R v Lavoie, 2016 ABQB 497

Court of Queen ’ s Bench of Alberta Citation: R v Lavoie, 2016 ABQB 497 Date: 20160906 Docket: 140383746Q1 Registry: Peace River Between: Her Majesty the Queen Crown - and - Samuel Roland Lavoie, Patrick Lee Oslie and William Arthur Cardinal Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ Application [ 1 ] Eighteen months after the Preliminary Inquiry - and just before the start of the Queen’s Bench Judge alone trial - the accused, William Arthur Cardinal, through counsel, applies for trial by judge and jury. The statutorily prescribed time limit for re- election without Crown consent expired, and since the Crown will not consent to a re-election pursuant to

section 561 of the Criminal Code , Mr. Cardinal filed this application applying for trial by judge and jury. Background/Facts

[ 2 ] Mr. Cardinal and two co-accused are charged on a joint indictment involving eleven counts of robbery, aggravated assault, weapons and other charges. Mr. Y. Rory Ziv is counsel for Mr. Cardinal. Court Appearances for Election [ 3 ] Mr. Cardinal was brought before the court seven times before being required by the judge to make an election. On April 14, 2014, Mr. Ziv had an agent, Mr. Robert Marceau, appear for him. The election was reserved and the matter was adjourned to May 5, 2014. On May 5, 2014, Mr. Ziv had an agent, Mr. Lorne Mann, Q.C. appear for him.

The election was reserved again and the matter adjourned again to May 12, 2014. On May 12, 2014, Mr. Ziv had an agent, Mr. Marceau appear for him. The election was reserved again and the matter adjourned again to May 26, 2014. The agent apparently did not speak to Mr. Cardinal at that court appearance. The agent reported back to Mr. Ziv that the “election was adjourned to May 26, 2014.” On May 26, 2014, the court file is silent on who appeared, but the election was reserved again and adjourned again to June 9, 2014. On June 9, 2014, Mr. Ziv had Mr. Dallas Gelineau appear as agent for him.

The election was reserved again and the matter adjourned again to June 23, 2014. On June 23, 2014, Mr. Ziv had an agent, Mr. Gelineau appear for him. The election was reserved again and the matter adjourned again to July 7, 2014. The clerk’s notes on June 23, 2014 say “ACCUSED MUST TAKE THE NEXT STEP”. [ 4 ] On July 7, 2014, Mr. Ziv had an agent, Mr. Gelineau appear for him. The election was again reserved and was again adjourned, this time to July 21, 2014.

The clerk’s notes on July 21, 2014 indicate: “*PEREM ON DEFENCE FOR ELECTION.” (Presumably this notation means that it was peremptory on the defence to make an election.) July 21, 2014: Election by Accused [ 5 ] On July 21, 2014, Mr. Ziv once again had an agent, this time Mr. Mann, Q.C., appear on his behalf. The other co-accused asked for a Queen’s Bench judge alone trial, with a Preliminary Inquiry. Given the different election of the two co-accused, a potential conflict arose due to incompatible elections.

During the course of the discussion, the Provincial Court Judge stated the normal position to fix the problem was “Judge and Jury”; the then-Crown replied “yes ... he is deemed jury”. [ 6 ] Despite being represented by counsel, Mr. Cardinal then spoke up on his own behalf and said: The Accused Cardinal: Excuse me, Your Honour. The Court: Yes? The Accused Cardinal: May I have a moment? Can I make my plea to Queen’s Bench without a jury , please? I’ll go along with – Patrick Oslie’s request. [ emphasis added ] [ 7 ] The Provincial Court Judge agreed and said “I do not have a huge problem with that.

You can always re-elect if, in fact, your counsel decides that you would have been better with a jury so that is fine, Mr. Cardinal.” The Provincial Court judge obviously considered this to be an election as he then said “...I am satisfied that we can proceed in the way that Mr. Cardinal has now elected on his own...”. [ 8 ] The Provincial Court Judge accepted the election of Mr. Cardinal. He said: “Mr. Cardinal is actually electing Queen’s Bench justice sitting alone and the other two have already or are electing that, in writing, and I will accept that. So all three will be Queen’s Bench justice sitting alone.

