2011 NBCA 5, 2011 NBCA 5

COURT OF APPEAL OF NEW BRUNSWICK 130-09-CA CHRISTOPHER GREGORY TRITES APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT CHRISTOPHER GREGORY TRITES APPELANT - et – SA MAJESTÉ LA REINE INTIMÉE Trites v. R., 2011 NBCA 5 Trites c.

R., 2011 NBCA 5 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge en chef Drapeau L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Provincial Court: June 23, 2009 (conviction) Appel d’une décision de la Cour provinciale : Le 23 juin 2009 (déclaration de culpabilité) History of the Case: Historique de la cause : Decision under appeal: (2009), 2009 NBPC 24 , 348 N.B.R. (2d)373 Décision frappée d’appel : (2009), 2009 NBPC 24 , 348 R.N.-B. (2e)373 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 18, 2010 and June 29, 2010 Appel entendu : Les 18 mai et 29 juin 2010 Judgment rendered January 20, 2011 Jugement rendu : Le 20 janvier 2011

Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge en chef Drapeau L’honorable juge Bell Counsel at the hearing: For the appellant: Margaret Gallagher For the respondent: David Schermbrucker Avocats à l’audience : Pour l’appelant : Margaret Gallagher Pour l’intimée : David Schermbrucker THE COURT The appeal is allowed and the conviction is quashed.

The matter is returned to the Provincial Court where the appellant is entitled to make an election as to mode of trial in accordance with s. 536 of the Criminal Code . LA COUR Accueille l’appel, annule la condamnation et renvoie l’affaire à la Cour provinciale, où l’appelant sera autorisé à faire le choix du mode de procès conformément à l’ art. 536 du Code criminel . The judgment of the Court was delivered by RICHARD J.A. I.

Introduction [ 1 ] On June 23, 2009, on the second day of trial, Christopher Gregory Trites pled guilty in the Provincial Court to a charge of having conspired to traffic in a controlled substance ( s. 465(1) (

c) of the Criminal Code ). He was subsequently sentenced to imprisonment. He now appeals his conviction on the sole ground that the Provincial Court did not have jurisdiction to undertake his trial

or to entertain his plea because he had not elected to be tried in that court. He had also alleged he was the victim of a miscarriage of justice because of the incompetence of his trial counsel (not counsel on appeal), but this allegation was abandoned at the outset of the hearing. [ 2 ] For the reasons that follow, I would allow the appeal, quash the conviction and order the matter returned to the Provincial Court for an election in accordance with the provisions of s. 536 of the Criminal Code .

In my view, there was no compliance or even substantial compliance with the mandatory provisions of s. 536(2), and therefore no election to the jurisdiction of the Provincial Court. I acknowledge that an accused can waive the benefit of s. 536(2), but there was no waiver in the present case. In addition, this is not a procedural irregularity of the type contemplated in s. 686(1)( b )(iv) of the Code , which would allow us to dismiss the appeal on the grounds the appellant suffered no prejudice. In the circumstances of this case, it cannot be said Mr.

Trites suffered no prejudice when he was deprived of his constitutional right to a jury trial. II. Procedural Background [ 3 ] Only the procedural history leading to Mr. Trites’ conviction is relevant to this appeal. It reveals that two counts in an Information laid against Mr. Trites and a co-accused alleged they had conspired to traffic in controlled substances, being cocaine and cannabis (marihuana), offences requiring the accused to elect the mode of trial because they are not within the absolute jurisdiction of the Provincial Court. After his arrest, Mr. Trites was released on an undertaking with conditions.

Between the date of his first appearance in court and March 20, 2008, the matter was adjourned several times, ostensibly because Mr. Trites and his co-accused were not ready to elect their mode of trial until their counsel reviewed all the evidence the prosecution had disclosed. Mr. Trites had retained Ronald Morris, Q.C. and, at some point, he signed a “Designation of Counsel”, which, according to s. 650.01 of the Criminal Code , permitted Mr. Morris to appear in court on behalf of Mr. Trites in his absence. The Designation of Counsel reads as follows: I, Christopher Trites, hereby designate Ronald E.

