In 2019, the Saskatchewan Court of Appeal, in R. Ali, 2019 SKCA 83, revisited and shun light on procedural aspects of criminal defence law that often is overlooked by the Crown, defence and Provincial Court judges with respect to an accused’s right to elect the mode of trial.
In this case, three co-accused (Ali, Hassan and Dickson) were charged with trafficking and possession for the purpose of trafficking (cocaine). Initially all three co-accused elected to be tried by Provincial Court. On the date of trial, counsel for Hassan applied to re-elect to the Court of Queen’s Bench by judge alone (having filed a notice of written election within the specified time frames, pursuant to s.561(2) of the Criminal Code). Hassan’s counsel further indicated that Mr. Hassan wished to waive his right to pre-liminary inquiry, and consented to be ordered to stand trial. The Crown then advised the court that Hassan’s re-election binded the other two co-accused because it was an election to a higher court. This was an erroneous statement of law, that the provincial court judge did not catch.
Hassan’s re-election was accepted, and he was ordered to stand trial in the Court of Queen’s Bench. Counsel for Dickson indicated that the instructions from his client were to waive the pre-liminary inquiry, and to be ordered to stand trial. No mention was made of Dickson’s instructions to with respect to the re-election made by Hassan, and the court did not address this issue either. The provincial court judge ordered that the matter go over to the next sitting date in the Court of Queen’s Bench, to set a trial date for Hassan and Dickson. With respect to Ali, his counsel applied to get off record as he lost contact with Ali and had no instructions to the court. The Provincial Court judge sent Ali’s matter back to a provincial court docket appearance the following week to address the election issue for Ali. Ali’s counsel came back on record, and the same Crown prosecutor again advised a different provincial court judge that Ali was bound by Hassan’s re-election to the same mode of trial. Accordingly, the Provincial Court judge “deemed” Mr. Ali to have elected trial by Queen’s Bench judge alone and ordered him to stand trial. The matter was endorsed as if Ali had re-elected a higher court, as Hassan. The three co-accused had several pretrial conferences (via their counsel) in the Court of Queen’s Bench.
The matter was eventually set for trial in the Court of Queen’s Bench. However, Hassan then decided to change his plea to guilty, and re-elected back to the Provincial Court. The Crown prosecutor then stayed the indictment in the Court of Queen’s Bench against Hassan, but continued the prosecution of the indictment against Dickson and Ali. On the day of trial, the Justice of the Court of Queen’s Bench, ruled that since Hassan made the initial re-election to a higher court, and then pled out back in the lower court, this entitled Dickson and Ali to maintain their original election of trial in Provincial Court. The Crown again argued that since Hassan made his re-election to a higher court, the other two were bound by that higher election. The Crown prosecutor also referenced section 567 of the Criminal Code to support his position. The Crown argued that by virtue of section 567 “the Provincial Court judge properly concluded inconsistent elections could not be entered for three co-accused, and the deemed election to the Court of Queen’s Bench and the consent committals for trial that followed meant the presiding Justice had jurisdiction to hear the matter” (wrong statement of law again). The Justice did not agree, and took the position that since Hassan re-elected back to the Provincial Court, Ali’s and Dickson’s original election of Provincial Court were still valid and declined to exercise jurisdiction over the case.
The Saskatchewan Court of Appeal, took apart the relevant sections of the Criminal Code and the applicable case law, to clean up the mess that was created, and put forward guidance to counsel and the judiciary, on what to do circumstances where there are inconsistent elections between co-accused, and how s. 567 should be applied.
First, where the accused has the right of election of mode of trial (this excludes s.469 offences, and s.533 offences), that election is an integral part of the accused’s right to a full answer and defence. It should be treated with care and caution.
Second, if the accused makes an election to be tried in Provincial Court, and then wishes to re-elect, the protocol for re-election is set out in s.561 of the Criminal Code, which, among other things, requires the accused to appear before a Provincial Court judge and the accused must be asked: 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 re-elect? (s.561(7)).
The requirements of s. 561 are important, and although they can be waived, any such waiver must be clear and unequivocal (Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC)). The waiver can also be done in writing in accordance with s.536.2.
It was noted that aside the limitation on the accused’s right of election set out by s.469 and s.533, there are other limitations set out in s.568, s. 555, as well as the common procedure of direct indictment under s.577 that were beyond the scope of this case.
Third, where there are two or more co-accused on the same information, s. 567 adds another layer of complexity to the threshold election issue. Under this section, unless all co-accused elect or re-elect or are deemed to have elected the same mode of trial, the judge may decline to record any election. If this occurs, then by operation of s.565(1)(b), all of the co-accused will be deemed to have elected trial by judge and jury.