All three will have a preliminary inquiry...” To this, Mr. Cardinal’s acting counsel, Mr. Mann, Q.C., said, “Okay.” [ 9 ] The following endorsement was accordingly made on the court file: Accused Elect : □ Prov Judge ■ Judge QB □ Judge/Jury □ Reserved October 29, 2014: Preliminary Inquiry [ 10 ] Despite the judge alone election having been made on July 21, 2014, on October 29, 2014, during the Preliminary Inquiry, counsel for Mr. Cardinal and the other co-accused mentioned “Judge and Jury” three times. This was in the context, however, of the judge not finding their “Form A”. [ 11 ] The Preliminary Inquiry ended.

No re-election or application to re-elect was made in the 14 days that followed wherein an accused can re-elect without Crown consent. February 25, 2016: Pre-trial Conference [ 12 ] On February 25, 2016 a pre-trial conference was held before a Queen’s Bench Justice. Consistent with the initial election and corresponding endorsement from July 21, 2014, the justice noted that the trial was “Judge alone”. The Pre-trial conference report from the justice says; ‘[i]t is a trial by judge alone though Mr. Ziv had believed that it was a jury trial. He will be checking to ensure that there

has been no error in that respect.” The pre-trial conference report provided counsel a three-day grace period in which to respond to hisreport prior to it being sent off to the Court Coordinator. [13] Although Mr. Ziv told the Queen’s Bench Pre-Trial Conference justice that he would look into the matter - and although hehad a three day grace period in which to attempt to rectify the situation - he apparently did not take any action until just before theplanned Judge alone trial. Arguments Mr. Cardinal [14] Mr.

Cardinal’s application asserts that a formal election pursuant to s. 535(2) of the Criminal Code, RSC 1985, c C-46,[Code], was never read to him, and that he never unequivocally waived his right to have it read to him, or, alternatively that if he didwaive his reading of the election, he did not waive the right to have a judge and jury trial. [15] Mr. Cardinal’s Counsel, Mr. Ziv, argues that what is being brought to the Court’s attention is not an irregularity, but a“genuine jurisdictional concern”. [16] Conceding mistakes might have been made from the initial appearance, Mr.

Ziv urged the court not to play the blame game.Perhaps there was “sloppy practice”, but even so, he asks the Court to correct any oversight by relying on the “constitutionallyenshrined” s. 11(

f) Charter right to trial by jury (Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (UK), 1982, c11) [Charter]. [17] Mr. Cardinal asks the Court to rely on the sanctity of the jury principle cited in R v Turpin (SCC), [1989] 1SCR 1296. In Turpin at 1318 when the Supreme Court applied this principle from Patton v U.S., 281 US 276 (1930) at 312-13. It said: In Patton v. United States, 281 U.S., 276 (1930), the United States Supreme Court rejected the notion that individuals had a right towaive their jury trial.

Quoting from the judgment of Sutherland J. at pp. 312-13: In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of lessthan twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events. That perhapssufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues offact in criminal cases above the grade of petty offenses.

In such cases the value and appropriateness of jury trial have been established bylong experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealouslypreserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in ourtraditions, that, before any waiver can be effective, the consent of government counsel and the sanction of the court must be had, inaddition to the express and intelligent consent of the defendant.

And the duty of the trial court in that regard is not to be discharged as amere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trialof trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.[Emphasis added.] [18] Regardless of fault, Mr. Cardinal argues that the accused should not bear the burden of sloppy practice amongst counsel ifthat is what happened here (see R v Mitchell (ON CA), [1997] OJ No. 5148 at para 44). [19] In the first instance, Mr.

