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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.