R v AW, 2016 ABQB 688

Court of Queen’s Bench of Alberta Citation: R v AW, 2016 ABQB 688 Date: 20161205 Docket: 141093096Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - AW Accused Restriction on Publication Identification ban – See the Criminal Code ,

section 486.5. By Court Order, information that may identify the complainants must not be published, broadcast, or transmitted in any way. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________

Introduction [ 1 ] The Accused was convicted of two counts of failing to provide the necessities of life under s. 215(2)(

a) and two counts of unlawful confinement under s. 279(2). The Accused was acquitted on two counts of assault under s. 266. [ 2 ] The Accused was never properly arraigned under s. 536(2) of the Criminal Code , RSC 1985 c C-46 [ Code ]. She applies for a mistrial on the ground that this error prejudiced her and led to an injustice. [ 3 ] She also applies for a mistrial on the basis that the Court erred in making comments to defence counsel at the close of the Crown's case, which influenced the Accused's decision not to call evidence and present her defence.

Procedural History [ 4 ] A Justice of the Peace read the charges from the Information to the Accused on September 23, 2014. The Justice of the Peace then clarified the charges: “Basically they’re saying you didn’t feed your kids during that time period, assaulted them and held them, confined them unlawfully. I’m not asking if you did it, I’m just saying do you understand that’s what they’re saying?” (JP transcript, 2/32-35). The Accused responded “Okay”, at which point the Justice of the Peace verified that the Accused had been advised of her right to speak to a lawyer (2-3/ 37-1).

The Accused was released on bail and a court date was set for October 23, 2014. [ 5 ] On October 23, 2014, the Crown indicated in court that it was proceeding by indictment. An agent for Mr. Wachowich applied for him to be removed as counsel of record. The Accused was not present, but appeared later that day.

She indicated she was speaking with Shannon Prithipaul, senior counsel specializing in criminal law, and was seeking an application to obtain an amicus to make a Rowbotham application regarding the criminal matters, as Legal Aid had appointed a lawyer on only the charge under the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 [ CYFEA ]. She waived reading of the charges and election. The matter was put over to November 6, 2014. [ 6 ] On November 6, 2014, the Accused appeared. The Court ordered that an amicus be provided to the Accused for the purposes of bringing a Rowbotham application. Ms.

Prithipaul wrote a letter indicating that she should not be on the file as it required someone who was also familiar with family law (PC transcripts, 9-10/27-3). The Court indicated that the lawyer appointed by Legal Aid should be familiar with both family law and criminal law. [ 7 ] On November 20, 2014, Ms.

Bubel appeared as counsel for the Accused, the Accused verified that she had received disclosure, and the Court set the matter over to December 18, 2014 for election and plea, pending a review of disclosure (PC transcripts, 14/35-36; 15/7-19, 33-36). [ 8 ] The Accused was again present on December 18, 2014 (PC transcripts, 19/22; 20/19). At this appearance, an agent for defence counsel appeared and indicated that her instructions were to enter pleas of not guilty on all charges (19/23-24). The Court confirmed the not guilty pleas, and then addressed election (19/28).

The court clerk clarified that the matters were indictable, and the Court asked the agent “is it Provincial Court judge?”(20/34-36). The agent replied, “we wish to proceed in QB with judge only” (20/17, 34-36). As there was also an Information containing one

summary offence under the CYFEA , the election was adjourned for the six- count Information and the plea on the CYFEA Information until January 22, 2015 (20-21/36-33). [ 9 ] The Accused was again present on January 22, 2015 (PC transcripts, 24/23). Ms. Bubel addressed the Court on her client’s behalf, pled not guilty in relation to the CYFEA charge, and elected a judge alone trial in the Court of Queen’s Bench on the six-count Information (24/23-41). [ 10 ] On February 6, 2015, the Crown's Office received a filed copy of the Form "A" (Tab 2 of Crown’s First Brief).