Cardinal argues that he did not waive the election being read to him, nor did he waive the jury trial. Ifin fact he did waive them, he argues that this Court - being a court of inherent jurisdiction - has the powers to cure it now. Quoting fromR v Bobyk (AB CA), [1962] AJ No. 39 [Bobyk] as to the ancient right to be tried by a jury, at para 11: The right to a trial by jury is ancient and fundamental in the common law, and is now mandatory by statute (s. 415 of the Criminal Code)unless the accused foregoes his right by consent (s. 417 of the Code).

The consent by which the accused forgoes the privilege of trial byjury must be given in a manner that makes it clear beyond doubt that the accused has consented to forego his right to trial by jury. [20] Mr. Ziv made it clear that Mr. Marceau did not have implicit consent to waive the reading of the election. Mr. Ziv furtherreminds the Court that counsel was not physically standing next to Mr. Cardinal, unlike the facts of Korponay v Canada (SCC), [1982] SCJ No. 111, [Korponay] and R v Lamoureux [2013] ABCA 85, [Lamoureux]. [21] Mr. Ziv does concede that his client, Mr.

Cardinal, later waived the right to a jury trial. On July 21, 2014, the exchangebetween Judge Thietke and Mr. Cardinal made that much clear. In fact, Mr. Cardinal interrupted the Judge to make his judge-alonerequest. [22] Referring to Judge Thietke’s remarks in acceptance of Mr. Cardinal’s election, Mr. Ziv now gives competing explanations forthe judge’s comments. First, Mr. Ziv now says the Judge meant the issue could be remedied in time if the accused’s counsel wascognizant of what had happened.

Second, the other option is the judge did have a problem with the Queen’s Bench Judge alone electionand because of that, the judge should not have been talking to Mr. Cardinal further. In other words, at that point the judge should have atleast stopped and clarified for Mr. Cardinal what his election was, and what “waiver” meant. [23] On the issue of agents, and though it was not in front of the Provincial Court Judge, Mr. Cardinal has now sworn an affidavitstating: I confirm Mr. Marceau, agent for my counsel, did not speak to me about waiving the reading of the charges or election.

I do not evenrecall speaking to him. On that date I did not know what “waive reading” even meant.

[24] Finally, Mr. Ziv argues that he can re-elect even at the last minute, referring the Court to section 561(2) of the Criminal Codeof Canada. That

section reads: An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection 536(4)may, not later than 14 days before the day first appointed for trial, re-elect as of right another mode of trial, and may do so after that timewith the written consent of the prosecutor. [emphasis added] Crown [25] The Crown submits that this application raises three potential issues: first, the regularity of proceedings in provincial court,namely whether there was a waiver of the reading of the election and what election was entered; secondly, re-election; and third, whatremedies are available. [26] The Crown submits that the onus and standards vary depending on how the Court classifies Mr.

Ziv’s application: whether itis an appeal, or an application for a prerogative writ, or a Charter application. [27] The Crown’s position is that the jury election should not be allowed. [28] The Crown distinguishes R v Niemi, (ONSC) because that case involved an appeal and this one does not;significantly, that case involved consent of both counsel and Mr. Ziv’s case does not; finally, in Niemi, the Code was silent in thatparticular area of the law.

At para 47: So the Criminal Code is silent with respect to cases where the accused re-elects trial before judge and jury at retrial, when the initial trialwas before judge-alone, and the appeal was of an acquittal. The case law on point is clear that there is no ‘right’ of re-election for theaccused after a successful Crown appeal, as the re-election is not part of the retrial (Sagliocco; Switzer; Collymore; Deakin; Cohen;Cole; Frattura). [29] According to the Crown, the only, or perhaps the best avenue, to hear an election at this point would be via the Court’sinherent jurisdiction.

That jurisdiction, however, is limited. In R v Park 2009 ABQB 374 Topolniski J said this: It is trite that judges of the Court of Queen's Bench are cloaked with inherent jurisdiction and that this jurisdiction has limits. Brieflystated, these are the relevant principles: 1. The objective of inherent jurisdiction is “to uphold, to protect and fulfill the judicial function of administering justiceaccording to law in a regular, orderly and effective manner.” (Bass & Bloom v.