Morris, Q.C. of 725 Brunswick Street, Fredericton, N.B. as counsel on matters before the Provincial Court in Fredericton, New Brunswick, pursuant to

Section 650.01(1) of the Criminal Code of Canada and amendments thereto. Dated at Fredericton, New Brunswick, this 6th day of November, 2007. [ 4 ] When the matter was called in the Provincial Court on March 20, 2008, neither Mr. Trites nor Mr. Morris was present. In their absence, Mr. Howard Peters advised the judge he was appearing as agent for Mr. Morris, pointed out that a Designation of Counsel had been filed, and said he was authorized to elect the mode of trial. He elected trial in the Provincial Court and entered a plea of not guilty on behalf of Mr. Trites.

Trial dates were scheduled for November 2008. [ 5 ] The trial did not proceed as scheduled because the defence raised certain evidentiary issues. It was ultimately re-scheduled to begin on June 1, 2009, with a voir dire into those issues. On that date, Mr. Morris advised the court Mr. Trites was abandoning the evidentiary issues he had earlier raised, so the matter was set over to June 22, 2009. [ 6 ] Before any witnesses were called on June 22, 2009, Mr. Morris made the following submission to the trial judge: MR.

MORRIS: Your Honour, I have one preliminary – which I was not aware of until 10 minutes – 5 minutes ago, and I just thought I might clear it up with the Court. Mr. Trites came to me about 5 minutes ago and advised that – or asked me a question whether I thought he might be better in front of a jury than in front of a judge. Now, obviously these matters were discussed at – prior to the election. Mr.

Price (sic) advises me that he thought that this was originally going to be in front of a jury, or that he would like to have it in front of a jury, and I advised him that, you know, there’s rules and regulations here that you have to follow in order to do that and, you know, I mean obviously we’re here, this day is set for trial having elected Provincial Court Judge some time ago. So I’m at a – I’m kind of at a loss about what to do about this, but I – I have to mention it to the Court, because if Mr.

Trites has a problem with this I certainly don’t want it reflecting on any advice that I might have given him or if I confused him I’d also like that to be straightened out. So that’s the problem that I’ve got right now. I realize – and I mentioned to Mr. Trites that I mean usually prior to trial if you – you could re-elect 14 days prior without the consent of the Crown, but I mean the day of trial it’s, you know, it is what it is, so –

THE COURT: All right; are you making a motion to re-elect, Mr. Morris? MR. MORRIS: Well, Your Honour, I guess – I guess what I – I would do, it’s my understanding that my client would like to make that motion to re-elect and I would be certainly prepared to make it, but I wanted you to understand the circumstances under which it was made, so – THE COURT: And the motion is to re-elect judge and jury? MR. MORRIS: That’s correct. [ 7 ] After some discussion on the question of whether or not the trial had actually started on June 1, 2009, the judge asked Mr. Morris if he had any other motions to make. Mr.

Morris replied in the negative and the judge then ruled on his motion to re-elect: MR. MORRIS: No, I have none, Your Honour, although I’m concerned about my client if he doesn’t understand what’s happening here. THE COURT: Well, that’s a matter between you and your client. The law is clear. The circumstances are such that you have – you do not have a right to re-elect another mode of trial when the Crown – in the circumstances when it’s within 14 days of the trial start without the Crown’s consent. The Crown has not consented. [ 8 ] The prosecution called several witnesses to testify on June 22, 2009.

When trial resumed the following day, Mr. Morris advised the judge Mr. Trites was prepared to withdraw his plea of not guilty to the count alleging he had conspired to traffic in cannabis (marihuana). After some discussion, the prosecutor moved to withdraw the other count, which alleged a conspiracy to traffic in cocaine. At this point, the judge addressed Mr. Trites personally and made the necessary inquiries so as to comply with s. 606(1.1) of the Criminal Code before accepting the proffered guilty plea. [ 9 ] At the sentencing hearing, Mr.

Trites’ counsel and the prosecutor presented a joint recommendation for a sentence of 30 months in jail. When Mr. Trites was asked if he had anything to say, he informed the court, among other things, that he took issue with the amount of drugs involved in the conspiracy. This caused the judge to inquire further. After an initial exchange, Mr. Trites consulted with his lawyer. Upon resumption of the sentencing hearing, the judge made additional inquiries to ensure Mr.