The Form "A" clearly identified the criminal charges that Ms. Watson was facing and detailed a list of evidence that the defence was requesting that the Crown present at the preliminary inquiry. [ 11 ] On February 12, 2015, Ms. Baretta appeared as agent for Ms. Bubel and set the preliminary inquiry for July 10, 2015 (PC transcripts, 30/20; 31/21). [ 12 ] The Accused was present for the preliminary inquiry held on July 10, 2015 (Preliminary Inquiry transcript, 7/1-4; 56-57/40- 10). The Court began by confirming with counsel that the election was for a judge alone trial (1/15-18). During direct examination, Cst.

Flis indicated that she had recommended that the Accused be charged with “three counts from forcible confinement, failing to provide the necessities of life, and assault, and then that was for [B]. And then again three counts for the same charges in relation to [T]” (12/6- 8). At the end of the preliminary inquiry, the Accused was ordered to be tried in the Court of Queen’s Bench by a judge alone (57/8-9). [ 13 ] On August 28, 2015, counsel confirmed before the Court of Queen’s Bench that the indictment was filed. The matter was set over until September 18, 2015, to

schedule an O’Connor application. Ms. Bubel once again appeared as counsel for the Accused. [ 14 ] On September 18, 2015, Ms. Bubel confirmed that the O’Connor application was set for November 17, 2015, and trial was set for October 3 to 7, 2016. The court clerk then indicated that a designation had not been filed. At that point in the transcript, both an “unidentified speaker” and an “unidentified Crown” asserted that it had been filed. The court clerk then indicated that there was nothing on the endorsement indicating that a designation had been filed, at which point Ms.

Bubel indicated that she would take care of it (QB transcripts, 6-7/24- 4). [ 15 ] The next appearance was the O’Connor application on November 17, 2015. Ms. C. Lawrence appeared as agent for Ms. Bubel as counsel for the Accused for this application (QB transcripts, 10/28-29). While the Accused was not present for the application, Ms. Lawrence expressly confirmed on the record that there was now a designation and that she was appearing by way of designation

(12-13/31-5). During the application, Ms. Lawrence reminded the Court of exactly what the charges were (14/19-21): Your Ladyship will recall that the charges are failure to provide the necessities of life, unlawful confinement and assault, and the children, themselves, are the subjects of the, of the charges. [ 16 ] Ms.

Lawrence argued that specific pieces of evidence were needed given the specific charges facing the Accused (15/30-40, 16-17/40-3, 17/26-31, 18-19/41-4): If the charge is that mom failed to provide the necessities of life, and then there professionals that were quickly involved upon apprehension, we would like to know what those people had to say about the state of the children upon apprehension.... and that’s very important with respect to the nature and the elements of the offence for the charge of failing to provide the necessities of life. ….

We are looking at the charge of failure to provide the necessities of life... Presumably, if the director was concerned, he would have contacted a doctor or had the child see a pediatrician. They would have done something. We would like to see what that would have said. ….

If there was any explanation, any further investigations done to the home, if anybody went and investigated the issue with the lock, which again leads to the unlawful confinement charge, if anybody did any investigations with relations to the bathroom, the bedrooms, the basement, the condition of the home, all of this information is very relevant to Ms. [W] being able to make full answer and defence to both the failure to provide the necessities of life and the unlawful confinement charge. ….

Again, the value is, is absolutely necessary in this case especially given the charges that Ms. [W] has been charged with and the, the, the disclosure that, that is audio recorded from the children as to what constituted the unlawful confinement and the failure to provide the necessities of life as well as the assault. [ 17 ] The Court ultimately ordered disclosure of many of the documents sought by the Accused (28/3-36). [ 18 ] On September 6, 2016, Ms. Bubel was allowed to withdraw from the record and Ms. Lawrence immediately filed her own designation of counsel (QB transcripts, 32-33/29-16).

The Court clarified with Ms. Lawrence that the five-day trial starting October 3, 2016, was still required, and Ms. Lawrence confirmed this, indicating: “this is really no different except for the fact that I’ve changed firms” (33/32-33). [ 19 ] The trial began on October 3, 2016. The Accused was not arraigned at the start of the trial. [ 20 ] The following exchange took place after the close of the Crown’s case (Trial Transcript, October 3, 2016, 25/33 -41, 26/2-36): THE COURT: Thank you. Do you require a brief adjournment? MS. LAWRENCE: I do, My Lady.