McNally, 2003 NLCA 15 , 223 Nfld. & PEIR322, at para. 15, citing Jack Jacob, The Inherent Jurisdiction of the Court, (1970) 23 Current Legal Problems at pp. 27-28.) 2. Inherent jurisdiction cannot be used to negate the unambiguous expression of legislative will. Moreover, because it is aspecial and extraordinary power it should be exercised only sparingly and in a clear case (Baxter Student Housing Ltd. v. CollegeHousing Cooperative Ltd., (SCC), [1976] 2 S.C.R. 475 at 480, R. v. Keating (1973), (ON CA), 11C.C.C. (2d) 133, 21 C.R.N.S. 217 (Ont. C.A.) at pp. 135-36). 3.

Legislative silence does not limit a superior court's inherent jurisdiction to control its own process. However, inherentjurisdiction should only be resorted to after a purposive

interpretation of the relevant legislation results in the legislation not otherwiseproviding jurisdiction. (Georgina R. Jackson & Janis Sarra, “Selecting the Judicial Tool to get the Job Done: An Examination ofStatutory

Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters” in Janis Sarra, ed. Annual Review ofInsolvency Law: 2007 (Toronto: Thomson Carswell, 2008) at 41). [30] The Crown argues that Mr. Ziv should not now be able to invoke the inherent jurisdiction of the Court because he had aremedy under the Code. The Crown argues the proceedings before the Provincial Court Judge were regular and should not be reviewedat all, and certainly not on the basis of evidence not known to the learned Judge of the day. Co-Accused [31] Both Mr. Gelineau and Mr. Andrews, on behalf of the co-accuseds, Mr.

Oslie and Mr. Lavoie respectively, do not think theirclients had any standing to make submissions on this point; the Crown disagreed. Regardless, they take no position on the re-election. Issue [32] Should Mr. Cardinal be permitted to re-elect from judge alone to judge and jury on the eve of trial, in this forum, by way ofthe type of application that he filed, and without Crown consent? The Law [33]

Section 561 of the Code controls re-elections: 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 aprovincial 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.

(2) An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection 536(4) may, not later than 14 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor.

(3) Where an accused wishes to re-elect under subsection (1) before the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where that consent is required, to the justice presiding at the preliminary inquiry who shall on receipt of the notice, (

a) in the case of a re-election under paragraph (1)(b), put the accused to his re-election in the manner set out in subsection (7); or (

b) where the accused wishes to re-elect under paragraph (1)(

a) and the justice is not a provincial court judge, notify a provincial court judge or clerk of the court of the accused’s intention to re-elect and send to the provincial court judge or clerk the information and any promise to appear, undertaking or recognizance given or entered into in accordance with

Part XVI, or any evidence taken before a coroner, that is in the possession of the justice.

(4) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect together with the written consent of the prosecutor, where that consent is required, to the provincial court judge before whom the accused appeared and pleaded or to a clerk of the court.

(5) Where an accused wishes to re-elect under subsection (1) after the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where that consent is required, to a judge or clerk of the court of his original election who shall, on receipt of the notice, notify the judge or provincial court judge or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or provincial court judge or clerk the information, the evidence, the exhibits and the statement, if any, of the accused taken down in writing under

section 541 and any promise to appear, undertaking or recognizance given or entered into in accordance with

Part XVI, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.

(6) Where a provincial court judge or judge or clerk of the court is notified under paragraph (3)(

b) or subsection (4) or (5) that the accused wishes to re-elect, the provincial court judge or judge shall forthwith appoint a time and place for the accused to re-elect and shall cause notice thereof to be given to the accused and the prosecutor.

(7) The accused shall attend or, if he is in custody, shall be produced at the time and place appointed under subsection (6) and shall, after (

a) the charge on which he has been ordered to stand trial or the indictment, where an indictment has been preferred pursuant to

section 566, 574 or 577 or is filed with the court before which the indictment is to be preferred pursuant to

section 577, or (

b) in the case of a re-election under subsection (1) before the completion of the preliminary inquiry or under subsection (2), the information has been read to the accused, be put to his re-election in the following words or in words to the like effect: 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? R.S., 1985, c. C-46, s. 561 ; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37 .