Trites’ plea was voluntarily made, that he understood it was an admission of the essential elements of the offence, and that he also understood the nature and consequences of his plea. Mr. Trites confirmed the answers he had given to the judge’s initial s. 606(1.1) inquiry, indicated he was no longer contesting the facts the prosecutor had put forth, and said he understood the judge was not bound by any agreement reached between him and the prosecutor. [ 10 ] Ultimately, the trial judge agreed with the joint recommendation and sentenced Mr.

Trites to imprisonment for a term of 30 months and subjected him to other corollary orders. The sentence is not under appeal. III. Issues on Appeal [ 11 ] Mr. Trites appeals his conviction. The grounds of appeal set out in the notice of appeal, which he framed without legal assistance, essentially allege incompetence on the part of his lawyer. Among other things, it is alleged Mr. Trites was told he was not entitled to a trial by judge and jury, was coerced into pleading guilty and was instructed to answer “yes” to whatever the judge asked him. When the appeal first came for hearing, Mr. Trites was unrepresented.

On its own initiative, the Court raised the question whether Mr. Trites had ever actually elected the jurisdiction of the Provincial Court. After some discussion, the Court afforded the parties the opportunity to prepare written submissions on the issue. When the appeal hearing resumed, about a month later,

Mr. Trites was represented by new counsel, who sought and received leave to amend the notice of appeal to reflect the issue the Court had raised. At that point, Mr. Trites abandoned the grounds of appeal that alleged incompetence of his trial counsel. As a result, the following questions remained to be addressed at the appeal hearing: 1) Was there an election on March 20, 2008, to be tried in the Provincial Court? 2) If not, did Mr.

Trites waive the requirements for an election? 3) If there was no election or waiver, is this a procedural irregularity with respect to which s. 686(1) ( b )(iv) of the Criminal Code can be applied? [ 12 ] For the reasons set out below, I answer no to all three questions. IV. Analysis A. The election to the Provincial Court [ 13 ] Historically, in indictable matters, an accused had to attend in person for all court appearances. Where the accused failed to appear, the court would either issue an arrest warrant or lose jurisdiction over the person.

Also, historically, the accused had to personally elect his mode of trial after being put to an election in the very words prescribed by s. 536(2) of the Criminal Code . These requirements were amended in 2002 ( 2002, c. 13 ), when Parliament allowed for an accused in indictable matters to appear by means of designated counsel, and to elect mode of trial by submitting a document in writing in lieu of appearing in person.

The relevant provisions read as follows: Elections and re-elections in writing 536.2 An election or a re-election by an accused in respect of a mode of trial may be made by submission of a document in writing without the personal appearance of the accused. Designation of counsel of record 650.01

(1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court. Contents of designation

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel. Effect of designation Choix ou nouveau choix 536.2 Le choix ou le nouveau choix fait par le prévenu quant au mode de procès peut être effectué par écrit sans que celui-ci ait à comparaître. Désignation d’un avocat 650.01

(1) L’accusé peut désigner un avocat pour le représenter dans le cadre des procédures visées par la présente loi, auquel cas il dépose un document à cet effet auprès du tribunal. Contenu du document

(2) Le document de désignation doit comporter les nom et adresse de l’avocat et être signé par celui-ci et l’accusé.

(3) If a designation is filed, (

a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than (

i) a part during which oral evidence of a witness is taken, (ii) a part during which jurors are being selected, and (iii) an application for a writ of habeas corpus; (

b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and (

c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise. When court orders presence of accused

(4) If the court orders the accused to be present otherwise than by appearance by the designated counsel, the court may (

a) issue a summons to compel the presence of the accused and order that it be served by leaving a copy at the address contained in the designation; or (

b) issue a warrant to compel the presence of the accused. Effet de la désignation

(3) En cas de dépôt d’un document de désignation :

a) l’accusé peut comparaître par l’intermédiaire de son avocat dans le cadre de toute

partie d’une procédure, à l’exception de celle touchant à la présentation de la preuve testimoniale, à la sélection des membres du jury ou à une demande de bref d’habeas corpus;

b) la comparution par l’avocat vaut comparution par l’accusé, sauf décision contraire du tribunal;

c) un plaidoyer de culpabilité ne peut être fait — et une sentence ne peut être prononcée — en l’absence de l’accusé que si le tribunal l’ordonne. Ordonnance du tribunal