The issue is that the caseworker would be the Defence’s wit -- first witness. I haven’t spoken with her yet, she initially was subpoenaed by the Crown. I understand the Crown is not calling her. I would like to call her. I would like to speak with her and just explain to her why I’m calling her. I did get her voice -- I mean, her cell phone number from my friend before when we had the lunch break. THE COURT: Okay. MS. LAWRENCE: So my intention would be to call her tomorrow. I believe my friend had told her to be ready for Wednesday, but given the pace of the trial she is available for tomorrow morning.

THE COURT: All right. MS. LAWRENCE: So I would like to just resume tomorrow morning. THE COURT: Okay. And do you anticipate how many witnesses you might be calling? MS. LAWRENCE: Two. THE COURT: Two? And the other would be? MS. LAWRENCE: My client. THE COURT: Okay. And so you are going to call your client second? MS. LAWRENCE: Yes. Yes. My -- my examination-in-chief with the caseworker will be brief. It’s just -- I don’t think the Child Welfare file is on trial here. The -- it will be for some information with respect to -- to that and -- and then my client, so she would take up the bulk of tomorrow.

My client would, not Mr. Smith. THE COURT: Okay. We will I will -- I -- I accept the way you are proceeding, but of course you would understand the risks in that. MS. LAWRENCE: Yes. THE COURT: Yes. Okay, good. All right, well, we will adjourn then until tomorrow morning at 10:00. Thank you, counsel.

Argument Defence [21] Defence counsel argues that a mistrial should be ordered based on two grounds: 1. the Court failed to comply with the statutory procedural requirement as set out in s. 536(2) of the Code as nothing occurred whichapproached substantial compliance with that provision; and 2. the Court erred in making comments to defence counsel at the close of the Crown's case, which influenced the Accused's decision notto call evidence and present her defence. [22] On the first ground, defence counsel argues that the Provincial Court did not read the information and put the Accused to herelection using the words as prescribed in s. 536(2) of the Code, which resulted in a loss of jurisdiction to conduct the preliminaryinquiry. [23] Counsel further submits that at no time in any of the appearances in Provincial Court or Court of Queen's Bench did counselwaive reading of the charges.

Merely proceeding with the trial does not constitute waiver of the Accused’s procedural rights. The Courtfailed to read the charges to the Accused as required by law. It was necessary for the Accused to expressly confirm with the Court thatshe appreciated the nature of the charges and to expressly plead not guilty. Counsel submitted that in Fort Saskatchewan or in Edmonton,it is accepted practice that procedural requirements are not waived unless this is expressly stated by counsel. [24] Furthermore, defence counsel notes that the Accused was represented by four different counsel throughout the proceedings: Mr.

Wachowich, Ms. Prithipaul, Ms. Bubel and Ms. Lawrence. Counsel suggests that Ms. Bubel's knowledge and practice of criminallaw may have been at issue, based on a comment at Provincial Court that she does mainly family work, not criminal. Defence counselalso submits that the Accused may not have understood the charges, given the similarities and distinctions between the initial CYFEAcharges and the Code charges in this case. As well, some appearances were in Fort Saskatchewan, and others were in Edmonton. [25] Counsel submits that the failure to properly arraign the Accused was not a harmless procedural error.

Non-compliance in thespecific circumstances was harmful and prejudicial to the Accused as she was faced with complicated procedural matters. [26] On the second ground, the Accused argues that comments made at trial by the Court to defence counsel after the close of theCrown's case significantly affected and influenced the defence's decision not to call evidence. Defence counsel submits that, but for thecomments by the Court, the Accused would have advanced her defence, called Ms. Smith as a witness, and taken the stand.

Counsel citesR v Lahouri, 2013 ONSC 2085 at para 8 for the principle that a judge should refrain from usurping the role of counsel and interferingwith the conduct of the defence. [27] Defence counsel argues that the Court’s comments, together with the failure to comply with the statutory proceduralrequirement as set out in s. 536(2) of the Code, cumulatively caused prejudice to the Accused. Crown [28] The Crown argues that the failure to read the charges on the record in the Court of Queen's Bench should not result in amistrial.

