R. v. Wright, 2011 ABQB 145

Court of Queen ’ s Bench of Alberta Citation: R. v. Wright, 2011 ABQB 145 Date: 20110329 Docket: 090800756Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Keith Edward Wright Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.W. Germain _______________________________________________________ 1. Introductio n [ 1 ] Keith Edward Wright [the “Defendant”/“Applicant”] is charged with manslaughter and aggravated assault.

He applies for a judicial declaration that he is entitled to elect to be tried by a Queen’s Bench Judge sitting without a jury. The Crown disputes the Defendant is entitled to make this election at this date. 2. The Facts

[ 2 ] The Applicant (together with a co-accused) was initially charged on one information with the second-degree murder of one individual, and an aggravated assault upon another person. A preliminary inquiry, held in the Provincial Court of Alberta, concluded on June 2, 2010.

The Applicant was committed to stand trial on the aggravated assault charge, but instead of the second-degree murder the judge ordered trial on a lesser included charge of manslaughter. [ 3 ] In accordance with the committal to stand trial, on July 13, 2010 the Crown issued the current indictment against the Defendant: 1. one charge of manslaughter ( Criminal Code , R.S.C. 1985, c. C-46, ss. 222, 234 ); and 2. one charge of aggravated assault ( Criminal Code , s. 268). [ 4 ] Criminal Code , s. 561(1)(

b) dictates that an accused may re-elect to be tried by a judge alone within 15 days of the conclusion of a preliminary hearing: 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) 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; (

b) at any time before the completion of the preliminary inquiry or before the fifteenth day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge ; and (

c) on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor. [Emphasis added.] [ 5 ] In this case, the Applicant did not avail himself of the opportunity provided by s. 561(1) (

b) to re-elect within the 15 day period that followed the June 2, 2010 end of the preliminary inquiry. He takes the position that s. 561 does not apply, as no election or deemed election had ever taken place. 3. The Position of the Parties [ 6 ] The Applicant argues where a person is committed to stand trial following a preliminary inquiry, and that person is indicted on a charge which is not an exclusive jurisdiction offense (i.e. an offense enumerated in Criminal Code , s. 469), the accused must be given an opportunity to make an election for trial by judge alone. [ 7 ] The Applicant raises neither a Charter argument [ The Constitution Act , 1982,

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,

part 1], nor alleges abuse of Crown discretion in his submission. This present case is simply restricted to a question of statutory

interpretation. Suppose an accused initially had no opportunity to make an election because the specific wording of the Criminal Code effectively made the election for him. Ultimately, that accused faced trial on different charges which, if initially laid, would have provided the accused a right to elect the mode of trial. Does the accused now obtain a renewed opportunity to choose his mode of trial?

[ 8 ] The Crown counters that if an accused person receives a statutory election for trial by judge and jury, the accused has de facto made his or her choice - though that choice was made for the accused by legislation. Alternatively, the effect of the legislation is that this event should be interpreted as a deemed election of the mode of trial. [ 9 ] The Crown reasons that when the Applicant was committed to stand trial on a lesser and included offense (manslaughter), s. 561(1) (

b) provided the Applicant with a new window of opportunity (15 days) in which to make his re-election and choose the mode of trial. Once that time has elapsed the Applicant has no right to re-elect, absent the consent of the Crown. 4. The Criminal Code Statutory Framework for Criminal Trials and Trial Mode A. The Legislative Scheme [ 10 ] R. v. Ng , 2003 ABCA 1 at paras. 16-19 , 327 A.R. 215 , leave refused [2004] S.C.C.A. No. 33 provides a comprehensive history of the statutory framework for criminal trials in Alberta, including the historic anomalies that once existed, but which were removed in 1985.

Criminal Code , s. 469 provides a general authority to every criminal jurisdiction court to try any indictable offense, except for certain offenses specifically enumerated in the section.

This is a legislative policy decision that only certain serious “exclusive jurisdiction” offenses must be tried (in Alberta) in the Court of Queen’s Bench. [ 11 ] While some of these exclusive jurisdiction offenses are rare (for example: treason ( Criminal Code , s. 47), alarming Her Majesty ( Criminal Code , s. 49), and committing piratical acts ( Criminal Code , s. 75)), one enumerated offense is more commonly encountered in Alberta Courts, Criminal Code , s. 235 - murder. [ 12 ] Although it is unusual in Alberta for even these “exclusive jurisdiction” offenses to be conducted by judge and jury, Criminal Code , s. 471 in fact makes that mode of trial the ‘default’ position: 471 Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury . [Emphasis added.] [ 13 ] There are exceptions to the s. 471 requirement.

