I do not criticise the appellant in any way or suggest that he was lax or unduly delayed the proceedings, I do not find that he has shown anything that demonstrates he made “a sustained effort to expedite the proceedings”. Nor has the appellant shown that this case took markedly longer than it reasonably should have.

[61] It is also not without some irony that the Crown’s re-election, designed to ensure that the appellant’s s. 11(b) rights were preserved, is the subject of criticism by the appellant.

[62] For these reasons, this ground of appeal is dismissed.

Did the Trial Judge Err in Restricting Cross-examination of Prior Sexual Activity?

[63] The appellant submits that the trial judge erred in refusing leave to adduce evidence of prior sexual activity on three specific areas:

1. Questions relating to a two-week abstinence period where the complainant did not have sex with the appellant after the abortion procedure. The appellant sought to challenge the complainant’s evidence with respect to the complainant’s text messages sent in December 2017 and the claim that she could not recall if there was a plan to have sex on 2 January 2018.
2. Cross-examination regarding the complainant and the appellant’s prior practices with regard to protection used during sex. The appellant argues that this line of questioning was necessary to rebut the complainant’s claim that she did not recall whether a condom was used during the sexual assault.
3. Prior sexual activity in the backseat of the appellant’s car. The appellant submits that one of the “live issues” at trial was the reasoning behind the appellant and the complainant moving to the back seat of the appellant’s car.

[64] Section 276(1) of the Criminal Code restricts cross-examination on the complainant’s prior sexual history to prohibit the introduction of evidence supporting the twin myths: that the complainant consented to the sexual activity in question or is less credible.

[65] Section 276(2) permits cross-examination so long as the accused demonstrates that the proposed evidence:

(a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[66] Section 276(3) outlines factors that a judge must take into account in deciding whether the evidence is admissible. These include the right of the accused to make full answer and defence, the potential prejudice to the complainant’s personal dignity and right of privacy and whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case.

[67] In my view, none of the areas advanced by the appellant had any relevance to the issues at trial as required by s. 276(2)(b) of the Code.

The Abstinence Issue and Text Messages

[68] Although the appellant argues that in R. v. Antonelli, 2011 ONSC 5416, 280 C.C.C. (3d) 96, the court held that a period of abstinence does not constitute sexual activity that falls within the purview of s. 276, there appears to be conflicting authority on the point: R. v. Hanna, 2018 BCSC 1306. Moreover, in Antonelli, the complainant offered evidence of her lack of sexual activity, thereby placing prior sexual acts in issue. Here, there was no such testimony.

[69] The appellant’s argument that he was hamstrung by an inability to challenge the complainant on this issue is answered by the record: the appellant adduced evidence of a plan to have sex after the abortion period had expired and the complainant was cross-examined on the meaning of the sexually explicit texts that she sent in December.

Prior Condom Use

[70] It is difficult to understand why prior practice of condom use would be relevant to whether the complainant remembered whether a condom was used on 2 December 2018. The critical issue was whether the complainant consented to having sex with the appellant. He testified that she did and communicated that consent by nodding when he suggested they use a condom. She, on the other hand, gave evidence that he never sought consent before assaulting her. The issue of prior practices had no application in this case.

Sexual Activity in the Back Seat of the Appellant’s Car

[71] Finally, I agree that the trial judge correctly ruled that cross-examination of the complainant about prior incidents of sex in the back seat of the car was impermissible. Both parties did testify to previously having sex in the back seat of the car. There was a difference in their accounts: the complainant said that conversations in the car were more commonplace than sex. The appellant, on the other hand, testified that they always had sex in the back seat in the car. The point of dispute – and the line of questioning that the appellant wished to pursue – was whether on previous occasions they only went into the back seat to have sex.

[72] I fail to understand how this could be a relevant line of questioning. It is clearly impermissible that a trier of fact could infer a pattern of conduct from prior activity in a particular location as constituting evidence of consent. In R. v. Goldfinch, 2019 SCC 38, at para. 51, the court prohibited the use of prior sexual history for “context” or “narrative”. Nor could the evidence be used to show that just because the complainant had consented to sex in the back seat of the car in the past, she had done so on this occasion: Goldfinch, at para. 60.

[73] I do not say that this line of cross-examination would always be inadmissible. The key factor is the relevance to an issue at play in the case. For example, if the complainant had testified that she had never previously been intimate with the appellant, she would have placed the nature of her relationship with the appellant in issue and he would have been entitled to lead evidence to the contrary: see R. v. Harris (1997), , 118 C.C.C. (3d) 498 (Ont. C.A.), at paras. 41-42. Or if the complainant had made contradictory statements regarding the nature of the relationship, evidence of prior sexual activity would also become relevant: Goldfinch, at para. 63.

[74] This was not the case here. I disagree with the appellant’s submission that the complainant had put her activity in the back of the car with the appellant directly in issue as in Harris. Both the complainant and appellant gave details of their prior relationship including their sexual encounters in the back of the car. The evidence that they always had sex in the back of the car had little relevance in light of this testimony. Nor could it play a part in the narrow issue to be decided in this case: whether the complainant consented when both decided to move to the back of the car.