On the Provincial Court information, the Accused was read the charges and expressly pled "not guilty" to the charges. TheAccused was committed to trial on these same charges before the Court of Queen's Bench and the ensuing conduct of the Accused,represented by able counsel in the Court of Queen's Bench proceedings, amounted to a waiver of the requirement for the reading of thecharges.

Further, the overall conduct of the Accused and her counsel amounts to an implied waiver of the arraignment requirement. [29] Crown submits that there is no evidentiary basis upon which to establish that the Accused suffered any prejudice broughtabout by the omission of the arraignment in the Court of Queen's Bench, and it would be cured by s. 686(1)(b)(iv) of the Code on appeal.Consequently, a mistrial should not be declared, the conviction should stand, and the matter should proceed to sentencing. [30] On the second ground, the Crown argues that the Court’s comments do not amount to interference with the defence, orstepping into the shoes of defence counsel.

Law [31] Section 536(2) of the Criminal Code provides in part: 536(2) If an accused is before a justice charged with an indictable offence ... the justice shall, after the information has been read to theaccused, put the accused to an election in the following words ... [32] An arraignment is considered complete when: 1) the name of the accused is called, 2) the charges are read to the accused, and3) the accused has been asked to plead: Morin v The Queen, (1890) 1890 CanLII 38 (SCC), 18 SCR 407 at 411, 1890 CarswellQue 17;EG Ewaschuk, Criminal Pleadings and Practice in Canada,

Part V,

Chapter 14 – Arraignment and Plea. [33] In Korponay v AG Can, (SCC), [1982] 1 SCR 41, [1982] SCJ No 111, the accused appealed on the groundthat the trial court had not put the accused’s re-election to him in the wording required by the Code. The Supreme Court noted at para 16

that an accused may waive a procedural requirement enacted for his or her benefit upon it being clear and unequivocal that the accused iswaiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effectthe waiver will have on those rights in the process. Three factors are always relevant: 1) whether the accused is represented by counsel,2) counsel’s experience, and 3) the practice that has developed in the jurisdiction where the events are taking place.

The proceduralrequirements were found to have been waived in that case because the record established that all parties agreed on the election despitethe fact that the formal procedure had not been followed. [34] In R v N, (SCC), [1992] 3 SCR 471, [1992] SCJ No 102, the accused was not arraigned at trial. The appealCourt declared the trial a nullity and ordered a re-trial. The accused was not arraigned at the re-trial, and on appeal from the re-trial, theappeal Court ordered a stay.

On further appeal, the Supreme Court found that the failure to properly arraign the accused was a proceduralirregularity that was covered by s. 686(1)(b)(iv), and restored the guilty verdict entered by the trial judge. [35] In R v Mitchell (1997), (ON CA), 36 OR (3d) 643, [1997] OJ No 5148 (CA), the accused appealed hisconviction on five hybrid offences on the basis that the entire proceeding was a nullity as the Code provisions regarding arraignment,election and plea were not followed. The accused had been told the charges in

summary form at the first appearance, there wascompetent counsel throughout, Crown had made full disclosure, and there were numerous appearances and therefore chances for counselfor the accused to seek clarification prior to election and trial. [36] The Court held that it has been authoritatively established that the failure to arraign an accused is a procedural irregularitywhich can be cured by s. 686(1)(b)(iv) in appropriate circumstances.

The Court observed that the purpose of arraignment is to ensure thatan accused is aware of the exact charges when he or she elects and pleads, and to ensure that all parties have a common understanding ofthe charges which are the subject matter of the proceedings.

The Court concluded on the facts of the case that there was no reason tothink that the proceedings would have gone any differently had the charges been read to the accused. [37] The Court noted that Crown had stated that the accused was entitled to have the charges read to him prior to election, butindicated that the Crown was prepared to waive that requirement. Defence counsel did not respond directly to potential waiver butimmediately elected trial by a Provincial Court judge.

The Court concluded that counsel had full authority to elect on behalf of his client,and he did so knowing both the nature of the procedural rights he was waiving and the effect of his election on this client’s rights. TheCourt noted that further events, in particular the conduct of counsel in later proceedings, reinforced the Court’s conclusion that theprocedural requirements for election had been waived. [38] The final issue addressed in Mitchell was the failure to take a plea to the charges.