An accused charged with an exclusive jurisdiction offense listed in Criminal Code , s. 469 may still elect to have a trial by judge alone - but only if the Crown consents: 473(1) Notwithstanding anything in this Act, an accused charged with an offence listed in

section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction. [Emphasis added.] [ 14 ] For all other indictable criminal offenses (those not listed in s. 469 ), Criminal Code , s. 558 gives the accused the opportunity to elect to be tried by a judge without a jury: 558 If an accused who is charged with an indictable offence, other than an offence mentioned in

section 469 , elects under

section 536 or 536.1 or re-elects under

section 561 or 561.1 to be tried by a judge without a jury, the accused shall, subject to this Part, be tried by a judge without a jury. This includes the offence of manslaughter. B. Access to Trial Mode is a Question of Policy

[ 15 ] The power of the Crown to block “judge alone” elections for exclusive jurisdiction offenses has not been without academic and professional legal debate. Some commentators view this ‘veto’ as an unfair Crown advantage. Debate also surrounds the Crown’s re- election veto after the 15 day time period provided in s. 561(1) (

b) has expired. [ 16 ] Informed Canadians may well ask why Parliament considered it important for an accused to have 15 days to make a re- election, but then on the 16 th day that same person must appeal to and rely on Crown discretion to achieve the same result, for what was an absolute right 24 hours earlier. Perhaps a partial answer can be provided by the general policy illustrated by s. 11(

f) of the Charter , a guarantee that all Canadians have a right to a trial by jury: 11 Any person charged with an offence has the right : ... (

f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; ... [Emphasis added.] There is no equivalent constitutional right to trial by judge alone. [ 17 ] Further, there are what might be called logistical factors. The resources of public prosecution are not spread equally across the province; the comparatively over-worked and understaffed rural Crown offices will rarely oppose re-election to a judge alone trial.

Re-election to judge alone is also common in our Northern Territories where jury selection becomes extremely problematic in smaller communities which lack facilities, and also a sufficiently large jury pool to avoid conflicted jurors. Crown attorneys routinely consent to mode of trial re-election. All of this creates regional differences in the way in which mode of trial elections are handled. [ 18 ] These debates and their policy implications are endless, but cannot be resolved in a case such as this.

The issue of whether and when an accused person can have a trial before a judge and jury is a matter for Parliament to review and legislate. C. Judge Shopping [ 19 ] The re-election process often dovetails with another phenomenon in criminal proceedings which all know exists, but that is rarely discussed - judge shopping: R. v. Ng , at paras. 105-108 .

As is explained by Chief Justice Fraser, judge shopping has two principle facets, attempts to: 1. arrange or avoid trial with a particular judge, and to 2. determine whether a particular judge or a jury serves as the finder of fact. [ 20 ] In this case “judge shopping” has nothing to do with either the Applicant’s preference to be tried without a jury, or the (properly exercised) decision of the Crown to refusal re-election. Judge shopping is not a factor in this case because of the timing of the re-election attempt.

On October 5, 2010 learned Defense counsel expressed to the pre-trial conference judge his desire to re-elect, and the Crown indicated they would probably not consent to that re-election. On that date, October 5, 2010, the trial judge for this case had not yet been assigned.

D. Abuse of Crown Discretion [21] The R. v. Ng case makes clear that the Crown has absolute discretion to refuse a re-election and may do so without reasons(para. 68). This authority is part of the Crown’s general and broad prosecutorial discretion (paras. 26-33), a prosecutor’s choices shouldnot be reviewed by a court unless they are “... arbitrary, capricious or motivated by an improper consideration.” (para. 67). There arebroad and clearly established policy reasons why the Court should be very cautious about being drawn into a supervisory role of theAttorney General and Crown prosecutors: R v.