The court went on to note that aside the limitations set out by the Criminal Code, and accused’s right to an election requires strict compliance with s.536(2). Absent written waiver, a failure to put an accused to an election under s.536(b) results in a loss of jurisdiction to conduct a trial (R. v. Branscombe, 2017 SKCA 71, R. v. Trites, 2011 NBCA, R. v. Albert, 2014 NBCA 27). The Court of Appeal indicated that such procedural rigour is property applied to re-elections as well. However, where procedural formalities were not strictly applied, and all subsequent actions by the accused (or counsel) are consistent with that election, substance should prevail over form and an election may be found valid, despite the absence of procedural formalities (R. v. Voung, 2010 ONCA 798; R. v. Lamoureux, 2013 ABCA 85).
If one of the co-accused re-elects back to a lower court, that does not automatically re-vert the other co-accused back to their original elections (R. v. Charles, 2015 SKQB 381, R. v. Wright, 2011 ABQB 145).
In this case the Court of Appeal found that the fact that Hassan re-elected back to Provincial Court, did not automatically cause the Court of Queen’s Bench to lose jurisdiction over the other co-accused, Ali and Dickson.
However, the Court did find that neither Dickson nor Ali ever made a proper election at all. They did not put their elections on the record, and only indicated that they consented to be committed to stand trial and consented to waiving a pre-liminary inquiry. Both counsel for the co-accused also were under the impression the trial would proceed in the Provincial Court, and were not aware of the re-election by the other co-accused until it was made on the record. Both counsels indicated that the accused initially wanted the be tried in Provincial Court, and acquiesced in the Crown’s suggested that their clients were bound by the re-election. As such, this case was different than the circumstances in Voung and Lamoureoux.
Ali and Dickson were not, in law, deemed to have elected trial in the Court of Queen’s Bench by s.567, as suggested by the Crown, and accepted by two Provincial Court judges. That section reflects the general principle that persons jointly charged should be tried together: R. c. Weinberg, 2014 QCCS 321. However, the wording of the section is careful not to limit the accused’s right to a jury trial as guaranteed by s.11(f) of the Charter of Rights and Freedoms.
“Despite any other provisions of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury. “
The court held that the discretion in s.567 (“may decline”) means that if one of the co-accused re-elects, this brings the election issue of all the others. This requires the judge to put the election issue back before the accused in compliance with s.561 (asking each accused – what is your election?). This is the only way a judge can properly exercise the discretion under s.567. If one or more of the co-accused decides not to re-elect (to join the first co-accused who did decide to re-elect), then the judge looks at s.567 and consider that if he/she records the inconsistent re-elections, this would basically trigger a severance of the information. Severance is governed by s.591(3) of the Criminal Code, and can only be granted where the Court is satisfied that it is necessary considering a matrix of factors set out in cases such as R. v. Durant, 2019 ONCA 75, R. v. Last, 2009 SCC 45, R. v. Jeanvenne, 2010 ONCA 706, which include:
- General prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts;
- Legal and factual nexus between or among counts;
- The complexity of the evidence;
- The desire of the accused to testify on one or more counts but not on another or others;
- The possibility of inconsistent verdicts;
- The desire do avoid a multiplicity of proceedings;
- The use of evidence of similar acts;
- The length of trial;
- The prejudice to the accused’s right to be tried within a reasonable time; and
- The existence or likelihood of antagonistic defences;
Obviously, severing an information udder s.591(3) is a complicated matter, and an accused cannot simply circumvent this section by making an election that is inconsistent with the other co-accused thereby triggering a severance.
In this case, the Provincial Court judges, and the Crown erred in the suggested application of s. 567. Hassan’s re-election to be tried in the Court of Queen’s Bench by judge alone, did not automatically bind Ali and Dickson to also be bound by that mode of trial. This was an error in law, and the matter of proper election was never properly canvassed by the Provincial Court judges to either Ali or Dickson. As such, they never made a proper election and the Court of Queen’s Bench did not have proper jurisdiction to hear the trial. What should have happened, is that as soon as the re-election was properly recorded in the Provincial Court by Hassan, the judge should have turned to each of the co-accused and specifically asked them how they wish to elected (put their election back into play) in accordance with s. 561 of the Criminal Code. If Ali and Hassan expressly agreed to the re-election, or essentially, re-elected on their own to be consistent with Hassan, then there would have been no issue. If Ali and Hassan declined to re-elect and maintained their election to be tried in the Provincial Court of Alberta, then the Provincial Court judge could have declined to record their inconsistent election, which would have triggered an automatic Queen’s Bench jury trial for all three co-accused by virtue of a deemed election under s. 565(1)(b) of the Criminal Code.