Analysis Nature of Application [ 34 ] The exact nature of this application is unclear: it does not actually specify whether it is an application for re-election, an attempted appeal of the provincial court judge’s decision to accept Mr. Cardinal’s July 21, 2014 election, a procedural irregularity, a review of prosecutorial discretion of the Crown’s refusal to permit a re-election, a Charter application, or something else. [ 35 ] Essentially, given that Mr. Cardinal made an election himself, the issue in this application is whether Mr.

Cardinal should be permitted to re-elect from judge alone to judge and jury on the eve of trial, in this forum, by way of the type of application that he filed, without Crown consent. Re-Election [ 36 ] Mr. Ziv missed the deadline for making a re-election under

section 561 of the Code , which allows for a re-election as of right within a specified time frame. Once that statutorily prescribed period has expired, a re-election can still be made, but only with the Crown’s consent. The Crown does not consent in this case, and I am not willing to override the prosecutorial discretion granted to her by the Code ; this is not a review of the prosecutor's decision. It was neither framed as such nor argued as such. [ 37 ] Mr. Cardinal also argued that when Judge Thietke said that Mr. Cardinal could “always re-elect”, the judge was granting him

an open-ended extension. I disagree. It is assumed that the judge meant that a re-election could always be made within the timeframegranted by the Criminal Code. The judge did not qualify his statement by saying, for example “you can always re-elect and are herebygranted an open-ended extension in which to do so.” To have made such an unusual order, one would have expected more exacting, ormore pronounced, language. [38] Although the Code sets up a certain procedure for a re-election, the Crown pointed out that Mr. Ziv is attempting to re-electusing an unspecified procedure.

Certain forms and notice periods are required that weren’t complied with. [39] The Crown pointed out that if this is an application for re-election, it was brought in the wrong forum: applications for re-election are made to provincial court judges, not to Queen’s Bench justices. [40] I find that if this is an application for re-election, it is out of time, lacks Crown consent, uses the wrong procedure and is inthe wrong forum. Waiver [41] Mr. Cardinal now tries to argue that the issue is about validity of waiver.

Whether or not he was read the election, Mr.Cardinal made his own election on July 21, 2014. [42] All counsel agree that Mr. Marceau, agent at the time for Mr. Ziv, waived the initial reading of the election. Yet, Mr. Ziv saidMr. Marceau did not speak with Mr. Cardinal nor was he told by Mr. Ziv to waive the reading of the election. [43] The recent affidavit by Mr. Cardinal states now he didn’t understand what waiver in the first instance meant. (That sameaffidavit, however, says nothing about his own election.) [44] Mr.

Cardinal had plenty of opportunities to ask questions about what a waiver was, having sat through seven appearances incourt where the judge would have asked about his election. He also had plenty of time in which to ask his counsel, Mr. Ziv, what theplan was. When, on his eighth court appearance he was finally pressed by the court to make an election, he did so. The election was nota matter that took him by surprise. The election should not have taken by Mr.

Ziv by surprise either. [45] Before Turpin, the Supreme Court of Canada discussed waiver in Korponay v Canada (SCC), [1982] 1 SCR41 at para 49-50: When one looks at the various cases dealing with waiver, the problem which presents itself relates to what formalities should surround awaiver before the court should accept it and give it effect, in order that it will be a bar to the party seeking to assert a non-compliancewith the procedural requirement. As a general proposition, I should like to restate here what was said by our brother Dickson J., speaking for the Court, in Park, supra.

Hewas of course speaking of the waiver by counsel of a voir dire [at pp. 73-74]: No particular words or formula need be uttered by defence counsel to express the waiver and admission. All that is necessary is that thetrial judge be satisfied that counsel understand the matter and has made an informed decision to waive the voir dire. [...] Although no particular form of words is necessary the waiver must be express. Silence or mere lack of objection does not constitute alawful waiver.