Power, (SCC), [1994] 1 S.C.R. 601, 165 N.R. 241; R. v. Cook, (SCC), [1997] 1 S.C.R. 1113 at para. 19, 146 D.L.R. (4th) 437; Krieger v. Law Society of Alberta, 2002 SCC 65 at para. 31,[2002] 3 S.C.R. 372; Miazga v. Kvello Estate, 2009 SCC 51 at para. 47, [2009] 3 S.C.R. 339. [22] Unless the Crown abuses its discretion, the Crown’s decision cannot be challenged. The burden to prove abuse of thatdiscretion is on the accused, and the challenge involved is, objectively, steep. In an annotation to the Carswell report of R. v. Ng (2003eCarswell Alberta 613), legal writer, Professor Tim L.

Quigley [University of Saskatchewan, Faculty of Law] observes the potentialmischief that can flow from the failure on the part of the Crown to give reasons. Perhaps true, but nevertheless that is the law in Canada. [23] Thus, unable to use the 15 day window provided in Criminal Code, s. 561(1)(b), learned Defence counsel now seeks toreview the ‘front end’ of the criminal process by taking the position that by operation of Criminal Code, ss. 469, 471, and 473(1), theApplicant has never made any election to the mode of his trial. 5.

Analysis [24] Counsel were unable to find any case directly on point although a decision in this case can be reached through common-senseinferences drawn from the existing legal literature and the overall scheme of the Criminal Code. The R. v. Ng case discusses the historicevolution of the law on judge and jury trials in Alberta.

The post-1985 Canada-wide standardization of Criminal Code procedure meansthe Criminal Code is now effectively and operationally the same throughout Canada, though some minor distinctions are still preservedin certain territories because of the small and sparse populations in those regions. [25] The Criminal Code is interpreted as a whole, “the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E. A.Driedger in Construction of Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R.27 at para. 21, 154 D.L.R. (4th) 193; most recently R. v. Ahmad, 2011 SCC 6. That means all of the Criminal Code procedural sectionswhich relate to trial mode elections have to be read together, and as these are procedural sections they must be given a common-sensepragmatic

interpretation. The result needs to be functional. [26] My conclusion is that the common-sense and practical

interpretation of Criminal Code, ss. 469, 471, 473, 558, 561, and 565is that where the legislation indicates by statute that a person will be tried with judge and jury (s. 471), then that constitutes the accused’selection. This may be also described as a ‘deemed’ election; the accused never had a choice to make. Criminal Code, s. 561(1)recognizes “deemed elections”: “... [a]n accused who elects or is deemed to have elected a mode of trial other than trial by a provincialcourt judge may re-elect...” [emphasis added]. [27]

Section 565 is particularly helpful in understanding how, in certain circumstances, a trial mode election is made for anaccused: 565.

(1) Subject to subsection (1.1), if an accused is ordered to stand trial for an offence that, under this Part, may be tried by a judgewithout a jury, the accused shall, for the purposes of the provisions of this Part relating to election and re-election, be deemed to haveelected to be tried by a court composed of a judge and jury if (

a) the accused was ordered to stand trial by a provincial court judge who, pursuant to subsection 555(1), continued the proceedingsbefore him as a preliminary inquiry;

(

b) the justice, provincial court judge or judge, as the case may be, declined pursuant to

section 567 to record the election or re-electionof the accused; or (

c) the accused does not elect when put to an election under

section 536. ...

(2) If an accused is to be tried after an indictment has been preferred against the accused pursuant to a consent or order given undersection 577, the accused is, for the purposes of the provisions of this Part relating to election and re-election, deemed both to haveelected to be tried by a court composed of a judge and jury and not to have requested a preliminary inquiry under subsection 536(4) or536.1(3) and may re-elect to be tried by a judge without a jury without a preliminary inquiry. [Emphasis added.] [28] I am mindful of the applicant’s argument that Criminal Code, s. 565(1) must constitute the entire waterfront of deemedelections, and as this

section does not contemplate what happened here the accused cannot be said to have made a deemed election suchthat would trigger the re-election provision of s. 561(1)(b). A ‘deemed election’ occurs when a party does not choose to make a choice,or, such as in s. 565(2), when the matter proceeds by preferred indictment. The default in all cases is that an accused is tried before judgeand jury, which accords with a right recognized in the Charter, s. 11(f). In R. v. Lee, (SCC), [1989] 2 S.C.R. 1384, 104N.R. 1, both the majority and dissent concluded that any Criminal Code provision that prevents a trial by judge and jury is contrary to theCharter, s. 11(

f) guarantee and must be justified under Charter, s. 1. [29] If the effect of Criminal Code, ss. 469 and 471 is that an accused must be tried by a judge and jury, absent the Crown’sconsent, then that is not an absence of choice by the accused, but rather that the Criminal Code legislative regime has made the decisionas to the mode of trial for the accused in a manner consistent with the rights provided for in the Canadian Constitution. [30] If a window opens in the future where statutorily an accused can re-elect, the accused must take advantage of that re-electionopportunity within the time provided.