Motive to fabricate – while not determinative, is always relevant factor in accessing witness credibility
In 2020, the Alberta Court of Appeal, in R. v. JOL, 2020 ABCA 73, ordered a new trial of a sex assault conviction from the Court of Queen’s Bench. The appeal was successful due to the trial judge failing to properly charge the jury, with respect to the proper purpose of an admitted Agreed Statement of Facts, which the adduced evidence of motive to fabricate by the complainant, and generally failing to charge the jury to consider a motive to fabricate in assessing the complainant’s credibility.
It was alleged at trial that between 2014 and January 2016, the appellant and the complainant were in an intimate relationship and shared an apartment. LS was the complainant’s friend, who stayed at the apartment between December 24, 2016 and January 17, 2016. On January 17, 2016, the complainant and the appellant ended their relationship. That night it was alleged that the appellant sexually assaulted the complainant. The appellant did not dispute that sexual intercourse had occurred but maintained that it was consensual. The only witnesses at trial were the complainant and the appellant. Thus, credibility was the central issue at trial.
The complainant testified that on May 24 or 25, 2016, LS had told her that the appellant had sexually assaulted her three times during her visit over Christmas in 2016. After this conversation, the complainant went to the appellant’s residence and slashed some property with a knife. After these events, the complainant reported to the police that on January 17, 2016, the appellant had sexually assaulted her. The Crown then read into evidence an Agreed Statement of Facts where it was admitted that during the investigation the police had contacted LS about the three sex assaults that LS reported to the complainant. LS admitted to the police officer that she had consensual sex with the Accused three times during her stay, and that she was never sexually assaulted by the Accused. The trial judged delivered a mid-trial instruction to the jury, which omitted instruction regarding the evidence contained in the Agreed Statement of Facts. The appellant later testified that he had consensual sex three times with LS, and that had consensual sex on January 17 with the complainant.
The key issue on appeal was the improper instructions to the jury by the trial judge, with respect to the evidence from the Agreed Statement of Facts, and by properly instructing the jury to consider the motive to fabricate in assessing the complainant’s evidence. The Crown and the defence counsel had different motives for that evidence been admitted. The Crown wanted the evidence to show the “state of mind” of the complainant when she slashed the property with the knife. On the other hand, the defence wanted this evidence to challenge the complainant’s credibility regarding her conversation with LS, and to argue that the complainant had a motive to fabricate the allegations regarding January 17, 2016 (she was motivated by anger that the complainant cheated on her with LS or that he had sexually assaulted her friend). The error the trial judge made in his mid-trial instruction to the jury, was being clear for what purpose the evidence from the Agreed Statement of Facts was being tendered. This could have resulted in the jury engaging in propensity reasoning and considering bad character evidence suggested by the complainant (that he had previously assaulted her friend). The Court of Appeal found that this improper jury instruction that could have resulted in a miscarriage of justice.
The trial judge also declined to put to the jury the specific instructions on a possible motive to fabricate by the complainant, citing a concern that it may influence the jury’s assessment of the complainant’s credibility. The Court of Appeal cited – R. v. CEK, 2020 ABCA 2 at para 26; R. v. Zapeda, 2018 ABCA 425 at para 10; R. v. Batte, 49 OR (3rd) 321 at paras 119-121, 134 OAC 1 (CA) – for the principle that “while not determinative, the existence of a motive to fabricate is relevant to assessing credibility.” This applies to all matters, including sexual assault trials. The jury should have been clearly instructed to consider the complainant’s motive to fabricate the sex assault in light of the conversation she had with LS in May of 2016. As such, a new trial was ordered.
In a 2021, the Alberta Court of Appeal, in R. v. Bernier, 2021 ABCA 27, ordered a new trial on a sex assault conviction. The appeal was successful due to the trial judge wrongfully relying on evidence taken from the police interview of the accused, to the effect that the complainant had fabricated a conspiracy against him. This was offside the rule that a witness cannot be called upon to impeach the evidence of other witnesses in a trial.