(4) S’il ordonne à l’accusé d’être présent, le tribunal peut, selon le cas :

a) décerner une sommation pour l’obliger à comparaître en personne devant lui et en ordonner la signification à l’adresse mentionnée dans le document de désignation;

b) décerner un mandat d’arrestation pour l’obliger à comparaître en personne devant lui. [ 14 ] Bearing these provisions in mind, here are the questions we must address to determine if there was a valid election to the jurisdiction of the Provincial Court: 1) Does s. 650.01 allow counsel to elect the mode of trial for an accused without either the presence of the accused or the submission of a document in writing? and;

2) If so, need counsel be the counsel named in the designation of counsel that has been filed with the Court? [15] I would answer the first question in the negative, which makes it technically unnecessary for me to answer thesecond. That said, I would nevertheless opine that, pursuant to s. 650.01, it is only the counsel named in the designation who isauthorized to appear on behalf of the accused. The effect of these answers is that the choice of the Provincial Court in the present matter,on March 20, 2008, was not a valid election.

This case, therefore, stands to be determined on the basis of the second and third issues:whether Mr. Trites waived the requirements for a valid election or whether the invalid election constitutes a procedural irregularity inrespect of which s. 686(1)(b)(iv) can be applied. [16] The reason I would answer the first question in the negative is relatively simple. It is an accepted principle ofstatutory

interpretation that sections of an enactment are meant to harmonize with one another. This principle was referenced in Willickv. Willick, (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J. No. 94 (QL) where Sopinka J. explained that in using thecontextual approach to statutory

interpretation, “the objective is to interpret statutory provisions to harmonize the components oflegislation inasmuch as is possible, in order to minimize internal inconsistency: Côté, [Pierre-André Côté, The

Interpretation ofLegislation in Canada (2d ed. 1991)], at p. 257, and R. v. Tapaquon, (SCC), [1993] 4 S.C.R. 535” (para. 24). In myview, there is only one way to harmonize the provisions of s. 650.01 and s. 536.2. It is this: when it comes to an election, an accusedneed not appear personally in court if he or she has filed a Designation of Counsel with the Court and submitted an election-makingdocument in writing. Any other

interpretation of these provisions would be disharmonious for the reasons set out below. [17] It is common ground that the intent of the 2002 amendments to the Criminal Code was accurately described bythe then Minister of Justice and Attorney General of Canada, the Hon.

Anne McLellan, when she appeared before the House ofCommons Standing Committee on Justice and Human Rights on October 2, 2001: The objectives of phase three [including the amendments in question] are to simplify trial procedure, to modernize the criminal justicesystem and enhance its efficiency through the increased use of technology, to better protect victims and witnesses in criminal trials, and toprovide speedy trials in accordance with Charter requirements. We are trying to bring criminal procedure into the 21st century... [18]

Section 12 of the

Interpretation Act, R.S.C. 1985, c. I-21, provides that: “[e]very enactment is deemedremedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects.” What was sought to be remedied with the enactment of s. 650.01 was simply that, in indictable proceedings, the accused would notalways be required to appear in person, but could appear by designated counsel, except in the circumstances listed in s. 650.01(3)(a). Inthe case of s. 536.2, what Parliament sought to remedy was the fact that election of the mode of trial would no longer always have to bemade by an accused in person after the judge had put the election in the words prescribed in s. 536(2).

Henceforth, it could be made inthe absence of the accused by the submission of a document in writing. In my view, the best way to reconcile both of these provisions isto hold that, under s. 650.01, designated counsel may elect for the accused, in his or her absence, by submitting a document expressingthe choice. [19] The election of one’s mode of trial is a critical part of a criminal proceeding. The right to a trial by judge andjury is enshrined in the Canadian Charter of Rights and Freedoms for cases where the maximum punishment for the offence isimprisonment for five years or more (s. 11(f)).

The importance of that right is reflected in the Criminal Code, which provides that if anaccused does not elect the mode of trial when put to the election, he or she is deemed to have elected to be tried by a court composed of ajudge and jury (ss. 536(4) and (4.1) and s. 565(1)(b)). It is therefore quite understandable that Parliament wanted to ensure that, beforean accused waives his or her right to a jury trial, he or she either appears personally before the court or files a document evidencing thewaiver.