The question is—does the accused indeed waive the requirement of a voir dire and admit that the statement is voluntaryand admissible in evidence? If that question can be answered in the affirmative I cannot think that any further procedural safeguards arenecessary to protect the rights of an accused person.

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 itbeing clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have on those rights in the process.

This has long been recognized, as isillustrated by many cases, and particularly so by those dealing with a judge's duties as regards a plea of guilty, which is the waiver by anaccused of his right to put the Crown's case to the test of a trial. (See amongst others, Adgey v. The Queen, (SCC),[1975] 2 S.C.R. 426; Brosseau v. The Queen, (SCC), [1969] S.C.R. 181). The judge's duties concerning any waiver areno different than those on a plea of guilty.

The factors he will take into account in determining whether the accused has clearly andunequivocally made an informed decision to waive his rights will vary depending on the nature of the procedural requirement beingwaived and the importance of the right it was enacted to protect. However, always relevant will be the fact that the accused is or is notrepresented by counsel, counsel's experience, and, in my view of great importance in a country so varied as ours, the particular practicethat has developed in the jurisdiction where the events are taking place.

I will now consider those principles as they apply to the procedural requirements of s. 492. First let us look at the notice that an accused may give to the sheriff. To identify the right of the accused Parliament intended to protectthrough this procedure one must look at the purpose of the notice. That purpose is revealed by the fact that it creates an obligation uponthe sheriff to "forthwith inform" the judge who in turn "shall fix a time and place for the accused to re-elect" and then "cause noticethereof to be given to the accused".

The right to be protected by the procedural enactment is that of the accused, wishing to re-elect, to have a timely opportunity to do so. Heis entitled to have the judge informed of his wish, and thus require the judge to act under the section. An accused who has in fact actedon that opportunity cannot later complain that the notice requirement needed waiver by him as it obviously, in those circumstances, nolonger had any purpose. As for the notice that the judge must give the accused, it is to ensure that he will know where and when to attend to re-elect. An accused

who does in fact agree to a time and place to attend would clearly and unequivocally be waiving that notice. The procedural step set out in s. 492(3), requiring the use of certain words, is there to ensure that an accused is properly informed of the choice he has made and the one he now proposes to adopt. His alternatives in the case at bar would be trial by a court composed of a judge and jury, which he has formerly chosen, or trial by judge or magistrate. [ 46 ] Did Mr. Cardinal or his lawyer - agent or otherwise - know what was happening? From the transcripts in July 2014, Mr.

Cardinal knew the issue (form of trial) and he knew his options (judge and jury or judge alone). He elected Queen’s Bench judge alone. Based on Korponay , the waiver was in clear, express, unequivocal terms. He heard the Provincial Court Judge tell his lawyer (Mr. Mann, Q.C.) it would be judge alone for all three accused. That is what he wanted; it would have only been Judge and Jury if the inconsistent elections stood, but the accused himself cleared that up when elected Queen’s Bench Judge alone, like his two co accused. [ 47 ] Mr. Cardinal’s choice was clear to the judge, who said: ... Mr.

Cardinal is actually electing Queen’s Bench justice sitting alone and I will accept that (emphasis added). [Then the Provincial Court Judge repeats:] So all three (including Cardinal) will be Queen’s Bench Justice sitting alone. All three will have a preliminary inquiry and we will simply set the date for that. [To which Mr. Mann Q.C. says:] “Okay”. [ 48 ] The Provincial Court Judge accepted the waiver of the reading; he also accepted the accused’s own election to judge alone. Doubtlessly, he considered the election to be express, clear and unequivocal. The election was entered properly on the court file.

The fact that the election was unknown to Mr. Ziv does not nullify the waiver. And this is not an appeal of the provincial court judge’s decision. [ 49 ] Korponay highlights the role of counsel in criminal proceedings. The Supreme Court in Korponay spoke about it and the Alberta Court of Appeal in Lamoureux did in these terms (para 11): The court in Korponay noted the importance of the role of counsel, observing in that case that the judge had before him counsel whose knowledge of the law and of the practice of the criminal law was not at issue.