[75] The appellant also argues that the evidence was relevant to honest but mistaken belief in consent. I cannot agree.

[76] In R. v. Barton, 2019 SCC 33, the court revisited the defence of honest but mistaken belief in sexual assault cases. Moldaver J., writing for the majority of the court, described the defence as an “honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”.

[77] At paras. 91-93, of Barton, Moldaver J. went on to expand this definition in the following way:

As L’Heureux-Dubé J. stated in Park, “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary” (para. 44 (emphasis in original)).

Therefore, in my view, it is appropriate to refine the judicial lexicon and refer to the defence more accurately as an “honest but mistaken belief in communicated consent”. This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.

Focusing on the accused’s honest but mistaken belief in the communication of consent has practical consequences. Most significantly, in seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred [Underlined emphasis added; italicized emphasis in original.]

[78] For the defence to operate, the trier of fact must first find that there was no consent given by the complainant. The onus then shifts to the accused’s mental state and how the complainant’s conduct made him believe that the complainant “effectively said ‘yes’ through her words and/or actions”: R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 47; Barton, at para. 90.

[79] I agree with the appellant that past customs and “prior negotiations” might well be relevant to shed light on the parties’ expectations on a particular incident: Barton, para. 93. However, the totality of the evidence must reveal an air of reality to the defence before it applies.

[80] In this case, prior sexual history showing that the appellant and the complainant always had sex in the back of the car might have been admissible had the appellant been able to identify evidence showing how the complainant’s behaviour informed his honest but mistaken belief that she communicated consent.

[81] Here, the evidence was clear: the complainant testified that she explicitly told the appellant that she was not interested in having sex with anyone; pushed his hand away when he placed it on her leg; repeatedly said “no” when he continued to make advances and when he inserted his penis inside her.

[82] Simply put, there was no air of reality to the defence of honest but mistaken belief. The two positions were diametrically opposed in the factual matrix. The complainant testified that she communicated, in no uncertain terms, her lack of consent. The appellant told the court that the complainant had explicitly consented.

[83] This was not a case where honest but mistaken belief could ever be raised in the context of the evidence.

[84] The appellant’s only defence was that the complainant was lying and had consented notwithstanding her denials in court. In other words, the appellant could not ride the twin horses of consent and honest but mistaken belief in these circumstances.

[85] The upshot is that any evidence that the appellant and the complainant always had sex whenever they moved to the back seat of his car was irrelevant in light of the complainant’s assertions. Accordingly, the trial judge was correct in prohibiting cross-examination on the subject.

Was the Judge Correct in Granting the Crown Leave to Re-elect?

[86] The appellant’s final ground of appeal relates to the Crown seeking leave to change its election from proceeding by indictment to summarily citing concerns of a potential s. 11(b) violation if that matter proceeded to trial at the Superior Court of Justice.

[87] On 4 April 2018, when the appellant first appeared in court, the Crown provided a charge screening form indicating its intention to proceed with the appellant’s matters by indictment. On 11 June 2018, a preliminary inquiry date of 15 February 2019 was set with the defence filing a Notice of Intention of election to be tried by judge and jury.

[88] On 2 November 2018, the Crown advised the appellant’s counsel that it intended to re-elect to try the appellant by way of summary conviction proceedings, indicating its concern about potential delay if the matter was tried in the Superior Court of Justice.

[89] On 6 November 2018, the appellant’s counsel responded by telling the Crown that his client would not consent to the proposed re-election.

[90] At trial, the Crown successfully applied for leave to change its re-election so that the appellant’s trial could proceed in the Ontario Court of Justice. The appellant argues that the judge erred in granting the application.

[91] Whilst the Crown has an unfettered discretion to choose the mode of an accused’s trial when the charge is laid, it cannot change its decision to proceed by indictment after the accused’s election of a Superior Court of Justice trial without consent or by leave of the court: R. v. Hancock (1992), 60 O.A.C. 322 (C.A.), at p. 323; R. v. Linton (1994), , 90 C.C.C. (3d) 528 (Ont. Gen. Div), at p. 540; R. v. D.M.E., 2014 ONCA 496, 313 C.C.C. (3d) 70, at para. 35.

[92] In this case, the trial judge heard submissions and decided that leave was appropriate. I would not interfere with that decision. The judge concluded that the reduced maximum sentence resulting from a summary conviction; the potential violation of the appellant’s s. 11(b) rights; the period of notice given by the Crown; and the fact that summary conviction proceedings were apt for the factual nature of the case were proper considerations for the Crown decision.

[93] The trial judge was in the best position to determine whether the appellant suffered prejudice from the change of election and concluded that he did not do so. I find no error in his reasoning and dismiss this ground of appeal.

CONCLUSION

[94] For the reasons set out above, I would allow the appeal and order a new trial.

S.A.Q. Akhtar J.

Released: 6 July 2020

[^1]: Both parties accept that this word was a typographical error and that the judge intended to use the word “inconsistency”.