Information No. 19-175
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MICHAEL WHITE
RULING
REMOTELY BEFORE THE HONOURABLE JUSTICE E. SHEARD
on October 1, 2020 for a HAMILTON, Ontario proceeding
APPEARANCES:
A. Grady Counsel for the Crown
M. Bavaro Counsel for Michael White
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
WITNESS: Examination In-Chief Cross-Examination Re-Examination
EXHIBITS
EXHIBIT NUMBER ENTERED ON PAGE
Ruling 1
Transcript Ordered: .................... October 27, 2020 Transcript Completed: .................. October 28, 2020 Ordering Party Notified: ............... October 28, 2020
THURSDAY, OCTOBER 1, 2020
RULING
SHEARD, J. (Orally):
So I will be delivering these reasons orally. If counsel would like, I am prepared to email a copy of these reasons to the trial coordinator to be provided to counsel. Should anybody wish to order a transcript of these reasons, I would ask to reserve the right to edit for [indiscernible], and again, if somebody orders a transcript, then I would ask that a copy of my reasons be provided to me [indiscernible].
Overview
On September 13, 2018, the accused, Michael Ivo White was arrested and charged with robbery and using an imitation firearm while committing an indictable offence. On December 13, 2019, a five-day trial by judge alone was set at the Assignment Court. The trial was scheduled to take place on October 26, 2020.
Mr. White brings this application for an order that will permit him to re-elect the mode of trial to judge and jury. The Crown does not consent. The Crown's consent to Mr. White's re-election is required pursuant to Section 561(1)(a)(iii) of the Criminal Code of Canada, RSC 1985 chap. C-46, hereinafter, "the Code".
Mr. White asks for an order dispensing with the Crown's consent.
Background
A preliminary hearing was conducted. It began on September 24, 2019, and was completed on September 30, 2019. At the time, Mr. White was represented by Alayna Dueck, counsel with Andrew G.A. Confente. At the outset of the preliminary hearing, the court noted that the information stated that on February 19, 2019, Mr. White had elected to be tried by judge alone. Ms Dueck confirmed to the court that this was correct.
And I am pausing because I have got footnotes here. I am not going to read the footnotes, but again, if a transcript is ordered, the footnotes are in these reasons.
On September 30, 2019, the last day of the preliminary hearing, the court found, and Mr. White conceded that there was sufficient evidence to commit him to stand trial on the charges of robbery and use of an imitation firearm in the commission of that robbery. A discussion followed in which there was the following exchange between the court and Ms Dueck.
MS DUECK: Yes, and Your Honour, if I could briefly address the issue of my client's election. I understand that the information is endorsed for it to proceed by judge alone, and the instructions are in fact for judge and jury.
THE COURT: So you are seeking to re-elect?
MS DUECK: Yes, Your Honour.
THE COURT: Okay, so that the election happened on February 19, 2019, so without, without reviewing the tape, we wouldn't know whether that's a mis-endorsement, so what we'll do is we'll - the - with the consent of the Crown, the defence, is Mr. White waiving reading the re-election?
MS DUECK: Yes.
THE COURT: All right. So he elects to be tried by judge and jury at the Superior Court of Justice?
MS DUECK: Yes, Your Honour.
A judicial pretrial was conducted on October 29, 2019 at which time the parties estimated the time required for trial, and that if Mr. White sought to re-elect to proceed by judge alone, a five-day trial could be set with one additional day set aside for pretrial motions.
Following the pretrial and within the 60 days following the completion of the preliminary hearing, Mr. White was entitled to re-elect the mode of trial as of right.
By email dated November 25, 2019, Ms Dueck advised the trial coordinator that Mr. White wished to re-elect trial by judge alone. Crown counsel, Ms Grady, and Mr. Confente were copied on the email which reads as follows:
Mr. White has advised he wishes to re-elect judge alone, so we are prepared to schedule the trial dates. We have estimated a five-day trial for judge alone and one additional day for pretrial motions on Leaney and third party records. Please provide us with dates when you are able.
Mr. White's case was remanded to the Superior Court. On December 13, 2019, Mr. White, accompanied by Ms Dueck, attended at assignment court, conducted by Justice Goodman. At that attendance, Ms Dueck confirmed the dates set for the pretrial motions, and the five-day trial set to proceed on October 26, 2020. The transcript of that court attendance then reads, in part, as follows:
THE COURT: I understand there's a re-election required?
MS DUECK: I thought that had been made. He should be proceeding at judge alone at this point.