Certainly, there are numerous policy public policy debates that revolve around this issue (seeparas. 14-17 above) but as a Court we must interpret the legislation not as we might like it to be, or as we feel it should be, but as it is -and in a functional manner. [31] Therefore this application revolves solely around a starting principle and that is whether or not a statutorily prescribed modeof trial constitutes an initial election, what may be called a deemed election.

I conclude that it does and the result that must follow is thatthe accused does not have the right now to make an ‘initial’ election of a mode of trial. The accused instead had a right of re-election,under

section 561, for 15 days following his committal to stand trial on the lesser included offense of manslaughter. [32] Several judgments were identified by the parties which deserve comment. The accused relies heavily on R. v. Favel (1985), (SK CA), 44 Sask.R. 237, 23 C.C.C. (3d) 382 (Sask. C.A.) [“Favel”]. In Favel an accused who lost a judge alone trialwas given a new trial because his trial for manslaughter had not been by a judge and jury despite his initial charge of murder. The Favelcase does not assist the accused.

The court made an error in allowing the accused at the initial appearance to elect judge alone on themurder charge. When the matter later came before the trial court the accused was asked if he wanted to confirm his election and said “Iguess so”. [33] The entire trial therefore proceeded on a false footing. In Favel neither the Crown nor the accused had ever made anyelection and erroneously the deemed or presumed statutory election for the initial allegation of murder became trial by Judge without ajury.

Put another way, the incorrect procedure in Favel did nothing other than create a nullity - there is no analogous error here. [34] More relevant is R. v. Webber (1995), (BC CA), 65 B.C.A.C. 161, 102 C.C.C. (3d) 248 (B.C.C.A.)[“Webber”]. The facts are significantly different from the case before us but useful principles can be extracted. In Webber the accused

and another were charged with murder; one pled guilty to manslaughter, and a jury was selected for the accused’s trial. The Crown applied to amend the indictment charging the accused with being an accessory to manslaughter rather than murder.

The accused was not given an election, leading to an argument after conviction as to whether the amended charge was included in the charge for which the accused had originally been placed on trial. [ 35 ] The appeal was dismissed, the court held that trial on an included offense does not require a fresh election where the included offenses is a new or amended count to an indictment.

The court noted that the effect of the amendment was to charge the accused with a lesser included offense and the election on a more serious charge was deemed to be an election on any included offenses (para. 44). [ 36 ] Applying that reasoning to the present matter, an accused murderer’s statutorily entered or deemed election of mode of trial by judge with a jury (unless subsequently changed to trial by judge alone by agreement by accused and Crown: s. 473(1) ) remains in effect when changed to a charge of manslaughter as a result of a preliminary inquiry.

That change nevertheless does trigger an opportunity for the accused to change the mode of trial if he or she wishes to avail themself of the right to re-elect under section 561(1) (b). That opportunity would arise anytime a person is committed to stand trial on a lesser charge which falls outside the “exclusive jurisdiction” charges enumerated in Criminal Code , s. 469. 6. Decision [ 37 ] I have concluded that an election prescribed for the Applicant by operation of law is still an election. When the Applicant was charged with murder, he immediately had an election - that of judge and jury.

When he was indicted on the included charge of manslaughter he subsequently obtained a right to determine without Crown consent the mode of his trial and had, for 15 days following the completion of the preliminary inquiry, that right and opportunity to serve notice of his unilateral intention to re-elect. The Applicant failed to do this, and now he cannot re-elect without the consent of the Crown. Heard on the 24 th day of February, 2011. Dated at the City of Edmonton, Alberta this 29 th day of March, 2011. A.W. Germain J.C.Q.B.A.

Appearances: Jordan Stuffco for the Accused / Applicant Wade Marke , Alana Elliot for the Crown / Respondent