COURT FILE NO.: CR-19-034-00
DATE: 2021 Mar 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHIRAG JAIN
Applicant
H. Chiavetti, for the Crown
T. David, for the Applicant
HEARD at Kingston: February 12, 2021. On consent by telephone conference.
Tranmer J.
DECISION ON MODE OF TRIAL
(No. 2)
The Issue
[1] At the Superior Court of Justice Assignment Court for criminal matters, on July 6, 2020, the local administrative judge was asked jointly by senior and experienced Crown Attorney and defence counsel to schedule a jury trial of seven days in length in respect of the charge against Mr. Jain. The justice did so, setting Monday, March 22, 2021 for jury selection and the trial to run the remainder of the week and continue into the week of March 29, 2021.
[2] This procedure was in keeping with normal practice and apart from scheduling to avoid the March break to convenience the jury panel, there were no issues or problems raised.
[3] Now, as the trial approaches, a different Crown, an assistant Crown Attorney from the same office in Kingston, takes the position that Mr. Jain must be tried by a judge alone, sitting without a jury.
[4] The issue was brought to my attention as the assigned trial judge, and I asked counsel to make submissions on the issue. Defence counsel seeks to confirm his client’s right to trial by a court composed of a judge of this court sitting with a jury.
Background
[5] Mr. Jain is charged with a single count of sexual assault alleged to have occurred on January 13, 2018.
[6] On Monday, March 25, 2019, the following exchange took place in the Ontario Court of Justice:
MS. FERGUSON: Good morning, again, Your Honour. So everybody is here and we are ready to proceed with the Jain matter.
THE COURT: All right.
MS. FERGUSON: That is set for a preliminary inquiry. …
THE CLERK OF THE COURT: Chirag Jain, you stand charged on or about the 13th day of January in the year 2018, at City of Kingston East Region did commit a sexual assault on Teegan Joynt, contrary to s. 271 of the Criminal Code of Canada. On March 8, 2018, the Crown proceeded by indictment. On October 9, 2018, you elected to be tried at the Superior Court of Justice before a judge sitting with a jury and requested a preliminary hearing. Mr. Caldwell, does that election stand?
MR. CALDWELL: No, Madam Clerk, he will re-elect to a trial by judge alone.
[7] It will be observed that section 561(7) of the Criminal Code was not complied with insofar as the mandated wording was not put to Mr. Jain.
[8] The preliminary inquiry was then held and Mr. Jain was committed to stand trial in the Superior Court of Justice.
[9] The information in the Ontario Court of Justice indicates an election of judge and jury in the Superior Court made on October 9, 2018 and a re-election to judge alone in the Superior Court on March 25, 2019.
[10] In the Superior Court of Justice, the pretrial memos filed by counsel indicate a prospect of a re-election and indicate that assuming a re-election was made to judge and jury, there would be a Parks challenge for cause. The Crown pretrial brief was filed first and does not indicate a position as to consent or not in the event of a re-election.
[11] A pretrial was held in the Superior Court of Justice on September 4, 2019. Mr. David appeared as new counsel for Mr. Jain. Crown counsel who appeared on that pretrial was the same assistant Crown Attorney who appeared before me on this issue. The court expects that counsel who appear at a judicial pretrial will be fully informed and instructed in respect of the matter that is being pre-tried. The presiding Justice endorsed the record as follows: “Trial still expected to be five days without a jury. In the event that the accused re-elects trial likely would take seven days with the jury”. There is no indication of what position the Crown would take in the event that Mr. Jain chose to re-elect trial by judge with a jury. In view of the endorsement, it is reasonable to assume that no objection was voiced to a trial by judge and jury by the Crown during the pretrial.
[12] At the Superior Court of Justice Assignment Court on July 6, 2020, the following discussions occurred:
MR. DAVID (Defence Counsel): That’s fine. So, essentially, we are here to set dates. I didn’t have an opportunity to check whether we’re in a position to set dates on the record [indiscernible]. It’s a judge and jury election.
THE COURT: Well, we are on the record and the Trial Coordinator is with me.
MR. DAVID: Excellent.
THE COURT: So what sort of length of trial are we looking at?
MR. DRUMMOND (Crown Attorney): Seven days plus two days of pre-trial motions.
THE COURT: Okay.
MR. DAVID: That’s right. The 276 is going to be filed in advance.
THE COURT: All right, so we need to schedule two days between now and then, okay.
MR. DAVID: Two separate dates that’s right.
TRIAL COORDINATOR: Your Honour, did he indicate that it’s a jury trial?
THE COURT: Hmm?
TRIAL COORDINATOR: Did he indicate that this is a jury trial?
THE COURT: It’s jury trial, yeah.
THE COURT: Sorry, I thought it was five days plus two days.