It is only when the election is done by the latter means that the accused need not appear personally, provided he or she hasdesignated counsel, pursuant to s. 650.01, to appear on his or her behalf. [20]

Section 536 is designed to ensure the court will obtain a clear and unambiguous choice of the accused’s modeof trial. This is why, when the accused is present, the judge must put the election in specified terms: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or youmay elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not electnow, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge without ajury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury,you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried? [s. 536(2)]

[21] When there has been compliance with s. 536(2) and an accused elects a mode of trial, there can be noambiguity as to the choice. Similarly, when a document is submitted setting out the election, there is no ambiguity as to the choice. It isevident an accused can only proceed under s. 536.2 if represented by counsel. Otherwise, the accused would have to be present in court. Thus, one can safely infer that an accused who will be filing a written document evidencing his or her choice pursuant to s. 536.2 willhave received appropriate advice on the available modes of trial.

When there has either been personal appearance and compliance with s.536(2), or the submission of a written document after receipt of legal advice, there is no ambiguity as to the true choice of the accusedregarding the mode of trial. As this case illustrates, an election made by designated counsel, or by counsel acting on behalf of thedesignated counsel, gives no such comfort. It leaves room for dispute whether or not the accused actually made the choice counselcommunicated to the court. Sections 650.01 and s. 536.2 were carefully crafted to avoid such a situation. [22] This is why, in my view, the only

interpretation that harmonizes these components of the 2002 amendments tothe Criminal Code and gives full effect to them is the one whereby designated counsel may indeed appear on behalf of an accused forthe election of the mode of trial, but the election will then only be valid if it is made by the submission of a document in writing incompliance with s. 536.2.

Section 650.01 deals with physical presence, not with making a choice or communicating a choice. When itcomes to the election, physical presence of the accused is not necessary, but this is so only when the choice is communicated by filing adocument personally signed by the accused. [23] For these reasons, I conclude there was no election to the jurisdiction of the Provincial Court on March 20,2008. There certainly was no compliance with the letter of either s. 536(2) or s. 536.2, and it cannot either be said there was evensubstantial compliance with one or the other of those provisions. [24] My conclusion, based on the

interpretation of ss. 536.2 and 650.01 detailed above, would normally make itunnecessary to address the second question of whether it is only the designated counsel who can appear for an accused pursuant tos. 650.01. In this case, however, it is necessary to explore the question because the result may have some impact on the issue of whetherMr. Trites waived the requirements of s. 536(2). [25] In my view, the language of s. 650.01 expresses unambiguously that designated counsel must be specificallyidentified.

An accused will no longer have to be present (except in those instances listed in s. 650.01(3) and when there will be anelection that is not to be made in accordance with s. 536.2) when the accused has appointed counsel to represent him or her by filing adesignation with the court stating the name and address of the counsel. Because this

section is a derogation from the long-establishedrule that an accused must be present at every stage of the criminal process, only where such a designation has been filed may thedesignated counsel appear without the presence of the accused. [26] There is nothing in s. 650.01 that would allow designated counsel to sub-delegate to another non-designatedlawyer the task of representing the accused. Such a sub-delegation runs the risk of multiplying the occasions for miscommunication andis clearly not what Parliament intended. This is not to say that an accused cannot designate more than one lawyer.

If, however, adesignated counsel is unable to appear to represent his or her client and has to use an agent, the accused must either file a designationwith the court specifically naming that agent as a designated counsel or must be present in court for the proceedings. In always knowingexactly who will represent him or her, the accused’s interests are safeguarded. [27] I acknowledge my

interpretation of s. 650.01 runs contrary to R. v. Golyanik, (ON SC),[2003] O.J. No. 346 (Ont. S.C.) (QL), where the accused had designated a particular lawyer, a law firm “and their respective agents andstudents”. Trafford J. gave a broad

interpretation to the word “counsel” holding as follows: Accordingly, the term "counsel" in s. 650.01 of the Code includes named law firms and named lawyers. It also includes articling studentsemployed by the law firm or named lawyer, if the named lawyer or another lawyer with the law firm specifically instructs them toappear before the court on an administrative remand, and, further, if the designation signed by the defendant permits such use of articlingstudents. If the client does not specifically permit such a use of articling students, they cannot be used as "counsel".