Sorry, counsel, I may have a mistake there. I think,
MS DUECK: He should be proceeding at judge alone at this point.
THE COURT: All right. That's your understanding, sir, you're going to be re-electing to judge alone?
MR. WHITE: Yes, sir.
THE COURT: All right. Madam Registrar, could you please read out the re-election?
CLERK REGISTRAR: Michael White, you have given notice of your wish to re-elect the mode of your trial. You now have the option to do so. How do you wish to re-elect?
MS DUECK: Judge alone.
THE COURT: Is that on consent, Mr. ....
MR. WHITE: Judge alone.
THE COURT: ...Norman?
MR. NORMAN: Yes, that's with the consent of the Crown, Your Honour.
THE COURT: Very well. We'll have you sign the Indictment momentarily. We'll get the stamp on the Indictment. All right, we'll go to the stamp for you to sign. All right, sir. You're remanded directly to the pretrial motion date of June 26th, 2020, one day. And then your trial has been set, sir, you're targeted for October 26th, five days, judge alone.
MS DUECK: Yes, and Your Honour just to note...
MR. WHITE: Yeah.
Following the above exchange, Mr. White was asked by Justice Goodman whether he had heard the further discussions concerning pretrial motions. When Mr. White indicated that he did not "catch it all", Justice Goodman repeated the information.
In support of his application, Mr. White filed an affidavit in which he asserts that at all times following his arrest, he wanted to have a trial by judge and jury. Paragraph six and seven of his affidavit read as follows,
On December 13, 2019, I appeared in Assignment Court to set my trial dates. On that date, Justice Goodman asked my previous lawyer, Alanya Dueck[sic], whether a re-election was required. Ms Dueck advised Justice Goodman that I would be re‑electing to be tried by a judge alone. I confirmed that this was correct to Justice Goodman, but I did not understand what was being asked of me. I still wanted to have a trial with both a judge and jury.
Shortly after this occurred, there was a breakdown in my relationship with Ms Dueck, and I decided to fire her. The re-election that occurred on December 13, 2019 was one of the main factors that contributed to this breakdown.
Positions of the Parties
(i) Mr. White:
Mr. White submits that Section 11(f) of the Charter, referring to the Charter of Rights, provides him with the constitutional right to the benefit of trial by judge and jury in a case such as this, where the maximum penalty for the offence is imprisonment for five years or more.
In oral argument, counsel for Mr. White also submitted that when an accused seeks to waive his or her right to a trial by judge and jury, a court should engage in an election inquiry similar to that of a plea inquiry on a guilty plea, where a judge must inquire into whether the accused is "informed" of the nature of the allegations made against them, the effect of their plea, and the consequences of their plea. In other words, Mr. White submits that the presiding judge must determine whether the accused has clearly and unequivocally made an informed decision to waive their rights.
Mr. White acknowledges that at the Assignment Court on December 13th, 2019, he did advise the court that he wished trial by judge alone when asked directly by Justice Goodman. However, on his application, Mr. White asserts that when he was asked whether he wanted to waive his right to a jury trial, he "truly was not fully aware of the consequences of this waiver, and it was not intentional and voluntary".
Mr. White says that evidence of his assertion can be seen in the fact that he subsequently fired his previous counsel and instructed his new counsel that he wished to be tried by judge and jury. Mr. White submits that further evidence of his wish is that he has been and is prepared to "wait in custody for an unknown amount of time in order to have a jury trial". (The cite for that is the notice of application, paragraph 20.)
In oral submissions on the hearing of this application, counsel for Mr. White advised the court that Mr. White would be waiving his rights pursuant to 11(f) of the Charter for any delay that occurred on and after October 26, 2020.
Mr. White's alternative argument is that, if this court were to determine that his waiver before Justice Goodman was informed, intentional and voluntary, he should still be permitted to re-elect trial by judge and jury in order to prevent a miscarriage of justice.
(ii) Position of the Crown
The Crown asks the court to consider the entire record of events outlined above, that show that Mr. White's re-election was indeed informed, intentional and voluntary. The record shows that on February 19, 2019, Mr. White elected to be tried by judge alone in the Superior Court of Justice. His election was confirmed on September 24, 2019, the first day of the preliminary hearing. On September 30, 2019, the final day of the preliminary hearing, Mr. White changed that election to trial by judge and jury, to which the Crown consented.