The Court found that it was clear throughoutthe proceedings that the appellant intended to plead not guilty and to contest the charges. As a result, the failure to permit the appellantthe opportunity to say the words “not guilty” in response to the charges was of no consequence in the trial that followed.

As there was noprejudice to the accused, the Court applied s. 686(1)(b)(iv) to correct the procedural irregularity. [39] The Ontario Court of Appeal cited Mitchell with approval in R v Rattray, 2008 ONCA, 74, [2008] OJ No 359. [40] The Court in R v Vuong, 2010 ONCA 798, [2010] OJ No 5051, held that an accused may implicitly waive proceduralrequirements and that waiver can be inferred from the conduct of counsel, noting that the modern approach emphasizes substance overform. [41] In R v Lamoureux, 2013 ABCA 85, [2013] AJ No 166, the accused argued that the lower court did not have jurisdiction overhim because the election wording in s. 536(2) was never formally put to him.

Citing Mitchell and Korpenay with approval, the Courtheld that an accused need not be present to make the election if there is a filed designation of counsel or if the proper documentation issubmitted in accordance with s. 536.2 of the Code. The accused had competent designated counsel, and the issue of election had beenaddressed in court on at least four separate occasions. The Court found that the conduct of the appellant through his counselunequivocally communicated the intention to proceed in Provincial Court, and therefore formal compliance with s. 536(2) had beenwaived.

The Court added that if the procedural requirements had not been waived, it would have applied s. 686(1)(b)(iv) as the trial courthad jurisdiction over the class of offence, the error was procedural, and there was no prejudice to the accused who was represented bycompetent counsel. [42] In R v Wunderlich, 2014 ABCA 94, 572 AR 174, the Court found that the formal requirements of s. 536(2) had beenunequivocally waived because the accused was represented by experienced counsel who filed a designation, counsel had instructed theagent when an agent acted for counsel, not guilty pleas had been entered and thus the accused’s rights were not prejudiced, and theaccused through counsel proceeded with the trial including Charter applications. [43] The Alberta Court of Queen’s Bench, relying on Mitchell, has concluded that an accused may, alone or through counsel,either expressly or impliedly waive arraignment and proceed to trial: R v Panousis, 2002 ABQB 1120, 329 AR 58; R v MacDonald,2001 ABQB 796, 300 AR 31. [44] It is well established that defence has the absolute right to choose the order in which defence witnesses will be presented, butwhile an accused’s testimony is not to be prejudged where the accused testifies after other defence witnesses, this may in somecircumstances be a factor in weighing the accused’s credibility: R v Smuk, (1971) (BC CA), 3 CCC (2d) 457(BCCA), R v Angelantoni, (ON CA), [1975] OJ No 884. [45] Generally speaking, a mistrial will not be granted in the absence of prejudice to the accused: R v Burke, 2002 SCC 55, [2002]2 SCR 857.

Analysis [46] Based on the foregoing case law, I conclude that the purpose of arraignment is to ensure that the accused is aware of the exact

charges he or she faces, and to ensure that all parties have a common understanding of the charges. Failure to arraign the accused or to comply with s. 536(2) does not automatically render a trial a nullity. Arraignment and procedural requirements under s. 536(2) can be explicitly or impliedly waived by the words or conduct of the accused or counsel.

Relevant factors include the presence, experience and conduct of counsel, the types of applications brought by the accused and/or counsel, the standard practice in a particular region, and actions which come close to fulfilling procedural requirements but do not technically fulfil them. [ 47 ] There is no dispute that the formal requirements for arraignment and election as described in s. 536(2) were not met in this case. While the Accused was read the charges on the Information by the Justice of the Peace on September 23, 2014, she was explicitly told not to plead at that time.

Consequently, there was no arraignment culminating in a plea. In addition, while the Accused did elect through counsel on January 22, 2015, the election was not put to her in the words of s. 536(2) as required by the Code . [ 48 ] However, I find that there was a clear and unequivocal waiver of all the procedural requirements in s. 536(2) , including both election and arraignment, based on the conduct of counsel. [ 49 ] It is clear that counsel waived strict compliance with the requirement of reading the election in the wording of s. 536(2) .