Articling studentsmay only be "counsel", insofar as the proceedings are indictable, on administrative remands. It also includes other lawyers who, fromtime-to-time, are specifically instructed by the named lawyer or another lawyer of the named law firm to appear for the defendant if thedesignation signed by the defendant includes, in general terms, permission to use to such lawyers. [para. 18]

[28] On a plain reading of its text, and with respect, I cannot give to s. 650.01 such a broad

interpretation. Nevertheless, even on the broad

interpretation given in Golyanik, the designation in the present case would not authorize Mr. Peters toappear as designated counsel, because the designation signed by Mr. Trites did not include, even in general terms, permission for Mr.Morris to use substitute counsel. B. Waiver of the requirements for a valid election [29] As stated above, I am of the view that Mr. Peters had no right to appear in court as designated counsel for Mr.Trites. Thus, I fail to see how it can be said that Mr. Peters could possibly have waived Mr.

Trites’ right to have the election of the modeof trial put to him in the words set out in s. 536(2). However, even if it could be said that the designation of Mr. Morris to appear on Mr.Trites’ behalf was broad enough to allow Mr. Peters to appear, I conclude there was no waiver of the requirements for a valid election. [30] In R. v. Sanve, Ebru (1973), 6 N.B.R. (2d) 199, [1973] N.B.J. No. 52 (C.A.) (QL), this Court addressed therepercussions of a judge’s failure to put an accused to the election contemplated by the Criminal Code.

Chief Justice Hughes explainedit as follows: Counsel for the Crown conceded that the election was not given to the accused as required by section 484(2) of the Code and that thisfailure on the part of the trial judge was fatal to the entire proceeding: See R. v. Leske, (AB CA), [1968] 1 C.C.C. 347(Alta. C.A.).

It is also well established that the fact that the accused was represented by experienced counsel well aware of his client'srights and who assented to the trial by "Provincial Court" does not amount to a waiver by the accused of her right to be informed of thestatutory alternatives given an accused where the offence is not one over which the magistrate has absolute jurisdiction: See R. v.Dauphinee (1935), (NS CA), 63 C.C.C. 90 (N.S.C.A.).

As the conviction must be quashed on this ground alone it isunnecessary to deal with the other grounds of appeal. [para. 5] [31] Two years later, this Court again emphasized that “[b]efore a Judge of the Provincial Court [...] acquiresjurisdiction to try an indictable offence which is not one over which he has absolute jurisdiction, he must comply with the requirementsof s. 484 [now s. 536] of the Code and put the accused to his election”: R. v. Hawryluk (1975), (NB CA), 12 N.B.R.(2d) 334, [1975] N.B.J. No. 181 (C.A.) (QL), at para. 5. The Court held that “[t]o satisfy the requirements of the

section there must be atleast a substantial compliance with its provisions” (para. 5), without which the Provincial Court judge is without jurisdiction to try thecase. Chief Justice Hughes opined further that “the giving of the election to the accused is a jurisdictional requirement which cannot bewaived by the accused” (para. 5).

In a dissenting opinion on the result, Limerick J.A. also held a Provincial Court judge “is obligated bylaw to give the full election in the words used in s. 484(2) [now s. 536(2)] of the Criminal Code and the reading of that full electioncannot be waived by the accused or his solicitor” (para. 25).

He concluded that “[t]he putting of the full election to the accused is acondition precedent to the jurisdiction of a Judge of the Provincial Court” (para. 25) and that failure to do so resulted in the ProvincialCourt lacking jurisdiction to try the case. [32] Since these statements were made, the Supreme Court of Canada has held that “[a] party may waive aprocedural requirement enacted for his benefit”: Korponay v. Canada (Attorney General), (SCC), [1982] 1 S.C.R. 41, atp. 49.

However, the validity of such a waiver “is dependent upon it being clear and unequivocal that the person is waiving theprocedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiverwill have on those rights in the process” (p. 49). [33] In light of the Supreme Court’s decision in Korponay, it can now be safely asserted that an accused can waivethe strict requirements of s. 536(2) of the Criminal Code, provided the waiver is clear and unequivocal, and made with full knowledge ofthe rights that are being waived and the effect the waiver will have on those rights.