The competence of the appellant’s counsel is not at issue. [ 50 ] The competence of the agents – local lawyers who practice in criminal defence work – is not at issue in this case. [ 51 ] The Crown suggests Mr. Ziv’s application has caused delay and uncertainty because Mr. Ziv is asking the Court to second- guess seasoned criminal counsel (Mr. Marceau) who acted as agent with ostensible authority. Practically, it is unworkable to demand counsel appear next to their client or be questioned in every situation – is this case a busy rural docket.

How and when should the Court disregard counsel’s decision regarding the formal reading? Or should there be a judicial questioning and clarification that agents are acting properly? Regardless, are agents more important than the accused? Where would it stop? Should the Court start questioning the accused? Without doubt, there are times when some Courts will question the accused directly (e.g. some judges do this on a s. 606 guilty plea). But in this case the accused made his own election to judge alone. He did it clearly. He stated it voluntarily. The Judge acknowledged it. Mr. Ziv’s agent knew it.

The case proceeded accordingly. [ 52 ] The Preliminary Inquiry went ahead. During the Inquiry Mr. Mann Q.C. did speak of a deemed judge and jury but that was based on the judge’s inquiry about “Form A.” Mr. Ziv did raise the judge and jury issue, saying: but was done in the terms “—but when a party elects judge and jury with a preliminary inquiry, that party gets to lead the way if he has filed, and it’s not up to other parties, for example, to say, no, I want a Provincial Court Trial.” [ 53 ] Nothing further was said because, whether Mr.

Ziv knew it or not, his client certainly knew he had elected Queen’s Bench judge alone and Mr. Mann Q.C. knew it because he was there and said “Okay” to the election as Mr. Ziv’s agent. All three co-accused were directed by Judge Thietke to Queen’s Bench judge alone with a preliminary inquiry. There was nothing unclear or prejudicial at that time.

Yet, what could be prejudicial about changing it now is the rights of the Crown and of the other two co-accused who wanted Queen’s Bench Judge alone. [ 54 ] The Preliminary Inquiry ended in the fall of 2014, with no mention of a re-election request happening until February 25, 2016 . On that day, Justice Macklin met in pre-trial conference with counsel, including Mr. Ziv, and indicated the trial was Judge alone which was the endorsement since July 21, 2014 . Mr. Ziv did say he would be checking “... to ensure that there has been no error in that respect.” But nothing further happened by Mr. Ziv until April 2016.

Still, he did not check the endorsement before April 8, 2016 because he told the Crown his client had not elected at that point. Mr. Cardinal had, but Mr. Ziv did not know it. [ 55 ] On the waiver issue, and in hindsight, an affidavit by Mr. Ziv’s legal assistant shows some confusion about the initial appearance where Mr. Marceau, as agent, waived the reading of the election and the charges. That is form over substance. What is crystal clear in substance is that the agent reported back to Mr. Ziv that the election itself would happen in the future. So regardless of what Mr.

Marceau did, the same result or issue of election would still be alive at the next court date. Mr. Ziv had to know by then because his agent Mr. Mann, Q.C. agreed with Mr. Cardinal’s election by telling the Judge “Okay”. [ 56 ] Either the accused or Mr. Ziv could have easily re-elected because they had another fourteen days beyond the Preliminary Inquiry to do so as of right, regardless of whether the Crown consented or not. That deadline was missed, and another approximately sixteen months passed with no complaint by Mr. Ziv or his client. Mr.

Ziv, in his email of April 8, 2016, to the Crown, said this: I have not looked at the transcripts but my file indicates that I instructed my agent to elect Provincial Court Judge on July 21, 2014. This matter was set for a Queen’s Bench Judge alone based on the election of counsel for the co-accused, not from our election. From what I can tell, my client has never formally elected. In fact, the transcripts from the preliminary hearing on October 29, 2014 reference a judge and jury trial on pages 5, 7 and 9. [ 57 ] Mr.