It was alleged at trial that Bernier attended a house party at around 1 am, where after he engaged in consensual sex with another witness, MD. Afterwards he entered the bedroom of the complainant at around 3 am and performed oral sex and then had vaginal sex with the complainant. The complainant testified that she had consumed alcohol and marijuana that evening and was sleeping at the time of the assault in the bedroom next to MD’s. She woke up to find Bernier with his head between her legs, and that afterward Bernier commenced vaginal intercourse with the complainant. During the police interview Bernier indicated that the complainant was an enthusiastic participant in the sex that had occurred. The police then asked the complainant:
… The first thing you’ve got to ask yourself is why would [the complainant] lie? I mean why would [the complainant] lie? That is the absolute first thing I look at is what’s the motive here for her lying because, as traumatic as this is for you, this is also a traumatic process for her.
Why would she lie? That’s the first thing I ask. … This is why I’m saying that it’s important that I hear from you is why would she lie. Like give me a reason why she would lie? Why do you think she would lie?
Bernier’s response was, in essence, that the complainant and MD conspired to lie to the police because they were friends and they were mad that Bernier had sex the complainant after he had sex with MD. Bernier did not testify at trial and the defence argued at trial that the complainant had suffered a “blackout”, and was unable to recall consenting to the sexual acts with Bernier.
The trial judge found Bernier guilty at paragraphs 147-149 of the decision:
 I find that Mr. Bernier entered the spare bedroom and found C asleep. He then engaged in sexual activity with her, starting while she was asleep, including intercourse, and then concluding after she had awakened.
 I find that C did not and could not have effectively given consent while she was sleeping and more latterly while the oral sex transitioned to intercourse, she was not asked for nor gave her consent.
 I conclude that the Crown has proven all elements of the offence of sexual assault beyond a reasonable doubt.
The Court of Appeal found no issue with the trial judge’s approach to the W.D. analysis (a complicated credibility assessment, which is beyond the scope of this post). However, the Court of Appeal took issue with the following two reasons provided by the trial judge for the conviction:
 Finally, I have two other reasons for rejecting Mr. Bernier’s evidence.
 First, he alleged in the interview with Detective Levesque that the inhabitants in the house engaged in a conspiracy to frame him for sexual assault. The reason he gave for this conspiracy is that he had sex with both [MD] and C on the same night. There is nothing before me to suggest that this has engendered animus in the witnesses against Mr. Bernier. [MD] and
[TC] expressed no animus. From her presentation, I can surmise that and understand why C was
not happy about the sexual contact with Sebastian, but her credibility was not questioned.
 Thus, a vindictive and elaborate plot to frame Mr. Bernier, predicated on revenge and involving three and perhaps up to five individuals (at least two of whom profess to be friends of Mr. Bernier), strikes me as a rather implausible explanation for this prosecution. This rationalization for his predicament casts a shadow of implausibility over the totality of what he said.
Focusing on these portions of the trial judge’s reasoning, the Court of Appeal reiterated the principle that an accused person cannot be called upon to explain or theorize as to why a complainant would make an allegation against him. The Court of Appeal further noted that Crown cannot cross-examine an accused on the veracity of Crown’s own witnesses, or invite comments from the accused about the witness’s motive to lie. This general principle was noted as going at least as far back as 1935 in the Supreme Court of Canada’s decisions in Markadonis v. The King, and has been adopted in at least 10 decisions from Courts of Appeal across Canada. The key rationale behind this rule, that it is impermissible to ask accused “why would some one lie about what you did?”, is that it undermines the presumption of innocence by shifting the onus of proof to the
accused. Seeking the accused to provide and explanation for why a complainant would make a false allegation is wrong because the judge can then find accused to be not credible on the ground that he could not provide a good explanation. This is what happened in this case.
The accused did not testify at trial, and those questions were not put to him by the Crown. However, the police statement, where such questions were put to the accused, were admitted into evidence at trial. The Court of Appeal relied on the decision in R. v. LL (2009 ONCA 413) the Ontario Court of Appeal stated that portions of a videotaped statement in which police asked the accused why the complainant would make the allegations, should not have been put to the jury. The reasons for not admitting into evidence such questions of the accused are two-fold: 1.) it is improper to invite one witness to comment on the veracity of the other, and 2.) asking such questions shifts the burden of proof to the accused.
The Court of Appeal in this case further commented that in additional to the police questioning of Bernier being highly prejudicial, the trial judge clearly relied on the questions asked and answers given – that Mr. Bernier believed that others at the party conspired against him to cook up this allegation because he had sex with two women in the group. Essentially the trial judge allowed the Crown to make the accused speculate about what’s going on in the complainant’s head and then
used accused’s speculation against him saying in assessing his overall credibility (truthfulness).
The Court of Appeal returned the case to the Court of Queen’s Bench for a new trial, noting that “Unfortunately, this is paradigmatic case for why the rule continues, over the decades, to have such force.”