The Crown asks this court to note that throughout the preliminary hearing, and when Mr. White re‑elected on September 30, 2019, Mr. White was represented by counsel and that Ms Dueck advised the court that the re-election was on instructions of Mr. White.
As noted earlier in these reasons, Mr. White's possible re-election to trial by judge alone was discussed at the Judicial Pre-Trial of October 29, 2019. Ms Dueck's email of November 25, 2019 is consistent with those discussions, and confirms Mr. White's instructions.
The Crown submits that on December 13, 2019, when Mr. White re-elected trial by judge alone, the procedural requirements under the Code were followed, Mr. White was represented by counsel, and he also spoke on his own behalf confirming his re-election.
The Crown submits that Mr. White's re-election of trial by judge alone was a clear, informed and unequivocal waiver of his right to judge and jury. The Crown submits that there is nothing in the evidence put forth on this Application which could call into question the validity of Mr. White's re‑election.
The Law and Analysis
Section 561 of the Code, amended effective September 19, 2019, contains clear timelines within which an accused is entitled to make a re-election. It reads, in part, as follows:
Right to re-elect
561 (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,
(a) if the accused is charged with an offence for which a preliminary inquiry has been requested under subsection 536(4),
(i) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge,
(ii) at any time before the completion of the preliminary inquiry or before the 60th day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge, and
(iii) on or after the 60th day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor.
Mr. White acknowledges that Section 561(1)(a)(iii) of the Code applies to his situation. He has referred to no provision in the Code that would permit the order he seeks.
In support of his application, Mr. White relies upon the following cases:
R. v. Turpin, 1989 98 (SCC), [1989] 1 SCR 1296;
Korponay v. Canada, 1982 12 (SCC), [1982] 1 SCR 41;
R. v. Lee, 1989 21 (SCC), [1989] 2 SCR 1384; and
R. v. McIlvride-Lister, [2019] ONSC 1869.
In R. v. Turpin, the court was called on to decide whether the provision of the Code that required a trial on a charge of murder to be conducted by a judge and jury violated an accused's right to waive trial by jury. The court considered whether trial by judge and jury as guaranteed by Section 11(f) of the Charter is a benefit available to the accused, and, if so, whether the accused could choose to waive that benefit if the accused and their counsel decided that waiving that benefit would be in the best interests of the accused. The court concluded that even if the accused was entitled to waive his or her right to trial by jury, that did not entitle the accused to a trial by judge alone because of the mandatory provisions of the Code. The court found that the Code did not violate the accused's right under Section 11(f).
In my view, the statements made by the court in Turpin respecting waiver are obiter and not binding on this court, and that the other cases referenced by Mr. White offer greater assistance.
Turpin also referred to the pre-Charter decision of Korponay v. Canada, which is also relied upon by Mr. White. The issue in Korponay was whether the accused had validly waived compliance with the procedure set out under (then) Section 492 of the Code for a re-election by judge without a jury. The accused argued that a failure to meet those statutory procedural requirements deprived the trial judge of jurisdiction to proceed with the trial.
Having found that there was "no compliance with the section at all, not even substantial compliance", the court stated that the issue is whether an accused was entitled to waive compliance with the procedural requirements and, if so, in what manner. Justice Lamer restated the views expressed by Justice Dickson in Park v. The Queen, 1981 56 (SCC), [1981] 2 SCR 64 at pages 73-74, that the validity 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 and the process. (See page 49.)
Justice Lamer went on to say that in determining whether an accused has "clearly and unequivocally made an informed decision to waive his rights", the court will take into consideration whether the accused was represented by counsel, counsel's experience and the practice in the jurisdiction in which the waiver is made. (See page 50.)
I pause here to note that the record shows that Mr. White was represented by Ms Dueck and Mr. Confente. Mr. White led no evidence to support a finding that either Ms Dueck or Mr. Confente were inexperienced criminal counsel, or that they did not understand the implications of waiving a right to trial by judge and jury. Mr. White says only that there was a breakdown in his relationship with Ms Dueck and that the re-election made on December 13, 2019 was one of the main factors that contributed to the breakdown and his decision to retain new counsel. [I note in the Crown's response, the court is advised that a motion was brought in May 2020 by Mr. Confente to be removed as counsel of record for Mr. White.]
In Korponay, Justice Lamer concluded that an informed waiver of the right to a judge and jury must be "a clear and unequivocal indication by the accused himself...."
Sorry, Ms Bavaro, I lost your video. Are you still here?
MS BAVARO: Yes, I'm still here, Your Honour.