I adopt the following statement by Doherty J.A. in R.v. Mitchell, (ON CA), [1997] O.J. No. 5148 (C.A.) (QL) with respect to the requirements of s. 536(2), the possibilityof waiving those requirements, and the non-applicability of s. 686(1)(b)(iv) where there has not been a valid election: If an accused has an election as to the mode of trial, that election should be put to the accused in the language of s. 536(2). Absentwaiver of the procedural requirements of that section, a failure to put the accused to his or her election, in terms which at leastsubstantially comply with the

section is a procedural error resulting in a loss of jurisdiction to conduct either a trial or a preliminaryinquiry: R. v. Wiseberg (1973), (ON CA), 15 C.C.C. (2d) 26 (Ont. C.A.); R. v. Lewis (1978), (ONCA), 43 C.C.C. (2d) 479 (Ont. C.A.); R. v. Kalkhorany (1994), (ON CA), 71 O.A.C. 39 at 41 (C.A.). The purportedelection on February 28th bore little resemblance to the procedure set out in the Criminal Code. This is a case of non-compliance with

the procedural requirements of s. 536(2). Section 686(1)(b)(iv) cannot assist the Crown. By its terms, the

section can reach only procedural errors committed by a court having"jurisdiction over the class of offence" for which the accused was convicted. A judge of the Provincial Division has no jurisdiction to tryan electable indictable offence unless an accused has made an effective election for trial in that court. As Griffiths J.A. said, in R. v.Pottinger (1990), (ON CA), 54 C.C.C. (3d) 246 at 252 (Ont. C.A.): The complete want of jurisdiction to conduct the trial is not the kind of procedural irregularity which ... should be cured by invoking s.686(1)(b)(iv). I turn next to the question of waiver.

Unless there was an effective waiver of the procedural requirements of s. 536(2), the trial was anullity and the appeal must succeed. Section 536(2) was enacted to assist an accused in making an informed decision as to the mode oftrial. An accused may personally, or through counsel, waive compliance with a procedure like s. 536(2) which has been enacted for theprotection of the accused: Korponey v. Attorney-General of Canada (1982), (SCC), 65 C.C.C. (2d) 65 at 73 (S.C.C.).

InKorponey, supra, at p. 74, a case involving waiver of procedural rights surrounding a re-election, Lamer J., for the unanimous court,described the elements of an effective waiver of a procedural right in these words: ... [T]he validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal thatthe person is waiving the procedural safeguard, and is doing so with full knowledge of the rights the procedure was enacted to protect,and of the effect the waiver will have on those rights in the process.

After indicating that the effectiveness of a waiver required a fact-specific inquiry, Lamer J. added, at p. 74: ...

However, always relevant will be the fact that the accused is or is not represented by counsel, counsel's experience, and in my view ofgreat importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are takingplace. [paras. 28-31 [34] It is noteworthy that in both Korponay and Mitchell, where the courts found counsel for the accused hadwaived the right to have the election put in the words of s. 536(2), each accused was present in the courtroom when the right was waivedon his behalf.

In both situations, nothing on the record suggested the accused had not been fully cognizant of the right to be given anelection in the words of s. 536(2) and of the effect of waiving that right. I also note that in Mitchell, the Ontario Court of Appealconsidered that events subsequent to the waiver could shed light on its validity. In that case, the Court found nothing in the subsequentevents indicating there had not been a clear and unequivocal waiver. [35] The situation is quite different in the present case. First, Mr.

Trites was not present in court on March 20, 2008,when an agent appearing on behalf of his lawyer represented to the judge that he was authorized to appear on behalf of Mr. Trites’counsel and stated “the election is Provincial Court.” Second, the record shows that on a subsequent appearance, Mr. Trites thought hewould stand trial in front of a jury. Based on these facts, one cannot conclude it is clear and unequivocal that Mr.

Trites was: (1) waivingthe procedural safeguard requiring an election be put to him in the words set out in s. 536(2); and, (2) doing so with full knowledge of theright the provision was enacted to protect and of the effect the waiver would have on his right to a trial by judge and jury. C. Application of s. 686(1)(b)(iv) [36] Section 686(1)(b)(iv) of the Criminal Code provides as follows:

(1) On the hearing of an appeal against aconviction or against a verdict that theappellant is unfit to stand trial or notcriminally responsible on account of mentaldisorder, the court of appeal [...] (

b) may dismiss the appeal where [...] (iv) notwithstanding any proceduralirregularity at trial, the trial court hadjurisdiction over the class of offence of whichthe appellant was convicted and the court ofappeal is of the opinion that the appellantsuffered no prejudice thereby; 686.