MR. DRUMMOND: No seven days.
THE COURT: Oh seven days, sorry.
MR. DUMMOND: The jury selection may take a little longer.
TRIAL COORDINATOR: Spring break is March 15th. Is that a problem?
THE COURT: It’s sometimes tougher to get jurors. So we don’t have anything the week of March the 8th.
THE COURT: Okay. So, Mr. David, we are looking at March the 22nd and the 29th, those two weeks. I wanted to avoid the week before because it’s spring break and that’s always a problem getting a jury.
THE COURT: Well, we’re not necessarily going to be setting them because we need to know who the trial judge is going to be but those two dates will be set.
MR. DAVID: That’s fine.
THE COURT: All right. So we’ve got the trial dates set for March 22nd starting March the 22nd and continuing the week of March 29th. And then we will set the dates for the 276 application on the 7th of August at 10:00. Mr. David, as you’ve probably heard me say, we have a number of JPT opportunities available this month.
[13] It will be seen that the Crown Attorney informed the court as to the time requirement for a jury trial on two occasions, and indicated “The jury selection may take a little longer”. As I have indicated, the local administrative justice set the dates for jury selection and jury trial as jointly requested by counsel.
Position of Counsel
[14] Both counsel agree that it is a common practice in the Superior Court of Justice Assignment Court at Kingston where the accused wishes to re-elect his mode of trial for the court to put the re-election to the accused and to ask for the Crown to indicate its consent or not orally. It is not the common practice to require the Crown to put its consent in writing, despite the wording of s. 561(1)c.
[15] Crown counsel before me submits that because the Crown Attorney at the Assignment Court was not asked as to whether he consented or not, there was no valid re-election to trial by judge with jury. There is no other substantive reason advanced by this Crown for her position.
[16] Defence counsel submits that it is clear on the record that the Crown Attorney attending on the Assignment Court consented to trial by judge sitting with a jury. He submits that this is not a situation of a surprise or ambush by the accused on the first day of trial and that there is no evidence of mala fides or demonstrated intent on the part of Mr. Jain to frustrate or derail the trial process.
Legal Principles
[17] It is clear that the requirements of s. 561 were not strictly complied with in the Ontario Court of Justice or at the Assignment Court in the Superior Court of Justice.
[18] The complaint by the Crown Attorney before me is that the Crown Attorney at the assignment court was not asked whether he consented.
[19] The Canadian Charter of Rights and Freedoms guarantees an accused charged as in Mr. Jain’s situation the benefit of trial by jury.
[20] In R. v. Bryant, 1984 CanLII 2026 (ON CA), [1984] 48 O.R. 732, the Ontario Court of Appeal points out that the right to trial by jury is not merely an option which may be chosen by an accused, “it is a right given to an accused which prevails unless he or she voluntarily chooses not to utilize it by electing another mode of trial”.
[21] The court noted: “Trial by jury is an institution unique to common law countries. It is more than a mere incident of criminal procedure. It has been described as a pillar of the Constitution and praised as the Palladium of liberty. This is because the rights and freedoms of individuals in our society have been protected from the power of the State to launch prosecutions and control the appointment of judges by the requirement that guilt on any charge must be proved to the satisfaction of 12 ordinary citizens.”. “… The right of trial by jury is not only an essential part of our criminal justice system but also is an important constitutional guarantee of the rights of the individual in our democratic society. In all common law countries it has, for this reason, been treated as almost sacrosanct and has been interfered with only to a minimal extent.”.
[22] In R. v. Turpin, (1989) 1989 CanLII 98 (SCC), 48 CCC (3d) 8 (SCC), the Supreme Court of Canada interpreted s. 11(f) of the Charter not to allow a jury trial to be forced on an unwilling accused but to permit the accused to waive the benefit of a jury trial if he or she viewed it as prejudicial or more in the nature of a burden. The court held that it is for the accused and his or her counsel and not for the courts to decide which course will be in the best interests of the accused in any given case.
[23] The Ontario Court of Appeal in Bryant, held that “a waiver of a right to trial by jury can be valid, but it must be express, voluntary, clear, unequivocal and made with full understanding of what is involved”, citing Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41.
[24] Korponay was a case considering waiver by an accused. However, in my view, the principle applies equally to Crown counsel. Section 561 benefits both the Crown and defence.