Ziv’s April 8, 2016 e-mail shows gaps in communication and research on the file, and is not historically correct from several perspectives. In the e-mail, Mr. Ziv admits that he has “not looked at the transcripts”, but that his file indicates that he instructed the agent on July 21, 2014 to elect Provincial Court Judge. Those may have been the instructions that his file indicates, but where is

mention of the report back from the agent as to what happened in court? It would have been prudent to look at the transcripts, as then Mr. Ziv would have realized that an election had been made. He then goes on to erroneously state that the election to Queen’s Bench judge alone was not from “our” election, when indeed it was.

He then says “from what I can tell, my client has never formally elected.” [ 58 ] It is expedient and convenient to send agents to court, but proper communication between the agent and the principal must occur both in providing proper instructions, and in confirming exactly what happened in court. These duties are owed by counsel to their clients. It goes without saying that it is the lawyer’s duty to provide legal advice to their client.

Further, if there was any confusion about the state of the matter, a file search at the courthouse would have shown that an election was made to Queen’s Bench judge alone. [ 59 ] Interestingly, Mr. Ziv asks the Court to go back in time and re-do a Queen’s Bench judge alone election in favour of Queen’s Bench Judge and Jury. But that was not the initial choice or direction of Mr. Ziv – his initial choice was Provincial Court Judge. His client’s choice was Queen’s Bench Judge alone. The interests of justice – and the Criminal Code – do not allow for such prevarication.

Right to Jury Trial [ 60 ] Both sides agree with the importance of the right to a jury trial; neither party disputes the centuries-old history of the constitutional status of that right. That is not in issue. What is in issue is the electing out of that right. And then, almost two years later, trying to elect back in. [ 61 ] As Eberhard J said in R v Niemi : “[t]he issue before me is not the indisputable value of the jury system but whether I have the jurisdiction to accept the proposed re-election.” (Ultimately he decided that he could accept the re-election, but in that case it involved a different

section of the Criminal Code since a new trial had been ordered after an appeal, and importantly, the Crown consented to the re-election.) [ 62 ] Mr. Ziv’s reliance on Turpin , quoting Patton , for the strength of the jury is well placed. But with respect, Patton does not require an accused to wait for a lawyer to later counsel him back to a jury when the accused himself wants to elect away from it .

The right to a jury does not work in reverse to place procedural shackles on an accused who clearly tells the Court he wants Queen’s Bench Judge alone, nor is the holding in Patton so constrained (see Adams v U.S. ex rel McCann , 317 U.S. 269, 279-280). Inherent Jurisdiction [ 63 ] Mr. Cardinal appeals to the court's inherent jurisdiction to provide a remedy. This is not an appropriate case in which to use the court’s inherent jurisdiction. Mr. Cardinal is asking the Court to override the Crown’s discretion and to ignore provisions in the Criminal Code . Mr.

Cardinal is to be reminded that the court’s inherent jurisdiction also includes control over its own process: it is important that rules and procedure be followed so that matters are predictable and certain, and that delay is controlled as it is harmful to the orderly administration of criminal justice. Conclusion [ 64 ] Mr. Ziv’s application is dismissed. Mr. Cardinal’s July 21, 2014 election of Queen’s Bench Judge alone stands. [ 65 ] The Court’s inherent jurisdiction should not be used to oust statutory authority for purposes of re-election, especially a re- election so vastly out of time.

Parliament has written the timelines within which counsel can re-elect without consent of the Crown. Parliament has also given the Crown the authority to refuse consent to an application for re-election; no reasons need be given. [ 66 ] It is up to Parliament to change those parameters, not this Court. Heard on the 11 th day of May, 2016. Dated at the Town of Peace River, Alberta this 6 th day of September, 2016. W.A. Tilleman J.C.Q.B.A.

Appearances: Yaron Rory Ziv for the Applicant Mark Mastel for the Crown