(1) Lors de l’audition d’un appel d’unedéclaration de culpabilité ou d’un verdictd’inaptitude à subir son procès ou de non-responsabilité criminelle pour cause detroubles mentaux, la cour d’appel : [...]

b) peut rejeter l’appel, dans l’un ou l’autredes cas suivants : [...] (iv) nonobstant une irrégularité de procédureau procès, le tribunal de première instanceétait compétent à l’égard de la catégoried’infractions dont fait

partie celle dontl’appelant a été déclaré coupable et elle estd’avis qu’aucun préjudice n’a été causé àcelui-ci par cette irrégularité; [37] As set out in paragraph 33 above, Mitchell stands for the proposition that s. 686(1)(b)(iv) cannot be appliedwhere the Provincial Court never acquired jurisdiction to try the matter because there had not been a valid election to the jurisdiction ofthat court. In R. v. Sewell, 2003 SKCA 52, [2003] S.J. No. 391 (QL), Bayda C.J.S. noted that, on this point, the British Columbia Courtof Appeal “appears to have arrived at the opposite conclusion” (para. 61) in R. v.

Skin, [1988] B.C.J. No. 364 (C.A.) (QL), adopting thewords of Macfarlane J.A. in R. v. Joinson, (BC CA), [1986] B.C.J. No. 1333 (C.A.) (QL). [38] Joinson involved an accused who was not present in court when judgment was rendered. It was argued thecourt had lost jurisdiction. It was not a case where the court had never acquired jurisdiction in the first place, such as was the situation inMitchell. In his ruling that s. 686(1)(b)(iv) applied in the circumstances of that case, Macfarlane J.A. also lists other proceduralprotections afforded by the Criminal Code.

This paragraph was later quoted by MacDonald J.A. in Skin to mean s. 686(1)(b)(iv) wouldalso apply to the failure to put an accused to his or her election. [39] In Skin, the preliminary issue the Court addressed was the jurisdiction of the trial court when there had notbeen any apparent re-election. In dismissing the point, MacDonald J.A. relied on the comment made in Joinson and determined that s.686(1)(b)(iv) applied.

In finding no prejudice, he noted the appellant had been in court on the day in question, when it was quiteapparent he was going to be tried by a judge alone, and that he had not then or later said he wanted a trial in any other mode. [40] In Sewell, however, Bayda C.J.S. reached the following conclusion: I find myself in agreement with the Ontario Court of Appeal on this question.

A Provincial Court judge cannot bestow uponhimself/herself jurisdiction to hear an electable indictable offence by, in effect, waiving the requirement contained in s. 536(2), or bysimply saying "let us consider it done." An appeal court acting under s. 686(1)(b)(iv) is empowered to correct a procedural error made bya trial judge, but it is not empowered to do something the trial judge could not do, as for example, bestow jurisdiction upon the trialjudge by, in effect, waiving the requirement contained in s. 536(2) or by saying "let us consider it done." An appeal court exercisesappellate jurisdiction and can do no more than a trial judge could have done unless a statute expressly or by implication providesotherwise.

An appeal court cannot create jurisdiction where there is not any. [para. 62]

[ 41 ] I agree with the Ontario Court of Appeal and the Saskatchewan Court of Appeal that s. 686(1) ( b )(iv) cannot apply in circumstances such as the present one, where there has not been a valid election to the jurisdiction of the Provincial Court. Moreover, even if the view of the British Columbia Court of Appeal were to prevail, which incidentally is also the one espoused by the Quebec Court of Appeal ( R. c. Primeau , [2000] J.Q. n o 683, (C.A.) (QL), at paras. 39-40 ), I do not believe it can be said Mr. Trites suffered no prejudice.

First, he was not present in court when the election was made on his behalf by an agent acting for his lawyer, and, second, at the outset of trial, he caused his lawyer to inform the judge “ that he [Mr. Trites] thought that this was originally going to be in front of a jury” and that he “would like to have it in front of a jury.” Evidently, there was some miscommunication somewhere that resulted in depriving Mr. Trites of his constitutional right to be tried before a court composed of a judge and jury. V. Disposition [ 42 ] For these reasons, I would allow the appeal, quash the conviction and order that Mr.

Trites be put to his election as to the mode of trial in accordance with s. 536(2) of the Criminal Code . ____________________________ J. C. MARC RICHARD, J.A. WE CONCUR: ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ___________________________________ B. RICHARD BELL, J.A.