[25] The Supreme Court of Canada said in Korponay:
Some procedural requirements are enacted for the protection of the rights of one of the parties, Crown and accused, and others for both. A party may waive a procedural requirement enacted for his benefit, the concurrence of both being required when enacted for both. Generally speaking, the right to waive that type of procedural requirement has been recognized by all the courts, including this Court, and has been recently reaffirmed by this Court's decision as regards the waiver of a voir dire into the circumstances surrounding the giving of a statement by an accused to a person in authority (see Park v. The Queen, 1981 CanLII 56 (SCC), [1981] 2 S.C.R. 64). … (p.48)
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. … (p.49)
An informed waiver must therefore be, as regards that portion of s. 492, a clear and 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 does not require that those words be uttered to him, 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 or a magistrate. (p.51)
In this case, the accused with his attorney, the Crown attorney and the clerk were in the Court of the Sessions of the Peace before the Chief Judge of that Court. The record, which was the Superior Court's record by virtue of the appellant's original election, had been brought to that Court and the clerk had read the charge to Korponay and asked him whether he pleaded guilty or not guilty. To that, the accused's attorney replied "judge alone". It is clear from the exchange that ensued that the Crown, and probably the court clerk, were under the mistaken impression that the accused had already re-elected to that Court and was there to commence the trial, which is what eventually happened. (p.52)
The judge was therefore in my view 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. The accused's attorney knew what those words were, he knew what they meant and what effect his answer "judge alone" would have on his client's rights. (p.52)
This is a case of a clear and unequivocal waiver by the accused through his attorney of the uttering of the words set out in the section. The attorney thought the accused had not re-elected, was right in thinking so and did re-elect for the purpose of getting on with what everyone was there to do: start the trial. As for his "notice" to the sheriff, I think that what I have already said on the matter is sufficient. He was being offered the choice the notice was enacted to ensure, and that procedure would have been superfluous and needed not be waived.
This also disposes of notice from the judge. In any event it is also evident that all there had agreed to a time, place and purpose, and that it would be extravagant to even suggest that there was not a clear and unequivocal waiver of that requirement. (p.53)
[26] The principle is also set out in R. v. Mitchell, 2020 ONCA 187, in connection with a re-election by an accused, but in my view is equally applicable to Crown counsel. (Paras. 13 and 14.)
Decision
[27] Mr. Jain swears in his affidavit that he instructed his new counsel Mr. David that he wished to be tried by a court composed of a judge and jury. He instructed Mr. David to schedule a judge and jury trial at the Assignment Court on July 6, 2020. That is what Mr. David did.
[28] There is no evidence before me that the Crown Attorney was not fully informed on Mr. Jain’s case when he attended in Assignment Court. Indeed, that is the expectation of the court with respect to both Crown and defence counsel. It is the normal practice in the criminal Assignment Court that the senior Crown Attorney attends and speaks to all matters, except for occasions when he is not available.
[29] The record before me indicates that the Crown Attorney agreed expressly, voluntarily, clearly, unequivocally, and with full understanding of what was involved to a jury trial in Mr. Jain’s case. He informed the court of the time requirements for a jury trial twice and that the jury selection may take a little longer.
[30] There is no direct evidence before me that if he had been expressly asked at the Assignment Court or indeed now, the Crown Attorney would not have consented. On the record before me, it is reasonable to find that he would have orally consented.
[31] The Crown before me agrees that the Crown speaks with one voice.
[32] The Crown before me concedes that a verbal consent by the Crown Attorney would have been sufficient.
[33] The Charter in s. 11(b) also enshrines Mr. Jain’s right to be tried within a reasonable time. He and his counsel are aware that the Chief Justice of this court in view of the COVID pandemic has directed the suspension of jury trials to be extended until May 3, 2021 at the earliest. No new jury selection will commence during this period. This means that Mr. Jain’s jury trial will not commence on March 22, 2021, but at some point, after May 3, 2021. He is expressly asserting his choice that his right to a jury trial take precedence over his right to be tried within a reasonable time. Exhibit 1, filed, is Mr. Jain’s written waiver of his s. 11(b) right. (Ex.1 – Letter dated February 18, 2021 signed by Mr. Jain, witnessed by Mr. David).
[34] There is no evidence before me of any prejudice to any interest represented by the Crown should this matter be tried by a court composed of a judge sitting with a jury.
[35] Accordingly, it is my decision that this matter should be tried by a court composed of a judge sitting with a jury as scheduled by the local administrative justice at the Assignment Court.
[36] On another point, that was not raised by counsel before me, there may well be an issue that I do not have jurisdiction to vary the order made by the local administrative justice at the Assignment Court. However, in view of my decision not to vary or set aside that order, I need not decide this second significant issue.
[37] Mr. Jain’s trial will be by a judge of this court sitting with a jury, the mode of trial that was scheduled and in accordance with the directives of the Chief Justice in the midst of the COVID pandemic.
Honourable Mr. Justice Gary W. Tranmer
Released: March 8, 2021
COURT FILE NO.: CR-19-034-00
DATE: 2021 Mar 08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHIRAG JAIN
Applicant
DECISION ON MODE OF TRIAL
Tranmer J.
Released: March 8, 2021