According to the transcripts, defence counsel confirmed multiple times that the trial was to be before a judge alone in the Court of Queen’s Bench.

Counsel’s clear election in response to the Provincial Court’s inquiries and counsel’s subsequent conduct in carrying out the trial demonstrate clear and unequivocal waiver of the requirement for the election to be put to the accused in the language of s. 536(2) . [ 50 ] Further, counsel’s clear conduct in terms of entering a plea through an agent with the Accused present, combined with counsel’s actions both prior to and after the plea demonstrate clear and unequivocal waiver of the arraignment. The Accused was made aware of the charges early on in the process.

The Accused and counsel for the accused did not ever express confusion about what the charges were on the six-count Information and then on the Indictment. While there was a minor deviation in the wording used, the charges read to the Accused by the Justice of the Peace were substantively identical to the charges on the Indictment. [ 51 ] Counsel scheduled a hearing for plea and election. Counsel then pled not guilty to the charges on behalf of the Accused - who was present - through an agent. At the next appearance, counsel formally elected a trial by judge alone in the Court of Queen’s Bench.

Defence counsel continued to advance the case and consistently advocated that the Accused was not guilty of all charges in accordance with the plea. [ 52 ] Defence counsel submitted that the fact that four different counsel appeared on behalf of the Accused over the course of the proceeding makes this case distinguishable from Mitchell . [ 53 ] The record supports a finding that the Accused had competent counsel who were clearly aware of what was transpiring throughout and, therefore, they knew the case they had to meet. On November 6, 2014, in response to a letter written by Ms.

Shannon Prithipaul, the Court indicated that the lawyer appointed by Legal Aid should be familiar with both family law and criminal law. Ms. Bubel subsequently became Counsel of Record for the Accused.

There is no evidentiary basis upon which to conclude that any of the Accused’s counsel were not competent while acting for her. [ 54 ] While it may be argued that trial counsel may not have been aware of the details of all prior proceedings, in my observation, there was nothing in trial counsel’s representation of the Accused that would suggest any misunderstanding by trial counsel as to the nature and particulars of the charges. [ 55 ] A review of the record leaves no doubt that the procedural failure to properly arraign the Accused caused no prejudice or miscarriage of justice.

It is clear that the Accused and counsel were fully aware of the charges. The conduct of counsel throughout demonstrated an understanding of the charges. All parties proceeded as if they knew exactly what the charges were. Counsel addressed the Crown’s case at trial, and there was no suggestion that she was caught by surprise. There is no reason to think the proceedings would have gone any differently if the requirements for arraignment had been strictly fulfilled. [ 56 ] I find that a mistrial is not warranted on this ground in the circumstances.

To find otherwise would be to allow form to triumph over substance. [ 57 ] Regarding the second ground, the Court queried whether defence counsel was calling the Accused second and whether defence counsel understood the risks in that manner of proceeding. Having reviewed the comments and context, I find that there is no basis at all for concluding that the Court was somehow usurping the role of counsel, interfering with the conduct of the defence or creating any prejudice to the conduct of the defence or to the Accused at all.

In fact, the Court prefaced its query with the comment that it accepted the way defence counsel was proceeding. There was no suggestion by the Court that defence did not have the absolute right to determine the ordering of its witnesses. Conclusion [ 58 ] I conclude that the requirements for arraignment and the procedural requirements under s. 536(2) were unequivocally waived by the Accused through the conduct of counsel. [ 59 ] The Court did not interfere with the conduct of the defence.

No prejudice arose as a result of the Court’s comments after the close of Crown’s case. [ 60 ] The Accused has suffered no prejudice and there is no risk of a miscarriage of justice, either as a result of the procedural non- compliance, or as a result of the Court’s comments.

[ 61 ] The grounds, whether considered independently or cumulatively, do not support a mistrial. [ 62 ] The application is dismissed. Heard on October 6, 7 and November 28, 2016. Dated at the City of Edmonton, Alberta this 5th day of December, 2016. J.H. Goss J.C.Q.B.A. Appearances: Jeffery D. Martin Crown Prosecutor for the Crown Crystal A. Lawrence Lawrence & Tkachuk for the Accused