THE COURT: Okay, thank you. I'm going to begin again this paragraph.
In Korponay, Justice Lamer concluded that an informed waiver of the right to a judge and jury must be,
...a clear an unequivocal indication by the accused himself or through his counsel that he knows the words that the law says must be used when putting him to his re-election, ... that he knows he was going to have a trial before a judge and jury, that he still has the right to such a trial but that he still has the right to re-elect for a trial before a judge sitting without a jury... (at p.51).
Justice Lamer further stated that when counsel for the accused indicated to the judge that his client wanted to be tried by a judge alone, and the attorney was one whose knowledge of the law and practice of criminal law did not appear to be in issue, the trial judge was, "amply justified in considering that the attorney's saying 'judge alone' was an informed waiver of the requirement of putting to his client the words of the section" (at page 52).
Based on the evidence before me on this application, I am able to reach the same conclusions here with respect to Mr. White's re‑election before Justice Goodman, which was communicated by Ms Dueck on behalf of Mr. White and also confirmed by Mr. White himself.
In submissions for Mr. White, his counsel referred to the dissenting decision of Justice Wilson in R. v. Lee, and, in particular, paragraphs 49, 50 and 52 of her reasons. In those paragraphs, Justice Wilson quoted extensively from the reasons of Justice Lamer in Korponay. I have already referenced those passages from Korponay earlier in these reasons. I say nothing more about R. v. Lee.
The fourth case relied on by Mr. White is R. v. McIlvride-Lister. That case involved an application to set aside a guilty plea. At the hearing of that application, both the accused, and the lawyer who had acted for her on the guilty plea, gave evidence. There were questions about the accused's guilty plea from the outset: when the guilty plea was first entered, the accused indicated that she did not agree with the facts read in by the Crown. After a short recess, the court was advised that the portions of the facts that had been read into the record, would be redacted. The guilty plea was then accepted.
The application was brought on the date that had been set for sentencing. In the course of the hearing of the application, the court heard that the accused was concerned about being incarcerated because she was in the process of gender reassignment. That fact played a huge role in her guilty plea discussions with her lawyer. The accused's lawyer testified that his client's views on pleading guilty were "fluid", and that he did not receive firm instructions from her until moments before the guilty plea was entered. Based on the evidence, Justice Pomerance determined that, although the plea was valid - it was voluntary, informed and unequivocal - it was still necessary to strike the plea to prevent a miscarriage of justice. Justice Pomerance reviewed the cases in which courts have set aside guilty pleas, and noted that "the traditional [guilty] plea inquiry does not tend to concern itself with the substantive quality of a guilty plea." That is at paragraph 64 of McIlvride-Lister.
Justice Pomerance agreed with the observations of Justice Healy in Khanfoussi c. R., 2010 QCCQ 8687, [which is the Court of Quebec Criminal and Penal Chamber] that on a guilty plea, the court does not "ask if the accused was misinformed, or badly advised by counsel...". Mr. White acknowledges that it is not the practice of this court to inquire into the reasons for a re-election.
On the face of the record before me, I conclude that Mr. White's re-election to trial by judge alone was voluntary, informed and unequivocal. Mr. White advances an alternative argument that there would be a miscarriage of justice if he is not permitted to re-elect trial by judge and jury. The onus is on Mr. White to lead evidence to support that contention. Mr. White's evidence is found in his affidavit. Mr. White asserts that when he confirmed to Justice Goodman he was re‑electing to be tried by a judge alone, he "did not understand what was being asked" of him and still wanted a trial by judge and jury. That evidence is qualitatively different from the evidence that was before Justice Pomerance in McIlvride-Lister and in the cases that she considered.
In contrast to the evidence before me, the cases reviewed by Justice Pomerance included an accused who faced the "terrible dilemma" of a possible penitentiary sentence if found guilty, and the "powerful inducement" of a reformatory term on a guilty plea; in another, the accused was new to Canada, unfamiliar with the language and the legal system, and who, at the time of the commission of the offence, had just welcomed home his wife from surgery for a brain tumour. That accused faced a possible lengthy period of incarceration, the loss of custody of his child, and deportation, which he had to weigh against the powerful inducement of a 90-day sentence in return for a guilty plea.
I agree with the reasoning of Pomerance J. in McIlvride-Lister that there is a public interest in finality; that (accepting for the moment the argument put forth by Mr. White that a re-election is akin to a guilty plea), a re-election ought not to be too lightly set aside; and that an accused person ought not to be permitted to "vacillate".
I also agree with her reasoning at paragraph 78 of McIlvride-Lister that where a miscarriage of justice is alleged, the court must consider the whole of the evidence: a plea should only be disturbed in the face of credible and cogent evidence, and the testimony of counsel who acted for the plea will be important. The determination must be made on a case-by-case and fact-specific basis which engages "an element of judicial discretion, but sets a high bar for judicial intervention".
Applying that reasoning to the evidence before me on this application does not lead me to accept Mr. White's submission that there would be a miscarriage of justice if he is not able to re-elect trial by judge and jury. As I have found that Mr. White's re-election to trial by judge alone was voluntary, informed and unequivocal, and that Mr. White has also failed on his alternative argument, I could conclude my reasons here.
However, I choose to also consider the Crown's submissions as to my legal authority to make the order sought by Mr. White. The Crown refers this court to the Ontario Court of Appeal decision in R. v. L.E., [1994] 1785. The issue on appeal in that case was the ability of the trial judge to override the Crown's objection and permit the accused to re-elect trial by judge alone. The Court of Appeal determined that a trial judge has no such authority, either under the Code or at common law. The court concluded that the trial judge erred when he disregarded the requirement that the consent of the Crown is required for a re‑election; that he had no jurisdiction to conduct the trial; and the verdict rendered was a nullity. (See paragraphs 11 and 14.)
In considering the right of the Crown to withhold its consent to a re-election under (then) Section 561(1)(c), the court stated at paragraph 27:
...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 Section 7 of the Charter.
The court in R. v. L.E. went on to state, at paragraph 31, that before a trial judge could "supplant or ignore the clear language of the Code," there must be "a finding that the conduct of the Crown amounted to an abuse of process". Mr. White makes no such allegation against the Crown: he does not assert that the Crown has exercised its discretion arbitrarily, capriciously, or for some other improper purpose, or that there has been an abuse of process.
Although not required to, the Crown has offered reasons for not consenting to the re-election. Briefly, the Crown states that a jury trial would pose a challenge given that the Crown's identification witness is a former Corrections officer (hereinafter "the ID Witness"), I understand the basis for the Crown's concern is essentially this: Mr. White is charged with robbing a bank. An image was taken from a surveillance camera and converted into a still photograph. That photograph was then circulated via the media. The civilian ID Witness came forward to police and said that he recognized the accused. The identity of the accused as the person who committed the offence is a key issue for trial. As the ID Witness is a retired Corrections officer, his anticipated evidence is that he was able to identify Mr. White in the photograph because he came to know Mr. White when he was incarcerated. To establish that the ID Witness was in a position to identify Mr. White from the photograph, evidence would have to be led explaining how the ID Witness came to know Mr. White. Counsel for Mr. White has indicated that Mr. White may wish to lead alibi evidence, which might require him to testify at trial. In that event, and if the matter was heard by judge and jury, counsel for Mr. White indicated that a "Corbett" application might be brought [an application to exclude prejudicial evidence of previous convictions].
Thus, the challenge: How does the Crown present evidence to the jury establishing that the ID Witness was in a position to identify Mr. White, without possibly prejudicing Mr. White by overly disclosing details of Mr. White's criminal convictions and incarceration to the jury?
The Crown also identifies that a trial by jury will not only take longer to hear, but there may be a delay in its scheduling, given the current pandemic. The Crown notes that by the end of this motion, the matter will already be at 24 months, and that, notwithstanding that Mr. White has waived his 11(b) rights under the Charter, the Supreme Court of Canada in R. v. Jordan, [2016] SCC 27, has made it clear that the Crown has an obligation to ensure that matters move through the system as expeditiously as possible.
A re-election to judge and jury would not only delay the trial (set to begin later this month) but would also add to its complexity. In the absence of any evidence that the Crown has acted in a manner that could be seen as oppressive or as an abuse of process, this court has no jurisdiction to override the Crown's statutory discretion to object to the re-election, or to make an order waiving the requirement for the Crown's consent to the re‑election.
Disposition
For the reasons set out, Mr. White's application is dismissed.
...END OF EXCERPT
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of R. v. Michael White in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording(s) No. 4799_608_20201001_092627__10_SHEARDEL, which has been certified in Form 1.
October 28, 2020 ______________________________
(Date) (Signature of authorized person)
This certification does not apply to ( i.e. Rulings, Reasons for Judgment, Reasons for Sentence, Charge), which was/were judicially edited.